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Immigrants Facing Deportation Win Access to Bond Hearings

By Casey C. Sullivan, Esq. on October 30, 2015 | Last updated on March 21, 2019

Immigrants housed in civil detention facilities will have greater access to bond hearings and potential release thanks to a Ninth Circuit ruling yesterday. Currently, thousands of immigrants are held in detention facilities for extended periods of time, awaiting rulings on their immigration status.

Those detainees will now have a greater chance of gaining release on bond while they wait for their case to be settled, thanks to the Ninth Circuit.

Treated Like Criminals but Convicted of No Crimes

On any given day, there are tens of thousands of individuals in immigration detention centers. Immigration and Customs Enforcement detains almost half a million people every year. Yet, while civil detention locks people away, it is a preventative, not a punitive system. The goal is to keep immigrants of questionable status from evading immigration control. Those detained are held for extended times while they await the conclusion of administrative of judicial proceedings to see whether they can remain in the country.

It's a system that treats detainees much like criminals, the Ninth Circuit noted. Judge Kim Wardlaw, writing for the unanimous panel, noted that "prolonged detention imposes severe hardship on class members and their families." Detainees are "typically housed in shared jail cells with no privacy and limited access to larger spaces or the outdoors," she wrote. In some cases, detention can last for years at a time. Those who challenge their detention often win -- but only after a lengthy legal process, during which they remain in confinement.

Lack of Bond Hearings Violates Due Process

A class of detainees challenged the federal detention system, arguing that it violated their due process rights. The Supreme Court came to a similar conclusion in the past, holding in 2001's Zadvydas v. Davis that indefinite detention required a regular bond hearing within a reasonable time frame. Expanding on that logic and subsequent case law, the Ninth Circuit held that detainees must be given bond hearings every six months, at which time the presiding judge should consider the length of time served and possible alternatives.

The ruling specifically affects three classes of detainees:

  • Those detained under 8 U.S.C. § 1226(c), those mandatorily detained after release from imprisonment, who are often held for extended times without judicial review.
  • Those detained under 1225(b). Those are detainees, including asylum seekers, who are stopped at the border or found in the U.S. without immigration papers.
  • Detainees held under 1226(a), which authorizes detention of those pending a removal decision.

Bond hearings, the court noted, "do not restrict the government's legitimate authority to detain inadmissible or deportable non-citizens," but they do require the government to produce clear and convincing evidence that continued detention is justified.

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