“Brief Of The Two Steves” — Read The Yale-Loehr/Legomsky Amicus Brief Explaining Immigration Detention Filed With The Supremes in Jennings v. Rodriguez!

Interest of amici curiae………………………………………………. 1 Introduction and summary ………………………………………… 2 Argument…………………………………………………………………… 5

1. Aliens arriving in the United States at a port
   of entry…………………………………………………………….6
   1. Arriving asylum seekers are detained
      under color of Section 1225(b)(1)(B)(ii),
      even after an asylum officer has found a credible fear of persecution………………………… 6
      1. Asylum seekers detained under Section 1225(b)(1)(B)(ii) have limited oppor- tunity for review of detention or re-
         lease ……………………………………………………… 7
      2. Aliens seeking asylum may be detained for lengthy periods ……………………………….. 9
   2. Arriving aliens who are not subject to expedited removal, but are not “clearly
      and beyond a doubt entitled to be
      admitted,” are detained under color of Section 1225(b)(2)(A)………………………………… 11
2. Aliens apprehended in the United States………. 13
   1. Aliens apprehended in the United States
      but not convicted of a qualifying crime may be detained and are only sometimes permitted a bond hearing pending a
      removal decision ………………………………………. 13
   2. Aliens apprehended in the United States
      who are convicted of a qualifying crime are subject to mandatory detention and are
      not provided opportunities for conditional release except in limited circumstances……. 16(I)

II

Table of Contents—Continued:

1. Aliens convicted of qualifying crimes are detained under Section 1226(c)…………… 16
2. Aliens detained under Section 1226(c) are released from detention in only narrow circumstances…………………………………….. 17
3. Aliens held under Section 1226(c) general- ly are detained for longer periods of time than are other aliens ………………………….. 19

C. Aliens ordered removed are generally detained until the removal order is
executed ………………………………………………….. 21

III. The bond hearing process provides limited procedural rights, which vary across the circuits………………………………………………………….. 22

1. Aliens detained under Section 1226(a) are entitled to bond hearings in certain circumstances………………………………………….. 22
2. Federal courts have held that aliens
   detained under Sections 1225(b), 1226(a),
   and 1226(c) are entitled to bond hearings when detention becomes prolonged………….. 28
   1. The Ninth and Second Circuits provide for bond hearings for aliens detained
      over six months…………………………………… 30
   2. The First, Third, Sixth and Eleventh Cir- cuits provide for bond hearings on a case- by-case basis………………………………………. 31
   3. Bond hearings based on prolonged deten- tion are procedurally similar to Section 1226(a) bond hearings ………………………… 32

III

Table of Contents—Continued:

Conclusion…………………………………………………………………33 Appendix…………………………………………………………………..1a

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This is an absolutely fantastic resource for anyone litigating, writing, speaking, or reporting on immigration detention written by two of the “best in the business.”

Rodriguez could be a problem for the Administration and the Immigration Courts. President Trump’s Executive Orders ramp up border enforcement, interior enforcement, immigration detention, and will further clog the already overwhelmed U.S. Immigration Courts.

If the Supreme Court places time limits on the Government’s ability to detain individuals without individual bond hearings pending the completion of Removal Hearings on the merits in Immigration Court, it could lead to an increase in the number of bond hearings conducted by U.S. Immigration Judges. Combined with pressure from the Administration to complete Removal Hearings before bond hearings are required, it likely will lead the Administration to “torque up” the pressure on Immigration Judges to cut corners and expedite hearings without regard to the requirements of due process. This is likely to force the issue of due process in Immigration Court into the Article III Federal Courts for resolution .

PWS

02/14/17