However, it was later determined that the information was incorrect. U.S. Solicitor General Ian Gershengorn wrote to the court to say that the earlier data had been wrong. In fact, he said, the average detention period had been more than a year.
Now, the Supreme Court is going to be ruling on a similar case, Jennings v. Rodriguez, No. 15-1204. The question in this case is whether it violates the Constitution and the immigration laws to subject immigrants in deportation proceedings to long-term detention without individualized bond hearings. This case is an appeal from a ruling of the United States Court of Appeals for the Ninth Circuit, in San Francisco, that required bond hearings after six months. Gershengorn said that this “one-size-fits-all approach is not the right way to do it.”
The case was argued before the Supreme Court on November 30, 2016.
During arguments Gershengorn defended mandatory detention without bond as a rational response by Congress to ensure that immigrants appear for their hearings in immigration court and prevent them from committing other crimes.
“You can’t just lock people up without any finding of dangerousness, without any finding of flight risk, for an indefinite period of time, and not run into due process,” Justice Elena Kagan said.
Other justices said it mattered that the appeals court decision had turned on statutory interpretation, not on the Constitution. “We do not have the constitutional issue before us,” Justice Anthony M. Kennedy said.
A decision is expected sometime next year.