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The amicus brief signed by Oakland's City Attorney, Barbara J. Parker, filed by Santa Clara County.

Oakland’s City Attorney shows support for detained immigrants

on February 27, 2017

Oakland’s City Attorney, Barbara J. Parker, has signed an amicus brief on behalf of the City of Oakland, asking the Supreme Court to grant immigrants, who are detained facing deportation proceedings, six-monthly bond hearings to assess whether their detention is justified.

The brief, filed by the County of Santa Clara and signed by 19 other counties, cities and towns, is in support of the Jennings vs Rodriguez Supreme Court case, brought by plaintiff Alejandro Rodriguez, who is represented by the American Civil Liberties Union (ACLU).

Rodriguez, a Mexican immigrant who came to the US as a baby and grew up as a lawful permanent resident, was detained after a second conviction relating to misdemeanour drugs and joyriding. He was detained for three years by immigration agents without a bond hearing. In 2007, he filed a class action lawsuit with the ACLU, in Los Angeles. This lawsuit has since progressed through the Ninth Circuit Court of Appeals and now onto Supreme Court.

Those in support of Rodriguez argue the prolonged detention of immigrants during deportation proceedings is unnecessary and costly, both to the US taxpayer and to the person’s family. “Imprisoning people for months or years without basic due process protection is a violation of human rights, period,” Parker stated in a press release. “Indefinite detentions of immigrants serve no public safety purpose, but the financial cost to taxpayers is astronomical, and the human cost to families that lose a father, mother or child for extended periods of time is staggering.”

According to the ACLU, it costs the American taxpayer $164 per detainee per day, and more than $2 billion a year, to detain immigrants awaiting deportation proceedings.

“At a time when the federal government is focused on demonizing immigrants and building an East Berlin-style wall along the southern border, it is critically important for the Supreme Court to uphold fundamental constitutional principles and rights, including and especially for this population,” Parker continued in the press release.

Originally a class action lawsuit, Rodriguez was allowed to go forward by the US Court of Appeals for the Ninth Circuit in April, 2008, which rules over California, Washington, Oregon, Nevada, Arizona, Idaho, Montana, Hawaii and Alaska.

The Ninth Circuit Court of Appeals ruled in favor of the six-month limit on bond hearings. In a similar suit in October, 2015, the Second Circuit Court in New York ruled in Lora vs Shanahan, that regardless of criminal convictions, immigrants have the right to a bond hearing.

The Supreme Court held its first hearing on Jennings on November 30, 2016.

When asked about Jennings vs Rodriguez via email, a western regional spokesperson at Immigration and Customs Enforcement (ICE), who asked not to be named, said agency representatives do not comment on pending litigation. However, the spokesperson did state that the average length of stay in ICE detention nationwide is 36 days, and this length of time is subject to a variety of factors relating to the person’s case, such as past criminal history.

At the Supreme Court hearing in November, US Solicitor General Ian Gershengorn argued the government was justified in detaining immigrants for prolonged periods of time without individualized, six-monthly hearings and that the Ninth Circuit ruling was “a serious misuse of the constitutional avoidance canon.”

“Congress provided extensive substantive and procedural protections for aliens whom the government wishes to remove,” Gershengorn said, according to the Supreme Court transcript. “But at the same time, addressed the real concerns about recidivism and flight risk by providing for mandatory detention during removal proceedings for certain categories of criminal aliens and aliens arriving at our shores.”

Gersgengorn was pressed by the Supreme Court, particularly Associate Justices Elena Kagan and Sonia Sotomayor, to explain why it’s necessary to detain immigrants if they have not committed violent crimes.

“You can’t just lock people up without any finding of dangerousness, without any finding of flight risk, for an indefinite period of time, and not run into due process,” Kagan said, according to the transcript.

Ahilan Arulanantham, director of advocacy at the ACLU, was acting on behalf of the respondents at the hearing. He emphasized that they were not necessarily advocating for the release of detainees, especially if they are a flight risk or are a danger to society, but rather that every detainee should be entitled to a hearing.

 “Everybody in the class, in our view, is entitled to an inquiry,” Arulanantham said, according to the transcript. “Someone has to look at the detention and decide, is this a detention which remains reasonable? Does it continue to be reasonable in relation to its purpose?”

Lisa Knox, senior immigration attorney with Centro Legal de la Raza, based in Oakland, said there is no straightforward logic to why detained immigrants are not granted bond hearings. But certain criminal convictions, as well as the person’s family ties in the area, do have an influence on a judge’s decision, she said.

“Big chunks of the people who are denied hearings are those with certain criminal convictions. They aren’t seen as deserving of the opportunity to be released while they fight their case,” Knox said via telephone interview. “However, if they have family in the area and a fixed address they are less likely to be considered a flight risk and are more likely to be granted a hearing.”

Additionally, Knox said that under the Obama administration, an effort was made to speed up the deportation of immigrants with certain criminal convictions. “That included any crime categorized as an ‘aggravated felony’ by immigration, which includes some nonviolent offenses—for example, certain theft crimes,” Knox said via email.

“Those with less serious convictions, like DUIs or other crimes, immigration decided were ‘significant misdemeanors’ were in the second-highest priority category,” she continued.

Knox said that if an individual breaks part of their probation, regardless of when their crime was committed, they could be detained without a bond hearing. “For example, I have client who was arrested a couple of years after he was initially convicted of theft, because he didn’t comply with one of the conditions of his probation,” she said. “He then got transferred to immigration and wasn’t bond eligible until after six months.”

The Prolonged Detention Project which is run by Community Initiatives for Visiting Immigrants in Confinement (CIVIC) and the Immigrant Rights Clinic at the New York University School of Law (IRC), features numerous examples of individuals in this situation. For example, according to the Prolonged Detention Project, a person named Astrid Morataya was detained in 2013 in Illinois and Wisconsin for a period of two and a half years pending deportation, without a bond hearing, 14 years after a low-level drug distribution conviction.

The Ninth Circuit ruling, Knox said, has helped hundreds, if not thousands, of detained immigrants in the East Bay area obtain bond hearings. “For the majority of our clients, without the Rodriguez hearing in the Ninth Circuit, they would not have received bond hearings,” she said. “We are watching the Supreme Court case very closely, as if it passes, over a number of years it could help probably hundreds of thousands of people.”

A decision on the case is expected this year. However, the Supreme Court has the ability to prolong or rule on the decision at its own discretion. President Donald Trump has nominated Tenth Circuit Appeals Court Judge Neil Gorsuch for the Supreme Court; a confirmation of a new justice could tip the political balance of the court, having a significant impact on the outcome of Jennings vs Rodriguez.


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