Bond, Jinxed Bond: Advocating for the Repeal of the Statutory Ban on Federal Review of Discretionary Bond Determinations Under 8 U.S.C. § 1226(e)

Abstract

On average, the government detained a daily population of 19,416 noncitizens in fiscal year 2021. Of the 22,712 bond hearings immigration courts held during this same period, judges denied bond in sixty-nine percent of the cases. Despite the fact that many of these individuals could spend months or even years in detention, the decision of whether to detain belongs exclusively to the Executive Branch, and usually a single immigration judge, without opportunity for judicial review. Consequently, the lack of opportunity to contest the immigration judges’ decisions in federal court has in part led to the prolonged detention of thousands of noncitizens by the United States government who are otherwise eligible for release. This Note demonstrates that the current detention scheme, including bond hearings, disadvantages noncitizens by presuming and favoring detention. Consequently, this Note argues that to ensure a fair bond hearing and reduce the number of detained noncitizens, Congress should permit federal review of immigration judges’ discretionary custody decisions by repealing the jurisdiction stripping statute of 8 U.S.C. § 1226(e).