WHEN LIBERTY IS THE EXCEPTION: THE SCATTERED RIGHT TO BOND HEARINGS IN PROLONGED IMMIGRATION DETENTION Freya Jamison Table of Contents Introduction 148 I. The Constitutional Problem of Indefinite Immigration Detention 150 A. The Prolonged and Potentially Indefinite Incarceration of Noncitizens Under the Immigration Detention Statutes 150 B. The Supreme Court’s Jurisprudence on the Due Process Right to a Bond Hearing in Prolonged Immigration Detention 152 C. The Fractured State of Due Process Analysis Across District and Circuit Courts 156 II. How District Courts Adjudicate Immigrant Detainees’ Habeas Claims 162 A. Source Data 163 B. Analysis 164 1. Habeas Filings Are Timed to Court-Recognized Benchmarks 164 2. Habeas Outcomes Varied for Noncitizens Detained for Similar Periods 165 3. Delay or Bad Faith by the Petitioner is More Predictive of Habeas Outcome than Detention Length 169 4. Lengthy Adjudication Times Exacerbate Due Process Violations 172 5. Jennings Did Not Change the Grant Rate Around the Six Month Detention Mark 174 III. A Better Approach to Reasonableness 176 A. Eliminate Factors that Speak to Bond Eligibility from the Constitutional Due Process Analysis 177 B. Streamline the Due Process Inquiry by Establishing a Nationwide Presumption of a Due Process Violation Before Six Months of Detention 182 Conclusion 185 Introduction Despite the Supreme Court’s promise that “liberty is the norm, and detention . . . without trial is the carefully limited exception,”[1] thousands of noncitizens languish in prisons around the country pending the outcome of their immigration proceedings without the government ever having to prove to a judge that their detention is necessary.[2] When the government incarcerates someone on a criminal charge, it must justify that person’s pretrial detention at a bond hearing.[3] When the government incarcerates an immigrant in preparation for their deportation, however, that immigrant does not enjoy the same fundamental protections. Immigration detention is meant to be nonpunitive,[4] but, in reality, the government holds immigrant detainees in prison-like conditions,[5] often for years,[6] while detainees exercise their statutory right to prove that they are entitled to remain in the United States. Recognizing that this practice raises due process concerns, the Second and Ninth Circuits interpreted the Immigration and Nationality Act (INA)’s mandatory detention provisions to include an implicit right to a bond hearing after six months of detention.[7] The Supreme Court found this construction of the statute impermissible in a 2018 decision, Jennings v. Rodriguez,[8] but left open the possibility that, after some length of detention, continued incarceration without a bond hearing becomes unconstitutional. This Note exposes the problems created by the Supreme Court’s failure in Jennings to provide guidance to lower courts on how to analyze allegations that indefinite immigration detention without a bond hearing violates constitutional due process. Without a centralized test, district and circuit courts have been left to develop their own approaches to answering this question, meaning that the process afforded to any given detainee depends on chance and geography. This Note examines how the various constitutional tests operate in practice and suggests reforms to make those tests both more equitable and more efficient. Part I explains that, while it is undisputed that constitutional due process applies to deportation proceedings, there is no universal rule governing whether and when the Constitution requires a bond hearing for immigrant detainees. Part I examines the Jennings decision and prior Supreme Court precedent, then catalogues the different approaches that lower courts have taken in the wake of Jennings. Part II analyzes these tests and the 249 habeas petitions decided under them in federal district courts in the decade between January 1, 2010 and December 31, 2019. The data examined in Part II shows that the current tests produce lengthy adjudications and disparate outcomes in similar cases. Part III then proposes two reforms that can be implemented at the district and circuit court levels: (1) reserving consideration of petitioner delay for bond hearings conducted by Immigration Judges (IJs), and (2) instituting a presumption of a due process violation after the length of a noncitizen’s detention reaches a certain threshold, at most six months. I. The Constitutional Problem of Indefinite Immigration Detention A. The Prolonged and Potentially Indefinite Incarceration of Noncitizens Under the Immigration Detention Statutes To ensure the appearance of noncitizens at their deportation proceedings, Congress amended the immigration laws in 1995 to provide for the executive detention of certain noncitizens.