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(In)definite Detention


By: Nathaniel Gier, Volume 102 Staff Member

In the current fiscal year, there are 667,839 immigration cases pending,[1] and the average wait time for cases pending in immigration court was 691 days in 2017.[2] There are also over 352,000 immigration detainees in the United States.[3] The immigration system for many results in severely prolonged detention.

Last October the Supreme Court heard oral arguments in Jennings v. Rodriguez,[4] a case challenging the prolonged detention of non-citizens. The plaintiffs in the Rodriguez class highlight the realities of the statistics above: the average length of detention for all class members was 404 days, or more than 13 months.[5] There were many highlights at oral arguments for Jennings, including newly-appointed Justice Gorsuch’s surprise at the lack of expeditious judicial review of habeas corpus petitions for those seeking relief from detention.[6] A recent turn of events was Justice Kagan’s recusal, one that sets the court back to where it was in 2016 when it first heard oral arguments in the case.[7] With Justice Kagan’s recusal, the court likely will find itself deadlocked again which may only exacerbate the problem of prolonged detention for non-citizens.


Those detained but not subject to mandatory detention under 8 U.S.C. § 1226(a)[8] have the right to a bond hearing.[9] A bond hearing allows the detained non-citizen to argue before an immigration judge (“IJ”) why they should not be detained—they must show that they are neither a danger to the community or a flight risk.[10] IJs then have discretion to release a non-citizen on bond of at least $1,500.[11] IJs sometimes release non-citizens on bond of varying amounts,[12] but other times IJs do not release non-citizens at all, denying bond completely. Unlawful presence in the United States is not a violation of the criminal code.[13] However, the bond hearing process for a detained non-citizen is much like that of the criminal pretrial process[14]—that is, except for one key element: the detained non-citizen bears the burden in showing that they are neither a danger to the community nor a flight risk.[15] This is the first problem facing detained non-citizens. Bearing the burden is particularly challenging for detained non-citizens for a number of reasons[16]: (1) they are detained and unable to acquire many documents and evidence that would support their claim; (2) they are often pro se;[17] and (3) English may not be their first language. Forcing the detained non-citizen to bear the burden comes with a presumption of detention that, as demonstrated below, is continued throughout the (non-mandatory) detention process for non-citizens.


Following a bond denial by an IJ, detained non-citizens can then, in theory, seek removal to district court through filing a petition for habeas corpus.[18] However, not all districts allow direct filing in district court of a habeas corpus petition. Often, they require that all administrative remedies first be exhausted.[19] At this point in the case, a detained non-citizen has already utilized several resources. Exhausting administrative remedies means appealing the IJ’s bond determination before the Board of Immigration Appeals (“BIA”).[20] Again, this takes time, effort, and resources that a detained non-citizen often does not have. However, after this lengthy process, a detained non-citizen would have successfully exhausted their administrative remedies and could file a petition for habeas corpus.


Finally, a habeas corpus petition is filed in district court. However, adjudication of habeas petitions is slow in many circuits.[21] For example, according to the Americans for Immigrant Justice, adjudication of a habeas petition can take as long as five and a half months in the Third Circuit, 19 months in the Eleventh Circuit, and 14 months in the Sixth Circuit.[22] These times come on top of an already complex and lengthy pre-habeas-filing process.[23] As a result of this terribly slow adjudication process, detained non-citizens end up being deprived of liberty for months on end—all of which was triggered by bearing the burden when they were first detained.


Not only are adjudication times long, but often the merits of the habeas petition are never reached because some other factor causes the petition to become moot. For example, many immigrants seek relief in other forms: asylum,[24] withholding of removal,[25] relief under the Convention Against Torture,[26] and cancellation of removal.[27] If detained non-citizens are granted relief in this form, then their habeas petition becomes moot because they are often released from detention. As a result, there are very few procedures in place regarding length of detention for non-citizens seeking relief both in immigration court and district court.[28] This is why Jennings matters—there is an opportunity to provide much-needed procedures for non-citizens suffering from a prolonged deprivation of liberty.


Jennings could affect detained non-citizens in several ways. Most importantly, the Court should resolve whether those detained under the mandatory detention statute[29] have a right to a bond hearing after six months[30] and who should bear the burden of proof at the hearing.[31] If resolved, this not only would provide those subject to mandatory detention a possibility of relief after six months, but would no longer force those detained under § 1226(a) to bear the burden of proof in their bond hearings.[32] This would have significant implications for all detained non-citizens. With President Trump’s recent efforts to prioritize deportation of all non-citizens, not just those with criminal records, many of those now being detained have significant family ties and ties to the community.[33] Thus, as the law stands, detained non-citizens without criminal records are forced to show they are neither a danger nor a flight risk. The Court ought to view the issue in Jennings in light of the current administration’s efforts and the problematic results of the current burden allocation for detained non-citizens. Despite the opportunity to resolve a pressing issue, with Justice Kagan’s recusal it is possible the case will end deadlocked and detained non-citizens will remain without a remedy even if they are detained longer than six months and will continue to bear the burden in bond hearings.

