In October 2015 the American Civil Liberties Union won a seminal case in the 9th Circuit Court of Appeals, relating to the prolonged detention of foreign nationals in immigration detention centers. Essentially, the court stated that even if a foreign national is subject to mandatory detention under U.S. federal statute, the foreign national is entitled to have a bond hearing every six months, where the U.S. government has the burden of showing by clear and convincing evidence, that the foreign national must remain detained. So, if a person who committed a crime that subjects them to mandatory detention, or is an arriving alien who wants to apply for asylum, they would all have the opportunity to have a bond hearing within six months of arriving into ICE custody.
Circuits across the U.S were split on this issue, but the 9th Circuit was the only circuit that allowed these bond hearings. The U.S. government appealed the case, and unfortunately, this case was recently overturned by the U.S. Supreme Court. This signifies that all aliens that are subject to mandatory detention are to be incarcerated until the completion of their case. That could mean that individuals could remain in custody for years. This has resulted already in a lack of bed spaces for new arrivals that want to seek asylum in the U.S. and a backlog in the detention center courts, which can also prolong detention.
However, not all hope is lost. The U.S. Supreme Court sent the case back to the lower courts to determine whether or not the statute that requires mandatory detention is unconstitutional. Although the Supreme Court decided that the manner in which the 9th Circuit came to its decision was incorrect, it left it open to whether or not the statute itself was unconstitutional, which would get rid of the idea of mandatory detention altogether.
Is it right for the government to detain individuals who have been tortured, beaten, and torn from their families? How about those who have committed serious crimes? The idea of indefinite detention is one that is morally challenging. However, as Justice Breyer stated in his dissent to the recent U.S. Supreme Court case, maybe “(w)e need only recall the words of the Declaration of Independence, in particular its insistence that all men and women have ‘certain unalienable Rights,’ and that among them is the right to ‘Liberty.’”