Column: The Constitutional Hole in Government Detention

Limitations on involuntary government detention lie at the core of our constitutional scheme, with the U.S. Supreme Court long having recognized that the Due Process Clauses of the Fifth and Fourteenth Amendments impose fundamental substantive and procedural protections against unjustified detention. Yet nearly 250 years after the adoption of the Bill of Rights, in a country peopled by immigrants, these most basic of constitutional protections remain unresolved for one group: noncitizens detained on suspicion of civil offenses involving U.S. immigration law.

Even those well-versed in constitutional law may be surprised to learn that it is an open question whether such noncitizens can be jailed for years without any hearing while their immigration cases move through the clogged immigration courts. And other issues remain similarly unresolved: For those noncitizens granted a hearing, does the government or the noncitizen bear the burden of proving or disproving a justification for detention during the pendency of the immigration proceedings? When an immigration judge concludes that a noncitizen can be released on bail, does the judge have to consider whether the noncitizen’s ability to pay in setting the amount of bail to avoid detention merely because of indigency? And finally, given that many noncitizens may not be able to afford bail, must an immigration judge consider alternatives to bail (such as regular check-ins) when considering conditions of release?

Three years ago, the Supreme Court had an opportunity to address the due process limits on immigration detention but declined to do so, leaving the issue to the lower courts. Prior to that, many Courts of Appeals, including the Second Circuit, had recognized that prolonged immigration detention raised serious constitutional questions. But they have continued to struggle with the issue after the Supreme Court passed on it in 2018, with the Second Circuit facing it in a case argued just last month.

The Basics of Immigration Detention

Immigration detention long has been governed by federal statute, with the contemporary federal scheme being in the form of the Immigration and Nationality Act—commonly referred to by immigration practitioners as the “INA.” For noncitizens accused of violating federal immigration law—violations that in almost all instances are civil, not criminal—the INA authorizes two categories of detention. Most noncitizens charged with immigration violations are subject to discretionary detention and have the opportunity shortly after being taken into custody for a hearing before an immigration judge to seek their release while their immigration proceedings go forward. For the smaller group of noncitizens who face deportation because they were convicted of certain criminal offenses while in the United States, however, the INA mandates their detention without any opportunity for release during their immigration proceedings.

Immigration cases are heard through a system administered by the Department of Justice. Immigration “judges” are not Article III judges but instead are employees of the Justice Department, and the immigration appeals court, the Board of Immigration Appeals, also is part of the Justice Department. The immigration courts long have been overburdened and inefficient, with cases taking many months and often years.

For noncitizens subject to discretionary detention but denied release and for noncitizens subject to mandatory detention, their experience is one of incarceration similar to that experienced by those accused of crimes and denied bail. For instance, most of those detained in upstate New York are held at the Buffalo Federal Detention Facility, a 650-bed jail that is in remote Batavia between Buffalo and Rochester and that is run directly by the federal Department of Homeland Security’s Immigration and Custom Enforcement (commonly known as ICE). For those apprehended in the New York City area, they typically are held at one of three New Jersey jails or at the Orange County jail north of New York City.

Prolonged Detention and the Right to a Hearing

The Supreme Court long has held that when the government involuntarily confines a person the Constitution provides significant procedural protections, most notably a prompt hearing before an impartial decisionmaker to determine whether further detention is warranted. To take the most obvious example, when a person is arrested and charged with a crime, the court has held that such a hearing within 48 hours of arrest in most instances.

Though detention has been a central feature of the immigration regime historically, the Supreme Court has yet to determine the specific due process boundaries limiting such detention. Before the advent of modern due process doctrine, the court did decide several cases that addressed prolonged detention of noncitizens, and government lawyers routinely invoke them to claim that the Due Process Clause leaves to Congress and the executive branch decisions about immigration detention. But those cases presented special national-security issues or other unusual considerations, and the court recently has made clear that the application of due process to extended immigration detention remains an undecided issue.

What the court has done is reject a facial challenge to the mandatory detention the INA prescribes for noncitizens facing deportation on account of prior criminal convictions. In 2003 in Demore v. Kim, 538 U.S. 510 (2003), a detained South Korean who was a lawful permanent resident of the United States contended that mandatory detention of noncitizens for any length of time was unconstitutional. The Supreme Court rejected that, relying on a series of cases recognizing the appropriateness of immigration detention during the pendency of deportation proceedings and repeatedly emphasizing the brevity of those proceedings. On this latter point, the court relied on the following representations by the government:

The Executive Office for Immigration Review has calculated that, in 85% of the cases in which aliens are detained pursuant to [the INA’s mandatory-detention provision], removal proceedings are completed in an average time of 47 days and a median of 30 days. Brief for Petitioners 39-40. In the remaining 15% of cases, in which the alien appeals the decision of the Immigration Judge to the Board of Immigration Appeals, appeal takes an average of four months, with a median time that is slightly shorter. Id., at 40.

Following Demore the lower courts turned their attention to claims that the Due Process Clause at least required a hearing once immigration detention became “prolonged”—an imprecise concept but generally thought of being six months or more in light of Demore. But rather than decide the constitutional question squarely, Courts of Appeals chose the path of interpreting the INA mandatory-prevention provision as requiring such a hearing in light of constitutional concerns.

