One of the frustrating things about the problem of illegal “immigration” in America is that illegal aliens and their advocates demand — and are given — rights that U.S. citizens have. To add injury to insult, illegal aliens are accorded public defenders — all paid for by taxpayers.
One of those rights is the right to bond after arrest and to bond hearings (Galantar Law):
- Right to bond: When an individual is arrested, he/she is entitled to bond out of jail immediately.
- Right to bond hearing: If you are being held without bond or you can’t afford the standard bond, you will need a bond hearing to get released. The hearing must take place within 24 hours of your arrest. If you are still in jail after your initial hearing appearance, you will need a criminal defense attorney to get you a bond or get your bond amount lowered. If you have a high bond, a lawyer can file a motion to lower your bond with your trial judge. At that time you must show that you are not a flight risk and that you have good ties to the community.
On February 27, 2018, in Jennings v. Rodriguez, the Supreme Court ruled 5-3 that detained aliens in the United States, such as asylum seekers and permanent residents, do not have the right to periodic bond hearings during the course of their detention.
In effect and by implication, the government can detain non-citizen aliens for an indefinite period.
The 5 justices are Samuel Alito, John Roberts, Anthony Kennedy, Clarence Thomas and Neil Gorsuch; the dissenting 3 justices are Stephen Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor. Elena Kagan recused herself, as she should, because she had been involved in Jennings v. Rodriguez as solicitor general in the Obama administration.
The lead plaintiff in Jennings v. Rodriguez is Alejandro Rodriguez who came to the U.S. from Mexico as a child, was convicted for joyriding as a teenager, and became a U.S. permanent resident in 1987. In 2004, 24-year-old Rodriguez, still a Mexican citizen, was convicted and pleaded guilty to misdemeanor possession of a controlled substance. He remained in detention while the government sought to deport him to Mexico.
In May 2007, while still litigating his removal, Rodriguez filed a habeas corpus petition, claiming that:
- His “prolonged” detention was unjustified in the absence of a bond hearing.
- He was entitled to an individualized bond hearing.
- In that hearing, the government must prove by clear and convincing evidence that his continuing detention is justified.
The American Civil Liberties Union (ACLU) took up Rodriguez’s case and filed a class action lawsuit. The infamous Ninth Circuit Court of Appeals ruled in favor of Rodriguez and the ACLU — that immigrant detainees and asylum seekers can’t be detained indefinitely and that they have a right to a bond hearing every six months, unless the government can show that the detainee would pose a danger or become a flight risk if set free.
And so, the ACLU won Rodriguez’s release and the cancellation of his deportation order. He remains in the U.S.
The Obama administration appealed to the Supreme Court, arguing that Congress — not the courts — has the power to make immigration law and that the law allows the government to detain “criminal and terrorist aliens” as well as “aliens seeking admission to the United States.” The Trump administration continued the case by asserting that detained immigrants should not be recognized as a class that could bring legal action, but should rely on individual habeas corpus petitions to challenge their detentions.
