Lock Them Up and Throw Away the Key?

Natalia Trotter, Associate Member, University of Cincinnati Law Review


As the social perception of migrants becomes increasingly hostile, the constitutional rights of non-citizens continue to erode.[1] Although undocumented immigrants and people holding lawful permanent resident (LPR) status do receive protection from the United States Constitution, non-citizens are continuously detained and denied due process of law.[2] Therefore, the Supreme Court stands as the entity best positioned to uphold the constitutional protections of non-citizens in the face of increasing legislation that calls into question the rights of detained immigrants. Jennings v. Rodriguez may prove an important case in determining whether immigrants detained at a port of entry may be held indefinitely without access to a bond hearing.[3] The Supreme Court in Jennings should hold indefinite detention of immigrants without bond hearings unconstitutional. Furthermore, it should reject the practice due to social and economic policy implications.

Rights Under the Fifth Amendment

The Fifth Amendment states “no person shall be…deprived of life, liberty, or property without due process of law.”[4] Although the Fifth Amendment expressly protects people, through the due process clause, the language of the Amendment is unclear as to the protections extended to non-citizens. In 2001, the Supreme Court held: “the Due Process Clause applies to all “persons” within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.”[5] The Court further expressed great discomfort with permitting indefinite detention of admitted aliens without bond, claiming that this practice would “raise serious constitutional concerns.”[6] Although 8 U.S.C. § 1231(a)(6), addressed in Zadvydas, allows for the detention and removal of aliens, the statute does not include any specific time measure limiting detention.[7] Due to the constitutional implications of indefinite detention, the Court in Zadvydas chose to “construe the statute to contain an implicit ‘reasonable time’ limitation.”[8] While the Court’s decision in Zadvydas placed a limit on detentions, it did so only in regards to admitted aliens falling under § 1231(a)(6).[9] This decision left open the question of whether the holding applies to other portions of the statute, such as 8 U.S.C. § 1225(b), which addresses the inspection and removal of aliens arriving at a port of entry.[10]

Rodriguez and the Support for Mandatory Bond Hearings

The Ninth Circuit holding in Rodriguez v. Robbins stands as a crucial decision since it is the only circuit court case to address the issue of whether an immigrant detained under § 1225(b) may be held indefinitely without a bond hearing.[11] Rodriguez presents a class action suit containing a subclass of individuals detained at a port of entry under § 1225(b).[12] In Rodriguez, the district court found in favor of the plaintiffs and mandated bond hearings to be held after six months of detention.[13] At the hearing, the court required the government to demonstrate that the immigrant posed a danger to the community or was a flight risk, before continued detention was permitted.[14]

Although the government argued that aliens arriving to the U.S. and detained at a port of entry held less constitutional rights than those already admitted, the Ninth Circuit disagreed.[15] Since some of the detained individuals were LPRs reentering the country, the court feared discrimination against LPRs who possess constitutional rights, and thus determined that the entire class of persons falling under the provision should receive Fifth Amendment protection.[16] The court ultimately held in Rodriguez that “brief periods of mandatory immigration detention do not raise constitutional concerns, but prolonged detention—specifically longer than six months—does.”[17]

Second Circuit Interpretations

Since Rodriguez is currently pending before the Supreme Court, the Second Circuit has stayed all cases that question whether an immigrant may be detained indefinitely under § 1225(b). Although the Second Circuit has yet to rule on the issue, four district court decisions within the Circuit demonstrate the confusion surrounding the application of Fifth Amendment rights to cases involving non-citizens.[18] In Lora v. Shanahan, the Second Circuit concluded that mandatory detention pursuant to 8 U.S.C. § 1226(c) for longer than six months without a bond hearing violates the Due Process Clause.[19] Extending this holding to cases under § 1225(b), the district court in Morris held that an “LPR absent from the United States for approximately one week possesses the same due process rights at the border as those enjoyed by an LPR continuously present within the United States.”[20] Similarly, the court in Arias found that the plaintiff “as an LPR, retained the same constitutional protections he possessed before leaving the United States . . . that § 1225(b) must be construed to avoid due process concerns,” and that a six-month limit would prove an appropriate standard.[21] Both courts agreed that LPRs detained at the border and those detained in the country possess the same Fifth Amendment rights.

