by Emmanuel S. Tipon, Esq.
“When a stranger sojourns with you in your land, you shall not do him wrong. You shall treat the stranger who sojourns with you as the native among you, and you shall love him as yourself, for you were strangers in the land of Egypt: I am the Lord your God. – Leviticus 19:33–34
Susmariosep! Can this be true? An accused rapist who has been jailed can be set free by putting up bail but an alien who has been convicted of simple theft and is detained by immigration authorities after an order of deportation cannot be set free even if the alien offers to put up a bond. Worse, the alien is not even entitled to a bond hearing. (The terms “bail” and “bond” are synonymous and refer to money or other thing of value given as security to guarantee a person’s appearance in court or other tribunal at a later time.)
The Constitution does not specifically say that every detained person is entitled to bail. It simply states in the Eighth Amendment that “excessive bail shall not be required”, implying that there is a right to bail. But it is silent on “who” are entitled to bail and whether it may be denied.
The U.S. Supreme Court held on June 13, 2022 in the case of Johnson v. Acting Director of U.S. Immigration and Customs Enforcement, No. 19-896, that
Section 241(a) of the Immigration and Nationality Act, codified at 8 U.S.C.
§1231(a), authorizes the detention of noncitizens who have been ordered removed from the United States, but § 1231(a)(6) does not require the government to provide noncitizens detained for six months with bond hearings.
Section 1231(a)(6) provides: “An alien ordered removed who is inadmissible under section 1181 of this title, removable under section 1227(a)(1)(C), 1227(a)(2), or 1227(a)(4) of this title or who has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal, may be detained beyond the removal period and, if released, shall be subject to the terms of supervision in paragraph (3).”
Arteaga-Martinez is a citizen of Mexico who was removed in July 2012 but reentered the U.S. in September 2012. U.S. Immigration and Customs Enforcement (ICE) issued a warrant for Arteaga-Martinez’s arrest in 2018. ICE reinstated his earlier removal order and detained him pursuant to 8 U.S.C 1231(a). Arteaga-Martinez applied for withholding of removal and relief under the Convention Against Torture. The DHS referred him to an immigration judge.
After being detained for four months, Arteaga-Martinez filed a petition for a writ of habeas corpus in District Court in Pennsylvania challenging his continued detention without a bond hearing.
Shortly thereafter, in a separate case, the Court of Appeals for the Third Circuit held that a noncitizen facing prolonged detention under §1231(a)(6) is entitled by statute to a bond hearing before an immigration judge and must be released from detention unless the Government establishes, by clear and convincing evidence, that the noncitizen poses a risk of flight or a danger to the community. See Guerrero-Sanchez v. Warden York County Prison, 905 F. 3d 208, 224, and n. 12 (2018).
The Government conceded that under Guerrero-Sanchez, Arteaga-Martinez would be entitled to a bond hearing pursuant to §1231(a)(6) as of November 4, 2018, six months after the start of his detention. The District Court ordered a bond hearing. The Government appealed. The Court of Appeals summarily affirmed, citing its earlier decision in Guerrero-Sanchez. Arteaga-Martinez received a bond hearing at which an Immigration Judge, considering Arteaga-Martinez’s flight risk and dangerousness, authorized his release on bond. Arteaga-Martinez posted bond and was released pending a final determination on his application for withholding of removal.
There is no plausible construction of the text of §1231(a)(6) that requires the Government to provide bond hearings before immigration judges after six months of detention, with the Government bearing the burden of proving by clear and convincing evidence that a detained noncitizen poses a flight risk or a danger to the community.
On its face, §1231(a)(6) says nothing about bond hearings before immigration judges or burdens of proof, nor does it provide any other indication that such procedures are required. Section 1231(a)(6) therefore cannot be read to incorporate the procedures imposed by the courts below as a matter of textual command.
Federal agencies, however, “are free to grant additional procedural rights in the exercise of their discretion.” “[R]eviewing courts,” on the other hand, “are generally not free to impose them if the agencies have not chosen to grant them.” The parties do not dispute that the Government possesses discretion to provide bond hearings under §1231(a)(6), but this Court cannot say that the statutory text requires them.
Recommendation: Immigrant advocates can take a hint from the Supreme Court’s opinion by asking the Department of Homeland Security to issue a regulation providing for a bond hearing and the conditions thereof.
Comment: The detention of aliens without a bond hearing could be challenged as unconstitutional under the due process clause and the equal protection clause of the Fourteenth Amendment, and also the prohibition against excessive bail in the Eight Amendment.
ATTY. EMMANUEL S. TIPON was a Fulbright and Smith-Mundt scholar to Yale Law School where he obtained a Master of Laws degree specializing in Constitutional Law. He has a Bachelor of Laws degree from the University of the Philippines. He is admitted to practice before the U.S. Supreme Court, New York, and the Philippines. He practices federal law, with emphasis on immigration law and appellate federal criminal defense. He was the Dean and a Professor of Law of the College of Law, Northwestern University, Philippines. He has written law books and legal articles for the world’s most prestigious legal publisher and writes columns for newspapers. He wrote the best-seller “Winning by Knowing Your Election Laws.” Listen to The Tipon Report which he co-hosts with his son Attorney Emmanuel “Noel” Tipon. They talk about immigration law, criminal law, court-martial defense, and current events. It is considered the most witty, interesting, and useful radio show in Hawaii. KNDI 1270 AM band every Thursday at 8:00 a.m. Atty. Tipon was born in Laoag City, Philippines. Cell Phone (808) 225-2645. E-Mail: email@example.com. Website: https://www.tiponlaw.com.
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