by Sharon Turret*

How long may Immigration and Customs Enforcement detain a noncitizen before he or she must go before a judge? In this Contribution, Sharon Turret (’18) analyzes the Due Process Clause issues with a “reasonableness” test for length of detention and the need for a bright-line rule. This Contribution argues that the Due Process Clause requires a bright-line rule that the length of detention be presumed unreasonable after six months. That very bright-line rule is now before the Supreme Court in Jennings v. Rodriguez.

Across the country, Immigration and Customs Enforcement (ICE) detains immigrants for extremely long periods of time prior to their removal proceedings, resulting in enormous human and fiscal costs. Incredibly long detention has become the norm, often for individuals who committed low-level offenses and have strong ties to the United States, including U.S. citizen children.2 Section 1226(c) of the U.S. Code requires mandatory detention during deportation proceedings for noncitizens who have served sentences for a wide variety of crimes, ranging from traffic violations to crimes of moral turpitude. Congress enacted this intending that detention prior to removal proceedings be brief and prompt, but the reality is often that detainees languish in detention unable to see their families and subject to humiliating conditions for months or even years on end.

Circuit courts asked to deal with this issue have developed two tests. Four circuit courts have adopted a “reasonableness” test to determine an appropriate time for a bail hearing for such detained individuals.3 The Second and Ninth Circuits, on the other hand, have adopted a bright-line rule that noncitizens detained must receive an automatic bail hearing within six months of the start of detention to determine whether or not their continued detention is justified.4 That bright-line rule is now before the Supreme Court in Jennings v. Rodriguez.5 The government is challenging the Ninth Circuit’s judgment that noncitizens must have bail hearings after six months’ detention. The case was initially argued before the Supreme Court on November 30, 2016. It was reargued on October 3, 2017. This Contribution will argue that the Supreme Court should adopt the six month bright-line rule that the Second and Ninth Circuits have adopted. The reasonableness test is an unworkable standard, and a bright-line rule ensures that the administrative burden of enforcement does not overshadow constitutional guarantees.

* * * * *

The Apprehension and Detention of Aliens statute confers authority to the Attorney General to detain certain classes of noncitizens who have prior criminal convictions, during the pendency of their deportation proceedings.6 Courts are divided on which test to apply to determine how long noncitizens can be detained without a hearing. The purpose of the ultimate hearing is to find whether continued detention is justified.

What procedural rights does the United States afford to noncitizens? The Supreme Court has held that the Due Process Clause applies to all persons within the United States, including noncitizens, “whether their presence here is lawful, unlawful, temporary, or permanent.”7 A fundamental requirement of due process is the opportunity to be heard, which cannot happen without adequate procedural protections.8 Thus, noncitizens must be afforded adequate procedural protection in the form of a bail hearing; the circuit courts are in agreement on that point.9

The Supreme Court has consistently construed immigration statutes to include procedural protections necessary to avoid constitutional problems.10 In 2001, in Zadvydas v. Davis, the Supreme Court held that beyond six months, an individual detained post-removal proceedings must receive a bail hearing, in order to ensure due process rights are protected.11 The Court reasoned that a statute permitting indefinite detention would raise serious constitutional concerns, even in the context of noncitizens.12

Two years after Zadvyas, the Court upheld the constitutionality of 8 U.S.C. § 1226(c), the Apprehension and Detention of Aliens statute, in Demore v. Kim.13 In Demore, the Government provided the Court with statistics claiming that most immigrants were in detention for only a month, and others for only up to three to five months before a bond hearing.14 The Court upheld § 1226(c), reasoning that pre-removal detention tends to be for a brief period of time. The Court cautioned that if detention is not brief or justified at a bail hearing, it becomes unconstitutional.15 The Court did not, at that time, articulate a bright-line rule or test to apply for when exactly to hold a bail hearing prior to removal proceedings.

In August 2016, the Solicitor General released a letter disclosing several “significant errors” in the statistics presented to the Court by the Government in Demore. The initial statistics were incorrect, and understated the time immigrants spend in detention.16 The Government originally stated that the average time to resolve a removal proceeding involving an appeal was four months.17 The letter explains that the actual average length of detention is 382 days—over one year.

