SCOTUS to Weigh In on Long Immigration Holds

WASHINGTON (CN) — The Supreme Court agreed Monday to review an injunction that provides bond hearings for immigrants whom the U.S. government subjects to prolonged detention.

The American Civil Liberties Union of Southern California represents the original challengers. In 2010 they took aim at the indefinite detention noncitizens face while the United States after they've been picked up at the border or if they have criminal histories that could make them deportable.

Lead plaintiff Alejandro Rodriguez came to the United States as an infant and has been a legal permanent resident since - as have his parents, siblings and three young children. After a 2003 drug-possession conviction, however, Rodriguez was ordered removed and detained for more than three years.

The ACLU calls such detention - without review by a "neutral arbiter" — unconstitutional.

In 2013 the Ninth Circuit upheld an injunction that requires the government to identify all class members being detained under the challenged rules and to "provide each of them with a bond hearing before an immigration judge with power to grant their release."

The Ninth Circuit affirmed the injunction a second time last year, but excluded one proposed subclass.

The class at issue is defined as "all noncitizens within the Central District of California who: (1) are or were detained for longer than six months pursuant to one of the general immigration statutes pending completion of removal proceedings, including judicial review, (2) are not and have not been detained pursuant to a national security detention statute, and (3) have not been afforded a hearing to determine whether their detention is justified."

Reversing the injunction with respect to a subclass of noncitizens who are detained "pending completion of removal proceedings, including judicial review," the three-judge panel found that such a subclass "does not exist."

Last year's ruling said class members spend an average of 404 days in immigration detention and are "treated much like criminals serving time."

Aside from modifying the class, the panel said it affirmed the injunction "insofar as it requires automatic bond hearings and requires immigration judges to consider alternatives to detention because we presume, like the district court, that immigration judges are already doing so when determining whether to release a noncitizen on bond."

"Because the same constitutional concerns arise when detention approaches another prolonged period, we hold that immigration judges must provide bond hearings periodically at six-month intervals for class members detained for 12 months," U.S. Circuit Judge Kim Wardlaw wrote for the court in Pasadena.

She said that "while the government falsely equates the bond hearing requirement to mandated release from detention," precedent makes clear that there is a distinction "between detention being authorized and being necessary as to any particular person."

The panel also declined the class' suggestion to mandate additional procedural requirements, such as judges' consideration of likelihood of future removal, which "would require legal and political analyses beyond what would otherwise be considered at a bond hearing."

Wardlaw said that by upholding the injunction, the circuit is not ordering immigration judges to release any single individual.

"Rather we are affirming a minimal procedural safeguard - a hearing at which the government bears only an intermediate burden of proof in demonstrating danger to the community or risk of flight - to 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," she said.

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