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  • Article: Breaking News: Supreme Court to Review Immigrant Detention Case. By Kevin R. Johnson

    Breaking News: Supreme Court to Review Immigrant Detention Case

    by


    June 20, 2016

    The Supreme Court did not decide United States v. Texas today.  It did grant certiorari in Jennings v,. RodriguezDownload Jennings.  The issues in that case are 

    (1) Whether aliens seeking admission to the United States who are subject to mandatory detention under 8 U.S.C. § 1225(b) must be afforded bond hearings, with the possibility of release into the United States, if detention lasts six months;

    (2) whether criminal or terrorist aliens who are subject to mandatory detention under Section 1226(c) must be afforded bond hearings, with the possibility of release, if detention lasts six months; and

    (3) whether, in bond hearings for aliens detained for six months under Sections 1225(b), 1226(c), or 1226(a), the alien is entitled to release unless the government demonstrates by clear and convincing evidence that the alien is a flight risk or a danger to the community, whether the length of the alien’s detention must be weighed in favor of release, and whether new bond hearings must be afforded automatically every six months.

    The Ninth Circuit, in an opinion by Judge Wardlaw, affirmed in part and reversed in part the district court’s order granting summary judgment and a permanent injunction in a class action lawsuit by non-citizens within the Central District of California challenging their prolonged detentions under civil immigration detention statutes 8 U.S.C. §§ 1225(b), 1226(a), 1226(c), and 1231(a) without individualized bond hearings or determinations to justify continued detention.  The panel affirmed the district court’s permanent injunction insofar as it required automatic bond hearings and required Immigration Judges to consider alternatives to detention. The panel also held that IJs must consider the length of detention and provide bond hearings every six months for class members detained longer than twelve months, but rejected the class’s request for additional procedural requirements.

    The panel held that subclass members subject to prolonged detention under mandatory detention statutes §§ 1225(b) and 1226(c) are entitled to bond hearings, and that subclass members subject to discretionary detention under § 1226(a) are entitled to automatic bond hearings after six months of detention. In an issue this court had not previously addressed, the panel held that the government must provide periodic bond hearings every six months.  

    The Solicitor General in seeking review argued that

    "The court of appeals’ ruling also solidifies an acknowledged split of authority among the circuit courts of appeals. See Lora v. Shanahan, 804 F.3d 601, 614 (2d Cir. 2015) (describing the split and collecting citations). The Second Circuit has recently chosen to "follow the Ninth Circuit" and adopted the "bright-line approach," requiring bond hearings by the six-month mark for aliens detained under Section 1226(c). Lora, 804 F.3d at 615-616.6 By contrast, the Third and Sixth Circuits, while taking the position that detention without a bond hearing under Section 1226(c) is limited to a "reasonable" time, have squarely rejected the rigid six-month rule and instead assess reasonableness based on a case-specific balancing inquiry. See Ly, 351 F.3d at 271-273 (rejecting a ‘‘bright-line time limitation"); Diop v. ICE/Homeland Sec., 656 F.3d 221, 233 (3d Cir. 2011) ("We decline to establish a universal point at which detention will always be considered unreasonable."); see also Leslie v. Attorney Gen. of U.S., 678 F.3d 265, 269 (3d Cir. 2012) (discussing "[t]he fact-dependent inquiry"); Chavez-Alvarez, 783 F.3d at 474 ("By its very nature, the use of a balancing framework makes any determination on reasonableness highly fact-specific.")."

    As reported by Jess Bravin of the Wall Street Journal, the ACLU has accused the Solicitor General of underreporting of lengthy detentions of immigrants in the briefing in Demore v. Kim (2003), which upheld detention of a "criminal alien" awaiting removal.

    This post originally appeared on Law Professor Blogs © 2014-2016 by Law Professor Blogs, LLC. All rights reserved. Reprinted with permission.


    About The Author

    Kevin Johnson Kevin Johnson is Dean, Mabie-Apallas Professor of Public Interest Law, and Professor of Chicana/o Studies. He joined the UC Davis law faculty in 1989 and was named Associate Dean for Academic Affairs in 1998. Johnson became Dean in 2008. He has taught a wide array of classes, including immigration law, civil procedure, complex litigation, Latinos and Latinas and the law, and Critical Race Theory. In 1993, he was the recipient of the law school's Distinguished Teaching Award.Dean Johnson has published extensively on immigration law and civil rights. Published in 1999, his book How Did You Get to Be Mexican? A White/Brown Man's Search for Identity was nominated for the 2000 Robert F. Kennedy Book Award. Dean Johnson’s latest book, Immigration Law and the US-Mexico Border (2011), received the Latino Literacy Now’s International Latino Book Awards – Best Reference Book. Dean Johnson blogs at ImmigrationProf, and is a regular contributor on immigration on SCOTUSblog. A regular participant in national and international conferences, Dean Johnson has also held leadership positions in the Association of American Law Schools and is the recipient of an array of honors and awards. He is quoted regularly by the New York Times, Los Angeles Times, and other national and international news outlets.


    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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