Protesters rally outside of an Immigration Customs Enforcement detention center in Tacoma, Washington, on March 11, 2014. Jason Redmond / Reuters

A quarter-century ago, in 1994, the Immigration and Naturalization Service, on any given day, was holding somewhere around 5,500 immigrants in “immigration detention.”

For fiscal year 2017, Immigration and Customs Enforcement budget documents projected an average daily population in detention of roughly 31,000. That increase—nearly six-fold in 25 years—made the Enforcement and Removal Operations division of ICE roughly the 13th largest prison system in the country. On its busiest days in FY 2017, ICE housed a population well above that.  

During FY 2018, ICE reports that its average daily population has been 40,726. Before the year began, ICE budget documents had projected a detention population of 51,379. That staggering expansion—65 percent in a single year—would have vaulted ERO to a spot somewhere around No. 7. Its population would rank in size behind only the federal prison system and those of California, Florida, Georgia, New York, and Texas.

In 1973, the great Russian writer Alexandr Solzhenitsyn coined the term “Gulag Archipelago” to denote the Soviet system of political prisons and labor camps. In the last 25 years, the United States has, without fanfare, brought into being a kind of ERO Archipelago—secretive, loosely supervised, and, in human and constitutional rights terms, deeply problematic. And the “system” will, if the current administration carries forward its enforcement plans, grow significantly larger year by year.

As of 2016, only about 10 percent of detainees were held in federal facilities at all; the remainder were housed in state, county, or city jails (25 percent) or private for-profit prisons (65 percent). Each of the local or private facilities is governed by an agreement with ICE governing inmate conditions, and the agreements aren’t uniform. Some require better conditions than others. Even ICE’s defenders do not seriously contest that ERO detention facilities are rife with poor physical conditions, inadequate medical care, and physical and sexual abuse of the inmates.

The inmates in the archipelago’s exploding prison population are, almost without exception, not charged with or awaiting trial for any crime at all. Some have committed crimes and completed their sentences; some have entered the U.S. without permission; others have done nothing wrong except request admission to the United States under our laws when Customs and Border Protection Officers believe they are not entitled to do so.

These facts are the backdrop to Jennings v. Rodriguez, an important immigration case decided by the Supreme Court last week. There were two issues in Jennings. The first was whether the Immigration and Nationality Act, which governs ERO’s detention of aliens, required that those being held receive a regular chance at release on bail. The second was whether the Act, if it did not allow a chance for bail, violates the Fifth Amendment’s guarantee of due process.

By a 5 to 3 majority, the Court gave a troubling answer to the two questions. First, the majority said the statute doesn’t permit regular bail hearings; second, it refused to even consider the constitutional issue. Instead, the Court sent the case back to the Ninth Circuit for a first crack at that—but hinted strongly that the appeals court should find a reason to dismiss the case rather than decide it.

No matter how you analyze the issues, Jennings was a hard case under both the statute and the Constitution. And, as Kevin Johnson, the immigration maven and dean University of California at Davis law school, said in SCOTUSblog, last week’s decision doesn’t end the case. But the Court’s five-justice majority sent some fairly grim signals about their view of the ERO archipelago and the rule of law.

Justices Samuel Alito, joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, and Neil Gorsuch, read the statute as forbidding bail hearings for the immigration inmates, and thus authorizing ERO to detain them for weeks, months, or even years. Two of the five, Thomas and Gorsuch, wrote separately to suggest that the inmates should not be allowed to challenge their detention in court until after their cases are complete and they are facing deportation. The five-justice majority opinion, without quite saying so, also suggested that the constitutional issue is really not of much importance at all. Justice Stephen Breyer wrote a dissent, joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor. (Justice Elena Kagan recused herself, because she had authorized a pleading in the case when she was U.S. Solicitor General.)

The majority’s statutory reading is arguable; its dismissive tone toward the constitutional issue is clearly wrong. It’s an important question, and one that is likely to become more so: Can the government, with or without congressional authorization, hold immigrants indefinitely without bail? Does it make a difference that many of the immigrants being detained have strong claims to be allowed to remain in the country? Or that they are not being held to answer for crimes?

As scholars like Hiroshi Motomura of the University of California at Los Angeles have documented, for most of American history, immigration law and policy was largely focused on helping new immigrant populations assimilate to American life and gain citizenship, not on arresting, prosecuting, or expelling them. In the past half-century, it has, without much fanfare, steadily transformed itself into something far closer to an internal espionage and control apparatus, aimed at policing a population of “illegal immigrants” who are, by lifelong status, unequal to others in the U.S. Long-term detention was once extraordinary; increasingly, it is becoming routine.

As the size of the ERO archipelago grows, so should constitutional concerns.

At issue in Jennings are three categories of aliens, each category named for the section of the INA that authorizes their detention: Those who arrive in the U.S. and seek entry without proper documents and who can seek asylum if there is a “credible fear of persecution” upon their return to the sending country (§ 1225(b)(1)), those at entry points who have papers but can’t prove their entitlement to entry without a doubt (§ 1225(b)(2)), and those who may be deportable because they have committed a crime  and have completed their sentences, with the exception in last category being those who may be needed as a witnesses to a crime (§ 1226(c)).

