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The heavy hand of unchecked power has gone too far. The indefinite detention of people whom immigration officials have yet to decide whether to admit or deport from the country is out of control. I see policies that affront the constitutional rights of due process and equal protection of the law. While reading this post, keep in mind that noncitizens are people. It’s a fact.

In Ninth Circuit Court of Appeals case Rodriguez v. Hayes, the court held that detained people have a statutory right to periodic bond hearings under the law. This sounds fair enough. The court found that immigration detainees who have been held for more than six months without a bond hearing while adjudicating the decisions for their removal are entitled to have a bond (bail) hearing.

The district court determination was justified and clear; to find otherwise would violate the Due Process Clause of the Fifth Amendment.[1]

The district court interpreted immigration detention laws to mean that a person must be given a bond hearing every six months and that detention beyond the initial six-month period is permitted only if the government proves by clear and convincing evidence that further detention is justified. In other words, the court sets limitations on the terms and conditions of detention pending the outcome of the deportation hearings.

Then Along Comes Jennings v. Rodriguez

The US attorney general’s office appealed the district court’s order of Rodriguez v. Hayes. On February 27, 2018, the United States Supreme Court majority, in a five-to-three decision,[2] deftly danced around the following constitutional questions:

  • Is the indefinite detention of noncitizens without a bond hearing constitutional?
  • Is indefinite detention beyond six months, as authorized by an immigration statute, constitutional?

What appear to be simplistic questions could not be resolved by the Supreme Court justices.

In deciding Jennings, the majority relied on the legal premise that “even once inside the United States, aliens do not have an absolute right to remain here.” While this is consistent with current law,[3] it’s a bad law with pernicious legal overtones.

In the 1980s,when I practiced immigration law in Orange County, California, no such law existed. Back then undocumented people who arrived in the United States, no matter how or under what circumstances, were not presumed guilty. Rather, they were afforded all the state, federal, and constitutional rights of people with legal status. That earlier legal environment resulted in due process deportation hearings, evidenced-based cases that were determined by a federal judge. The system was rather rapid, and most importantly, the policy of incarcerating people before their having been adjudicated guilty of violating immigration law did not exist. Many deportation court hearings were won because the government prosecutors were unprepared for or unable to prove their cases. Most of the winners were people seeking asylum from their home countries, where their lives were in danger.

The Supreme Court ordered Jennings v. Rodriguez back to the district court, instructing it to address, among other things, a pithy constitutional question of whether indefinite detention of noncitizens without a bond hearing or beyond six months, as provided by immigration law, is constitutional.

Justice Breyer, with Justice Ginsburg and Justice Sotomayor, dissented, making these sober and sane points:

  • Ultimately many members of these groups [noncitizens] win their claims and the Government allows them to enter or to remain in the United States.
  • Detention is often lengthy. The classes before us consist of people who were detained for at least six months and on average one year. The record shows that the Government detained some asylum seekers for 831 days (nearly 2½ years), 512 days, 456 days, 421 days, 354 days, 319 days, 318 days, and 274 days—before they won their cases and received asylum.
  • The Eighth Amendment reinforces the view that the Fifth Amendment’s Due Process Clause does apply. The Eighth Amendment forbids “[e]xcessive bail.” It does so in order to prevent bail being set so high that the level itself (rather than the reasons that might properly forbid release on bail) prevents provisional release. . . . Thus, it is not surprising that this Court has held that both the Fifth Amendment’s Due Process Clause and the Eighth Amendment’s Excessive Bail Clause apply in cases challenging bail procedures.

And here’s the key point Justice Breyer makes about people seeking to enter this country. He hits upon the bootstrap law that creates the legal fiction that these people are not people for the purpose of receiving due process of our laws without first being warehoused in federal prisons and possibly winning their cases. It’s upside-down thinking, and it stinks of the politics behind the legislative process inherent in drafting immigration legislation. In Justice Breyer’s words

  • It is clear that the Fifth Amendment’s protections extend to “all persons within the territory of the United States.” . . . But the Government suggests that those protections do not apply to asylum seekers or other arriving aliens because the law treats arriving aliens as if they had never entered the United States; hence they are not held within its territory.
  • How can the Constitution authorize the Government to imprison arbitrarily those who, whatever we might pretend, are in reality right here in the United States? The answer is that the Constitution does not authorize arbitrary detention.

