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Detained Immigrants Not Entitled to Periodic Bond Hearings

By William Vogeler, Esq. on February 27, 2018 | Last updated on March 21, 2019

It's not easy to write a short headline for a legal decision that takes judges 91 pages to explain.

So it's understandable when major news agencies miss the point, like reports of the U.S. Supreme Court's decision in Jennings v. Rodriguez. The New York Times said "No Bail Hearings for Detained Immigrants," but the High Court technically said they do not have a right to periodic bond hearings.

A poet might say, "What's in a word?" In this case, the judges had a problem defining the word "detained."

Periodic Hearings

That word meant the most to Alejandro Rodriguez, who was detained for three years pending deportation proceedings. In the class-action bearing his name, the U.S Ninth Circuit Court of Appeals said immigrants are entitled to bond hearings after six months in detention and every six months afterwards.

In a plurality decision, the Supreme Court reversed and remanded the case. Justice Samuel Alito wrote for the majority, which said Sections 1225 and 1226 of Title 8 of the U.S. Code do not give aliens a right to periodic bail hearings.

In sharp words, Alito also took aim at the dissent's argument that immigrants are entitled to bail review as the Ninth Circuit reasoned. He said their interpretation of "detained" in the statute "defies ordinary English usage," was "utterly implausible," and a "sleight-of-hand trick."

Justice Stephen Breyer, writing for the dissent, said the Fifth Amendment applies to all people within the United States. He called it a "legal fiction" to say immigrants are not entitled to those due process protections when they enter the country.

For example, he said, the majority would deny periodic bail review to asylum seekers.That is worse treatment than for people charged with crimes or convicted criminals appealing convictions, he said.

In Rodriguez' case, he had been convicted of misdemeanor drug possession and joy riding. He spent more than three years "detained" before he was released and allowed to stay in the United States.

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