In the thirteen years since Demore, district courts have struggled with the best way to ensure that § 1226(c) bail hearings occur in a timely and constitutionally permissible fashion. The Second Circuit in Lora v. Shanahan18 and the Ninth Circuit in Rodriguez v. Robbins19 adopted a six month bright-line rule on the basis of sound legal principles and practical realities. This rule requires that noncitizens detained pursuant to section 1226(c) of the Apprehension and Detention of Aliens statute must receive an automatic bail hearing within six months’ detention to determine whether or not their continued detention is justified. The Due Process Clause applies to all persons within the United States, including noncitizens, whether their presence here is lawful or not.20 Such an automatic rule is necessary to ensure the government does not deprive any such person of liberty without due process of law.

However, four circuit courts – the First21, Third22, Sixth23, and Eleventh24, adopted a “reasonableness test,” which has proven inoperable and systematically fails to protect individual liberty.25 The First, Third, and Sixth Circuits define reasonableness as a “fact-dependent inquiry that will vary depending on individual circumstances” and “declin[e] to establish a universal point at which detention will always be considered unreasonable.”26 This test is vague, provides limited guidance, and has resulted in pervasive confusion and inconsistency among the district courts that must apply it.27 Even worse, this test requires detainees to file habeas petitions in order to be heard for a bail hearing. This is an unfair requirement that ultimately compounds the length of time before a hearing can potentially take place. The result is a severe deprivation of liberty: potentially indefinite detention in legal limbo.

* * * * *

The Constitution requires that courts adopt a bright-line rule, such as the six month limit, because a malleable “reasonableness” inquiry cannot suffice to safeguard rights. First of all, the “reasonableness” test is difficult for courts to apply and puts lives on hold indefinitely during habeas corpus review. Second, the test might perversely allow the government to justify indefinite detention as an administrative backlog of its own making. Third, the human cost of an unworkable standard of detention is enormous. In fact, the “reasonableness” test has been flawed from its inception, and courts applying that test have done so with misleading data before them.

A great virtue of limiting detention to six months is the rule’s easy administration. In contrast, the reasonableness standard is difficult to apply. Courts struggle with consistency and may indeed exacerbate the incredible length of time noncitizens are detained without hearings. Many courts are confused over what constitutes a “reasonable” length of time.28 For example, district courts in the Second Circuit, prior to Lora, exhibited inconsistency and confusion when applying a reasonableness test on a case-by-case basis.29 The touchstone of due process is protection from arbitrary government action,30 but unfortunately, the reasonableness test leads to that very evil.

The fact that detainees must file a habeas petition further frustrates the standard’s application. These detained noncitizens do not have the right to attorney,31 may not know habeas is available, and may not speak English.32 How can the length of detention remain reasonable in an adversarial system when detainees remain ignorant of the relief? A report published by the American Immigration Counsel in September 2016 showed that only 14% of detained noncitizens have counsel, because most detainees lack resources and require special efforts to even have a meeting with potential counsel.33 In rural areas where there are few immigration attorneys, the number of represented detainees drops to zero.34 Even if detained noncitizens are among the fortunate 14% to obtain an attorney, or are able to figure out complex habeas laws, the reasonableness test requires them to wait until their detention has become unreasonable, then file a petition.35 Only then can a judge decide whether the length of detention has become unreasonable or whether there should be a bail hearing. This lengthy process only compounds the deprivation.

Such delay simply cannot be the standard ­— constitutional principles apply to the government’s conduct whether a habeas petition is filed or potentially forthcoming.36 In civil detention proceedings, the possibility of a habeas petition does not excuse the government from its due process obligations. Case-by-case determinations conditioned on habeas petitions inevitably result in such long delays as to violate due process. In many cases, noncitizens spend well over a year in incarceration while their cases are pending, without a bail hearing.37 That is not brief, and given that briefness was crucial in Demore, it is unconstitutional.

