Immigration and Nationality Act Section 236(c)

Jersey City, New Jersey – There is a provision in immigration law, Immigration and Nationality Act Section 236(c), requiring certain individuals to be detained without bail while removal proceedings are heard in the immigration court. Sometimes immigration proceedings can last many years and the question has long lingered, how long may the government detain someone without bail? In the case of Jose Miguel German Santos v. Warden Pike County Correctional Facility, Docket number 19-2663, decided on July 7, 2020, the Third Circuit Court of Appeals declared the answer is a reasonable amount of time: when detention is for an unreasonable amount of time, the detainee is entitled to a bond hearing at which the government must justify continued detention by a clear and convincing evidence standard.

The ramifications of this decision have the potential to be massive and meaningful, but also almost non-existent. In reality, this decision did nothing other than affirm the Third Circuit’s prior decisions on the issue. However, the government had argued, and lower courts often agreed, that a subsequent decision by the United States Supreme Court overruled the Third Circuit’s earlier rulings. This Third Circuit decision confirms that people detained pursuant to INA 236(c) are eligible for bond hearings when the length of detention becomes unreasonable. This is an important and meaningful confirmation. However, the court did not define “unreasonable” and maintained a four factor test to be applied to determine what is, or is not, reasonable.

The first, and most important factor, is the length of the detention. The court declined to set a specific amount of time as determinative, citing cases of five months, six months, one year, and over two years as examples of unreasonable detention. The determination of reasonableness must consider the other three factors: whether the detention is likely to continue, the reasons for the delay and the conditions of confinement. If the detention is not likely to end soon, that supports a conclusion of unreasonableness. If the detainee is responsible for the delays, such as by requesting continuances, that weighs against unreasonableness. Good-faith litigation of a detainee’s legal rights and concerns cannot be held against him. Where the detention resembles criminal detention, such as when immigration detainees are held in county jails, that supports unreasonableness.

In evaluating Mr. German Santos’s detention, the court found it to be unreasonable because it had already gone on for two and one-half years, because it seemed likely the legal battle would go on, because the delays were not attributable to bad faith by either party, and because he was detained in a prison alongside convicted criminals. As result, he was entitled to a bond hearing at which the burden is on the government to justify the continued detention by a clear and convincing evidence standard. This is an elevated burden of proof and should strongly favor the setting of bond and release, unless the government can produce significant, credible evidence that he, or similarly situated detainees, are a danger to the community. This elevated burden should make a big difference in the favor of detainees during such bond hearings.