Judges Say No to Obama’s Lock-’Em-Up-With-No-Questions-Asked Immigration Detention Policy

Detention is one of the cruelest aspects of our broken immigration system.

On any given day, the federal government holds tens of thousands of men, women, and children in a vast network of jails and prisons across the country. None of these suspected immigration violators are criminal defendants or serving criminal sentences. In most cases, the government is merely holding them because it wants to make sure they show up for immigration court.

Detention is supposed to be short, lasting only as long as it takes for a judge to make a prompt decision about whether you have the right to remain in the country. But the reality is that, due to court backlogs, people are locked up for months or even years, with no end in sight. Even worse, under Obama administration policies, most long-term detainees are denied a basic form of due process: a bond hearing where a judge can decide whether you even need to be locked up in the first place.

Two federal courts rejected this draconian policy. In Rodriguez v. Robbins (a case brought by the ACLU) and Lora v. Shanahan (a case the ACLU briefed and argued as amicus), the Ninth and Second Circuits, respectively, held that immigrants must receive a bond hearing after six months in lock-up. The Obama administration is now 0 for 4 on this issue, with four circuits having broadly recognized that refusing to give long-term detainees a bond hearing violates the law.

Alejandro — a green card holder from Mexico who has lived in the United States since he was a baby — languished in detention for three years without a bond hearing.

These decisions will help ensure that stories like Alejandro Rodriguez’s never happen again. Alejandro — a green card holder from Mexico who has lived in the United States since he was a baby — languished in detention for three years without a bond hearing. Before he was detained, Alejandro lived near his extended family in Los Angeles, working as a dental assistant to support his two U.S. citizen children. The government locked him up while seeking to deport him for two non-violent convictions — joyriding when he was 19 and a misdemeanor drug possession when he was 24. After three years of jailing him without a hearing, the government finally released Alejandro on his own recognizance after he filed a habeas petition in district court —revealing that they had never considered him a flight risk or danger in the first place. Alejandro went on to win his immigration case and now lives in Los Angeles.

The long-term lock-up Alejandro suffered conflicts not only with fundamental due process: It’s bad public policy. Putting people in cages with no questions asked necessarily results in the mass imprisonment of people who pose no flight risk and no danger to the community, with U.S. taxpayers footing the bill.

In a moment when lawmakers from both sides of the aisle are calling for an end to mass incarceration, it makes no sense for the Obama administration to detain immigrants for months and years without due process. In America, no one should be held in long-term detention without a hearing to determine if he or she needs to be locked up in the first place.

The Obama administration should adopt these rulings nationwide and provide bond hearings to all immigrant detainees after six months of detention.