IRLI, on behalf of its client the Federation for American Immigration Reform, submitted a friend-of-the-court brief at the request of the Board of Immigration Appeals (BIA) to address a United States Court of Appeals for the Ninth Circuit ruling (Rodriguez v. Robbins, 715 F.3d 1127 (9th Cir. 2013)), requiring custody determinations for a class of aliens detained longer than six months.
In the brief, IRLI argued that no immigration judge currently has jurisdiction to hold a Rodriguez custody redetermination hearing under Immigration and Nationality Act (INA) section 236(a) for a respondent who is not a member of the class of aliens recognized by the Ninth Circuit and granted injunctive relief in Rodriguez. Based on the Ninth Circuit holding, only detained aliens within the judicial boundaries of the Central District of California should be entitled to a custody determination.
The Rodriquez litigation was sponsored by the American Immigration Lawyers Association (AILA) and American Civil Liberties Union (ACLU). The case’s reasoning has been increasingly cited by advocates of massive roll-backs in the detention of criminal and other aliens awaiting deportation as providing a constitutional basis for discretionary action by the Obama Administration. No other federal court has ever attempted to rewrite federal immigration law on this basis. If the Rodriguez doctrine were adopted nationally, it would create a powerful presumption against detention of aliens in removal proceedings.
While an additional set of cases has been pending, AILA has formally requested that the U.S. Attorney General, on behalf of the Administration, override the BIA and terminate the detention of all aliens after six months, except in national security and particularly heinous criminal cases. Many of the tens of thousands of criminal aliens reported by the Center for Immigration Studies to have been released in 2014 without removal are already beneficiaries of the Rodriguez decision. IRLI appears to be the only organization fighting this radical approach.