Blog Post 47: Indefinite Immigration Detention: Giving Some Process that is Due in Rodriguez v. Robbins and Lora v. Shanahan

By Sarah Vogt

In the shadows of the recent announcement that roughly 6,000 federal prisoners were to be released between Friday, October 30, and Tuesday, November 3,[1] the Court of Appeals for the Ninth Circuit issued its decision in Rodriguez v. Robbins[2] two days prior. Rodriquez, on appeal before the court for the third time, this time as a class action suit, presented the issue of indefinite detention of immigrants. Primarily at issue in Rodriguez was whether a permanent injunction, which required the government to provide any immigrant subject to “prolonged detention” with a bond hearing, would remain.[3] Rodriguez defines “prolonged detention” as six months or more.[4]

The court’s decision turned on the underlying due process issue inherent in cases of indefinite detention, which was seemingly not subject to any review. Rodriguez resulted in the injunction being upheld in part, requiring bond hearings every six months to noncitizens detained for more than twelve.[5] Further, the decision mandates that “clear and convincing” evidence must prove that a noncitizen is either a danger to the community or a flight risk to deny bond.[6]

Looking to the immediate implication of Rodriguez, nearly 2,000 prisoners freed from this “mass release” will be immediately transferred to U.S. Immigration and Customs Enforcement (ICE) custody for deportation proceedings.[7] The transfer to ICE custody brings with it deep concerns about the probability the immigrants may not receive due process, especially in the form of bond hearings.[8]

The basis behind the mass release adds to the many issues and complications facing these 2,000 immigrant inmates i.e. the reductions in mandatory minimum sentences for certain non-violent drug offenses.[9] The government applies the reductions retroactively, thereby granting some inmates an early release that is in line with the new sentencing guidelines.[10] The issue for immigrants, however, is the implications of these convictions and sentences once they reach ICE custody. Many non-violent drug offenses that resulted in the shortening of sentences translate to negative consequences in the realm of removal proceedings.[11]

Additionally, as Rodriguez notes, applying for relief from removal will increase the duration of detention in ICE custody.[12] Due to the prior non-violent drug convictions, many of the immigrants who file for relief will be barred from receiving relief. As a result, they will be detained and buried in the backlog of cases while waiting for complete adjudication of their case and final removal orders.

The decision in Rodriguez is obviously only binding on the Ninth Circuit; however, the implications of the case could expand, especially in light of a Second Circuit decision[13], Lora v. Shanahan(issued the same day as Rodriguez). The court in Lora similarly held that the government must grant immigrants detained pursuant to a statute[14] requiring mandatory detention during removal proceedings a bail hearing within six months of his or her detention.[15]

In Lora, the Court of Appeals for the Second Circuit cited “the bureaucratic backlog” as a major reason for requiring a six-month rule to prevent endless detention without reevaluation.[16] Likewise, the Ninth Circuit also cited the excessive processing delays and lengthy road to adjudication of claims for relief from removal as factors weighing in favor of imposing a six-month rule.[17] An additional factor of particular importance to the Rodriguez court was the fact that many of the class members immigrated to the United States as children and had subsequently obtained lawful permanent resident status.[18] The court grappled with the issue that prolonged detention creates significant hardship for the families of these contributing members of society, while also acknowledging that removing these individuals to their “home country” would be equally difficult because many of them had lived in the United States for up to twenty years.[19]

The fact that multiple circuits are addressing the issue of prolonged detention and the underlying due process issues associated with such indefinite deprivation of liberties makes this issue ripe for a circuit split and Supreme Court attention in the near future. Additionally, in anticipation of the coming presidential election, cases like Rodriguez and Lora bring the reality of the flawed immigration system[20] to the forefront of the legal community’s attention.

[1] Julia Harte & Julia Edwards, Mass release of U.S. prisoners spells deportation for hundreds, Reuters (Oct. 30, 2015).

[2] Rodriguez v. Robbins, Nos. 13–56706, 13–56755, 2015 WL 6500862 (9th Cir. Oct. 28, 2015).

[3] Id. at *1.

[4] Id.

[5] Id.

[6] Id.

[7] Julia Harte & Julia Edwards, Mass release of U.S. prisoners spells deportation for hundreds, Reuters (Oct. 30, 2015).

[8] Id.

[9] Id.

[10] Id.

[11] 8 U.S.C. § 1182(a)(2)(A)(i)(II).

[12] Rodriguez, 2015 WL 6500862 at *8 (noting that “[r]equesting relief from an IJ increases the duration of class members’ detention by an average of two months; appealing a claim to the BIA adds, on average, another four months; and appealing a BIA decision to the Ninth Circuit typically leads to an additional eleven months of confinement.”).

[13] Lora v. Shanahan, No. 14–2343–PR., 2015 WL 6499951 (2nd Cir. Oct. 28, 2015).

[14] 8 U.S.C. § 1226(c) (2015) (“The Attorney General shall take into custody any alien who . . . is inadmissible by reason of having committed any offense covered in section 1182(a)(2) of this title, is deportable by reason of having committed any offense covered in section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title . . . when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense.”).

[15] Lora, 2015 WL 6499951at *12.

[16] Id. at *11.

[17] Rodriguez, 2015 WL 6500862 at *8.

[18] Id.

[19] Id.

[20] See Rodriguez, 2015 WL 6500862 at *1, *8 (stating that the class members spent, on average, 404 days in detention and that “ICE detains more than 429,000 individuals over the course of a year, with roughly 33,000 individuals in detention on any given day.”).