By: Kaylette Clark
As of December 2021, there are over 1.5 million cases pending in immigration court; meaning noncitizens’ will be waiting several months, if not years before having a bond hearing.[1] The Supreme Court is revisiting noncitizens’ rights to bond hearings for immigration cases in the pending case Garland v. Gonzalez.[2] In Gonzalez, Esteban Aleman Gonzalez, a native of Mexico, represents a certified class of noncitizens subject to removal and detained under 8 U.S.C. § 1231(a)(6).[3] The class members have been detained for six months or more and have been denied individualized bond hearings.[4]
The Supreme Court accepted certiorari after the Ninth Circuit affirmed a preliminary injunction enjoining the Government from detaining class members “pursuant to § 1231(a)(6) for more than 180 days without providing each a bond hearing.”[5] The District Court for the Northern District of California granted class certification for 8 U.S.C § 1231(a)(6) detainees, granted a preliminary injunction, and enjoined the Government from detaining class members “pursuant to § 1231(a)(6) for more than 180 days without a providing each a bond hearing”.[6] The Ninth Circuit affirmed the preliminary injunction and the government requested certiorari.[7] The Supreme Court heard oral arguments for the case on January 11, 2022.[8] The legal issues the Court is examining in Gonzalez are whether 1) noncitizen detainees are entitled to bond hearings after six months of detention under 8 U.S.C. § 1231 and 2) whether a class-wide injunctive relief shall be granted under 8 U.S.C. § 1252(f)(1).[9]
8 U.S.C. § 1231(a)(6) prescribes that “An alien ordered removed who is inadmissible . . . or who has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal, may be detained beyond the removal period and, if released, shall be subject to the terms of supervision. . . ”.[10] Petitioner, the Attorney General, argues that 8 U.S.C. § 1231(a)(6) does not require bond hearings or a six-month detention limitation and asserts that the Third and Ninth Circuits altered the statutory text in their interpretations.[11] The basis of Petitioner’s argument is Jennings v. Rodriguez, where the Supreme Court rejected the Ninth Circuit’s determination that detainees were entitled to periodic bond hearings under the cannon of constitutional avoidance.[12] The Petitioners argue that the Ninth and Third Circuits are erroneously using the cannon of constitutional avoidance to read in a requirement that detainees have a right to a bond hearing after six months of detention and the government has the burden of proof to show that detention beyond six months is necessary.[13] Petitioner fails to acknowledge that the difference between the statutory provisions in Rodriguez and § 1231(a)(6) is that the Supreme Court found no ambiguity in the provisions in Rodriguez which provide for detention for a specified time and circumstances in which release would be authorized before that specified time.[14]On the contrary, § 1231(a)(6) was found to be ambiguous because it did not state a specified time for detention and thus warranted the cannon of constitutional avoidance.[15]
Respondents agree with the Ninth Circuit’s construction of § 1231(a)(6) because it prevents a due process violation.[16]Respondents argue that the government should have the burden of proof before subjecting a noncitizen to prolonged detention without bond.[17] Respondents argue that prolonged detention is a constitutional concern where the statute does not provide a specified limit to detention.[18] In light of the ambiguity regarding the permissible length of detention, the Ninth Circuit appropriately used the cannon of constitutional avoidance.[19]
The prolonged detention period caused by the backlog of immigration cases in the United States raises Fifth Amendment due process concerns because noncitizens are being deprived of their liberty for an extended period of time while waiting for their bond hearing before a neutral decision maker or denied a bond hearing completely.[20] When a noncitizen is ordered removed, the Attorney General must remove the noncitizen within 90 days, also known as the removal period.[21] The Attorney General may detain a noncitizen beyond the removal period if the noncitizen is determined to be “a risk to the community or unlikely to comply with the order of removal”.[22] However, in Zadvydas v. Davis, the Supreme Court placed a limit on the detention period, holding that 8 U.S.C. § 1231(a)(6) does not give the Attorney General the authority to indefinitely detain a noncitizen ordered for removal.[23] Following Davis, the Circuit courts have defined “prolonged detention” as detention that lasts at least six months.[24] In order for the government to detain a noncitizen for more than six months without bond, the government must show that the noncitizen is a danger to the community or a flight risk.[25]
Noncitizens are given due process rights under the fifth amendment.[26] Prolonged detention deprives a noncitizen of their physical liberty.[27] There is no foreseeable end to prolonged detention without bond, consequently, the deprivation of liberty is at a greater risk. The governments’ purpose of prolonged detention under § 1231(a)(6) is to protect the community from dangerous noncitizens and ensure that the noncitizens are not flight risks.[28] Whether a noncitizen is a danger to the community or a flight risk cannot be determined in a manner that satisfies due process if the noncitizen is denied a bond hearing.[29] Thus, the Supreme Court in the current case should find that noncitizens are required to have a bond hearing within six months of detention in spirit with the construction of § 1231(a)(6) and in accordance with the noncitizen’s due process rights under the Fifth Amendment.
