In this special two-part Think Immigration blog, Mary Kramer, author of Immigration Consequences of Criminal Activity:  A Guide to Representing Foreign Born Defendants, is joined by Michael Vastine and Sui Chung, co-authors of AILA’s upcoming book, Winning on Paper. Read Part 1 of the blog post here. The trio attended the oral arguments Monday and Tuesday and reported back the following from Tuesday’s hearing (see the video featuring Mary and Michael followed by the blog post from all three authors):

Game two of a two-part series was heard October 3, 2017, when the Supreme Court took up oral argument – for the second time—in Jennings v. Rodriguez, the prolonged detention case.  Jennings involves a Ninth Circuit class action injunction holding that noncitizens detained without a bond hearing have a right to go before an immigration judge after six months and have a custody redetermination hearing; at that hearing they are entitled to a presumption of release unless the government establishes they present a risk of danger or flight.  A subset of the class are “arriving aliens” detained under 8 USC §1225(b).

So what were the major plays of the day? It seems that counsel for the government struck out with his argument that arriving aliens have “no constitutional rights,” even after years of detention.  Justice Kagan asked, “Does that mean we can torture them, force them into slave labor?”  According to Kagan, holding a person in a cell for months on end is not a far cry from that type of treatment.  At which point the Solicitor General returned to the dugout, along the way admitting that:  “Well, we shouldn’t torture aliens, no.”   Justice Breyer closed the point emphatically, noting that he was uncomfortable with immigrants being “put in a little reception center that looks awfully like a jail cell” for 13 months.

Another major play involved hashing out the details of the proper vehicle and venue for immigrants asserting their rights – should it be through a habeas corpus petition in federal district court or an automatic bond hearing before the immigration court?  Justice Gorsuch and others commented that federal judges are able to adequately explore why the immigration case was delayed and the detention ongoing, but implied that six months is an “arbitrary number.”  We know that filing federal habeas actions across the country — in literally thousands of cases — is impractical, but it is not clear whether the justices fully appreciate that reality.  There was also much discussion of immigration case backlogs, the insufficient number of immigration judges, and “who’s to blame” for the case delays in detained proceedings.  Cases pending more than six months were characterized in the courtroom today as “outliers,” but as those of us who go to court day-in-and-day-out know, the average waiver or asylum case takes months—and no one’s to blame.

The six-month rule has its roots in the 2001 Supreme Court case Zadvydas v. Davis, which placed that time limit on detention while the government attempted to execute an order of removal.  In defense of a bright line rule in the prolonged detention context, counsel for the class in Jennings noted the efficiency that came with Zadvydas, which effectively cleared the field of subsequent litigation.  In contrast, in the prolonged context, the lack of a clear standard has triggered more than a decade of continuous litigation, which would further bog down the federal courts well into the future if the Court ordered individual determinations on habeas petitions in every case involving a prolonged immigration detainee.   Regarding the forum, counsel further argued that immigration judges are best positioned to deal with what amount to 10 to 15 minute bond hearings, since they possess developed files on the cases, and would have to hold these hearings anyway, in the case of a successful habeas corpus petition.

Whether immigration counsel hit the ball out of the park on Jennings remains to be seen, but these authors are feeling good about it.  What to do in the meantime? For those of you outside the Ninth and Second Circuits, get ready to file those habeas actions, including habeas petitions demanding bond hearings for arriving aliens, as a constitutional safeguard.  The Court was not calling strikes on INA §235 custody review.  For everyone else in the good circuits – happy bond hearings – and hope against a rematch on this same issue in the near future.