SCOTUS Debates Releasing Criminal Aliens


December 2, 2016

By Michael M. Hethmon

The decision in Jennings v. Rodriguez could have huge consequences for the Trump administration’s immigration agenda.

The Supreme Court on Wednesday grappled with the complex question of how to ensure that criminal aliens, having served their prison sentences and been detained in immigration custody while their removal proceedings take place, do not languish for years without the opportunity to request release on bond.

The case, Jennings vs. Rodriguez, makes clear just how difficult it is to balance due-process protections with the Congress’s mandate that criminal aliens should be removed from the United States as quickly as possible. On one side, there is the government, arguing for more latitude to carry out Congress’s will. On the other, there is a large number of criminal aliens held in immigration-detention centers in California and designated as “class action”-plaintiffs by a federal district judge in Los Angeles in 2014. The plaintiffs are subject to mandatory detention while the Department of Homeland Security (DHS) works to obtain a final “removal order” from an immigration judge authorizing their deportation.

The Supreme Court has held that most illegal aliens who are not removable for having committed serious crimes in the U.S. have the due-process right to a bond-redetermination hearing (i.e. to get a bond amount lowered) if they are detained by DHS for longer than six months and their removal hearings are not final. (Given the enormous backlog of removal hearings and appeals overwhelming our immigration courts, this is not an uncommon occurrence.) Since 1996, however, Congress has declared that criminal aliens in removal proceedings are a presumptive “flight risk” and — depending on the nature of their crimes — a danger to the community. By law, such aliens must be detained until they either win in a generous set of appeals or are “finally” ordered removed.

In 2014, the Immigration Reform Law Institute (IRLI) submitted several amicus briefs to the Board of Immigration Appeals, which was attempting to answer the same questions for aliens detained outside of California during an earlier phase of the same class action, the Robbins v. Rodriguez litigation. IRLI argued then against the validity of the class action and the imposition of a “clear and convincing” standard of proof of flight risk and dangerousness to the community in bond redetermination hearings for aliens held under mandatory detention. IRLI emphasized the constitutionality of Congress’ mandate to apply different standards for review of mandatory detention in criminal-alien-removal cases.

Although the Obama administration has aggressively pursued amnesty-style administrative relief for huge swaths of the illegal-alien population, it chose to appeal the Ninth Circuit’s decision certifying the class, which accepted the argument put forth by the class’s ACLU attorneys that removable aliens have full constitutional due-process rights, and thus can’t be held for long periods without bond hearings. It did so for three main reasons: (1) The decision conflicted with the mandatory-detention laws passed by Congress; (2) the Ninth Circuit-ordered standard — that DHS must prove “by clear and convincing evidence” that the criminal aliens it wished to detain were exceptionally dangerous and escape-prone or else release them into the United States — imposed a higher burden of proof on prosecutors than the one most of them had previously had to meet in criminal cases; and (3) any unusual cases where a criminal alien might be detained for longer than necessary to complete removal proceedings could be righted through a habeas corpus hearing.

If the Supreme Court upheld the Ninth Circuit’s order, it would provide criminal aliens with incentives to delay adjudication of their removal cases. The Solicitor General argued yesterday that many if not most prolonged delays were due to aliens’ exercising all of their generous appeal opportunities, rather than to DHS’s lack of resources. The plaintiffs’ position was that the federal statute was ambiguous, and that even if it authorized detention, an alien’s due-process rights would be violated if, as a practical matter, they were not automatically provided a new bond hearing every six months. At each such hearing, the government would have to prove flight-risk and danger under the demanding Ninth Circuit standard in order for the detention statute at issue not to violate the U.S. Constitution’s due-process protections.

The justices had questions about all aspects of the case, with Ginsberg, Kagan, and especially Sotomayor asking why it wouldn’t be a good idea for the Court to accept the six-month re-hearing standard, ensuring “administrative constitutionality” for the entire detention system and preventing any constitutional violations arising from “prolonged detention.” For DHS, the Solicitor General replied that the answer is found in Justice Kennedy’s concurring opinion in Demore v. Kim (2003), which held that the proper constitutional standard for review of mandatory detention is whether there has been a delay suggesting that the purpose of the detention is nefarious and not to effect the removal process. He contended that it is not the date of detention, but whether it is no longer related to the removal process that raises constitutional concerns. The real problem, he argued was that the Ninth Circuit imposed a novel single standard and applied it to “everybody,” regardless of the actual reason for each individual’s delay.

Justices Alito and Roberts focused on the problem caused by the case reaching the Supreme Court as a class action based on a circuit-court ruling that the statute was suspect, but not actually unconstitutional. Roberts was concerned that any remedy based on a new temporal limit that the Court tried to impose would be tantamount to legislating from the bench, even if it might be “administratively convenient” for detained aliens going forward. For the aliens to prevail, Justices Kennedy and Breyer would likely have to agree to impose a bright-line limit on mandatory detention on constitutional grounds. But even if they joined a 5-3 majority, it seems unlikely that they would be persuaded to accept the very demanding terms of the Ninth Circuit’s order in crafting constitutional rules for prolonged detention of this class of criminal aliens. The stage is set, then, for a SCOTUS decision that could be enormously consequential in the early days of Donald Trump’s presidency. If enough of the Ninth Circuit’s decision becomes the law of the land, the backlog of bond hearings in America’s immigration courts will get larger, and thousands of criminal aliens could be released onto the streets. Stay tuned.

Article also published at:Michael M. Hethmon, SCOTUS Debates Releasing Criminal Aliens, National Review, Dec, 2, 2016

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