The immigration courts long have been overburdened and inefficient, with cases taking many months and often years.įor noncitizens subject to discretionary detention but denied release and for noncitizens subject to mandatory detention, their experience is one of incarceration similar to that experienced by those accused of crimes and denied bail. Immigration “judges” are not Article III judges but instead are employees of the Justice Department, and the immigration appeals court, the Board of Immigration Appeals, also is part of the Justice Department. Immigration cases are heard through a system administered by the Department of Justice. For the smaller group of noncitizens who face deportation because they were convicted of certain criminal offenses while in the United States, however, the INA mandates their detention without any opportunity for release during their immigration proceedings. Most noncitizens charged with immigration violations are subject to discretionary detention and have the opportunity shortly after being taken into custody for a hearing before an immigration judge to seek their release while their immigration proceedings go forward. Immigration detention long has been governed by federal statute, with the contemporary federal scheme being in the form of the Immigration and Nationality Act-commonly referred to by immigration practitioners as the “INA.” For noncitizens accused of violating federal immigration law-violations that in almost all instances are civil, not criminal-the INA authorizes two categories of detention. But they have continued to struggle with the issue after the Supreme Court passed on it in 2018, with the Second Circuit facing it in a case argued just last month. Prior to that, many Courts of Appeals, including the Second Circuit, had recognized that prolonged immigration detention raised serious constitutional questions. Three years ago, the Supreme Court had an opportunity to address the due process limits on immigration detention but declined to do so, leaving the issue to the lower courts. And other issues remain similarly unresolved: For those noncitizens granted a hearing, does the government or the noncitizen bear the burden of proving or disproving a justification for detention during the pendency of the immigration proceedings? When an immigration judge concludes that a noncitizen can be released on bail, does the judge have to consider whether the noncitizen’s ability to pay in setting the amount of bail to avoid detention merely because of indigency? And finally, given that many noncitizens may not be able to afford bail, must an immigration judge consider alternatives to bail (such as regular check-ins) when considering conditions of release? immigration law.Įven those well-versed in constitutional law may be surprised to learn that it is an open question whether such noncitizens can be jailed for years without any hearing while their immigration cases move through the clogged immigration courts. Yet nearly 250 years after the adoption of the Bill of Rights, in a country peopled by immigrants, these most basic of constitutional protections remain unresolved for one group: noncitizens detained on suspicion of civil offenses involving U.S. Supreme Court long having recognized that the Due Process Clauses of the Fifth and Fourteenth Amendments impose fundamental substantive and procedural protections against unjustified detention.
Limitations on involuntary government detention lie at the core of our constitutional scheme, with the U.S.
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