Golden Gate University Law Review


United States Immigration and Customs Enforcement (ICE) chooses to keep many immigrants incarcerated while they await the results of their hearings before immigration judges, appeals to the Board of Immigration Appeals (BIA), or second appeals to the federal courts of appeals. Starting with Zadvydas v. Davis in 2001, federal courts have been facing the question of whether such lengthy detentions are permissible under either the Immigration and Nationality Act (INA) or the U.S. Constitution. The U.S. Supreme Court in Zadvydas held that indefinite detention “would raise serious constitutional concerns” and decided to construe the prolonged-detention statute at issue “to contain an implicit ‘reasonable time’ limitation.” The Court thereafter set six months as the presumptively reasonable time for detention, after which an alien should be provided with a bond hearing and a right to challenge his or her continued detention. Since the Zadvydas decision, the Ninth Circuit has revisited and interpreted the high Court’s holding four times, extending the holding to various types of non-citizen detentions and each time requiring the government to justify the prolonged detention by granting the detainee a hearing. In 2009, the Ninth Circuit heard a fifth case, Rodriguez v. Hayes, in which it confronted a new and crucial issue: whether to certify a class action on behalf of immigrants challenging their prolonged detentions as violations of their due-process rights under Zadvydas. In a succinct, two-sentence order, the district court denied class certification without explanation. However, the Ninth Circuit reversed the district court and allowed the action to go forward as a class action.