A “reasonableness test” also allows the government to bootstrap a justification for its delays by pointing to administrative backlog. But a problem cannot justify itself. Given the immense private interest at stake, a uniform administration would not place an unreasonable burden on the government. Indeed, administrative burdens are not insurmountable. For example, in the Ninth Circuit, following the district court’s order in Rodriguez v. Robbins38 hundreds of hearings took place, thereby “belying any suggestion that the preliminary injunction is prohibitively burdensome.”39 A bond hearing is significantly less burdensome than any other proceeding for which the government must prepare. Any burden in implementing a six month rule would merely be the cost of complying with the Constitution. Preparing for constitutionally-required hearings before an immigration judge within a certain period of time is certainly less burdensome than other government obligations. At the bond hearing stage, this requirement is a reasonable one.

Finally, the human costs of the reasonableness approach are terrible. It has the effect of increasing detention times for those least likely to actually be removed at the conclusion of their proceedings.40 Detained individuals include long-time lawful residents with relatively minor criminal convictions, asylum seekers with no criminal history who are imprisoned for years even after they have been found to have a credible claim, and others with extensive family ties to this country, including those with U.S. citizen children. Data compiled for Rodriguez II reveals that many of those detained have strong legal arguments to remain in the United States and ultimately win their cases.41 As a result, there is a high risk of erroneous deprivation of liberty.

A substantial majority of those with criminal histories present no danger or flight risk and can be safely released on bond or other conditions of supervision, particularly because they have all served their criminal sentences before coming into ICE custody.42 ICE continues to detain these immigrants, separating them from their U.S. citizen family members and the communities to which they have deep ties, all at a great cost to taxpayers.43 ICE detains these individuals in jails and private facilities under prison-like conditions. Immigrants wear jail uniforms and have “no contact” visits with family.44 Prisoners are subject to shocking mistreatment and abusive conditions.45 Prison staff use extreme isolation arbitrarily and abusively.46 Delayed and inadequate medical care causes needless suffering.47

The consequences of prolonged ICE detention are shocking. Take for example the plaintiff in the Lora v. Shanahan (the case where the Second Circuit found that the six month rule is essential).48 Alex Lora was a lawful permanent resident of the United States, who came here as a child, was educated here, gainfully employed here, and has a U.S. citizen son, for whom he is the primary caretaker. Mr. Lora was taken into ICE custody due to a low-level drug offense from years before. In the many months that Mr. Lora spent behind bars, his two year old U.S. citizen son had to be placed in the foster care system. Meanwhile, Mr. Lora was an excellent candidate for release from custody, and the government was never able to show that he posed a danger or a flight risk, in order to justify his continued detention. ACLU reports show that Mr. Lora’s case is hardly unique.49

The very development of the “reasonableness” test must be questioned because it was founded in flawed statistics that the government presented in Demore.50 The Government’s brief to the Court in Demore specifically stated that the average time of detention for removal proceedings is “far below the six-month period that this Court determined was presumptively reasonable” in Zadvydas.51 Courts have been applying a reasonableness test rather than a bright-line cutoff under the false impression that most detentions last under six months. Zadvydas and Demore, taken together, suggest that the preferred approach for avoiding due process concerns in this area is to establish a presumptively reasonable six month period of detention. When we combine that legal precedent with the statistics that show the reasonableness test is failing (average detention is 382 days), there must be a firm procedural safeguard to ensure bail hearings take place in a timely fashion.

While six months is indeed an arbitrary number, the law must draw the line somewhere. Although reasonableness tests are appropriate in many circumstances, here, it is systematically failing. The Supreme Court has been entirely comfortable with drawing a bright line in dire situations like this where the risk of erroneous deprivation of liberty is at its apex.52

* * * * *

The Supreme Court’s decision in  Jennings v. Rodriguez will be pivotal for the lives of noncitizens facing ICE detention. Especially given the statistics we know now—that average length of detention is 382 days—the Court must revisit its holding in Demore. If the Court adopts the “reasonableness test,” lives will be put on hold for indeterminate periods, and there will be disastrous consequences for the noncitizens and their families. Courts simply do not know what “reasonable length of time” is supposed to mean. Given varying interpretations of what is “reasonable,” the unlikelihood of many immigrants’ ability to file habeas petitions, and the disastrous impact of mandatory detention on the lives of immigrants who are neither a flight risk nor dangerous, a “reasonableness test” is destructive and detrimental to both individual and public interest. The six month bright-line rule, on the other hand, will provide a firm safeguard for due process rights.