While the courts in Morris and Arias extended Lora to encompass § 1225(b) and followed the precedent set by the Ninth Circuit in Rodriguez, the courts in Perez and Cardona rejected mandatory bond hearings under § 1225(b).[22] The court in Perez “found no case within this Circuit holding that detention under § 1225(b) is implicitly time limited or requires a bond hearing.”[23] In a similar interpretation, the court in Cardona stated simply that Lora was meant only to address detention under § 1226(c) and could thus not be construed as extending to detentions under § 1225(b).[24] With no ruling from the Second Circuit or the Supreme Court, the district courts split in deciding whether to extend the holdings of Lora and Rodriguez to § 1225(b) cases.

Analysis and Policy Implications of Rodriguez

When deciding Jennings v. Rodriguez the Supreme Court should uphold the rights of immigrants under the Fifth Amendment by rejecting the indefinite detention of non-citizens and LPRs.[25] It should also take into account the impact of the decision on the lives of detainees, their families, and their communities and the economic implications of indeterminate detention.

Permitting the indefinite detention of immigrants would pose serious constitutional concerns. In Rodriguez, the government’s primary argument hinges on the assumption that non-citizens detained under § 1225(b) hold fewer constitutional rights than immigrants detained in the country.[26] The main problem with this argument arises in situations where an LPR leaves the United States for a limited time and, upon return, is detained at a port of entry for criminal activity.[27] Based on the government’s argument, that person should receive less Fifth Amendment protection than an LPR arrested in the country for a similar crime. Creating different outcomes for two individuals with similar residency status based on the location of their arrest is illogical and inconsistent. While the Government in Jennings argued “that Congress has provided sufficient due process by permitting noncitizens to hire attorneys at their own expense, use interpreters, present evidence, and appeal their cases,” the argument ignores the discrepancy between allowing some LPRs access to bond hearings while denying others such protection based solely on the location of the arrest.[28] The Government’s claim trivializes the rights that the Fifth Amendment protects by pointing to an immigrant’s access to lawyers, interpreters, evidence and appeals while ignoring the fundamental right to “due process of law.”[29] Holding a person without a bond hearing, where a neutral decision maker may consider the necessity of detention, is a serious deprivation of liberty without due process of law.

Another set of arguments used by the government to defend indefinite detention is that detained immigrants pose a danger to the community and are a flight risk.[30] However, many of the immigrants detained at a port of entry are LPRs with families, jobs, and deep roots in the United States with little to no connection to their countries of origin. People who grew up in the United States or who came to America and established family connections and community ties are unlikely to leave their State of residence, much less the country. While the government could be correct in saying that some detainees pose a danger to the community, this determination should be conducted on a case-by-case basis, especially in instances involving non-violent offenses. Conducting a case-by-case review would allow the government to actually ascertain which detainees pose a danger to the community or are flight risks, rather than placing all immigrants in the same category based on the location of their arrest.

The government’s position further ignores the economic waste produced by denying immigrants the possibility of bond. The National Immigration Forum estimates that the current cost to detain an immigrant is approximately $159 per day.[31] At this rate, the government spends roughly $5 million dollars per day on immigration detention alone.[32] Although it is uncertain the number of immigrants detained specifically under § 1225(b), the amount of money spent per day on each detained immigrant is astronomical. Not only does the government spend almost two billion dollars a year on immigration detentions, but those LPRs detained for extended periods of time are unable to work, pay taxes or support their families. Although many of the detained immigrants eventually win their cases, they nevertheless lose their homes, jobs, and savings due to the length of detention.[33] Preventing LPRs from working in legitimate business capacities during the immigration procedure, while also spending $159 per day for each detainee, is a fiscally unsound policy that creates significant waste for the country and financial instability for thousands of families.


The Supreme Court in Jennings should reaffirm the reasoning of the courts in the Ninth and Second Circuits, holding that indefinite detention under §1225(b) is a violation of the Fifth Amendment. The Court should also recognize the economic and social policy implications of indefinite detention and require the government to provide immigrants with an individualized opportunity to prove to a neutral decision-maker that they are not a flight risk or a danger to the community.