[9] Today, four provisions of the INA authorize the detention of certain categories of individuals until their removal: (1) noncitizens who fail a credible fear screening by an asylum officer (“§ 1225(b)(1) detainees”),[10] (2) noncitizens arrested on a warrant issued by the Attorney General pending a decision on their removability (“§ 226(a) detainees”),[11] (3) noncitizens who are inadmissible based on a prior criminal conviction for certain enumerated offenses (“§ 1226(c) detainees”),[12] and (4) noncitizens with final orders of removal (“§ 1231(a) detainees”).[13] The immigration laws allow for certain detainees to be released on bond,[14] but detention under § 1226(c) and § 1225(b)(1) is mandatory.[15] This Note focuses only on the constitutional rights of § 1225(b)(1) and § 1226(c) detainees because their cases make up the vast majority of suits challenging the constitutionality of prolonged immigration detention.[16] Although immigration detention is intended to be a temporary measure while the government prepares to deport a detainee, in reality detention can be lengthy and even indefinite. The cases of Joseph Hechavarria and Bright Falodun are illustrative. Mr. Hechavarria, a Jamaican citizen, has been a lawful permanent resident of the United States since 1987.[17] He is married to an American citizen and suffers from a serious renal disease that requires “frequent life-sustaining medical services.”[18] In July 2013, he was taken into the custody of the Department of Homeland Security pursuant to the agency’s § 1226(c) authority and was incarcerated at the Buffalo Federal Detention Facility (BFDF) in Batavia, New York.[19] Mr. Hechavarria remained at BFDF for more than five years while he pursued “opportunities for administrative and judicial review of legitimate claims in his underlying proceedings [challenging his deportation order].”[20] Similarly, Mr. Falodun, a native of Nigeria and lawful permanent resident of the United States, was detained at BFDF under the same detention statute for more than four years while his claim for withholding of removal was pending in administrative and federal courts.[21] Mr. Falodun’s case involved novel legal questions that resulted in lengthy appeals.[22] Although immigration detention is temporary by purpose, these two men’s lived experiences expose the inefficiencies of the deportation process. Immigrant detainees have few options to challenge their prolonged detention. § 1226(a) detainees and certain § 1225(b)(1) detainees may petition the government for discretionary parole,[23] which has become a less viable option under the Trump administration. In January 2017, President Trump issued Executive Order 13767, which technically limited parole to emergency situations,[24] but in practice constituted a “blanket denial” of parole for all detained immigrants.[25] Parole decisions are entirely discretionary and are not appealable to any agency authority or federal court.[26] With parole effectively foreclosed as a remedy for prolonged detention for many detainees and legally foreclosed for others, detainees must turn to their second option: challenging the constitutionality of their detention through a petition for habeas corpus in federal court.[27] Immigrant detainees have successfully used habeas petitions as a vehicle to bring procedural due process claims, alleging that their continued detention without a bond hearing violates the Fifth Amendment.[28] If a federal judge finds a due process violation, the case then typically moves to immigration court, where an IJ holds a bond hearing to determine whether the noncitizen may be released from custody pending their actual deportation.[29] B. The Supreme Court’s Jurisprudence on the Due Process Right to a Bond Hearing in Prolonged Immigration Detention Although the Supreme Court has stated that asylum seekers who are physically present in the United States have due process rights under the Fifth Amendment,[30] it has never clarified whether (and under what circumstances) that includes the right to a bond hearing in immigration detention. The Court has addressed the constitutionality of immigration detention twice and took two very different approaches to the question. Zadvydas v. Davis involved a challenge to 8 U.S.C. § 1231(a)(6), a provision of the INA authorizing immigration detention beyond the 90-day statutory removal period for individuals with final removal orders who could not logistically be deported (plaintiff Zadvydas, for instance, could not be removed because he was stateless and no country would grant him citizenship).[31] Relying on United States v. Salerno, Justice Breyer’s majority opinion concluded that immigration detention is subject to the same due process protections as other forms of civil detention.[32] If continued detention is not reasonably necessary to fulfill the statute’s purpose of ensuring a noncitizen’s presence at the moment of removal (because, for instance, they are stateless and cannot practically be removed), the Court reasoned, detention is not constitutionally permissible.