Immigrants Awaiting Bond Hearings: The Limit Does not Exist

Author: Kalisa Mora, Associate Member, University of Cincinnati Law Review

On June 23, 2016, in a one sentence decision affirming the lower court in a 4-4 deadlock, the Supreme Court blocked millions of immigrants from obtaining protection from deportation. It was a shocking blow to immigrant activists and supporters of the Deferred Action for Childhood Arrivals and Deferred Action for Parents of Americans and Lawful Permanent Residents programs.[1] However, three days prior to that decision, the Supreme Court agreed to hear argument on another important case regarding immigrants. On June 20, 2016, certiorari was granted in the case of Jennings v. Rodriguez.[2] The case derives from the Ninth Circuit Court, but the issue has been decided in almost every circuit in the nation. Two of the questions the Court will answer are whether noncitizens, subject to mandatory detention, are entitled to bond hearings if their detention lasts six months and whether they are entitled to new bond hearings every six months if their detention continues. Additionally, the Court will evaluate whether or not the immigrant is entitled to release based on the government’s ability to demonstrate by clear and convincing evidence that the noncitizen is either a flight risk or a danger to the community. The answers to these questions have been widely discussed across the circuits, and a split in decisions has forced the Supreme Court to take up this issue.

For the most part, the circuit courts have agreed that the burden of proof to continue detainment of a noncitizen resides with the government at the bond hearing.[3] However, the courts have been unable to agree on when and how often a bond hearing is required to be held. All of the courts agree that the statute[4] governing the detention of criminal “aliens” (hereinafter referred to as immigrants) contains an implicit limitation, and that, at a certain point, detention becomes unreasonable.[5] The question that has troubled the courts is how to determine when an immigrant’s detention becomes unreasonable. Two main theories have risen from the circuit courts: the First, Third, Sixth, and Eleventh Circuits, determine reasonableness on a case by case basis taking into consideration each individual’s circumstances and the factors of their case;[6] the Second and Ninth Circuits adopted a bright-line-rule requiring a bond hearing after six months of mandatory detention. In the upcoming decision, the Supreme Court should follow the Second and Ninth Circuits’  bright line rule, to assure consistency among the lower courts, promote efficiency in the judiciary process, and, most importantly, to comply with the Due Process Clause of the Fifth Amendment.

Split Among the People

“Indefinite detention violates due process” – this the courts agree on.[7] But four of the courts determined the reasonableness of prolonged detention should be decided on a case by case basis.[8] In Ly v. Hansen,[9] the Sixth Circuit placed emphasis on the holding in Zadvydas v. Davis.[10] Zadvydas, the Sixth Circuit noted, only prohibited “permanent civil detention without a showing of a ‘strong special justification’ that consists of more than the government’s generalized interest in protecting the community from danger.”[11] The Sixth Circuit held that the Immigration and Naturalization Service may pursue “limited civil detention” for immigrants who are prima facie removable for a time reasonable to complete the removal proceedings.[12] However, if the removal proceedings take an unreasonably long time, the immigrant can apply for relief in a habeas proceeding.[13] The Third Circuit, in Diop v. ICE/Homeland Sec., noted that the government also has an interest in detaining individuals who may not attend their removal proceedings, thereby increasing the government’s ability to prolong detention for some immigrants upon a showing of a flight risk.[14] The Third Circuit also specifically declined to establish a point at which detention would become unreasonable.[15]

Moreover, in Reid v. Donelan, the First Circuit notes the problems with the Third and Sixth Circuit analyses, but ultimately decides that these Circuits have the better argument.[16] The First Circuit notes that under those Circuits’ approach, “every detainee must file a habeas petition challenging detention.”[17] The district courts will then be responsible for determining whether their petition shows a case where the detention has become unreasonable and the immigrant is entitled to a bail hearing. The First Circuit primarily relies upon the holding in Demore v. Kim, 538 U.S. 510 (2003).[18] Demore relies upon inaccurate information provided by the Department of Justice and several lower courts have relied upon its holding in their decisions.

The Eleventh Circuit further clarified the case by case analysis in Sopo v. United States AG, and held that the burden of proof shifts from the immigrant at the habeas petition hearing to the government at the bail hearing.[19] At the habeas petition hearing, the petitioner must prove, based on their individual facts and circumstances, that their detention has been unreasonably long and thus violates the Due Process Clause.[20] If the immigrant passes that hearing, the burden of proof then shifts to the government at a bail hearing to prove that continued detention of the immigrant fulfills the purposes of the detention statute. This requires a showing that the individual is either a flight risk or a danger to the community.[21] The Eleventh Circuit also notes several factors in evaluating the reasonableness of any given detention in regards to § 1226(c).[22]

Bright Line Rule: Apply the Six Month Standard

A bright line rule, such as the one the Second and Ninth Circuits adopted, is a clearly defined standard that allows for little to no variance in interpretation among the courts. The Second Circuit looks to the Zadvydas and Demore decisions to define the reasonableness of detention over six months. The court noted that those decisions taken together suggest that the preferred approach for avoiding due process concerns is to establish a presumptively reasonable six month period of detention.[23] Additionally, the Ninth Circuit emphasizes the unconstitutionality of detention without a bond hearing in contexts outside of immigration.[24] The Ninth Circuit has consistently held that non-citizens are entitled to bond hearings before an immigration judge when detention lasts six months and is expected to continue.[25] The court is dissatisfied with this inconsistency in a constitutional standard. It is a huge injustice to recognize in some circumstances the lack of a bond hearing as a significant deprivation of liberty, and to hold in others that it is reasonable to detain individuals without any limitations on time.