[1] Syracuse University, Immigration Court Backlog Tool (December 2021), https://trac.syr.edu/phptools/immigration/court_backlog/ (excluding criminal, national security, and terrorism cases which account for about 16,000 of pending cases).
[2] Gonzalez v. Barr , 955 F.3d 762, 790 (9th Cir. 2020) (discussing prolonged detention without bond).
[3] Id. at 764, 767.
[4] Id. at 764.
[5] Id. at 767-68.
[6] Gonzalez v. Sessions , 325 F.R.D. 616, 629 (N.D. Cal. 2018) (finding those subjected to prolonged detention entitled to a bond hearing to comply with due process).
[7] Gonzalez v. Barr , 955 F.3d 762, 790 (9th Cir. 2020) (holding that the Government is required to provide a bond hearing for detainees “under § 1231(a)(6) whose detention becomes prolonged and whose release or removal is not imminent”. The court also held that the preliminary injunction applies to the entire certified class detained under § 1231(a)(6)).
[8] https://www.supremecourt.gov/docket/docketfiles/html/public/20-322.html
[9] 8 U.S.C. § 1231(a)(6); 8 U.S.C. § 1252(f)(1); Garland v. Gonzalez, No. 20-322, at *I (U.S. Oct. 14, 2021), Brief of petitioners Merrick B. Garland, Attorney General, https://www.justice.gov/sites/default/files/briefs/2021/11/02/20-322tsunitedstates.pdf (stating the questions presented).
[10] 8 U.S.C. § 1231(a)(6).
[11] 8 U.S.C. § 1231(a)(6); Garland v. Gonzalez, No. 20-322, at *14 (U.S. Oct. 14, 2021), Brief of petitioners Merrick B. Garland, Attorney General, https://www.supremecourt.gov/DocketPDF/20/20-322/196427/20211014164654895_20-322tsUnitedStates.pdf (stating that the Ninth and Third Circuits’ reading of the statute is erroneous).
[12] Jennings v. Rodriguez, 138 S. Ct. 830, 836 (2018) (stating that the Ninth Circuit “adopted implausible constructions” and a court relying on the cannon of construction “must interpret the statute, not rewrite it”).
[13] Garland v. Gonzalez, No. 20-322, at *38-39 (U.S. Oct. 14, 2021), Brief of petitioners Merrick B. Garland, Attorney General, https://www.justice.gov/sites/default/files/briefs/2021/11/02/20-322tsunitedstates.pdf (reasoning that provisions in Rodriguez could not be read to require periodic bond hearings because nothing in the statutory text supported that requirement).
[14] Jennings v. Rodriguez, 138 S. Ct. 830, 844 (2018) (finding that §§1225(b)(1) and (b)(2) cannot reasonably be read to limit detention to six months because the provisions are not ambiguous).
[15] Id. at 843 (2018) (discussing the ambiguity in the “may be detained” as meaning discretion but not unlimited discretion, yet there is no explicit statutory language on the permissible length of detention).
