In 2003, Errol Barrington Scarlett, a long-time permanent resident from Jamaica who had been living in the United States for over thirty years with U.S. citizen children and grandchildren, was taken into custody by the Department of Justice. Scarlett was previously convicted of drug possession in 1999, but a year and a half after his release, during which he did not commit additional crimes, the DOJ summarily detained him without a bond hearing. He spent the next five and a half years in mandatory detention awaiting removal proceedings. Scarlett’s situation is not unique. His case is just one example of immigrants who are locked up in detention for years without receiving a hearing to determine whether the detention is justified. Recently, the Supreme Court was asked to weigh in on whether noncitizens subject to long-term detention are entitled to individualized bond hearings.

On October 3, 2017, the Supreme Court heard oral arguments for the second time in Jennings v. Rodriguez (2016), a class action suit brought by noncitizens who argued that prolonged detention pursuant to 8 U.S.C. §§ 1225(b), § 1226(a), 1226(c), and 1231(a) without hearings to justify their detention violated their due process rights. The first time the case reached the Court, an evenly-split eight-member bench did not reach a decision. This time, the Supreme Court is reviewing the Ninth Circuit’s affirmation of the district court’s ruling that noncitizens who are subject to prolonged detention must be afforded periodic bond reviews at six-month intervals to determine whether the government has a legitimate interest in continuing their detention.

Defendants-Petitioners’ Argument

At oral argument, the Government relied heavily on Demore v. Kim (2003), where the Supreme Court held that immigrants who are detained during removal proceedings have no constitutional right to a bond hearing. When the Justices raised due process concerns and asked about forms of monitoring and supervision other than detention, the attorney for the Government pointed to the Demore Court’s statement that “when the Government deals with deportable aliens, the Due Process Clause does not require it to employ the least burdensome means to accomplish its goal.” The Government’s lawyer stressed that noncitizens do not have a “constitutional right to be released into [the] country” and that long-term detention is not unconstitutional as long as the reasons for prolonging the detention are related to its original purpose. As such, delays that result from years of backlogs are not unconstitutional.

Plaintiffs-Respondents’ Argument

On the other hand, respondents distinguished Demore on several grounds. Most importantly, the detention time of the certified class members in Jennings is “eight or ten times” those in Demore. Moreover, unlike the detainee in Demore who was seeking withholding of removal, the class members in Jennings are seeking cancellation of removal, a stronger form of asylum protection. The respondents also relied on Zadvydas v. Davis (2001), a Supreme Court case which held that once an immigrant is found removable, the statute, “read in light of the Constitution’s demands, limits an alien’s post-removal-period detention to a period reasonably necessary to bring about that alien’s removal from the United States.”

As for the periodic six-month review rule, the respondents reminded the Justices that the Zadvydas Court found “Congress previously doubted the constitutionality of detention for more than six months.” The respondents further supported the bright-line rule by stressing that the Court has never previously authorized detention without a review beyond six months and that a line has to be drawn somewhere for administrative purposes.

Overall, the Justices seemed sympathetic to the respondents’ argument that prolonged detention without a right to a hearing is unconstitutional. The bright-line six-month rule received more pushback, especially from Chief Justice Roberts and Justice Alito, who questioned the constitutional support for the approach. But the fate of Jennings v. Rodriguez remains uncertain, especially now that another tied vote is possible: Justice Kagan has recused herself because she worked on the case in its earlier phase when she was Solicitor General.