How Long is Too Long When it Comes to Being Detained by ICE Without a Bond Hearing?

The U.S. Supreme Court will be deciding a critical issue facing thousands of people who are detained by the federal government during the removal process, some whom were living in Kentucky: how long can a person be detained without a hearing where the government needs to prove the person is a flight risk or a danger to society, to justify the person’s continued imprisonment, instead of allowing the person to be released if he or she posts a bond?

The issue before the Court is what level of due process guaranteed by the Fifth Amendment to the Constitution applies to the group of plaintiffs.

The class action case was brought by immigrants seeking hearings to prove that they are neither a flight risk nor a danger to society, according to CNN. The lead plaintiff, Alejandro Rodriguez, is a lawful, permanent resident who as an infant was brought to the U.S. He worked as a dental assistant in California when he got into legal trouble. Rodriguez was put in removal proceedings because he was criminally convicted on possession of a controlled substance charge and later for driving a stolen car.

The case involves the interpretation and application of three immigration statutes, as well as the Constitution. The group members are all detained, and they include lawful permanent residents with minor criminal histories and asylum-seekers who passed an initial screening but are waiting for the opportunity to raise their claims. Not included are people the government sees as national security risks.

Rodriguez was detained for more than three years while he challenged his removal. He successfully appealed his case in a seven-year process. The Supreme Court in November heard arguments of an appeal of a decision in the case from the U.S. Circuit Court of Appeals for the Ninth Circuit which was favorable to the plaintiffs. According to the appeals court decision:

  • S. Immigrations and Customs Enforcement (ICE) detains more than 429,000 people during the course of an average year with about 33,000 being detained at any one time.
  • Members of the group of plaintiffs were in detention an average of 404 days, half have been detained for more than a year, one in five more than 18 months and one in ten for more than two years. One member was in detention for nearly four and a half years.
  • About 71% challenged their removal, and about a third were successful. Many gave up what might have been successful challenges because they faced indefinite detainment.

The justices debated an approach to interpreting the law and Constitutional rights as old as the Court itself. Were the plaintiffs asking the legal system to do what it shouldn’t do, essentially re-write a statute more to its liking? Or was the Court doing its job, telling the federal government there are limits under the Constitution as to how it can treat people and setting out those limits?

The attorney representing the federal government, Acting Solicitor General Ian H. Gershengorn, claimed the appellate decision showed the court overstepped its judicial bounds and interfered with Congress’s ability to state that bond hearings are needed for some detainees and are optional for others. He claimed detainees could file lawsuits in federal court, but since many aren’t represented by attorneys they’re not aware of their rights.

This cases shows that immigrants caught up with ICE have a much better chance of a positive outcome when represented by an attorney: a bond hearing can be sought to make sure the person doesn’t fall through the cracks of our immigration system.

If you live in Kentucky and you or a loved one is being detained pending possible removal, contact our office so we can discuss the legal process, the applicable law and how we can try to help you avoid deportation.

Attorney Kirby J. Fullerton

Mr. Fullerton’s practice is focused on immigration law. He speaks Spanish, and represents clients in cases before the immigration courts and the Board of Immigration Appeals. He began his career practicing criminal defense, and understands how matters in criminal courts can affect a client’s immigration status. [Attorney Bio]