The Supreme Court: Rights to Bail Hearings for imprisoned Immigrants
Recently, the Supreme Court accepted arguments in a case regarding whether immigrants who have previously been ordered removed should be eligible to post bail after six months of detention. Many immigrants who have been given deportations at the border but subsequently enter the U.S., are still entitled to apply for withholding of removal if they fear returning to their home country. Their withholding of removal claims could be pending in immigration court for years. These immigrants may be detained without the right to request a bail hearing while fighting deportation. American citizens have a right to a bail hearing when they are detained and waiting for a hearing on a criminal matter. Should the same right be extended to noncitizens? This question was sparked by Antonio Arteaga Martinez, a Mexican citizen, who entered the U.S illegally four times, the last time in 2012, because he feared persecution from gangs in his home country. Martinez was detained without a hearing and thus challenged his detention, saying he should be released on bond because he was neither a flight risk nor a danger to the community. Lower courts ruled in his favor, citing Zadyvas v. Davis, which determined that the government may not detain immigrants indefinitely without giving them the right to a bond hearing. In Zadyvas, there was no hearing scheduled, but Mr. Zadyvas could not be returned to his home country because it refused to take him. He was being detained indefinitely and without any idea of when he could be released. The current issue before the Supreme Court is whether a person who is still in immigration proceedings but has been ordered deported through the expedited removal process in the past also has a right to request release on bond after six months in detention.
The federal government sought Supreme Court review of the 3rd circuit decision stating that Martinez had a right to a bond hearing after six months of detention. Martinez was given a hearing, the government was unable to show that he was a flight risk, and he posted bail for his release while his case is pending. The federal government appealed to the Supreme Court because they argue that Martinez could have an informal review conducted by Immigration and Customs Enforcement officials instead of a hearing before a judge to decide if he should be released. The Supreme Court listened to oral argument last week and the justices had a wide range of opinions on the matter. Justice Breyer took the hard stance that “Given the history of this nation and Britain, where you’re going to detain a person, not even a criminal, you know, for months and months and months, why aren’t they at least entitled to a bail hearing? That’s all that’s at issue.” Other Justice’s took a different stance. Justice Sotomayor questioned whether individual lawsuits in federal court were a realistic alternative. Her concern was for some of these noncitizens who may not have the training or means to operate within the justice system. Other Justices argued about how this decision would fit within the Zadyvas case and whether it would cause an increase in the back log of immigration court cases. The Justices expressed harsh skepticism to the idea of bond hearings for hundreds of immigrants at a time and questioned whether those decisions would even be authorized under the law.
Whatever the court rules will affect thousands of immigrants who have been detained for many months or even years and could affect thousands more of future immigrants. We will keep you updated on what the Supremes decide on this topic through the blog.
DISCLAIMER: This Article is for informational purposes only and may not be used in the place of legal advice.