On Wednesday, the U.S. Supreme Court heard arguments on a case that could fundamentally change the nature of immigrant detention. In Jennings v. Rodriguez, the Obama administration is arguing that immigration law gives the government authority to detain “criminal and terrorist aliens” and “arriving aliens” as their cases are processed, while the American Civil Liberties Union (ACLU) is arguing that subjecting immigrants to prolonged detention and denying them a bond hearing violates both immigration laws and the U.S. Constitution.
“It’s pretty simple and basic,” Alina Das, co-author of a Jennings v. Rodriguez amicus brief and co-director of the Immigrant Rights Clinic (IRC) at the New York University School of Law, told Rewire in a phone interview. The right to a bond hearing, Das said, “complies with the Constitution and due process, but here we are, having to take it to the Supreme Court. It’s really disappointing to see [the Obama administration] take this position. It feels like another scapegoating of a population of folks who are in our communities who really deserve every bit of the due process clause in the Constitution as everyone else, but they’re not getting it in the name of being tough on immigration.”
Since President Obama announced his executive actions on immigration in 2014, his administration has pushed a narrative of good immigrants versus bad immigrants by going after “felons not families.” This paints an all-too-simplistic portrait of the complex realities of immigrants’ lives, while also glossing over the fact that his administration criminalizes all undocumented immigrants and subjects a wide range of migrants to prolonged detention, ripping apart mixed-status families in the process.
The roots for Jennings v. Rodriguez go back to 2007, when the ACLU filed Rodriguez v. Robbins in a Los Angeles federal district court on behalf of Alejandro Rodriguez. Immigration and Customs Enforcement (ICE) detained Rodriguez, a Mexican immigrant and legal permanent resident, for more than three years without ever giving him a bond hearing because he had prior convictions, which subjected him to mandatory detention under immigration law. And in another case that helped formed the basis for Jennings v. Rodriguez, Lora v. Shanahan, longtime lawful permanent resident Alexander Lora was placed into removal proceedings on November 22, 2013 based on a 2009 criminal conviction for drug possession. Lora received no jail time for the conviction, but Immigration and Customs Enforcement (ICE) arrested him in his New York home, and then detained him without bond in New Jersey.
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Both the Second and Ninth Circuit courts determined in those cases that immigrants must receive a bond hearing within or after six months of detention, respectively, but the Obama administration has continued to fight the issue.
It has become relatively commonplace for ICE to hold immigrants in detention for months, and it’s not unusual to hear stories of immigrants—including asylum seekers—being detained for years. Perhaps the most concerning part of prolonged detention for immigrants’ rights advocates is that it is more apt to adversely affect those with the strongest cases.
“With mandatory detention, people are detained for as long as it takes their immigration cases to resolve,” said Terry Ding, co-chair of the NYU Law Immigrant Rights Project, in a phone interview with Rewire. “It’s generally the people who have really strong claims whose court cases take the longest. If they are subject to mandatory detention, their case is complicated and it takes attorneys a while to work through it. With prolonged detention, it can take months and sometimes even years to even get in front of a judge to have your case heard because of this huge backlog in the courts. People with these types of cases just sort of languish in immigration detention for a really long time.”
For non-immigration cases, a person is typically told their bond amount immediately after they are booked, because for misdemeanors and other common crimes, like DUIs, many jails across the country have standard posted bail amounts. For more serious crimes, U.S. citizen suspects see a judge within 72 hours at the most (though that doesn’t preclude some detained from facing prolonged confinement). No such system exists for immigrants in detention, even for those who have committed no other “crime” than being undocumented.
Court backlogs mean that an asylum seeker can spend years in what is essentially a prison simply because the court doesn’t have the capacity to hear her case. And because of policies under the Obama administration, those forced to endure mandatory detention thanks to previous interactions with the criminal justice system don’t receive a bond hearing before being deported or released.
Ding said prolonged detention has been litigated for a long time in courts all over the country, and the general consensus is that prolonged detention without a day in court raises constitutional concerns. However, over the course of eight years, the Obama administration has doubled down on its prolonged detention stance, all the way to the Supreme Court.
Many in the immigrant rights movement had a “lot of hope” that at the beginning of the Obama administration, the president would draft administrative policies that would be protective of the due process rights of everyone, “recognizing that the entire system is flawed.” Instead, explained Das, the administration has been most tough on immigrants.
“I believe that early on, he decided to target some immigrants in the hope that his approach on immigration would satiate those on the other side of the aisle who wanted to see tougher immigration restriction,” Das said. “We see this in his directive of wanting to deport ‘felons not families’ and identifying the targets as people who are [newly] crossing our borders and people who are committing crimes.”
The website Prolonged Detention Stories, created by IRC and Community Initiatives for Visiting Immigrants in Confinement as part of IRC’s amicus brief, shines a light on the issues with painting a migrant as either “good” or “bad” and uplifts the voices of those most affected through pictures and stories of various people, primarily parents and/or those in mixed-status families.