* Sharon Turret is a 3L at New York University School of Law. This piece is a commentary on the 2017 Problem at the Wechsler Criminal Law Moot Court Competition hosted by the University at Buffalo School of Law in Buffalo, New York. The problem dealt with whether or not a “reasonableness” test to determine length of detention without a bond hearing for non-citizen deportation proceedings (those detained under U.S.C. § 1226(c)) provides adequate due process protections. The views expressed in this article do not necessarily represent the views of the author on this point of law. Rather, this article is a distillation of one side of an argument assigned to the team the author represented at the Wechsler Criminal Law Moot Court Competition. For the sake of the competition, cases currently pending before the Supreme Court could not be relied upon; however, this very issue is soon to be decided in the case of Jennings v. Rodriguez.
2. See Prolonged Detention Fact Sheet, Am. Civil Liberties Union, (last visited Nov. 26 2017) [hereinafter Prolonged Detention Fact Sheet].
3. See, e.g., Reid v. Donelon, 819 F.3d 486 (1st Cir. 2016); Diop v. ICE/Homeland Security, 656 F.3d 221 (3d Cir. 2011); Ly v. Hansen, 351 F.3d 263 (6th Cir. 2003); Sopo v. U.S. Attorney General, 825 F.3d 1199 (11th Cir. 2016).
4. See Lora v. Shanahan, 804 F.3d 601, 613 (2d Cir. 2015); Rodriguez v. Robbins (Rodriguez II), 715 F.3d 1127, 1146 (9th Cir. 2013), cert. granted sub. nom. Jennings v. Rodriguez, 136 S. Ct. 2489, 2016 WL 1182403 (June 20, 2016) (No. 15-1204).
5. See 136 S. Ct. 2489 (2016) (granting certiorari).
6. See 8 U.S.C. § 1226(c).
7. Zadvydas v. Davis, 533 U.S. 678, 690 (2001).
8. See Matthews v. Eldridge, 424 U.S. 319, 333 (1976).
9. See, e.g., Reid v. Donelon, 819 F.3d 486, 502 (1st Cir. 2016); Sopo v. U.S. Att’y Gen., 825 F.3d 1199, 1214-16 (11th Cir. 2016); Lora v. Shanahan, 804 F.3d 601, 616 (2d Cir. 2015); Rodriguez v. Robbins, 715 F.3d 1127, 1138-39 (9th Cir. 2013) [hereinafter Rodriguez II]; Diop v. ICE/Homeland Sec., 656 F.3d 221, 231 (3d Cir. 2011); Ly v. Hansen, 351 F.3d 263, 271 (6th Cir. 2003).
10. See, e.g., Wong Yang Sung v. McGrath, 339 U.S. 33, 50 (1950); see also Yamata v. Fisher, 189 U.S. 86, 101 (1903) (“In the case of all acts of Congress, such interpretation ought to be adopted as, without doing violence to the import of the words used, will bring them into harmony with the Constitution.”).
11. See Zadvydas, 533 U.S. at 690.
12. Id. at 701.
13. See Demore v. Kim, 538 U.S. 510 (2003).
14. Id.
15. Id. at 513.
16. Letter from Office of Solicitor Gen., U.S. Dep’t of Justice, to Scott S. Harris, Clerk, Supreme Court of the United States (Aug. 26, 2016), [hereinafter SG Letter].
17. See Demore, 538 U.S. at 529.
18. See 804 F.3d 601, 613 (2d Cir. 2015).
19. See Rodriguez v. Robbins (Rodriguez II), 715 F.3d 1127, 1146 (9th Cir. 2013), cert. granted sub. nom. Jennings v. Rodriguez, No. 15-1204, 2016 WL 1182403 (June 20, 2016) (reargued Oct. 3, 2017).
20. See Zadvydas v. Davis, 533 U.S. 678 (2001).
21. See Reid v. Donelon, 819 F.3d 486 (1st Cir. 2016).
22. See Diop v. ICE/Homeland Security, 656 F.3d 221 (3d Cir. 2011).
23. See Ly v. Hansen, 351 F.3d 263 (6th Cir. 2003).
