Brooklyn Law Review


Under 8 U.S.C. § 1226(c), Congress mandates that the Attorney General detain criminal immigrants upon release from prison. The statute neither provides a temporal limitation to detention nor does it afford a criminal immigrant periodic bond hearings to determine whether he or she is a flight risk or danger to the community. Thus, until an immigration judge decides whether a criminal immigrant should be removed from the United States, that person remains detained. With the unprecedent backlog in immigration courts, criminal immigrants are waiting longer for a removal hearing, which means longer time spent in detention with no opportunity for a bond hearing. In its 2018 decision, Jennings v. Rodriquez, the Supreme Court resolved a circuit split by rejecting both the bright-line and case-by-case approaches, concluding that criminal immigrants are not entitled to a bond hearing at all during their detainment. Though resolving a circuit split, the Court fell short for the rights of criminal immigrants and did not determine the statute’s constitutionality as written. Congress must amend 8 U.S.C. § 1226(c) to include a six-month mark upon which immigrants are entitled to bond hearings to determine whether they are a flight risk or danger to the community. Without such limitation, criminal immigrants will remain in detention indefinitely as the immigrant court backlog continues to grow. This amendment will not release droves of criminal immigrants into the community, but rather, afford them with the opportunity to be heard, just as due process demands.