Golnaz Fakhimi , American Civil Liberties Union of Pennsylvania

Immigration detention is a highly charged issue that is front and center on many people's minds. Some think of it as necessary for their vision of the United States. Others despair over the crushing toll that it takes on detainees, their families and communities across the country. Although public opinion about immigration detention is divided, the due process requirements of our Constitution are clear: immigration detention is lawful only if implemented through fair procedures and done for a legitimate purpose, namely, preventing danger to the community or preventing flight from immigration enforcement.

'Jennings v. Rodriguez'

Earlier this year, the U.S. Supreme Court weighed in about prolonged immigration detention in Jennings v. Rodriguez, 138 S. Ct. 830 (2018). In Jennings, noncitizens confined pursuant to various federal statutes governing pre-removal immigration detention argued that those laws require automatic hearings to determine the necessity of ongoing detention once detention becomes prolonged. The Supreme Court rejected those statutory arguments but remanded the case to the U.S. Court of Appeals for the Ninth Circuit to determine whether constitutional due process requires such hearings.

The ultimate resolution of that constitutional question has very high stakes for a huge number of people, their families and communities around the country: there are currently upwards of 733,365 contested removal proceedings pending in the United States, and on average a given case takes over a year and a half to conclude.

Understanding the Statutory Framework

Three detention statutes are at issue in Jennings: Sections 1226(c), 1225(b), and 1226(a) of title 8 of the U.S. Code. Although prolonged detention can occur under any of them, understanding their similarities and differences is important.

Section 1226(c) requires the detention of noncitizens who are fighting removal and have qualifying criminal convictions, and it permits release only under narrow circumstances relating to witness protection. Noncitizens confined under 1226(c) can request a hearing before an immigration judge to contest whether their detention properly falls under that statute. However, if the immigration judge finds that it does (and that finding is upheld on appeal), then pre-removal detention is mandatory, and the immigration judge may not conduct an individualized hearing about its necessity. For many people, this means languishing in mandatory immigration detention on the basis of a minor criminal offense for which they were never incarcerated and despite having lived peaceably and productively in the community for years.

A prime example is Sayed Omargharib, a long-time lawful permanent resident of the United States and successful hairdresser who was confined in mandatory immigration detention based on a larceny conviction for taking two pool cues following a dispute with an opponent in a local pool league. Although he served no jail time for that conviction, it resulted in mandatory immigration detention for nearly two years before an immigration court ultimately terminated the removal proceedings against him. In that period his family relationships suffered, he lost customers, and he emerged from detention into temporary homelessness.

Section 1225(b) requires the initial detention of various noncitizens apprehended at our borders, including lawful permanent residents with qualifying criminal convictions attempting to return after travel abroad, as well as asylum seekers who present themselves at ports of entry. Section 1225(b) permits immigration-enforcement agents to release these individuals, including on a bond or non-monetary conditions. In practice, however, immigration-enforcement agents all too often do not apply or even recognize their discretion to release these individuals, many of whom have fled here to seek humanitarian protection under our laws.

Ainsly Damus is a typical example. He is an ethics teacher who came to the United States fleeing violent political persecution in his native Haiti. Our immigration courts granted him asylum not once but twice. Nevertheless, the government has refused to consider him for discretionary release from immigration detention and instead has been appealing the grants of asylum.

Like 1226(c) detainees, those held under 1225(b) are unable to request an individualized hearing before an immigration judge about the necessity of their detention. However, Jennings leaves open three questions that apply to individuals held under either statute: whether constitutional due process requires such hearings automatically once detention becomes prolonged; whether the government ought to bear the burden of proof at such hearings; and whether that burden ought to be proof by clear and convincing evidence.

Section 1226(a) grants immigration-enforcement agents the discretion to detain or release  many noncitizens pending contested removal proceedings, including the option of releasing them on a bond or non-monetary conditions. Unlike detainees held under 1226(c) or 1225(b), those held under 1226(a) can request an individualized custody hearing before an immigration judge, at which they bear the burden of proving that their detention is unnecessary.  Even when the immigration judge sets a bond, however, many 1226(a) detainees linger in detention because they cannot afford the bond amount.

