Immigrants who are not legally in the U.S. can be held in immigrant detention centers for an indefinite period of time, awaiting their case review. In two cases before the Supreme Court, a proposal suggests that individuals held longer than six months should be eligible for a bond hearing when a judge can determine if the individual should continue to be detained or not.

However, the Biden Administration does not support the proposed access to hearings for immigrants in the country without a legal basis. The Department of Justice (DOJ) states the statute used as the grounds for the cases does not give unauthorized immigrants access to a hearing. In addition, the administration states lower courts don’t have the ability to approve class-wide relief.

U.S. citizens are eligible for a hearing immediately and cannot be held without bail for any length of time. In comparison, immigrants without legal standing can be held indefinitely without any access to bail or a hearing.

The legal basis for the cases in front of the Supreme Court is a 1996 immigration statute. The point in question is unauthorized immigrants may remain in immigrant detention for an extended period of time if they don’t meet specific criteria. Because the statute uses “may” instead of “shall” or “will”, the connotation is that there is discretion on detention lengths.

The Supreme Court decision on these two cases may have a big impact on how immigration cases are litigated going forward. An estimated 20,000 to 27,000 individuals have been held in detention for immigration cases in the past few months, per the Transactional Records Access Clearinghouse (TRAC), from Syracuse University. It’s not uncommon for individuals to be held in detention for months or even years in Immigration and Customs Enforcement (ICE) facilities.

ILBSG continues to monitor ongoing immigration-policy updates. If you have questions about your immigration-related issue, contact us at ILBSG. We work with you to ensure you get the right advice for your specific situation.

Immigrant Detention