A Second Chance for Detained Asylum Seekers in Jennings v. Rodriguez
As I waited outside of the Supreme Court Tuesday morning to observe the case Jennings v. Rodriguez, the line wrapped around the block. To my surprise, most of the people there were hoping to get a ticket for the first oral argument, a case about gerrymandering.
As I stood there I overheard varying questions about the second oral argument involving “obscure” immigration provisions. But the reality is that while Jennings may not attract the same amount of public attention, the outcome of the case will have a profound impact on the lives of thousands of asylum seekers and many other detained immigrants.
At stake in Jennings v. Rodriguez are the rights of these individuals to a bond hearing in front of an immigration judge when their detention extends beyond six months. Led by the ACLU of Southern California, the class of detained individuals asked the Court to uphold a lower court decision which required an immigration judge, not their jailer—Immigrations and Customs Enforcement (ICE)—to determine whether prolonged detention can continue pending their immigration hearings.
The government asked the Court to overturn the decision, and allow ICE to use its discretion to detain immigrants without parole until their immigration hearing, however long that make take. The oral argument on Tuesday was the second time the Supreme Court heard the case, as the Court decided last spring to schedule the case for re-argument this fall, after Justice Gorsuch joined the bench.
At the oral argument, the government’s lawyer asserted that it was ICE’s policy to parole asylum seekers who pass credible fear screenings, adequately verify identity, and are not a flight risk or danger to the community. But as Human Rights First revealed in its September 2017 report Judge and Jailer and in a 2017 amicus brief submitted in Jennings v. Rodriguez, ICE actually refuses to release asylum seekers on parole at many immigration detention facilities, a practice that has only increased in the wake of President Trump’s January 25 executive order calling for detention for the duration of immigration proceedings.
Human Rights First has seen firsthand through its pro bono representation of detained asylum seekers the effect of the government’s detention practice. It leaves many locked in immigration detention for months or longer in conditions that resemble correctional facilities and prisons, despite being eligible for parole.
One client, a West African asylum seeker persecuted due to his sexual orientation, was held for fourteen months in immigration detention. He was deprived of any opportunity for a bond hearing, despite passing a credible fear interview and showing strong ties to the community, including a U.S. citizen sibling. For asylum seekers, a bond hearing can give them months of their lives back. And the cost goes beyond deprivation of liberty. As Human Rights First reported in Lifeline on Lockdown, detained asylum seekers often struggle to secure counsel and access healthcare tailored to survivors of trauma, and have families who suffer economic hardship because of their detention.
We will have to wait for the Court’s decision this spring to determine what impact Jennings v. Rodriguez will have on the immigration detention system. Tuesday’s oral arguments, however, signaled that the outcome may not be predetermined. Many feared that the Court’s decision to schedule re-argument last spring signaled a 4-4 split, with Justice Kennedy leaning in favor of the government. It was believed that Justice Gorsuch would then break the tie for the government.
Justice Kennedy’s questions on Tuesday, however, signaled that he has serious concerns about prolonged detention without some level of due process. He asked the government, “Do you agree that detention violates due process, if there's an unreasonable delay in that detention?” When the government agreed, in cases where the delay was attributable to the government, Justice Kennedy then focused on whether backlogs are attributable to the government, and how the Court should determine when a delay is unreasonable.
While it remains to be seen how Justice Kennedy will decide, his line of questioning offers hope that the Court will recognize the important safeguard of a hearing before an immigration judge in cases of prolonged detention in the harsh and unfair immigration detention system.