U.S. Supreme Court

ABA Supreme Court brief urges bright-line deadline for bond hearings in immigration detention cases

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People being held in immigration detention should get a bond hearing within a set time period to determine whether they pose a danger or a flight risk, the ABA says in an amicus brief filed with the U.S. Supreme Court.

The brief (PDF) says the due process clause requires a bright-line rule fixing the time period for such a hearing, and the Supreme Court should uphold the six-month deadline adopted by the San Francisco-based 9th U.S. Circuit Court of Appeals. The ABA filed the brief in the case Jennings v. Rodriguez, according to a press release.

Absent such a deadline, the brief says, “individuals who may well be entitled to release are confined to languish in prison-like conditions for years.”

“The ABA agrees with the Court of Appeals that the status quo of relying on immigrants to challenge their detention period case-by-case—typically through habeas petitions—has led to serious due process problems,” the brief says. The case involves the interpretation of three detention statutes affecting immigrants who are in the United States illegally.

The ABA brief notes that a 2003 Supreme Court decision upholding a blanket denial of bail to immigrants with criminal records, Demore v. Kim, had underestimated the time that immigrants spend in detention when appealing deportation order. The mistake was partly due to wrong information provided by the Executive Office for Immigration Review.

The U.S. Justice Department disclosed in August that the average total time spent in immigration detention in appealed cases was more than a year, rather than the five months cited in the Supreme Court opinion in Demore.

“Over a decade later,” the ABA brief says, “the government has failed to decrease detention time, forcing a detainee pursuing relief to face a significant probability of spending a year or more in detention.”

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