In 2007, the Department of Homeland Security (DHS) detained Alejandro Rodriguez, a lawful resident working as a dental assistant. Rodriquez was brought to the U.S. when he was an infant. DHS initiated removal proceedings against Rodriguez after he was convicted for possession of a controlled substance and “joyriding.” While Rodriguez fought the removal charges, DHS detained him for over three years without a bond hearing. Rodriguez filed a petition for a writ of habeas corpus in the Central District of California. His petition turned into a class action; he and other detained immigrants sought an injunction to mandate individualized bond hearings where the government had the burden of proof to show that a detainee presented a flight or safety risk.
The class action eventually broke into subclasses, including a subclass of immigrants who were deportable by the Attorney General based on certain criminal offenses (the “Mandatory Subclass”) and a subclass of immigrants arriving in the United States and awaiting an admission decision (the “Arriving Subclass”). One class member in the “Arriving Subclass” was detained by DHS while seeking asylum after being tortured in Ethiopia. DHS detained him because, according to a DHS officer, “[t]here is an apparent correlation with all the Somalian Detainee’s [sic] that present [sic] a paradigm of deceit and paralleled ambiguity of events and identity,” and thus, the class member’s proof of identity was inadequate. Of course, had DHS bothered to grant him a hearing, the class member could have informed them that, “among other things, he was not from Somalia.”
The criminal justice system in the United States already has a detention problem. Over 11 million people are rotated through local jails each year. On any given day, local jails imprison 630,000 people, including 296,000 who have been arrested for non-violent crimes. Especially in cases where defendants are arrested for low-level crimes and do not pose flight or safety risks, pretrial detention in the criminal justice system often results from a defendant’s inability to pay cash bail. Additionally, the numbers of people held in jail without a criminal conviction do not reflect the large number of immigrants who are civilly detained by U.S. Immigration and Customs Enforcement (ICE) every day.
Arrested U.S. citizens in many states already face pretrial detention when they cannot afford bail. Immigrants receive even fewer procedural rights. ICE detains huge numbers of immigrants––both those entering the U.S. and those being forced to leave––without bond hearings. In 2015, the 9th Circuit recognized the problem of detaining immigrants without a hearing, stating:
“[T]housands of immigrants to the United States are locked up at any given time, awaiting the conclusion of administrative and judicial proceedings that will determine whether they may remain in this country . . . According to the most recently available statistics, ICE detains more than 429,000 individuals over the course of a year, with roughly 33,000 individuals in detention on any given day.”
The Supreme Court will finally address the constitutional question of whether immigrants detained by the government for long periods of time (6 months or longer) are entitled to individualized bond hearings. On October 3, 2017, the Court heard reargument for Jennings v. Rodriguez, the class action suit started by Alejandro Rodriguez in 2007. Class members had been detained for over six months without a hearing, some while awaiting removal cases and others while awaiting entry into the U.S.
Before the case made its way to the Supreme Court, the Ninth Circuit ruled in favor of the class members. It held that immigrants subject to “prolonged” detention of over six months (1) under a statute authorizing the Attorney General to detain any immigrant deportable for committing certain offenses (the “Mandatory Subclass”); (2) under a statute allowing detention while awaiting a decision on whether the immigrant was to be removed; or (3) who were not clearly entitled to admission (the “Arriving Subclass”) were entitled to “individualized bond hearings to justify their continued detention.” Moreover, at those hearings, the government had the burden of proof to show by “clear and convincing evidence” that the noncitizen either presented a flight risk or a danger to the community that justified detention. The government appealed, and the Supreme Court granted certiorari.
