In the wake of the Supreme Court’s split decision on President Obama’s executive action concerning DACA/DAPA, the nation’s highest court has agreed to hear another critical immigration case. Late last year, the Ninth Circuit upheld an order by a federal district court in California requiring immigration judges to hold bond hearings every six months for detained noncitizens. That case is now going to the Supreme Court as Rodriguez v. Robbins.
The class action case was originally brought by the American Civil Liberties Union and is advocating for the rights of those who were caught trying to enter the country and others who have found themselves in removal proceedings for crimes of various severities. The civil incarceration of aliens (for preventative, rather than punitive reasons) has been hotly contested in the Ninth Circuit over the past decade; now the Supreme Court will have a say in these extended detentions.
On any given day, Immigration and Customs Enforcement (ICE) detains roughly 33,000 people waiting for a hearing or removal. Over the course of a year, the total exceeds 429,000 people behind bars. The reason for such high numbers is linked to an addition to the DHS Appropriations Act 2010 by the late Senator Robert Byrd (D-WV), stating, “…funding made available under this heading shall maintain a level of not less than 33,400 detention beds.” No other government agency has a quota that requires a certain number of detainees, and it comes as no surprise that private prisons are the monetary beneficiaries of this policy.
Any immigration attorney that practices removal defense can attest to the uphill battle in keeping their clients out of jail while they await their removal hearing. The challenge is exponentially greater when the client is already detained. Although most immigration judges are fair in their determinations, the arguments about a person being the primary source of income for a family of four or five, with no track record and no risk of flight, consistently fall flat against, for example, a DUI charge. If bond is set, it is usually between $4,000 and $12,000 and since the full amount must be paid for release, this steep price is beyond the ability of most people in America to pay, regardless of their immigration status.
Further exacerbating the problem is the backlog in many immigration courts. For example, the courts in North Carolina have final hearings relatively quickly, but the immigration courts in Los Angeles, Arlington, VA, Houston, and New York suffer from oppressive backlogs, resulting in detentions of months and even years. The ACLU argued, and the Ninth Circuit agreed, that detentions of more than six months without the opportunity for bond raise serious constitutional issues.
This case is unlikely to receive as much attention as the recent DACA/DAPA case, but it is another example of just how broken our immigration system is — and the Obama Administration can’t seem to win either way. Conservatives raise challenges of not enforcing the law, while the left counters with claims of over-enforcement. Regardless of politics, this case raises serious questions about due process in the United States. The Supreme Court will hear oral arguments and render a decision during its next term, which starts in October and ends in June 2017.