Astrid Morataya’s story, included in the brief, is a prime example of how prolonged detention harms mixed-status families. Morataya fled violence in Guatemala with her family when she was 8 years old. Beginning in 2013, she spent two and a half years in detention. Because of a 1999 low-level drug distribution conviction in which she was sentenced to probation, she was subject to mandatory detention. According to the brief, Morataya “received her conviction more than a decade prior to her removal proceedings, during a period in her life when she was the victim of ongoing sexual abuse, including a violent kidnapping and rape.”
Because she ultimately testified against her abuser in court, Morataya received a U visa while in removal proceedings, allowing her to leave detention and be with her family. Morataya told Rewire that she has complicated feelings about the U visa that helped her get released from detention and gave her relief from deportation. She has lived in the United States as an asylum seeker since she was a child and says it’s “unfair” that the only path she had for relief from deportation was to endure “horrific abuse” at the hands of her former partner.
“My [economic] contributions [or] keeping me here for my kids, none of that mattered. My [drug distribution conviction] … was considered, but nothing else was considered. This [U visa] was the only option for me, and that hurts,” the mother of three said in a phone interview.
She said she often thinks about her time in detention and wonders why people like her are treated like “public enemy number one.” Instead of being detained, she could have been checking in with an immigration officer, as she is now.
“Yes, I had a criminal history, but I was condemned for a mistake,” she said. “When I was younger, I didn’t know I was [undocumented]; I was just a kid. I didn’t know the laws. I love this country as much as anyone who was born here, I’m just as American as the next American. I don’t call any other country my home. I just never thought something like this would happen to me.”
If the Obama administration is keen on divvying up groups of people into tidy boxes like good and bad, while purporting to only go after the “bad” ones, Carolina (a pseudonym to protect her identity) is an example of a “good immigrant.” That status did her no favors, though, when she was detained for six months after doing everything the U.S. government tells asylum seekers to do.
In Honduras, Carolina experienced abuse and neglect in her family home and later from her domestic partner, who beat her, raped her, and tried to make her miscarry when she became pregnant. In accordance with international asylum law, she fled Honduras and presented herself at a U.S. port of entry as an asylum seeker. She was swiftly detained, passed her credible fear interview, and yet remained in detention for six months. During her time in the Mesa Verde Detention Facility, she properly submitted five requests for humanitarian parole, each containing all of the requested information—a sponsor letter, financial records, identity documents, and the like—and was denied each time. She was finally able to receive a bond hearing, the kind now being contested at the Supreme Court. Her family and friends were able to raise the $1,500 bond and she is currently awaiting her court hearing regarding her asylum case.
In a phone interview, Carolina told Rewire that in Honduras, there were rumors that the United States was locking up asylum seekers. Even so, she decided to take her chances because she could no longer endure the abuse from her partner and feared the effect it would have on her children if they continued to witness it.
“I know [immigration officials] are just doing their job, but what they need to know is that we don’t just leave our children behind and go to another country unless we are suffering and feel like we have no other options. We have a hard time leaving our countries, but we know we must,” she said.
Carolina has decided to share her story as part of the IRC’s amicus brief because she wants the world to know what prolonged detention does to people. At many points during the interview, Carolina sobbed over the phone, describing how she and others detained were allegedly fed rotten food; how she witnessed people become so sick in detention that they were transferred to hospitals and that their families were never informed of their whereabouts. She said different variations of the same, gut-wrenching thing: Why does the United States treat the undocumented “like animals”?
“After a while, it became so difficult just to wake up in the morning, knowing I was going to see moldy bread on the table,” she said. “We are not animals, but they treat us like beasts.”
In an emailed statement, an ICE spokesperson told Rewire that “ICE Enforcement and Removal Operations managers … have never received any complaints from detainees, either formal or informal, about rotten or rancid food.” The spokesperson added that the Mesa Verde center currently meets its national standards requiring “those held at the center receive three meals daily using menus developed by a registered dietician, who ensures individuals’ unique health, dietary, and religious needs are met.”
Carolina told Rewire that no one wants to hear stories like hers, or hear how sadly common it is that asylum seekers are often women who are not just escaping the threat of gang violence in their countries of origin, but gender-based violence that has subjected them to years of rape and domestic violence. “This is our reality, and nobody wants to listen to this,” Carolina said. “But I believe God put me here, to say these things.”
“The purpose of immigration should not be to detain us and treat us like animals; it should be to help us. We want help from this government. We don’t want their money; we want help, but they detain us instead for years. If you let us stay, let us stay. If you deport us, deport us. Don’t detain us for years. It’s not right. Don’t treat us like this if you’re not going to help us.”
The Supreme Court decision on Jennings v. Rodriguez is expected by June of next year.