A Civil Shame: The Failure to Protect Due Process in Discretionary Immigration Bond Hearings

Over the last four years, the US Supreme Court has granted certiorari in four immigration bond review cases. The sheer number of cases the Court has recently considered underscores the significance of this area of immigration law. Each case centers on whether the Immigration and Nationality Act or the Constitution mandates a bond review hearing after prolonged detention. Yet these cases leave unresolved the issue of whether initial bond hearings themselves meet the due process threshold required of civil confinement proceedings. Federal circuit and district courts have addressed aspects of this question and found procedural due process violations. However, most jurisdictions continue to adhere to these arguably unconstitutional practices. Until 2017, the Department of Homeland Security (DHS) implemented enforcement guidelines prioritizing certain categories of individuals for arrest and detention. Those with serious criminal convictions were targeted whereas legal permanent residents or undocumented individuals with families were not unless they had serious criminal convictions. On January 25, 2017, President Trump signed an executive order abolishing these enforcement priorities and instituting sweeping enforcement guidance instructing DHS to arrest and remove noncitizens with any criminal conviction, as well as individuals with pending charges or those who committed an act that could be chargeable as a criminal offense such as crossing the border without documentation. The numbers of noncitizens arrested and detained increased exponentially and many of those detained from 2017 – 2020 either had no criminal record or had arrests or pending charges but no convictions. At the same time, Immigration and Customs Enforcement began routinely denying bond rather than setting reasonable bonds or conditionally releasing noncitizens even though effective alternative methods for ensuring return to court existed. The case backlog in immigration courts increased as a result. These policy changes and practices laid bare the due process deficiencies inherent in the current civil immigration bail system. They also revealed the dangers of granting DHS unfettered discretion to detain as well as the dire consequences of civil imprisonment for noncitizens. This article analyzes the state of procedural due process in the immigration bail system and compares initial immigration bond hearings to involuntary mental health commitment and child support contempt hearings – two proceedings in which civil court judges have limited authority to temporarily confine litigants. The comparison reveals the danger of using administrative law standards to govern immigration bond proceedings when questions of fundamental liberty interests are at stake. Courts and legislatures have required trial court judges to exercise great care and caution before taking the extreme step, in a civil proceeding, of involuntarily committing or incarcerating an individual to induce compliance with a court order or to protect the individual or community from harm. Yet that same level of protection is not required when determining whether to continue to detain noncitizens or release them on bond. This article proposes statutory, regulatory, and court rules reforms to ensure fundamental fairness in initial immigration bond proceedings