24. See Sopo v. U.S. Att’y General, 825 F.3d 1199 (11th Cir. 2016).
25. Reid, 819 F.3d at 495 (citing Diop, 656 F.3d at 233 and Ly, 351 F.3d at 271).
26. See, e.g., Reid, 819 F.3d 495; Diop, 656 F.3d at 233; Ly, 351 F.3d at 271.
27. See Reid, 819 F.3d at 497 (“[T]he approach has resulted in wildly inconsistent determinations.”); Lora v. Shanahan, 804 F.3d 601, 614-15 (2d Cir. 2015).
28. Compare Reid, 819 F.3d at 497 (“[T]he approach has resulted in wildly inconsistent determinations.”) with Lora, 804 F.3d at 614-15.
29. See Lora, 804 F.3d at 615; compare, e.g., Martin v. Aviles, No. 15 Civ. 1080(AT)(AJP), 2015 WL 3929598, at *2–3 (S.D.N.Y. June 15, 2015) (holding an alien for over a year without a bond hearing violated his due process rights) with Johnson v. Orsino, 942 F. Supp. 2d 396 (S.D.N.Y. 2013) (fifteen month detention not unreasonable); see also Luna–Aponte v. Holder, 743 F. Supp. 2d 189, 194 (W.D.N.Y. 2010) (nearly three years of detention not unreasonable).
30. See Wolf v. McDonnell, 418 U.S. 539 (1974).
31. Lora, 804 F.3d at 615 (“some detainees are represented by counsel and some are not.”).
32. Rodriguez II, 804 F.3d at 1085 (“Detainees, who typically have no choice but to proceed pro se, have limited access to legal resources, often lack English-language proficiency, and are sometimes illiterate.”).
33. Ingrid Eagly & Steven Shafer, Access to Counsel in Immigration Court, American Immigration Counsel (Sept. 28, 2016)
34. Id.
35. Lora, 804 F.3d at 614 (under the reasonableness test, “every detainee must file a habeas petition challenging detention, and the district courts must then adjudicate the petition to determine whether the individual’s detention has crossed the ‘reasonableness’ threshold, thus entitling him to a bail hearing.”).
36 See Sopo v. U.S. Att’y Gen., 825 F.3d 1199, 1217 n.8 (11th Cir. 2016).
37 See Brief for Respondents at 8, Rodriguez v. Robbins, 804 F.3d 1060 (2015) (No. 15-12-4), 2016 WL 6123731.
38. See Rodriguez I, No. 07-CV-03239 TJH (RNBx), 2012 WL 7653016, at *1 (C.D. Cal. 2012).
39. Rodriguez II, 715 F.3d at 1146.
40. See Reid v. Donelon, 819 F.3d 486, 497-98 (1st Cir. 2016).
41. See Prolonged Detention Fact Sheet.
42. Id.
43. Id.
44.  Am. Civil Liberties Union, Warehoused and Forgotten, Immigrants Trapped in Our Shadow Private Prison System (June 2014).
45. Id. at 25.
46. Id. at 27.
47. Id.
48. See 804 F.3d 601, 613 (2d Cir. 2015).
49. Prolonged Detention Fact Sheet.
50. See, e.g., Diop v. ICE/Homeland Sec., 656 F.3d 221, 233 (3d Cir. 2011) (applying a reasonableness test rather than bright-line rule to length of detention because Demore “emphasized that mandatory detention pursuant to § 1226(c) lasts only for a ‘very limited time’ in the vast majority of cases.”)
51. Brief of Petitioner at *39, Demore v. Kim, (No. 01-1491), 2002 WL 31016560.
52. See, e.g., Zadvydas, 533 U.S. at 700–01 (adopting six month rule “for the sake of uniform administration,” while also noting that it would limit the need for lower courts to make “difficult judgments”); cf. Riverside v. McLaughlin, 500 U.S. 44, 55-56 (1991) (48-hour time limit on detention prior to probable cause hearing is reasonable to provide some degree of certainty that the state is acting within constitutional bounds).