[16] 8 U.S.C. § 1231(a)(6); Garland v. Gonzalez, No. 20-322, at *2 (U.S. Oct. 14, 2021), Brief of respondents Esteban A. Gonzalez, https://www.supremecourt.gov/DocketPDF/20/20-322/200869/20211122132257024_20-322%20Garland%20v%20Gonzalez%20Brief%20on%20the%20Merits%20for%20Respondents.pdf (opposing petitioners view that the statute requires no hearing).
[17] Garland v. Gonzalez, No. 20-322, at *10 (U.S. Oct. 14, 2021), Brief of respondents Esteban A. Gonzalez, https://www.supremecourt.gov/DocketPDF/20/20-322/200869/20211122132257024_20-322%20Garland%20v%20Gonzalez%20Brief%20on%20the%20Merits%20for%20Respondents.pdf (stating that DHS should prove by clear and convincing evidence that noncitizen should be detained beyond the removal period).
[18] Garland v. Gonzalez, No. 20-322, at *32-33 (U.S. Oct. 14, 2021), Brief of respondents Esteban A. Gonzalez, https://www.supremecourt.gov/DocketPDF/20/20-322/200869/20211122132257024_20-322%20Garland%20v%20Gonzalez%20Brief%20on%20the%20Merits%20for%20Respondents.pdf (discussing procedural protections for prolonged deprivations of liberty).
[19] Garland v. Gonzalez, No. 20-322, at *18-20 (U.S. Oct. 14, 2021), Brief of respondents Esteban A. Gonzalez, https://www.supremecourt.gov/DocketPDF/20/20-322/200869/20211122132257024_20-322%20Garland%20v%20Gonzalez%20Brief%20on%20the%20Merits%20for%20Respondents.pdf (citing Zadvydas v. Davis, 533 U.S. 678 (2001)).
[20] See e.g., Plyler v. Doe, 457 U.S. 202, 210 (1982) (reaffirming that noncitizens present in the United States are guaranteed due process protection); U.S. Const. amend. V (“No person shall be . . . be deprived of life, liberty, or property, without due process of law”).
[21] 8 U.S.C. § 1231.
[22] 8 U.S.C. 1231(a)(6).
[23] See Zadvydas v. Davis, 533 U.S. 678, 699 (2001) (concluding that detention is no longer authorized once removal is not reasonably foreseeable).
[24] Gonzalez v. Barr, 955 F.3d 762, 769 (9th Cir. 2020) (confirming that six months is a reasonable length of detention); Guerrero-Sanchez v. Warden York Cty. Prison , 905 F.3d 208, 225 (3d Cir. 2018)( “As a general matter, detention is prolonged [under § 1231(a)(6)] when it has lasted six months and is expected to continue more than minimally beyond six months.”) (quoting Diouf v. Napolitano , 634 F.3d 1081, 1092 n.13 (9th Cir. 2011))).
[25] Gonzalez v. Barr, 955 F.3d 762, 772 (9th Cir. 2020) (citing Singh v. Holder , 638 F.3d 1196, 1203-04 (9th Cir. 2011)).
[26] U.S. Const. amend. V (using the language “No person” to identify those protected under the Fifth Amendment); Plyler v. Doe, 457 U.S. 202, 210 (1982) (stating that “Aliens, even aliens whose presence in this country is unlawful, have long been recognized as “persons” guaranteed due process of law by the Fifth and Fourteenth Amendments”); Shaughnessy v. United States ex rel. Mezei , 345 U.S. 206, 212 (1953) (supporting that noncitizens located on United States territory is entitled to due process as opposed to a noncitizen located outside of United States territory). Compare
[27] U.S. Const. amend. V (stating “No person shall be . . . be deprived of life, liberty, or property, without due process of law).
[28] 8 U.S.C. § 1231(a)(6) (discussing the detainment of inadmissible and criminal noncitizens beyond the removal period).
[29] U.S. Const. amend. V (stating that deprivation of life, liberty, or property, requires due process of law).