The Second Circuit’s 2015 ruling in Lora v. Shanahan, 804 F.3d 601 (2d Cir. 2015), illustrates this approach. The noncitizen petitioner Alexander Lora was a lawful permanent resident who faced deportation because of a criminal conviction. After being detained for four months, he filed a habeas petition asserting his prolonged detention under the INA’s mandatory-detention provision without any hearing violated due process. He won and was released after nearly six months of detention, but the government appealed.

The Second Circuit agreed that after six months of detention due process requires a hearing: “Specifically, we join the Ninth Circuit in holding that mandatory detention for longer than six months without a bond hearing affronts due process.” However, rather than hold that the INA’s mandatory-detention provision was unconstitutional after six months, it deployed “constitutional avoidance” and instead ruled that the statutory provision was ambiguous and had to be interpreted, in light of the due process concern, to require bail hearings after six months and to do so in all cases as a bright-line rule.

This constitutional-avoidance interpretation of the INA went to the Supreme Court in the Ninth Circuit case that the Second Circuit had relied upon, resulting in the 2018 decision in Jennings v. Rodriguez, 138 S.Ct. 830 (2018). In Jennings the court squarely rejected the lower courts’ due process-prompted interpretation of the INA, holding that the mandatory-detention was clear and unequivocal. Remarkably, however, the court refused to consider the argument that the dictates of Due Process provided an alternative ground for affirming the Ninth Circuit’s conclusion that hearings were required after six months of detention:

Because the Court of Appeals erroneously concluded that periodic bond hearings are required under the immigration provisions at issue here, it had no occasion to consider respondents’ constitutional arguments on their merits. Consistent with our role as “a court of review, not of first view,” we do not reach those arguments. Instead, we remand the case to the Court of Appeals to consider them in the first instance.

And this refusal to take up the due process claim took on additional import in light of the revelation during the Jennings litigation that the statistics the government had provided to the Supreme Court in Demore about the length of mandatory detention were materially wrong. In fact, it turned out that actual detention was nearly twice as long as the “brief” detention on which the court had premised its ruling in Demore.

Three years later, the core due process issue of how long a noncitizen can be detained without any hearing remains unresolved, and thousands of people remain jailed for longer than six months, and often longer than a year, without a hearing. Just last month, the Second Circuit heard argument in a case of a noncitizen who had been detained for thirteen months before he succeeded in a habeas petition and was then ordered released by an immigration judge, who found he did not pose a risk of flight or to public safety. Nonetheless, the government appealed and argued to the Court of Appeals on November 16 that it was free to jail noncitizens facing deportation without any hearing even if their immigration cases lasted years.

The Particulars of Hearings

Beyond the threshold issue of whether a noncitizen ever is entitled to a bail hearing lies a whole host of issues the Supreme Court likewise has not addressed about what due process requires in the conduct of hearings that do take place. Critically, for instance, is the issue of whether the government bears the burden of proving a risk of flight or safety or whether the noncitizen bears the burden of disproving such a risk. As a practical matter, this distinction can make a dramatic difference in the likelihood a person will be detained.

In Lora, the Second Circuit joined the Ninth Circuit in holding that, in hearings after six months for those held under the INA’s mandatory-detention provision, the government bears the burden by clear and convincing evidence of justifying ongoing detention; that holding, however, was vacated when the Supreme Court decided Jennings. And last year the Second Circuit held that, in hearings that by statute take place for noncitizens held under the INA’s discretionary-detention provision, the government similarly bears the burden; in doing so, however, the court expressly addressed only those situations in which the noncitizen had experienced prolonged detention. Left entirely unaddressed—but now before the Second Circuit in an upcoming case—is the question that affects most detained noncitizens: Who bears the burden of proof in the discretionary-detention hearings that take place shortly after detention begins?

Other important due process issues surrounding immigration detention remain similarly unresolved. Most notably is the extent to which immigration judges who decide release is appropriate with a financial bond must take into account the detainee’s ability to pay when setting a bond amount. In the absence of such consideration, many detainees will remain detained because of indigency as opposed to any risk they pose. Similarly unresolved is the issue whether immigration judges must consider alternatives to financial bonds to facilitate release, which can make an enormous difference given that many detainees cannot afford bonds but could be released with appropriate alternative conditions.

Looking Forward

Every day, thousands of noncitizens remain locked up for weeks, months, and even years without any hearing before a judge to assess whether their ongoing detention is justified. In every other area of American constitutional life—criminal arrest, civil confinement, foster-care custody—we have clear understandings that due process provides basic procedural protections to guard against unjustified detention, starting with prompt hearings at which the government must justify its actions. In the immigration context, however, we now have a wide range of due process rulings that vary from circuit to circuit and district court to district court, with the lower courts struggling to fill the void created by the Supreme Court’s refusal to address the due process dimensions of immigration detention. Whatever the outcome might be, this hole in constitutional law must be filled.

This column was originally published in the New York Law Journal.