[33] The Court concluded that after six months of § 1231(a)(6) detention, if the detainee shows that there is “no significant likelihood of removal in the reasonably foreseeable future,” the government must either rebut that showing or release the detainee.[34] The Court ultimately remanded the case for further consideration of the facts of plaintiffs’ habeas petitions.[35] Only two years later, a plurality of the Court upheld § 1226(c)’s mandatory detention provision against a facial challenge in Demore v. Kim.[36] The challenge was raised in a habeas petition by Hyung Joon Kim, a South Korean national and lawful permanent resident of the United States who was detained by immigration authorities after his conviction for burglary and “petty theft with priors.”[37] The Court acknowledged that “the Fifth Amendment entitles aliens to due process of law in deportation proceedings,”[38] but, emphasizing the political branches’ extensive power over deportation, determined that “Congress may make rules as to aliens that would be unacceptable if applied to citizens.”[39] The plurality distinguished Zadvydas on the fact that removal was “no longer practically attainable” for the petitioners in that case, whereas Mr. Kim’s removal was still pending.[40] The Court also relied on the fact that detention under § 1226(c) was generally brief, stating that “in the majority of cases” detention lasted less than ninety days.[41] The government later admitted that this statistic was erroneous; in fact, at the time that Demore was decided, detention under § 1226(c) typically lasted 113 days if the immigrant did not appeal their underlying immigration case and nearly a year if the immigrant did appeal.[42] The Court even acknowledged that its statistic was not representative of Mr. Kim’s case, as he had been detained for six months—in the Court’s words, “somewhat longer than the average.”[43] Having found no constitutional problem, the Court denied Mr. Kim’s habeas petition.[44] Justice Kennedy provided the crucial fifth vote against finding a due process violation in Mr. Kim’s case, but in his controlling concurrence he was unwilling to foreclose that finding in all cases. Justice Kennedy maintained that due process could require “an individualized determination as to [the detainee’s] risk of flight and dangerousness if the continued detention became unreasonable or unjustified.”[45] He stated more specifically that, were immigration officials to “unreasonabl[y] delay” the detainee’s deportation proceedings, “it could become necessary” to inquire whether the detention was actually aimed at the statute’s goals of facilitating deportation and protecting against flight risk or dangerousness.[46] Although Justice Kennedy’s concurrence preserved the possibility that due process could require a bond hearing for immigrant detainees in future cases, it provided little guidance on how to conduct that analysis, leaving district and circuit court judges to answer that question themselves. In 2017 and again in 2018, the Supreme Court had the opportunity to definitively extend a due process right to a bond hearing to individuals in mandatory immigration detention but ultimately remanded the case without meaningful guidance for lower courts. Jennings v. Rodriguez, on appeal from the Ninth Circuit, involved a challenge by a class of: [A]ll non-citizens within the Central District of California who: (1) are or were detained for longer than six months pursuant to [§ 1225(b)(1), § 1226(a), or § 1226(c)] pending completion of removal proceedings, including judicial review, (2) are not and have not been detained pursuant to a national security detention statute, and (3) have not been afforded a hearing to determine whether their detention is justified.[47] The Ninth Circuit sided with the plaintiffs, affirming the district court’s permanent injunction requiring a bond hearing for class members when their detention hit six months and again every six months after that.[48] Jennings’ procedural history before the Court was dramatic. After hearing argument on the Ninth Circuit’s constitutional avoidance construction of the INA in November 2016, the Supreme Court ordered re-argument for the subsequent term.[49] In 2017, the parties argued the merits of the underlying constitutional due process question. One month after the second oral argument, Justice Kagan recused herself from the case after discovering that she had “authorized the filing of a pleading in an earlier phase of th[e] case” in her role as Solicitor General.[50] Ultimately, an eight-member Court reversed the Ninth Circuit, holding that it had incorrectly applied the canon of constitutional avoidance to create the six-month rule.[51] Instead of addressing the constitutional question underlying the avoidance argument, the Court remanded to the Ninth Circuit to consider the question “in the first instance.”[52] The Supreme Court also ordered the lower court to “reexamine” whether federal jurisdiction over the class action was proper in light of its ruling.[53]