The Case Against Indefinite Detention

An amicus brief was recently filed on behalf of a group of 20 former Immigration Judges and BIA Members (including myself) in the case of Rodriguez et. al. v. Robbins.  The case, which was remanded back to the Ninth Circuit by the U.S. Supreme Court in its February 2018 decision in Jennings et. al. v. Rodriguez, is the latest chapter in an ongoing conflict over the constitutionality of indefinite civil detention of noncitizens.


The concept of indefinite detention is at odds with our legal system’s well-known practice of meting out specific time frames for incarceration as part of the sentencing of convicted criminals.  Indefinite non-punitive civil detention is even stranger to American concepts of liberty. For this reason, the U.S. Court of Appeals for the Ninth Circuit rendered its decision in Rodriguez in 2015, requiring three classes of indefinitely detained noncitizens - those seeking entry to the U.S., those awaiting decisions on their removal from the U.S., and those convicted of certain classes of crimes but not subject to a final order of removal - to be afforded bond hearings every six months.  The court noted that its order did not require “Immigration Judges to release any single individual; rather, we are affirming a minimal procedural ensure that after a lengthy period of detention, the government continues to have a legitimate interest in the further deprivation of an individual’s liberty.”

At around the same time the Ninth Circuit decided Rodriguez, the Second Circuit took the same approach in Lora v. Shanahan, also requiring bond hearings every 6 months, and further holding that bail must be afforded unless ICE establishes “by clear and convincing evidence that the immigrant poses a risk of flight or a risk of danger to the community.”

The Supreme Court disagreed with Rodriguez, and remanded the matter back to the Ninth Circuit, where that court will consider the issue of whether the detainees have a constitutional right to a bond hearing.

Our amicus brief argues that not only is the right to a bond hearing every six months consistent with principles of due process, but that such policy also assists with the immigration court’s efficient administration of justice.  Given the huge backlog of some 715,000 cases in the nation’s immigration courts, the brief argues that prolonged detention has the effect of bogging down immigration court dockets by decreasing the detainees’ ability to obtain representation, impeding on the ability of represented detainees to communicate with their counsel, and creating obstacles for unrepresented respondents to present their cases.  Many ICE detention facilities are in remote locations, often 100 or more miles from the nearest legal services provider or from cities with sizable populations of immigration lawyers. As a result, a recent study found that only 14 percent of detained immigrants obtain representation. Such distances create obstacles to communication between the lucky few who are represented and their counsel. The great majority who are left to defend themselves are hindered by the detention centers’ inadequate legal resources, including a lack of foreign language materials.  As a result, cases take longer to complete, and the lack of legal briefs and supporting documentation places a greater burden on the already overworked immigration judges.

Our brief also argues that those facing the longest periods of detention are often those with the strongest cases for relief.  The brief further opines that immigration judges are well-equipped to make individualized bond determinations, and that those released on bond do not present a flight risk.

The full brief can be viewed here:

We offer our heartfelt appreciation to attorneys David Lesser, Jamie Stephens Dycus, Adriel I. Cepeda Derieux, and Jessica Tsang of the law firm of WilmerHale for their outstanding efforts in the drafting of the brief.

Copyright 2018 Jeffrey S. Chase.  All rights reserved.


Statement of Former Immigration Judges and BIA Members in Response to Matter of L-A-B-R-

Statement of Former Immigration Judges and BIA Members