NOT YET GONE, AND NOT YET FORGOTTEN: THE REASONABLENESS OF CONTINUED MANDATORY DETENTION OF NONCITIZENS WITHOUT A BOND HEARING.

INTRODUCTION I like to share the story of Mr. Warren Hilarion Joseph. Mr. Joseph migrated to the United States when he was twenty-one as a legal permanent resident inspired by [...]
Table of Contents Introduction 599 I. Due Process and the Statutory framework of 8 U.S.C. [section] 1226(c) Mandatory Detention 604 A. Due Process 604 B. The 1996 IIRIRA and [section] 1226(c) Mandatory Detention 606 1. Inadmissibility vs. Deportability 607 2. Sections 1226(a) and 1226(c)'s Detention Mandate 608 3. Qualifying Offenses Under [section] 1226(c) 609 4. The Impact of the 1996 IIRIRA 610 II. Supreme Court Precedent and the Two Approaches 611 Adopted by the Circuit Courts 611 A. Supreme Court Precedent Pre-Jennings 612 1. Zadvydas v. Davis 614 2. Demore v. Kim 616 B. Case-by-Case Approach Pre-Jennings 616 1. Diop v. ICE/Homeland Security 617 2. Ly v. Hansen 618 3. Reid v. Donelan 619 4. Sopov. U.S. Attorney General 619 C. Bright-Line Approach Pve-Jennings 619 1. Lora v. Shanahan 621 2. Rodriguez v. Robbins /and II 622 D. Jennings v. Rodriguez 623 1. The Opinion 624 2. The Dissent, 626 3. Argument in Favor of the Dissent III. Proposal for Prosecutorial Discretion for Noncitizens 626 with Strong Equities 626 A. Striking the Right Balance B. Prosecutorial Discretion for Noncitizens with Strong 630 Equities 630 1. Prosecutorial Discretion 633 2. Prosecutorial Discretion for Detained Noncitizens., 635 3. Application and Risk Assessment Tools 636 4. Six-Month Bond Hearing if Discretion is Denied 637 Conclusion Section 1226(c) of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) authorizes the mandatory detention, without the possibility of bond, of noncitizens convicted of certain qualifying offenses for the duration of their removal proceedings. Congress enacted the mandatory detention statute because it was concerned that noncitizens who are convicted of crimes will further engage in criminal activity and fail to appear for their removal hearings. To ensure noncitizens are not deprived of their constitutional right to due process, federal courts have construed [section] 1226(c) to contain an implicit time limitation against unreasonably prolonged detention. These courts have adopted either a bright-line or case-by-case approach to determine the point at which mandatory detention without bond becomes unconstitutionally impermissible. After six months of detention, the former requires an automatic bond hearing and the latter instructs detainees to file a habeas corpus petition that, if granted, triggers a bond hearing. This year, the Supreme Court in Jennings v. Rodriguez rejected the lower courts' construction [section] 1226(c) and held that interpreting [section] 1226(c) to contain an implicit time limitation is improper because the statute is neither ambiguous or unclear. The Court, however, declined to consider whether its interpretation of[section] 1226(c) is constitutional and instead remanded the case back to the Ninth Circuit to consider constitutional arguments on the merits. This Comment argues that the majority's decision in Jennings v. Rodriguez failed to enforce the Constitution and protect the due process rights of detained noncitizens by interpreting [section] 1226(c) as not having a time limit on detention without bond. It further contends that while the lower courts correctly interpreted [section] 1226(c) to include a time limit, the current approaches applied by these courts do not properly protect detainees' constitutional rights because under both approaches, detainees cannot challenge the reasonableness of their continued detention until after six months. Limiting detainees opportunity to challenge their continued detention for six months raises the same "serious doubts " of constitutionality that Justice Breyer argued, in dissent, are raised when [section] 1226(c) is interpreted as forbidding an individualized bond hearing. Alternatively, this Comment proposes that detained noncitizens--who pose little risk of flight or danger to the community--should receive prosecutorial discretion in the form of deferred action as to their continued detention at any point during their detention, including during the "presumptively reasonable " six-month period under the current two approaches. If prosecutorial discretion is not granted, detained noncitizens should then be entitled to automatic and periodic bond hearings beginning at six months of detention.