All courts of appeals to decide the issue have ruled that, at some point, prolonged detention becomes unlawful. But they do not agree on the specific questions of whether detention becomes unlawful after six months and whether the government has the burden of proof to keep someone detained without bond. The case has been briefed to the Court and is expected to be argued before a new Supreme Court Justice is confirmed.
“Under the lower court’s injunction, in this case, immigrants in the Ninth Circuit have been entitled to bond hearings for years under the rule that people in immigration detention cannot be held without an opportunity for bond for more than six months,” said Rebecca Sharpless, professor of law and director of Miami Law’s Immigration Clinic. “All lower courts agree that detention becomes unlawful at some point, but it is unclear whether the U.S. Supreme Court will adopt a six-month bright line test."
Sharpless unpacked the constitutional and statutory principles behind the U.S. Supreme Court’s jurisprudence on civil immigration detention at a recent "Cert Talk," Miami Law's new series examining cases going before the high court. Sharpless sussed out supporting decisions from the Court in the landmark cases Shaughnessy v. Mezei (1953), Zadvydas v. Davis (2001), Demore v. Kim (2003), and Clark v. Martinez (2005).
Sharpless joined the faculty in the fall of 2009. She researches and writes in the areas of progressive lawyering, feminist theory, and the intersection of immigration and criminal law. She is a board member of the South Florida Chapter of the American Immigration Lawyers Association as well as a longstanding board member of the National Immigration Project of the National Lawyers Guild.
Immediately before joining the School of Law's faculty, Sharpless was a Visiting Clinical Professor of Law at Florida International University's College of Law, where she taught in-house clinics in the areas of immigration and human rights and a doctrinal course on immigration law. From 1996 to 2007, she was a supervising attorney at Americans for Immigrant Justice (formerly Florida Immigrant Advocacy Center). While there, she engaged in extensive litigation on behalf of low-income immigrants as lead counsel in cases before the United States Courts of Appeals and the United States District Courts as well as in immigration court and before the Board of Immigration Appeals.