I agree with Justice Breyer’s thinking. But, this is not the end of noncitizen peoples’ descent into federal immigration law hell.



You’ll find background information in my previous posts. In The Resurrection of Private Prisons I wrote this:

In August 2016, the Obama administration announced its plan to phase out for-profit federal prisons. According to an August 18, 2016, memo written by Deputy Attorney General Sally Yates (who was later fired by President Trump for her refusal to support his Muslim travel ban), “They [private prisons] simply do not provide the same level of correctional services, programs, and resources; they do not save substantially on costs; and as noted in a recent report by the Department’s Office of Inspector General, they do not maintain the same level of safety and security.”

Yates’s memo concludes with this directive:

For all these reasons, I am eager to enlist your [the acting director of the Federal Bureau of Prisons’] help in beginning the process of reducing—and ultimately ending—our use of privately operated prisons. As you know, all of the Bureau’s existing contracts with private prison companies are term-limited and subject to renewal or termination. I am directing that, as each contract reaches the end of its term, the Bureau should either decline to renew that contract or substantially reduce its scope in a manner consistent with law and the overall decline of the Bureau’s inmate population.

In Held Captive for Profit, I discuss the greed-driven workings of state and federal for-profit prisons. Examples of horrible abuse, including fatal medical neglect and sexual abuse, to juveniles, adults, minorities, and immigration detainees held in so-called private (for profit) prisons have been documented by the Huffington Post.

A major beneficiary of increased immigration detention is the private prison industry, which holds 65 percent of detained immigrants. In a February 2017 report in Mother Jones entitled The Private Prison Industry Is Licking Its Chops Over Trump’s Deportation Plans, Madison Pauly raises an important point that in some major executive orders on immigration, the push for more arrests and deportation “were a very public reminder of President Donald Trump’s promise to deport upwards of 2 million immigrants upon taking office.”


How This Policy Affects Families

Nomaan Merchant reports in a March 4, 2018, Chicago Tribune article “ACLU Sues over Separation of Mother, 7-Year-Old Daughter Seeking Asylum” that the ACLU has filed a recent lawsuit charging the US government of “unlawfully separating a Congolese woman and her 7-year-old daughter by holding them in different immigration facilities—the mother in San Diego, the daughter in Chicago—after they sought asylum.”

The article continues: “The woman passed the initial screening to determine if she had a ‘credible fear’ of returning to the Democratic Republic of the Congo, the lawsuit said.” Merchant also reports that “the child was taken away ‘screaming and crying, pleading with guards not to take her away from her mother,’ according to a lawsuit filed in federal court in San Diego.”

What law has the government broken? According to the article

the U.S. government is bound to release immigrant children from custody if possible and otherwise hold children in the “least restrictive setting” available, according to the 1997 Flores settlement, which ended a long-running lawsuit over the treatment of immigrant children, and later court rulings. The Trump administration has called for ending the Flores settlement as part of its demands for changes to immigration laws.

Reading the full article will shed light on this unconscionable situation. Our government has become heartless in its effort to deter people from entering this country. Is separating asylum seekers from their children a legal option for our country in an effort to deter immigration? No, it’s immoral. When it’s determined that denying sanctuary is a legal remedy to force people to return to their countries of origin with the likelihood of suffering human rights violations—like death—is this country doing any better in terms of basic humanitarian rights?

What do you think?

  • Do you sense the federal government’s push to denigrate human beings?
  • If so, how does this rattle your belief system about the government’s protection of people?
  • Is your belief system about what feels right, constitutionally, offended by legal fictions designed to hurt people?
  • Can you imagine being locked up in prison without knowing when your case would be heard and having no opportunity for bond?
  • Is the separation of families a proper policy in a country with indefinite immigration detention?

Your thoughts, observations, and comments are always welcome.

Image courtesy of 123rf


[1] The Fifth Amendment contains an open-ended guarantee, echoing the preamble of the Declaration of Independence that “no person shall . . . be deprived of life, liberty, or property, without due process of law.” (emphasis added)

[2] Roberts, Kennedy, Thomas, Alito, and Gorsuch were for the majority; Ginsburg, Breyer, and Sotomayor were for the minority. Kagan recused herself from the case.

[3] 8 U.S.C. §§1227(a)(1)(A): “Any alien who at the time of entry or adjustment of status was within one or more of the classes of aliens inadmissible by the law existing at such time is deportable.”

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