Cesar Matias typifies this problem. He came to the United States fleeing violent persecution in his native Honduras on account of his sexual orientation and languished in immigration detention for over 4 years because of an inability to post a $3,000 bond. For detainees like Matias, Jennings leaves open the questions of whether constitutional due process automatically requires an additional custody hearing once 1226(a) detention becomes prolonged and whether it requires shifting the burden to the government to prove the necessity of prolonged detention by clear and convincing evidence.

The Effect of Third Circuit Precedents

Precedents from the U.S. Court of Appeals for the Third Circuit answer some of the biggest questions that Jennings has left open, or at least illuminate what those answers should be. In Diop v. ICE/Homeland Security, 656 F.3d 221, 232-33 (3d Cir. 2011), the Third Circuit held that prolonged, categorical detention under Section 1226(c) violates due process rights under the constitution and requires an individualized hearing at which the government bears the burden of justifying the necessity of ongoing detention: “the constitutionality of [mandatory detention] is a function of the length of the detention. At a certain point, continued detention becomes unreasonable and the Executive Branch's implementation of Section 1226(c) becomes unconstitutional unless the government has justified its actions at a hearing inquiring into whether continued detention is consistent with the law's purposes of preventing flight and dangers to the community … In short, when detention becomes unreasonable, the due process clause demands a hearing, at which the government bears the burden of proving that continued detention is necessary to fulfill the purposes of the detention statute,” see also Chavez-Alvarez v. Warden, York County Prison, 783 F.3d 469, 474-75 (3d Cir. 2015) (holding that “due process requires us to recognize that, at a certain point—which may differ case by case—the burden to an alien's liberty outweighs a mere presumption that the alien will flee or is dangerous.”

In Diop the Third Circuit also reached a statutory holding, construing Section 1226(c) to authorize mandatory detention only for a “reasonable” period. Although Jennings abrogated that statutory holding, see 138 S.Ct. at 846-47, Diop's constitutional holding remains good law.  The faithful application of Diop by the district courts in the Third Circuit is more important than ever, given the increasing number of petitions for writs of habeas corpus filed pro se by 1226(c) detainees across the circuit.

It also bears emphasis that the constitutional remedy under Diop for prolonged 1226(c) detention ought to apply with equal force to prolonged detention under sections 1225(b) or 1226(a). In all three contexts, prolonged detention violates noncitizens' rights to due process under the constitution and warrants the fair remedy of an individualized hearing before a neutral arbiter in which the government bears the burden of justifying ongoing detention by clear and convincing evidence. See, e.g., Shire v. Decker, No. 1:17-cv-01984, 2018 WL 509740, at *3-4 (M.D. Pa. Jan. 23, 2018) (hearing ordered to remedy due process violation caused by prolonged detention under 8 U.S.C. Section 1225(b) of asylum-seeker charged as arriving alien); Swarray v. Lowe, No. 1:17-cv-0970, 2017 WL 3585868, at *7-10 (M.D. Pa. June 27,2017) (report and recommendation), 2017 WL 3581710, at *1-2 (M.D. Pa. Aug. 18, 2017) (order adopting report and recommendation) (hearing ordered to remedy due process violation caused by prolonged detention under 8 U.S.C. Section 1225(b) of lawful permanent resident charged as arriving alien); Nguti v. Sessions, 259 F. Supp. 3d 6, 8 (W.D.N.Y. 2017) (“due process concerns raised by indefinite detention require that 8 U.S.C. Section 1226(a) detainees” subjected to prolonged detention receive custody hearings in which government bears burden of justifying ongoing detention based on clear and convincing evidence).

Vital Role of the Judiciary in Checking Executive Power

In myriad ways, the executive branch is claiming and asserting unprecedented power in connection with immigration enforcement. That is true both at the border and within the interior. In Pennsylvania in particular, immigration enforcement has been occurring in especially alarming and aggressive ways. More than ever, we need our federal courts to hold executive officials to account for violations of noncitizens' constitutional rights. One way that courts within the Third Circuit can do so is by applying Diop and related precedents to remedy the due process violations caused by prolonged immigration detention.

Golnaz Fakhimi is an immigrants' rights attorney with the American Civil Liberties Union of Pennsylvania and can be reached via email at [email protected].