Author:Medrano, Miriam Peguero


I like to share the story of Mr. Warren Hilarion Joseph. Mr. Joseph migrated to the United States when he was twenty-one as a legal permanent resident inspired by the American Dream. (1) Today, Mr. Joseph is a U.S. citizen, a U.S. Gulf War veteran, a father to U.S.-born children, and a former legal permanent resident who was detained for three and a half years in immigration detention for committing minor, nonviolent offenses. (2)

Shortly after arriving in the United States at the age of twenty-one, Mr. Joseph enlisted in the U.S. Army and served in combat positions in the First Gulf War until he was honorably discharged for injuries suffered in the line of duty. (3) Like many veterans, Mr. Joseph had a hard time readjusting to society and was arrested in 2001 for illegally purchasing a handgun for people to whom he owed money. (4) While completing his probation sentence, he forgot to inform his probation officer that he had relocated to his mother's house and was subsequently sentenced to six months in prison for violating his probation. (5)

Upon release, Mr. Joseph was civilly detained in immigration detention because he qualified as a noncitizen who committed an offense that triggers the mandatory detention mandate under 8 U.S.C. [section] 1226(c) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). (5) Section 1226(c) mandates the detention without bond of noncitizens who have committed qualifying crimes for the duration of their removal proceedings. (7)

For three and a half years, Mr. Joseph was separated from his children and family members, was subjected to horrific jail conditions, and his wartime injuries worsened, requiring surgery and causing permanent difficulty walking. (8) At no point during Mr. Joseph's mandatory detention was his confinement necessary to prevent flight or danger to the community. To the contrary, Mr. Joseph had strong familial and community values and had served in the U.S. military. His two crimes were both minor and non-violent, one of which was a violation of his probation for forgetting to inform his probation officer that he had relocated. Nevertheless, Mr. Joseph was detained during his removal proceedings for a staggering three and a half years until he won his case to remain in the United States and was finally released to his family. (9)

Sadly, Mr. Joseph's story is not uncommon. (10) Every year, unnecessary and widespread immigration detention pursuant to [section] 1226(c) tears thousands of families apart, many of which are comprised of U.S. citizens and legal permanent residents, and imprisons people who have a long history of living in the United States, prior legal immigration status, and only minor, nonviolent criminal convictions. (11)

In the landmark case Demore v. Kim, the Supreme Court upheld the constitutionality of [section] 1226(c)'s detention mandate, reasoning that Congress has the authority to detain noncitizens for the brief period of their removal proceedings to prevent the risk of flight and dangerousness. (12) Today, because removal proceedings are no longer brief and often prolonged, (13) federal courts have construed [section] 1226(c) as having a time limit on prolonged detention without bond, relying heavily on Justice Kennedy's concurring opinion in Demore, which aptly cautioned that due process rights of noncitizens may preclude mandatory detention without bond if detention becomes unreasonably prolonged or no longer reasonably related "to the purpose for which the individual was committed." (14) Federal courts have applied either a bright-line, six-month rule or a case-by-case approach to determine at what point detention without bond is unconstitutionally prolonged. Of the six circuit courts that have addressed this issue, the Second and Ninth Circuits have adopted a bright-line, six-month rule where noncitizens are automatically entitled to periodic bond hearings upon completing six months of detention. (15) The First, Third, Sixth, and Eleventh Circuits have adopted a case-by-case approach, whereby detained noncitizens may file a petition for a writ of habeas corpus, at which point a federal court will examine the individual circumstances of each case to determine whether to grant the petition that then triggers an individualized bond hearing. (16)

Since the Court's decision in Demore, [section] 1226(c) has resulted in the prolonged detention of numerous noncitizens who have committed crimes that fall under [section] 1226(c)'s list of broad offenses. The latest data demonstrates that there are currently 632,261 pending immigration cases across the United States, and the average length of time a pending case takes to conclude is 681 days or 22 months. (17) The current average wait time for a case to conclude has significantly increased from previous years. For example, in 2016, "open cases in U.S. Immigration Court [had] been waiting for an average of 667 days .... This [was] 3.7 [%] longer than the 643 days average wait time at the end of FY 2015 (September 2015) and is 17.6 [%] higher than it was at the end of FY 2014. " (18) Furthermore, many of these detained noncitizens have only committed minor, nonviolent offenses, have strong familial ties to family members in the U.S. who are legal permanent residents and citizens that need their support, and are likely to prevail in winning some form of relief because of their strong mitigating equities. (19) As a result, prolonged detention without bond has encouraged many detained noncitizens just like Mr. Joseph to challenge the constitutionality of their prolonged mandatory detention.

This year, the Supreme Court in Jennings v. Rodriguez rejected the lower courts' construction of [section] 1226(c) and held that interpreting [section] 1226(c) to contain an implicit temporal limit is improper because the statute is neither ambiguous or unclear. (20) The Court, however, declined to consider whether its strict interpretation of [section] 1226(c) raises constitutional doubts and instead remanded the case back to the Ninth Circuit to consider those constitutional arguments on the merits. (21) Justice Breyer, on the other hand, delivered a passionate dissent and argued that the majority's interpretation of [section] 1226(c) renders the statute unconstitutional because the relevant constitutional language, purpose, history, traditions, context, and case law altogether demonstrate that when confinement is prolonged, even immigration civil confinement, bond hearings are constitutionally required. (22)

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 [section] 1226(c) as not having a time, limit detention without bond. Federal courts that are given the opportunity to decide on the constitutional question should hold, as they have held, that [section] 1226(c) is unconstitutional unless read to include a time limit on indefinite detention without bond. This Comment also contends that while the lower courts correctly interpreted [section] 1226(c) to include a time limit, the approaches adopted by these federal courts to determine the time limit do not properly protect detained noncitizens' due process rights. Under both approaches, detention without bond is presumed constitutional for at least six months. This is true even for detained noncitizens who have meritorious defenses and strong mitigating equities, such as community and familial ties, distinguished military service, and prior legal immigration status. Limiting detainees' opportunity to challenge their continued detention for six months raises the same issues of constitutionality that Justice Breyer argued are raised when [section] 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 current approaches' presumptively reasonable six-month period.

Part I outlines the constitutional principle of due process as well as the relevant statutory framework of [section] 1226(c)'s detention mandate. (23) Part II discusses the Supreme Court cases that have considered the constitutionality of mandatory detention, and argues that the Court's decision in Jennings v. Rodriguez was wrongly decided because [section] 1226(c) should be read to contain an implicit time limitation on prolonged detention without bond. This part also examines, through case precedent, the approaches applied by the circuit courts in determining the time limit of mandatory detention without bond. (24) Finally, Part III of this Comment argues that neither approach adopted by the circuit courts properly balances detainees' liberty interest against the government's interest in preventing flight and dangerousness. (25) This Part instead proposes that detained noncitizens--who are neither a flight risk nor a danger to the community--should be given prosecutorial discretion in the form of deferred action as to their continued mandatory detention at any point after being detained. (26) If an applicant is denied prosecutorial discretion, he or she should then be entitled to automatic and periodic bond hearings beginning after six months of detention. (27)


    Although Congress has plenary power over matters of immigration policy, Congress's power is limited by the Constitution. (28) In resolving issues of mandatory detention of noncitizens, it is thus important to understand what constitutional rights are provided to noncitizens and how they are balanced against the statutory framework currently in place.


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