Supreme Court Commentaries
Immigration, Mandatory Detention, Bond Hearing for Criminal Aliens
Constitutional Law | Supreme Court of the United States
Jennings v. Rodriguez will determine whether specific classes of detained noncitizens will be entitled to bond hearings before Immigration Judges moving forward. The challenge comes from the Ninth Circuit, which, with the Second Circuit, mandates bond hearings for some detainees automatically after six months. Those Circuits found that after that point, the detention was arbitrary without a showing by the Government of why the noncitizen needed continued detention. The Government seeks to retain the current system, where the noncitizen’s detention release is entirely at the Government’s discretion. This commentary sets out the case and argues that the better route is to affirm the six-month, mandatory approach. That approach is in line with the Supreme Court’s approach to bond generally, and is compatible with the precedent on immigration detention. The six-month approach balances the Government’s needs for detention in the immigration context with the constitutional and human right to be free from arbitrary restraint.
Joe Bianco, Chance to Change: Jennings V. Rodriguez as a Chance To Bring Due Process to a Broken Detention System, 13 Duke Journal of Constitutional Law & Public Policy Sidebar 37-56 (2018)