In many ways, Mark and Richard led parallel lives. Both men came to the United States as young children, Mark from South Korea and Richard from Jamaica. They both had status as legal permanent residents, attended school, and put down roots in their communities.
In their teenage years, both had minor run-ins with the law, as many teenagers do. Mark was convicted for marijuana possession, while Richard received a conviction related to a schoolyard fight at his high school. But both committed to reform, and they remained out of trouble since that time.
As adults, both were living comfortably. They had stable jobs – Mark ran a logistics and shipping company, while Richard was a Class-A truck driver – and were excitedly expecting children with their partners. Neither man had any inclination that incidents from their youth would have any effect on their immigration status. But, some 15 years later, both men were apprehended in their own homes by Immigration and Customs Enforcement (ICE) without warning, charged as deportable based on these minor convictions, and incarcerated in an immigration detention center.
In general, our Constitution does not allow the government to lock people up unless, at a minimum, they are provided with a bond hearing to determine that their detention is necessary. However, in 1996, Congress passed a law requiring the mandatory detention of immigrants facing removal proceedings who had been convicted of virtually any crime. As a result, individuals like Mark and Richard found themselves locked up in immigration jails, without even an opportunity to demonstrate that they posed no danger or flight risk requiring their detention. Moreover, such detention can last for months, even years, depending on how long it takes for an immigration case to be decided.
Most people who are detained do not have attorneys, and have no idea when, or if, they will be released. One can only imagine what type of toll this uncertainty might take on someone's psyche. When I spoke to Mark, he told me that he felt so stuck that he almost signed voluntary deportation papers just to know that he was getting out, despite the fact that he had strong legal claims to remain in the United States and would be forced to return to a country he barely knew.
However, Mark was lucky to have been living in California. He was able to secure his release on bond after being detained for just six months, while Richard was locked up in immigration detention for over two years without a bond hearing.
Given their almost identical circumstances, it doesn't make sense that Mark and Richard had such starkly different detention experiences. Why would a person be detained for over two years without any opportunity for a bond hearing, missing the first two years of his child's life, while others are afforded this basic right? The answer lies in several important ACLU court victories that have helped restore some due process to the immigration detention system.
Most recently, in 2013, the Ninth Circuit Court of Appeals held in the ACLU class action Rodriguez v. Robbins that the government is required to provide bond hearings for certain detainees held for six months or longer. The implementation of the Rodriguez decision has proven the government can no longer justify its mandatory detention regime. For Mark, detained in Adelanto, California, this meant that an immigration judge was required to review his case before he was held any longer than six months. He was then released on bond back to his waiting family.
A report compiling government statistics reveals that of the hundreds of bond hearings conducted for Rodriguez class members, immigration judges have found that approximately 70 percent are eligible for release on bond. That number is astounding. The government claims that no detainee should even have the opportunity for a bond hearing, and yet when the government's own immigration judges are taking a look at the individual cases, they are finding that 70 percent can be released on bond.
Because the government continues its draconian policy of mandatory detention in states outside of the Ninth Circuit, thousands of immigrants like Richard, who was apprehended in Connecticut and detained in Massachusetts, continue to waste away unnecessarily behind bars – at great cost to them, their families, and the U.S. tax payer because of nothing more than judicial geography. The government continues to deny these people the most basic right that due process guarantees: a hearing before an immigration judge where the government must justify the need to detain them.
This is true regardless of how long they are detained, or whether they present any risk to the community. The system is unfair and unconstitutional, and it is incredibly expensive. There is no reason that the basic right to a bond hearing should turn on the happenstance of where you are detained. The Obama administration should help bring a measure of fairness to our broken detention system by adopting the Rodriguez six-month rule nationwide.
The statistics in the report simply confirm what we already knew from cases like Mark and Richard's – it's time to put an end to prolonged mandatory detention.