The Supreme Court originally heard arguments for the case on November 30, 2016. Less than a month after the original oral argument, the Court directed parties to file additional briefs addressing the following issues:
“(1) Whether aliens seeking admission to the United States who are subject to mandatory detention under 8 U.S.C. § 1225(b) must be afforded bond hearings, with the possibility of release into the United States, if detention lasts six months;
(2) whether criminal or terrorist aliens who are subject to mandatory detention under Section 1226(c) must be afforded bond hearings, with the possibility of release, if detention lasts six months; and
(3) whether, in bond hearings for aliens detained for six months under Sections 1225(b), 1226(c), or 1226(a), the alien is entitled to release unless the government demonstrates by clear and convincing evidence that the alien is a flight risk or a danger to the community, whether the length of the alien’s detention must be weighed in favor of release, and whether new bond hearings must be afforded automatically every six months.”
Hopefully, the Court in Rodriguez will grant immigrants at least some portion of the constitutional rights afforded to U.S. citizens. In the Central District of California, the average length of detention for the class members was over 13 months, and 20% were imprisoned for over 18 months. With the current administration poised to expand detention of immigrants, it is crucial that the Court step in and offer deserved constitutional protections.
Yet the outcome of this case became extremely uncertain on November 10, when Justice Kagan recused herself. A letter written by the Court clerk stated that “while serving as Solicitor General, [Justice Kagan] authorized the filing of a pleading in an earlier phase of this case.” Justice Kagan’s recusal likely means a lost vote in favor of granting bond hearings. Also, if the Court reheard the case because the vote was originally tied at four to four (before Justice Gorsuch joined the Court), this may mean either another tie, or bad news for immigrants’ constitutional rights. Unfortunately, after over ten years of litigation, immigrants still may not be afforded the most basic rights of U.S. citizens. We can only hope that––particularly in the current political environment––at least five of the remaining justices are willing to decide otherwise.
 Kevin Johnson, Argument Preview: The Constitutionality of Immigrant Detention, SCOTUSblog (Nov. 23, 2016), http://www.scotusblog.com/2016/11/argument-preview-the-constitutionality-of-immigrant-detention/.
 Brief for the Respondent at 5–6, Jennings v. Rodriguez, 2017 No. 15-1204 (U.S.), http://www.scotusblog.com/wp-content/uploads/2016/10/15-1204-respondents-merits-brief.pdf
 Id. at 6.
 Id. at 6-7.
 Id. at 7.
 Johnson, Argument Preview (quoting Brief for the Respondent at 7).
 Johnson, Argument Preview.
 Peter Wagner, Jails Matter. But Who is Listening?, Prison Policy Initiative (August 14, 2015), https://www.prisonpolicy.org/blog/2015/08/14/jailsmatter/.
 Peter Wagner and Bernadette Rabuy, Mass Incarceration: The Whole Pie 2017, Prison Policy Initiative (March 14, 2017), https://www.prisonpolicy.org/reports/pie2017.html.
 See, e.g., Yoav Gonen, Thousands Are Locked up in NYC Jails Because They Can’t Afford Bail, New York Post (May 18, 2017), https://nypost.com/2017/05/18/thousands-are-locked-up-in-nyc-jails-because-they-cant-afford-bail/.
 Rodriguez v. Robbins, 804 F.3d 1060, 1065 (9th Cir. 2015), cert. granted sub nom. Jennings v. Rodriguez, 136 S. Ct. 2489, 195 L. Ed. 2d 821 (2016).
 136 S. Ct. 2489 (2016).
 See Rodriguez v. Robbins, 804 F.3d 1060 (9th Cir. 2015), cert. granted sub nom. Jennings v. Rodriguez, 136 S. Ct. 2489, 195 L. Ed. 2d 821 (2016).
 Id. at 1065.
 Id. at 1090.
 Jennings v. Rodriguez, No. 15-1204, Order in Pending Case (Dec. 15, 2016), http://www.scotusblog.com/wp-content/uploads/2016/12/15-1204-12.15.16-order.pdf.
 Brief for the Respondent at 8.
 Amy Howe, Kagan Recuses From Immigrant-Detention Case, SCOTUSblog (Nov. 10, 2017), http://www.scotusblog.com/2017/11/kagan-recuses-immigrant-detention-case/.