Indefinite Detention in Immigration Jails? 


By: Ally Bolour, Law Offices of Ally Bolour, APC

On February 27, 2018, in the class action suit, Jennings v Rodriguez, which ACLU litigated in federal courts, the US Supreme Court (SCOTUS) ruled that immigrants in long term detention of over 6 months don’t necessary have a right to a bond hearing. In its ruling, SCOTUS overturned a 9th circuit decision that required a bond hearing, commonly referred to as a Rodriguez Hearing, once an immigrant had spent at least 6 months in ICE custody.  Justice Alito and the conservative majority wrote the opinion and the liberal Justices dissented.


Despite the overwhelming coverage in the media that SCOTUS made it impossible for immigrants in ICE detention to get out of jail unless they win their cases, there is hope.  SCOTUS did not rule on the constitutionality of prolonged detention, which was an issue on which the ACLU briefed the court.  Instead, SCOTUS merely stated that the statute or the law under which an immigrant may be detained does not bar prolonged detentions.


It’s worth noting that there was a strong dissent by Justice Breyer from the liberal wing of the court.  He wrote in part: “No one can claim, nor since the time of slavery has anyone to my knowledge successfully claimed, that persons held within the United States are totally without constitutional protections.”


The issue of whether such detentions violate the Due Process Clause of the U.S. Constitution is still an open question.  ACLU will continue to litigate this matter in the 9th circuit.  Unfortunately though, for the immigrant detainees, a bond hearing will not be a matter of right for now – but may be entertained by Immigration Judges on a case by case basis.


If you or someone you know is in a long term ICE detention or jail, it’s important to ask for a bond hearing directly from the Immigration Judge. If you need help doing so, please call our LA office at 323-857-0034 to schedule a consultation with one of our attorneys.  The constitutionality of immigration detention without any possibility for a bond is indeed still up for debate.