Wednesday, August 31, 2016
In a letter to the Supreme Court (Download Demore), the Solicitor General last week admitted that it provided the Supreme Court with erroneous information that helped it win a 2003 case (Demore v. Kim) -- in a 5-4 vote with Chief Justice William Rehnquist writing for the majority -- upholding a blanket policy of denying bail to immigrants detained while awaiting removal from the United States. The letter said the U.S. government made “several significant errors” that greatly understated the time certain aliens with criminal records spend in no-bail detention.
The Court's decision in Demore v. Kim cited government data to hold that “the very limited time of detention” for immigrants while their appeals are pending is too short to trigger a constitutional right to a bail hearing.
The Court in Demore v. Kim represented a retreat from the Court's decision in Zadvydas v. Davis (2001), which held restricted detention of an immigrant subject to a final removal order.
The Supreme Court in the 2016 Term will address another immigrant detention case, Jennings v. Rodriguez. The issues presented in that case include:
(1) Whether aliens seeking admission to the United States who are subject to mandatory detention under 8 U.S.C. § 1225(b) must be afforded bond hearings, with the possibility of release into the United States, if detention lasts six months;
(2) whether criminal or terrorist aliens who are subject to mandatory detention under Section 1226(c) must be afforded bond hearings, with the possibility of release, if detention lasts six months; and
(3) whether, in bond hearings for aliens detained for six months under Sections 1225(b), 1226(c), or 1226(a), the alien is entitled to release unless the government demonstrates by clear and convincing evidence that the alien is a flight risk or a danger to the community, whether the length of the alien’s detention must be weighed in favor of release, and whether new bond hearings must be afforded automatically every six months.
In light of the recent SG's recent admission of providing the Court with inaccurate data, expect the Supreme Court to carefully scrutinize the government's assertions in Jennings v. Rodriguez.
As analyzed by Nancy Morawetz, the Solicitor General also admitted to misstatements to the Supreme Court of government policy and practice in Nken v. Holder (2009), which dealt with stays of removal pending appeals.