On the final day of the last Supreme Court term, the court listed two cases for reargument. Both had been argued prior to the nomination and confirmation of Justice Neil Gorsuch, and both were presumably tied, 4-4, as the term came to a close. Both, when decided ­during the upcoming term, could significantly impact noncitizens facing deportation, in Pennsylvania and nationwide. Jennings v. Rodriguez, 136 S. Ct. 2489 (2016) (granting certiorari), will address the constitutional limitations on mandatory, no-bond ­immigration detention.

Jennings was first argued on Nov. 30, 2016, and will be reargued on Oct. 3. The ­petitioners represent the federal government, while the respondents are a class of noncitizens who were detained in the Central District of California in civil ­immigration custody for more than six months and brought a habeas corpus action ­seeking bond hearings. The government ­petitioned for certioriari from the U.S. Court of Appeals for the Ninth Circuit’s decision in Rodriguez v. Robbins, 804 F.3d 1060, 1066 (9th Cir. 2015), but the Supreme Court’s decision will have ­nationwide implications.

When Immigration and Customs Enforcement initiates removal (deportation) proceedings against a noncitizen, it may choose to detain that person. Most noncitizens have the opportunity for a bond hearing before an immigration judge, who can set a bond if the noncitizen shows that he is neither a danger to the community nor a flight risk, as in Matter of Guerra, 24 I. & N. Dec. 37, 38 (BIA 2006). In other cases, however, the Immigration and Nationality Act provides for mandatory detention, without a bond hearing, during the pendency of the removal proceedings, 8 U.S.C. Section 1225(b)(iii)(IV); Section 1226(c). Noncitizens, including lawful permanent residents, who have been convicted of a broad range of crimes at any time in the past are subject to mandatory detention without a bond hearing, as are asylum-seekers who present themselves to immigration officials at the border.

In 2003, the Supreme Court upheld ­mandatory detention of noncitizens with criminal convictions against a facial constitutional challenge, as in Demore v. Kim, 538 U.S. 510, 530 (2003). In its opinion, however, it stated that “the detention at stake under Section 1226(c) lasts roughly a month and a half in the vast majority of cases in which it is invoked, and about five months in the minority of cases where the alien chooses to appeal.” In making this statement the court relied upon statistics provided in the government’s brief, which the acting solicitor general revealed to be inaccurate 13 years letter, when the court first considered Jennings. Additionally, Justice Anthony Kennedy, who provided the pivotal fifth vote in Demore, wrote a separate concurring opinion in which he emphasized that a noncitizen could become entitled to a bond hearing if his continued detention “became unreasonable or unjustified.”

Since 2003, U.S. District Courts and Courts of Appeals have sought to parse that language and determine the precise limits on mandatory immigration detention. Notably, all six circuits that have ruled on this issue agree that the mandatory detention statute, read to avoid a constitutional violation, does not authorize indefinite detention without a bond hearing, as in Sopo v. U.S. Attorney General, 825 F.3d 1199, 1212-13 (11th Cir. 2016). However, they disagree about how to implement that principle. In the Ninth and Second Circuits, noncitizens automatically receive a bond hearing after six months of mandatory detention, as in Lora v. Shanahan, 804 F.3d 601, 616 (2d Cir. 2015) and Rodriguez v. Robbins, 715 F.3d 1127, 1138 (9th Cir. 2013). In the First, Third, Sixth, and Eleventh Circuits, in contrast, the noncitizen must demonstrate that, given the facts of his case, his detention has become unreasonable, as in Sopo, 825 F.3d at 1215; Reid v. Donelan, 819 F.3d 486, 496 (1st Cir. 2016); Diop v. ICE/Homeland Security, 656 F.3d 221, 233 (3d Cir. 2011); Ly v. Hansen, 351 F.3d 263, 271 (6th Cir. 2003). In Jennings v. Rodriguez, the Supreme Court will decide both whether the statute limits the duration of detention without a bond hearing and when any such limitation requires the government to provide a bond hearing.

The six-month bright-line rule stems from the Supreme Court’s decision in Zadvydas v. Davis, which addressed the due process rights of noncitizens who are detained ­pursuant to 8 U.S.C. Section 1231 after ­having been ordered deported. 533 U.S. 678, 688 (2001). The court held that the statute implicitly limits detention in that circumstance to a presumptively reasonable period of six months, after which a ­noncitizen can be released upon a showing that she is unlikely to be removed in the reasonably foreseeable future. The Ninth and Second Circuits imported this ­reasoning to the context of individuals who are detained before the entry of a removal order. At the same time, those courts recognized the ­practical challenges that a fact-specific ­inquiry, which requires each affected individual to file a separate habeas corpus petition, imposes. Application of a reasonableness standard by district court judges leads to inconsistent results, and crowded dockets can lead to further delay. Moreover, noncitizens who lack counsel will face significant barriers to litigating a habeas corpus petition in a district court while detained.

Nonetheless, other circuits have held that, despite the practical considerations, a fact-specific inquiry more accurately implements the requirement that mandatory detention not exceed a “reasonable” time period. In the Third Circuit, longstanding precedent holds that “at a certain point, continued detention becomes unreasonable and the executive branch’s implementation of Section 1226(c) becomes unconstitutional unless the government has justified its actions at a hearing inquiring whether continued detention is consistent with the law’s purposes of preventing flight and dangers to the community. This will necessarily be a fact-dependent inquiry that will vary depending on individual circumstances.” In 2015, the court clarified that ­detention ­without a bond hearing generally becomes unreasonably prolonged between six months and one year, when it becomes clear that the proceedings will take ­substantial additional time and the noncitizen’s liberty interest outweighs the government’s interest in continued detention without a bond hearing, as in ­Chavez-Alvarez v. Warden York County Prison, 783 F.3d 469, 477-78 (3d Cir. 2015).

The implementation of Chavez-Alvarez in the Middle District of Pennsylvania, where the vast majority of immigrant detainees in the state are held, illustrates the advantages and challenges of the Third Circuit’s ­approach. District court judges in the Middle District frequently grant bond hearings to noncitizen petitioners who file both pro se and counseled petitions, see, e.g., Kamara v. Doll, Civ. A. No. 17-1176, (M.D. Pa. Aug. 15) (pro se); Elanany v. Lowe, Civ. A. No. 16-1989, (M.D. Pa. May 2). The processing of the petitions, however, can take months, despite the fact that the government often does no dispute that the petitioner is entitled to a bond hearing. See, e.g. Ildefonso-Candelario v. Lowe, Civ. A. No. 16-2120, (M.D. Pa. Apr. 28, 2017) (adopting magistrate judge’s report and recommendation, to which neither party objected, after petition had been pending six months). The procedure for remedying prolonged detention can itself significantly prolong a detained citizen’s wait for a bond hearing. Moreover, many noncitizen detainees may never enforce their constitutional rights to a bond hearing, because they are unable to file a pro se habeas 
petition.

During the 2017 Supreme Court term, the court will determine whether to adopt the Third Circuit’s approach, institute a bright-line rule, or eliminate all habeas corpus relief for noncitizens who are ­detained without a bond hearing. Immigration practitioners and their clients will eagerly await a resolution to this critical issue that impacts the liberty of many 
Pennsylvanians.