As Justice Stephen Breyer points out in his dissent in Jennings, “ultimately many members of these groups win their claims” and are allowed to remain. But the waiting time can be many months or years. For example, consider the respondent in this case, Alejandro Jennings. He was brought to the U.S. as a child and has had legal status for years. However, he was convicted for “joyriding” and possession of a controlled substance. He spent three years behind bars while waiting for a determination—and, his lawyers claim, might have been held for a total of seven years, had ICE not had a change of heart and released him after he brought a class-action lawsuit against detention without bail. Immigration scholars Stephen Legomsky of Washington University in St. Louis Law School and Stephen Yale-Loehr of Cornell Law School, in an amicus brief, cite figures showing that the longest-held member of the 1226(c) subclass, those who have committed a crime, was held for longer than four years, and the average member will be held more than a year.

So the statutory issue in Jennings was whether these statutes, which do not mention bail, should be read as forbidding bail proceedings—or read against the background of the Constitution, which plainly regards bail as a fundamental right? For criminal proceedings, bail hearings are presumed; should immigration detention—which is civil—be an exception? Six of the circuits have said that bail hearings must be held if detention is “prolonged.” The Ninth Circuit, where Jennings originated, ordered that ICE provide bail hearings for its detainees every six months. The detainees would be entitled to release unless ICE could show by “clear and convincing evidence” that they were dangerous to the community or likely to flee.

The Ninth Circuit said its reading was necessary under the “avoidance doctrine,” which tells courts to read ambiguous statutes in a way that prevents constitutional conflicts. In most contexts, detention without a chance at bail would be a flat violation of due process; thus, the court reasoned, the detention statutes would be unconstitutional if read to forbid bail hearings.

The case is hard for two reasons. First, even if detention without bail would be unthinkable in most proceedings, the courts may eventually say that immigration detention of non-citizens is different. (After all, for one thing, detainees can always end their detention by accepting deportation, harsh as that choice may be.) Second, the Ninth Circuit’s detailed provisions on timing and burden of proof are a fairly aggressive “reading” of a silent statute; the government argued, with some justice, that the court of appeals was actually writing new provisions into the law.

But the statutory question really is difficult; Alito’s opinion, however, found it easy. The sections do not mention bail at all, but do provide for some limited release (in the case of § 1225(b) only for “urgent humanitarian concerns,” and for § 1225(c) detainees only when they are needed as protected witnesses). Alito read the statutory language as forbidding any other release. “The Court of Appeals misapplied the canon in this case because its interpretations of the three provisions at issue here are implausible,” he wrote. Thus, the majority held “that, subject only to express exceptions,” the statutory provisions “authorize detention until the end of applicable proceedings.” In addition, “we hold that there is no justification for any of the procedural requirements that the Court of Appeals layered onto §1226(a) without any arguable statutory foundation.”

(Despite finding the provisions “clear,” Alito seemed surprisingly defensive about his interpretation, lashing the dissent in six long pages adorned with such passive-aggressive gems as “the dissent evidently has a strong stomach when it comes to inflicting linguistic trauma.”)

The constitutional questions, Alito wrote, should be considered on remand to the Ninth Circuit. Considered there, that is, if at all—the final section of the majority opinion contained a long section suggesting that the detainees are not entitled to bring a class action suit at all. (In a second broad hint, Justice Thomas, joined by Justice Gorsuch, wrote a separate opinion reading the INA as forbidding review of any issue unless an alien is challenging “a final order” of deportation. Since a large number of the aliens in this case will win their cases, they would never be able to challenge their detention, even after the fact.)

In dissent, Breyer, joined by Ginsburg and Sotomayor, contended that the constitutional issues in this area are weighty. Though popular discourse increasingly denies this obvious fact, the immigrants immured in the ERO archipelago have constitutional rights. The Fifth Amendment says that “[n]o person shall … be deprived of life, liberty, or property, without due process of law”—and from the founding to the present, “person” has included citizen and alien alike. Some of the immigrants in the class, having been halted at the border, are not, as a matter of immigration law, “in” the United States. But that’s a legal fiction for immigration purposes, Breyer noted:


Responding to the majority’s statutory reading, Breyer wrote, “I would find it alarming to believe that Congress wrote these statutory words in order to put thousands of individuals at risk of lengthy confinement all within the United States but all without hope of bail. I would read the statutory words as consistent with, indeed as requiring protection of, the basic right to seek bail.”

As I said above, this is a difficult case; but the truculence of the majority opinion truly is alarming. The ERO archipelago is metastasizing, with almost no public attention or debate. From Andersonville in the Confederacy (its commandant was executed as a war criminal) to Koje-Do during the Korean War, well-intentioned officials have often found themselves overwhelmed by the problems of sudden, unplanned mass incarceration—with disastrous results.