Justice Samuel Alito penned the majority opinion in Jennings v. Rodriguez:
Every day, immigration officials must determine whether to admit or remove the many aliens who have arrived at an official “port of entry”… or who have been apprehended trying to enter the country at an unauthorized location. Immigration officials must also determine on a daily basis whether there are grounds for removing any of the aliens who are already present inside the country. The vast majority of these determinations are quickly made, but in some cases deciding whether an alien should be admitted or removed is not as easy. As a result, Congress has authorized immigration officials to detain some classes of aliens during the course of certain immigration proceedings. Detention during those proceedings gives immigration officials time to determine an alien’s status without running the risk of the alien’s either absconding or engaging in criminal activity before a final decision can be made. […]
To implement its immigration policy, the Government must be able to decide (1) who may enter the country and (2) who may stay here after entering. […] Even once inside the United States, aliens do not have an absolute right to remain here. For example, an alien present in the country may still be removed if he or she falls “within one or more . . . classes of deportable aliens.” §1227(a). That includes aliens who were inadmissible at the time of entry or who have been convicted of certain criminal offenses since admission. […]
U. S. immigration law authorizes the Government to detain certain aliens seeking admission into the country under §§1225(b)(1) and (b)(2). It also authorizes the Government to detain certain aliens already in the country pending the outcome of removal proceedings under §§1226(a) and (c). The primary issue is the proper interpretation of §§1225(b), 1226(a), and 1226(c). […]
In their complaint, Rodriguez and the other respondents argued that the relevant statutory provisions—§§1225(b), 1226(a), and 1226(c)—do not authorize “prolonged” detention in the absence of an individualized bond hearing at which the Government proves by clear and convincing evidence that the class member’s detention remains justified. Absent such a bond-hearing requirement, respondents continued, those three provisions would violate the Due Process Clause of the Fifth Amendment. […]
And so, the Supreme Court ruled that:
Immigration officials are authorized to detain certain aliens in the course of immigration proceedings while they determine whether those aliens may be lawfully present in the country. For example, §1225(b) of Title 8 of the U. S. Code authorizes the detention of certain aliens seeking to enter the country. Section 1225(b)(1) applies to aliens initially determined to be inadmissible due to fraud, misrepresentation, or lack of valid documentation, and to certain other aliens designated by the Attorney General in his discretion.
Section 1225(b)(2) is a catchall provision that applies to most other applicants for admission not covered by §1225(b)(1). Under §1225(b)(1), aliens are normally ordered removed “without further hearing or review,” §1225(b)(1)(A)(i), but an alien indicating either an intention to apply for asylum or a credible fear of persecution, §1225(b)(1)(A)(ii), “shall be detained” while that alien’s asylum application is pending, §1225(b)(1)(B)(ii). Aliens covered by §1225(b)(2) in turn “shall be detained for a [removal] proceeding” if an immigration officer “determines that [they are] not clearly and beyond a doubt entitled” to admission. §1225(b)(2)(A).
The Government is also authorized to detain certain aliens already in the country [referring to legal permanent residents like Alejandro Rodriguez]. Section 1226(a)’s default rule permits the Attorney General to issue warrants for the arrest and detention of these aliens pending the outcome of their removal proceedings. The Attorney General “may release” these aliens on bond, “[e]xcept as provided in subsection (c) of this section.” Section 1226(c) in turn states that the Attorney General “shall take into custody any alien” who falls into one of the enumerated categories involving criminal offenses and terrorist activities, §1226(c)(1), and specifies that the Attorney General “may release” one of those aliens “only if the Attorney General decides” both that doing so is necessary for witness-protection purposes and that the alien will not pose a danger or flight risk, §1226(c)(2). […]
Nothing in §1226(a), which authorizes the Attorney General to arrest and detain an alien “pending a decision” on removal and which permits the Attorney General to release the alien on bond, supports the imposition of periodic bond hearings every six months in which the Attorney General must prove by clear and convincing evidence that continued detention is necessary.
Writing for the liberal NPR, Domenico Montanaro, Richard Gonzalez and Nina Totenberg point out that:
The case, Jennings v. Rodriguez, has implications for legal permanent residents whom the government wants to deport because they committed crimes and for asylum seekers who are awaiting a court date after turning themselves in at the border. Immigrant advocates contend that many of these immigrants have a right to be free on bail until their case is heard.
The decision reversed a Ninth Circuit ruling, but this is not the last word and could come back to the high court. The Supreme Court sent the case the back to the lower court with two questions unresolved. First, whether indefinite detention without a chance for bail is unconstitutional. Second, whether the challenge to that no-bail provision can be brought as a class action, instead of as individual cases.
Writing for the dissenting minority opinion, an outraged and hyperbolic Justice Stephen G. Breyer called SCOTUS’ Jennings v. Rodriguez ruling “legal fiction” that would leave the government “free to starve, beat, or lash those held within our boundaries”.
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