Not Yet Gone, and Not Yet Forgotten: The Reasonableness of Continued Mandatory Detention of Noncitizens Without a Bond Hearing

Miriam Peguero Medrano | January 1, 2018

Section 1226(c) of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) authorizes the mandatory detention, without the possibility of bond, of noncitizens convicted of certain qualifying offenses for the duration of their removal proceedings. Congress enacted the mandatory detention statute because it was concerned that noncitizens who are convicted of crimes will further engage in criminal activity and fail to appear for their removal hearings. To ensure noncitizens are not deprived of their constitutional right to due process, federal courts have construed § 1226(c) to contain an implicit time limitation against unreasonably prolonged detention. These courts have adopted either a bright-line or case-by-case approach to determine the point at which mandatory detention without bond becomes unconstitutionally impermissible. After six months of detention, the former requires an automatic bond hearing and the latter instructs detainees to file a habeas corpus petition that, if granted, triggers a bond hearing. This year, the Supreme Court in Jennings v. Rodriguez rejected the lower courts’ construction § 1226(c) and held that interpreting § 1226(c) to contain an implicit time limitation is improper because the statute is neither ambiguous or unclear. The Court, however, declined to consider whether its interpretation of § 1226(c) is constitutional and instead remanded the case back to the Ninth Circuit to consider constitutional arguments on the merits.

This Comment argues that the majority’s decision in Jennings v. Rodriguez failed to enforce the Constitution and protect the due process rights of detained noncitizens by interpreting § 1226(c) as not having a time limit on detention without bond. It further contends that while the lower courts correctly interpreted § 1226(c) to include a time limit, the current approaches applied by these courts do not properly protect detainees’ constitutional rights because under both approaches, detainees cannot challenge the reasonableness of their continued detention until after six months. Limiting detainees’ opportunity to challenge their continued detention for six months raises the same “serious doubts” of constitutionality that Justice Breyer argued, in dissent, are raised when § 1226(c) is interpreted as forbidding an individualized bond hearing. Alternatively, this Comment proposes that detained noncitizens—who pose little risk of flight or danger to the community—should receive prosecutorial discretion in the form of deferred action as to their continued detention at any point during their detention, including during the “presumptively reasonable” six-month period under the current two approaches. If prosecutorial discretion is not granted, detained noncitizens should then be entitled to automatic and periodic bond hearings beginning at six months of detention.