[1] Francis Wilkinson, Trump is Winning His War on Immigration, Bloomberg View (July 25, 2017, 9:30 AM), https://www.bloomberg.com/view/articles/2017-07-25/trump-is-winning-his-war-on-immigration.

[2] Lornet Turnbull, Judge: Detained immigrants must get bond hearings, The Seattle Times (March 13, 2014, 11:44 AM), http://www.seattletimes.com/seattle-news/judge-detained-immigrants-must-get-bond-hearings/.

[3] Jennings v. Rodriguez, http://www.scotusblog.com/case-files/cases/jennings-v-rodriguez/ (last visited Sep. 22, 2017).

[4] U.S. Const. Amend. V.

[5] Zadvydas v. Davis, 533 U.S. 678, 693, 121 S. Ct. 2491, 2500 (2001).

[6] Id. at 682.

[7] 8 U.S.C. § 1231(a)(6) (1994 ed., Supp. V).

[8] Zadvydas, 533 U.S. at 682.

[9] Zadvydas, 533 U.S. at 699-700; 8 U.S.C. § 1231(a)(6) (1994 ed., Supp. V).

[10] 8 U.S.C. § 1225(b) (1994 ed. Supp. V).

[11] Rodriguez v. Robbins, 715 F.3d 1127 (9th Cir. 2013); 8 U.S.C. § 1225(b) (1994 ed. Supp. V).

[12] Rodriguez, 715 F.3d at 1130-1131.

[13] Id. at 1130.

[14] Id.

[15] Rodriguez, 715 F.3d at 1140; § 1231(a)(6).

[16] Id at 1141-1142; 8 U.S.C. § 1231(a)(6).

[17] Id. at 1144.

[18] Morris v. Decker, 2017 U.S. Dist. LEXIS 72146 (S.D.N.Y. May 11, 2017); Arias v. Aviles, 2016 U.S. Dist. LEXIS 91687 (S.D.N.Y. July 14, 2016); Perez v. Aviles, 188 F. Supp. 3d 328 (S.D.N.Y. 2016); Cardona v. Nalls-Castillo, 177 F. Supp. 3d 815 (S.D.N.Y. 2016).

[19] Lora v. Shanahan, 804 F.3d 601, 606 (2d Cir. 2015).

[20] Morris, 2017 U.S. Dist. at *8.

[21] Arias v. Aviles, 2016 U.S. Dist. at *10.

[22] Perez v. Aviles, 188 F. Supp. at 332; Cardona v. Nalls-Castillo, 177 F. Supp. at 815-16.

[23] Perez 188 F. Supp at 332.

[24] Cardona 177 F. Supp. at 815-816.

[25] Rodriguez v. Robbins is the same case as Jennings v. Rodriguez. The names changed upon appeal.

[26] Rodriguez, 715 F.3d at 1140.

[27] Morris, 2017 U.S. Dist. at *10.

[28] Aaron Reichlin-Melnick, Supreme Court Considers Challenge to Detention of Immigrants Without Bond Hearings, Detention, Federal Courts/Jurisdiction http://immigrationimpact.com/2016/12/01/supreme-court-considers-challenge-detention-immigrants-without-bond-hearings/ (last visited Sep. 16, 2017).

[29] U.S. Const. Amend. V.

[30] Supreme Court Considers Challenge to Detention of Immigrants Without Bond Hearings http://immigrationimpact.com/2016/12/01/supreme-court-considers-challenge-detention-immigrants-without-bond-hearings/ (last visited Sep. 16, 2017).

[31] The Math of Immigration Detention, National Immigration Forum (August 22, 2013), http://immigrationforum.org/blog/themathofimmigrationdetention/; (Immigration detention centers hold approximately 31,800 people per day).

[32] Id.

[33] Jennings v. Rodriguez, Prolonged Detention Stories  https://www.prolongeddetentionstories.org/jennings-v-rodriguez/#jennings-v-rodriguez-102 (last visited September 16, 2017).

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