  1. See Backlog of Pending Cases in Immigration Courts as of December 2017, TRAC Immigration (last visited Feb. 11, 2018),
  2. See Average Time Pending Cases Have Been Waiting in Immigration Courts as of December 2017, TRAC Immigration (last visited Feb. 11, 2018),
  3. See United States Immigration Detention, Global Detention Project (last visited Feb. 11, 2018),
  4. Jennings v. Rodriguez, No. 15-1204 (U.S. May 10, 2016).
  5. Prolonged Detention Fact Sheet, ACLU, at 1 (last visited Feb. 11, 2018),
  6. Transcript of Oral Argument at 55, Jennings v. Rodriguez (2017) (No. 15-1204).
  7. Amy Howe, Kagan Recuses From Immigrant-Detention Case, SCOTUSblog (Nov. 10, 2017, 10:16 PM),
  8. As opposed to § 1226(c), which makes detention mandatory for those who have committed crimes, for example.
  9. 8 U.S.C. § 1226(a)(2)(A).
  10. Matter of Adenji, 22 I&N Dec. 1102 (BIA 1999).
  11. 8 U.S.C. § 1226(a)(2)(A).
  12. See Denise L. Gilman, To Loose the Bonds: The Deceptive Promise of Freedom from Pretrial Immigration Detention, 92 Indiana L.J. 157, 167 (2016) (suggesting that, when granted, the national average for bonds is $6,000).
  13. See generally 8 U.S.C. § 1227 (outlining the list of “deportable aliens”).
  14. See Gilman, supra note 8, at 203–13 (detailing the issues with selective borrowing of the criminal justice system).
  15. See Matter of Adenji, 22 I&N Dec. 1102 at 1125.
  16. For a thorough, well-argued discussion of this topic, see Mary Holper, The Beast of Burden in Immigration Bond Hearings, 67 Case W. Res. L. Rev. 75 (2016).
  17. Ingrid V. Eagly & Steven Shafer, A National Study of Access to Counsel in Immigration Court, 164 U. Penn. L. Rev. 1, 50 (2015).
  18. Surviving the bond hearing pro se is a feat in itself and oftentimes detained non-citizens will lose for that reason. Consider how complex the process gets when habeas relief is sought in an entirely separate court.
  19. See Sayyah v. Farquharson, 382 F.3d 20 (1st Cir. 2004); Sun v. Ashcroft, 370 F.3d 932 (9th Cir. 2004); Theodoropoulos v. I.N.S., 358 F.3d 162 (2d Cir. 2004); Sundar v. I.N.S., 328 F.3d 1320 (11th Cir. 2003).
  20. 8 C.F.R. §§ 1003.38, 1236.1(d)(3)(i).
  21. This came as a surprise to Justice Gorsuch during oral arguments for Jennings. See supra, note 2.
  22. Brief of Amici Curiae for Americans for Immigrant Justice at 31, Jennings v. Rodriguez, No. 15-1204 (U.S. Oct. 2016).
  23. Many detained non-citizens also have some form of pending relief before the immigration court in the form of asylum, withholding of removal, or cancellation of removal.
  24. I.N.A. § 208.
  25. I.N.A. § 241(b)(3).
  26. 8 C.F.R. § 1208.18.
  27. I.N.A. § 240a
  28. See Reid v. Donelan, 819 F.3d 486, n.4 (1st Cir. 2016) (“[A]lthough an alien may be responsible for seeking relief, he is not responsible for the amount of time that such determinations may take. The mere fact that an alien has sought relief from deportation does not authorize the INS to drag its heels indefinitely in making a decision.”) (quoting Ly v. Hansen, 351 F.3d 263 (6th Cir. 2003)).
  29. 8 U.S.C. § 1226(c).
  30. See Zadvydas v. Davis, 533 U.S. 678, 699, 701 (2001) (determining a six-month limit on detention for the post-order custody review statute).
  31. See Holper, supra note 12, at 75–76.
  32. It is also possible that the court will not reach the issue entirely by deciding that there is no right to a bond hearing. See Holper, supra note 12, at 110.
  33. See Sarah Pierce & Randy Capps, Trump Executive Order and DHS Guidance on Interior Enforcement: A Brief Review, Migration Policy Institute (Feb. 2017),; Brian Snyder, Undocumented Immigrants in Trump’s America Now Deported After Running Red Lights, Newsweek (July 15, 2017),