On February 27th, in Jennings v. Rodriguez, 583 U. S. ___(2018), the U.S. Supreme Court decided that many noncitizens facing deportation, including those convicted of certain crimes and detained by ICE when released from state/federal criminal custody, are subject to indefinite mandatory detention “pending review” of their removal (deportation) case. Today’s ruling sent the case back to the federal appeals court to consider whether the statutes violate the Due Process Clause of the Constitution.

This ruling overturns the favorable Ninth Circuit case, Rodriguez v. Robbins, 804 F.3d 1060 (9th Cir. 2015) which had held there are constitutional limits on the length of detention, and this class of people is entitled to bond hearings every six months.

Today’s ruling makes it even more important for defenders to help their clients secure release from jail if they are at risk of being transferred to ICE custody. This is because, at least in the Ninth Circuit, the mandatory detention statute still only applies to people who are detained by ICE immediately “when released” from state or federal criminal custody. See Preap v. Johnson, 831 F.3d 1193 (9th Cir. 2016), and Khoury v. Asher, 667 Fed.Appx. 966 (9th Cir. 2016) (unpublished) (ruling that the government did not have the authority to apply “mandatory detention” to the class members at Northwest Detention Center, persons who had not been immediately taken into custody by DHS when released from criminal custody). More at https://www.nwirp.org/federal-appeals-court-rules-that-class-of-immigrants-are-entitled-to-bond-hearing/ and https://www.aclu.org/other/bond-hearings-immigrants-under-preap-v-johnson-and-khoury-v-asher.

Defendants who are released while their criminal case is still pending, or are released for any amount of time before ICE detains them, are not subject to mandatory detention under 8 USC 1226(c) and will be entitled to a bond hearing before an immigration judge (assuming they have not been ordered deported in the past).

You can read the full decision here: https://www.supremecourt.gov/opinions/17pdf/15-1204_f29g.pdf

Further analysis from the ACLU is here: https://www.aclu.org/news/aclu-comment-supreme-court-immigration-detention-ruling

Please feel free to contact WDAIP with any questions.