Government Security News July 2016 Digital Edition

Immigration and Border Security
Supreme Court to hear arguments in class action suit brought
by ACLU, Stanford Law School challenging prolonged detection
by DHS of noncitizens, with no right to bond hearing
Last month, the Supreme Court announced
that, in fall 2016, it will hear
arguments in Jennings v. Rodriguez,
a challenge to the prolonged detention
of noncitizens in removal proceedings.
At issue is whether the
government can keep a noncitizen
who is fighting her deportation case
locked up for however long the notoriously
lengthy proceedings last,
or whether she must receive a bond
hearing after she has been detained
for six months, where an immigration
judge will decide, on an individualized
basis, whether continued
detention is necessary.
The case, a class action brought
by the ACLU and the Stanford Law
School Immigrants’ Rights Clinic
on behalf of noncitizens in the
Central District of California, challenged
the Department of Homeland
Security’s practice of holding
immigrants in prolonged civil detention
without the opportunity for
a bond hearing during their removal
proceedings. Immigration detention
is non-punitive – which means
that the immigrants involved in the
case are locked up not as a punishment
for any crime for which they
have been convicted, but rather as a
preventative measure while courts
consider their deportation cases.
Yet members of the Rodriguez class
have been locked up for months or
years without the opportunity to
argue that their detention was not
justified. Class members were detained,
on average, thirteen months.
Those class members who vigorously
argued that they are entitled to
remain in the United States stayed
locked up for far longer than those
who conceded that they could be
deported, creating an incentive for
immigrants to give up meritorious
claims for relief from deportation.
Last year,
the Ninth Circuit
Court of
Appeals decided
the case
in favor of the
plaintiffs. The
Court held
that the government
must
provide class
members with
26
bond hearings
in front of
immigration
judges after six
months of detention–and,
if they remain detained,
that class members must have additional
bond hearings every six
months. At those hearings, government
attorneys must establish by
clear and convincing evidence that
the particular individual involved
is a flight risk or a danger to the
community in order to justify denial
of bond. The decision does not
require the government to release
any noncitizen held in prolonged
More on page 44
James R. Browning Court of Appeals
Photo: Jeff Kubina