On November 30th, the ACLU will be in the Supreme Court to argue a case that will decide the fate of thousands of people languishing in immigration prisons across the United States. Jennings v. Rodriguez asks a basic question: Can the federal government lock you up, for months or years, without the due process of a hearing to decide if your imprisonment is even justified?
Shockingly, in much of the country, the answer is yes if you’re an immigrant — even if courts ultimately find you have a legal right to live here. Take Warren Joseph. Warren came to the U.S. as a lawful permanent resident from Trinidad, enlisting in the U.S. Army when he was 21. He served in combat positions in the First Gulf War, was injured in the line of duty, received commendations for his rescue of fellow soldiers, and was honorably discharged.
Like many combat veterans, Warren fell upon hard times after returning home. In 2001, he was arrested for unlawfully purchasing a handgun for individuals to whom he owed money. He received a probation sentence, and with the support of his family, was able to find a good job. However, when he moved to his mother’s house and failed to inform his probation officer, he was found guilty of violating probation and sentenced to six months in prison.
Little did Warren realize that after serving his sentence, he would then spend three-and-a-half years in an immigration jail in Kearney, New Jersey, after being put in deportation proceedings. At no point did he receive a hearing where he could ask a judge for release. Ultimately, Warren won his deportation case and got to keep his green card, and he recently became a U.S. citizen. But he will never get back the three-and-a-half years of his life he lost to our immigration detention system.
The thousands of people in long-term immigration lock-up today include not only green card holders like Warren but also asylum seekers like Emmanuel Boukari, who are legally entitled to refuge because of the persecution they face in their countries of origin.
Without a bond hearing, people like Warren and Emmanuel may spend years behind bars in a prison jumpsuit, shackled for visits with loved ones, subjected to strip searches and solitary confinement, and referred to by guards as a number. They may suffer separation from family members, often across state lines; see their children placed in foster care; and lose jobs, savings, homes, and businesses. About 73 percent of immigration detainees are held in private prisons, which have a grisly track record of deaths due to medical neglect, suicides, and sexual abuse.
In 2015, the ACLU won a ruling in the Ninth Circuit Court of Appeals that individuals like Warren and Emmanuel are entitled to a bond hearing once their imprisonment exceeds six months. At that hearing, an immigration judge can decide to release the person — but only if they pose no danger or flight risk that calls for imprisonment. The ruling has been a lifeline for thousands of immigrants who shouldn’t be in jail in the first place.
For example, in the Los Angeles area, judges found about 70 percent of immigrants eligible for release at their bond hearings, and about 70 percent of those people were able to post bond and go home to their families. By allowing for release in appropriate cases, the Ninth Circuit’s ruling has also brought huge savings for U.S. taxpayers.
Most importantly, the ruling introduced basic due process to a prison system that has spiraled out of control. The Supreme Court has long held that the right to an individualized hearing is a bedrock due process requirement for civil detention. Criminal defendants, sex offenders, the mentally ill, and other detainees all must receive a hearing to determine if their incarceration is justified. In Demore v. Kim (2003), the Supreme Court carved out a narrow exception to this rule for “brief” periods of immigration detention, in cases where the person concedes he is deportable.
This exception does not apply here. The plaintiffs in Jennings are routinely detained much longer — for months or years — and have strong claims to lawful status. Indeed, the Jennings plaintiffs are five times more likely to win their deportation cases than the typical detainee.
Detaining people for years without hearings is unnecessary, expensive, and unconstitutional. And the stakes could not be higher. President-elect Trump has pledged to put more people in immigration detention than ever while pursuing a federal hiring freeze that would effectively paralyze the immigration courts. If these policies come into effect, only more immigrants with claims to lawful status will find themselves arrested and locked up for months or years while their cases are in legal limbo — and private prison companies will profit massively in the meantime.
Ultimately, the Supreme Court will decide whether the Ninth Circuit’s ruling will stand or the government will be allowed to return to locking people up for years without meaningful review. But no matter what the outcome, the ACLU is here to defend the rights of all persons in our country, citizen and immigrant alike.
In America, no one should be locked up without due process of law.