The U.S. Supreme Court decided two important immigration cases recently, one holding that part of the law defining a “crime of violence” for deportability purposes was unconstitutionally vague, and the other case holding that there is no automatic right to a bond hearing for those detained for as long as six months.
In April, the Supreme Court decided Sessions v. Dimaya, a case involving the “aggravated felony” ground of deportability, which includes convictions for certain “crimes of violence.” The federal statute defining crimes of violence includes a broad, catch-all provision (“any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense”). According to the Court, this residual clause isn’t specific enough for aliens with criminal convictions to determine if they would be subject to removal under it. In rendering its decision, the Court relied on a collection of legal principles known as the “vagueness doctrine.” This is an extension of the concept of due process, which is based on the notion that the government has an affirmative obligation to give the people adequate notice of what behavior is proscribed by the law.
A few weeks earlier, the Supreme Court decided Jennings v. Rodriguez, a case involving the constitutionality and validity of prolonged detention. The Court reversed and remanded a Ninth Circuit decision that held that under the Immigration and Nationality Act (INA), prolonged detention becomes constitutionally suspect after six months and therefore provided an automatic right to a bond hearing after six months in detention. In a 5-3 decision, the Supreme Court held that there is not an automatic right to a bond hearing under these circumstances and that the Court of Appeals misread the INA. Because the Ninth Circuit’s decision was a statutory not a constitutional interpretation of what is required, the Supreme Court remanded the case back to the Court of Appeals to determine whether prolonged detention without a bond hearing violates the Constitution.
Not all of those subject to immigration detention are held for months on end. Usually, cases involving detained individuals are given preferential treatment in immigration courts. But there have been a number of instances where, for varying circumstances, an immigrant has been detained for months or even years with no right to appear before an immigration judge to request bond. The plaintiff in this case, Mr. Rodriguez, had been detained for three years while the government tried his removal case.