Justice for All (Well, Maybe)

By Jennifer Breneman

Give me your tired, your poor, your huddled masses yearning to breathe free…” (but they’ll have to stay detained and confined here for as long it takes, maybe indefinitely, until we determine whether they should stay here freely).

Ripe for decision before the United States Supreme Court is the case coming up from the Ninth Circuit of Jennings v. Rodriguez, Supreme Court Docket Number 15-1204.   Jennings is seeking to resolve the following issues regarding immigration, a hot button topic with the POTUS:  (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.

Argument and reargument have  now been heard by the Court and a majority of the justices appeared to lean toward allowing immigrants that are held long term to be eligible for a hearing after six months in order to give them opportunity to argue for their release. Justices Sotomayor, Kennedy, Ginsburg, Breyer and Kagan seemed to side with the six-month hearing requirement.  But other justices seemed concerned about the automatic triggering of such a hearing after six months, as required by the lower court ruling.

The right to due process is granted under the 5th and 14th Amendments to the Constitution.  But the Supreme Court will have to determine whether that right will extend to all people, even those arriving on our shores, tired and poor, yearning to breathe free here in the United States.  

 

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Jennings v. Rodriguez, 2017-WL-564163 (2017) http://www.scotusblog.com/case-files/cases/jennings-v-rodriguez/

Jennifer Rubin, Two Supreme Court cases can change the immigration debate, The Washington Post (Oct. 3. 2017), https://www.washingtonpost.com/blogs/right-turn/wp/2017/10/03/two-supreme-court-cases-can-change-the-immigration-debate/?utm_term=.634971083233

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