I have been in mandatory detention for over a year — is there a habeas remedy?

Jennings v. Rodriguez, 583 U.S. 281 (2018), reversed the Ninth Circuit's Rodriguez v. Robbins rule that § 236(c) detainees were entitled to bond hearings every 6 months. The Court read § 236(c) as authorizing detention without periodic hearings — but it explicitly left open the constitutional question of whether prolonged § 236(c) detention violates due process.

What the circuits have done since Jennings

• Third Circuit (German Santos v. Warden, 2020): an as-applied due process claim is available for unreasonably prolonged § 236(c) detention; multi-factor inquiry into length, complexity, and government conduct.
• Second Circuit (Velasco Lopez v. Decker, 978 F.3d 842 (2020)): § 236(a) detainees are entitled to a bond hearing where the government bears the burden by clear and convincing evidence after about 6 months.
• Ninth Circuit (post-Jennings): individual as-applied challenges still proceed via habeas where detention is sufficiently prolonged and the merits are non-frivolous.
• Fifth and Eleventh Circuits: more restrictive; the petitioner must show particularly extreme delay and clear inability to be removed.

The factors courts look at

1. Length of detention to date — 12+ months is the rough threshold; many cases involve 18–24+ months.
2. Cause of delay — government continuances, BIA briefing delays, or remand patterns weigh in favor of the detainee.
3. Likely additional length — remanded cases at the BIA can sit for another year.
4. Likelihood of final removal — if the merits are strong, the equities favor release.
5. Conditions of detention — solitary confinement, medical neglect, mental-health deterioration.

What relief looks like

The remedy is typically an order requiring an individualized bond hearing in immigration court, with the government bearing the burden by clear and convincing evidence. The IJ then sets bond on the regular Matter of Guerra factors. Outright release by the district court is rare but possible in extreme cases.

How we handle this

We track every month of detention as part of the case file. We log every government-caused continuance and every BIA processing delay. When the case crosses the circuit-specific threshold (12 months in some districts, 18 in others), we file a tightly-scoped habeas with a full chronological exhibit. The narrative is consistent: this is no longer the kind of brief, mandatory detention Congress contemplated — it has become prolonged civil detention without process.