The US Court of Appeals for the Second Circuit ruled Friday that the detention of non-citizens without a bond hearing violated their due process rights under the US Constitution, upholding a lower court decision. Judge Carney delivered the opinion of the two judge panel, which consolidated two cases, where noncitizens were held pending removal proceedings without a bond hearing for seven months and twenty-one months, respectively.
The plaintiffs in the case were both legal permanent residents (LPRs) who were being held under the authority of 8 U.S.C. § 1226(c). This statute states the government “shall take into custody” a noncitizen pending their removal proceedings, but does not define the length of this detention or the requirement of a bond hearing. Plaintiffs sued, arguing their Fifth Amendment right to due process was violated due to their prolonged detention with no bond hearing. Under Supreme Court precedent, some Constitutional protections extend to “all ‘persons’ within the United Sstates, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent” (quoting Zadvydas v. Davis).
The Supreme Court has previously allowed prolonged detention without a bond hearing under 1226(c) in Denmore v. Kim: Congress “may” detain a noncitizen without an initial bond hearing and “require that persons such as respondent be detained for the brief period necessary for their removal proceedings.” This sets the standard that the lank of a bond hearing on its face is not enough to violate Fifth Amendment due process rights. The Court has also allowed 1226(c) to permit prolonged detentions in Jennings v. Rodriguez: detention “must continue ‘pending a decision on whether the alien is to be removed from the United States.'” Here the Court also declined to enforce a six month cap on 1226 detention “without any arguable statutory foundation.”
Denmore and Jennings, though allowing for detention without a bond hearing, do not determine if such detention will at some point violate the Fifth Amendment, nor does it define the analytical framework to make this determination. To answer this question, Judge Carney looked to the framework presented in Matthews v. Eldridge, which lays out what process is due under the Fifth Amendment:
(1) the private interest that will be affected by the official action…(2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, or additional or substitute procedural safeguards…(3) the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
While not setting a bright-line rule, the Judge Carney rules these factors lean in the favor of the plaintiffs, and holds that their detentions are unreasonable, and they are due bond hearings..
This case is an important expansion of Fifth Amendment due process protections to noncitizens through their removal proceedings. The Matthews analysis established in this case is a flexible framework to ensure noncitizens are not subjected to unreasonable detention. This decision upholds the principle that Constitutional protections can extend to all in the United States, even noncitizens.