 Reliance on Inaccurate Data

Recently, the Department of Justice released a letter stating that the data relied upon by the Supreme Court in deciding the case of Demore were not accurate and understated the time some immigrants spent in detention.[26] Both the bright line rule and the case by case analysis use the Demore holding to support their interpretation. In Denmore, the Supreme Court found it persuasive that most immigrants were in detention for only a month and others only up to three to five months.[27] The Court held that the limited time of detention was too short to trigger a constitutional right to a hearing to argue for bail.[28] However, these figures are now said to be incorrect. The new (and correct) data puts the average detention periods at more than a year.[29]

The Limit Does Not Exist

In evaluating both approaches to the determination of reasonableness, the Supreme Court should find the bright line rule more persuasive when deciding Jennings v. Rodriguez. The issues, both in legal and policy perspectives, of the case by case reasonable test are too big to ignore. To begin, if the Court does not draw a hard line on the limit of prolonged detention, they are effectively affirming the theory that the limit does not exist. The case by case analysis gives the district courts too much discretionary power. Additionally, most immigrants in mandatory detention do not: (1) know that the habeas petition is available to them; (2) have the resources to hire an attorney to assist them with their petition; or (3) believe that a district court would pronounce their detainment as unreasonable and receive a bond hearing.

Moreover, judicial efficiency and consistency is at risk in a case by case analysis. A district court in the Ninth Circuit may decide a six month detention is unreasonable while a district court in the Sixth Circuit decides that a thirteen month detention is reasonable under the same exact circumstances. This kind of inconsistency should not be tolerated in lower courts. Additionally, judicial efficiency is compromised with the case by case analysis because this process requires two hearings before an individual can be released on bond: one by the district court and one by the immigration judge. This procedure is unnecessarily excessive and uses an unreasonable amount of judicial resources in an already backlogged and underfunded process.[30]

Unlike the case by case analysis, the bright line rule provides increased judicial efficiency and consistency. A hard six month limit on mandatory detention before a bond hearing would give the lower courts an unmistakable rule to follow. During the bond hearing, the same questions as to the immigrant’s risk of flight and danger to the community can be asked. The bright line rule reduces hearings and allows immigration judges, those most familiar with the relevant factual circumstances, to be the trier of fact.

Many academics wonder what the Supreme Court plans to do with the new information from the Department of Justice. The release of this information could either help or harm immigrants in mandatory detention. The Supreme Court is likely to address the Department of Justice’s mistake in their Jennings v. Rodriguez opinion. The Court should follow its original reliance on defining the previously reported detention averages as reasonable, while comparing those to the accurate information recently reported by the Department of Justice. The Court should not now hold that detention periods of one to three years is reasonable when they previously relied on averages of only three to five months. If the Court, in recognizing the error in data information, fails to place a tighter limit on the reasonable length of detention, the Court will prove that the limit does not exist.


Demore was decided upon incorrect data and has been relied upon consistently by lower courts in applying the Demore standard. The Supreme Court cannot ignore the Department of Justice’s mistake. In order to comply with the due process requirement and to encourage efficiency and consistency in the courts, the Court must adopt the bright line rule and require bond hearings to take place after six months of detention and every six months thereafter. Not doing so violates the constitution and the basic human rights afforded to these immigrants.

[1] These programs are more commonly known as “DACA” and “DAPA.”

[2] 136 S. Ct. 2489 (U.S. 2016).

[3] Diop v. ICE/Homeland Sec., 656 F.3d 221, 233 (3d Cir. 2011).

[4] 8 U.S.C. § 1226(c) (West).

[5] Diop, 656 F.3d at 231.

[6] Reid v. Donelan, 819 F.3d 486 (1st Cir. 2016); 656 F.3d 221; Ly v. Hansen, 351 F.3d 263 (6th Cir. 2003); Sopo v. United States AG, 825 F.3d 1199 (11th Cir. 2016).

[7] 351 F.3d at 267.

[8] 819 F.3d 486; 656 F.3d 221; 351 F.3d 263; 825 F.3d 1199.

[9] 351 F.3d 263 (6th Cir. 2003).

[10] 533 U.S. 678 (2001).

[11] 351 F.3d at 267.

[12] Id. at 268.

[13] Id.

[14] 656 F.3d at 231.

[15] Id. at 234.

[16] 819 F.3d 486, 495 (1st Cir. 2016).

[17] Id.

[18] Id. at 497.

[19] 825 F.3d 1199, 1215 (11th Cir. 2016).

[20] Id.

[21] Id.

[22]Id. at 1217. Such factors listed include: 1) the amount of time that the immigrant has been in detention without a bond hearing, 2) why the proceedings have been prolonged, 3) whether it will be possible to remove the immigrant after there is a final order of removal, 4) whether the immigrant’s civil immigration detention exceeds the time the immigrant spent in prison for the crime that rendered him removable, and 5) whether the facility for the civil immigration detention is meaningfully different from a penal institution for criminal detention.

[23] Lora v. Shanahan, 804 F.3d 601, 615 (2nd Cir. 2015).

[24] Rodriguez v. Robbins, 804 F.3d 1060, 1074 (9th Cir. 2015).

[25] Id. at 1077.

[26] See Ian Heath Gershengorn, RE: Statistics provided by the Executive Office for Immigration Review in the case of Demore v.Kim, 538 U.S. 510 (2003),

[27] 538 U.S. at 529.

[28]Jess Bravin, Justice Department Gave Supreme Court Incorrect Data in Immigration Case, Wall Street Journal (Aug. 30, 2016),

[29] Jess Bravin, Justice Department Gave Supreme Court Incorrect Data in Immigration Case, Wall Street Journal (Aug. 30, 2016),

[30] Adolfo Flores, US Immigration Court Backlog Exceeds 500,000 Cases for First Time, Buzzfeed (Jul. 20, 2016),


Up ↑

Skip to content