Contributions

Rights on ICE: A Determination Delayed is Due Process Denied

by Sharon Tur­ret1

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© 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©, 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©, 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© 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© 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, 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, 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.

 

1. 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©) 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, https://www.aclu.org/other/rodriguez-et-al-v-robbins-et-al-prolonged-detention-fact-sheet. (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©.
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), http://online.wsj.com/public/resources/documents/Demore.pdf [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) https://www.americanimmigrationcouncil.org/research/access-counsel-immigration-court.
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© 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).