This week, the Supreme Court reversed a Ninth Circuit court decision and ruled that U.S. immigration statutes do not guarantee detained immigrants—even those in the country with legal status—a timely bond hearing. Currently, immigrants may be detained indefinitely, regardless of the offense or the detainee’s guilt or innocence. Detainees are held for 13 months on average because there is no explicit provision for due process for immigrants.
The Ninth Circuit imposed a six-month deadline for bond hearings for those held in immigration detention, but the Supreme Court’s 5-3 decision in Jennings v. Rodriguez contended that the deadline was not based in the statutes that govern detention of immigrants. It remanded the case back to the Ninth Circuit to see if constitutional grounds exist for a timely bond hearing. Because of that, the story isn’t over. The Supreme Court didn’t reject the concept of some sort of due process for immigrants in detention—just the timetable the Ninth Circuit devised and the legal basis for it.
Justice Samuel Alito wrote the majority opinion, and he argued that the Ninth Circuit relied on “implausible constructions” of the statutes to find justification for timely bond hearings. “A court relying on that canon … must interpret the statute, not rewrite it,” he wrote.
Stephen Breyer wrote the dissenting opinion representing justices Ruth Bader Ginsberg and Sonia Sotomayor (Elena Kagan recused herself because she had worked on the case earlier in her career):
I would find it far more difficult, indeed, I would find it alarming, to believe that Congress wrote these statutory words in order to put thousands of individuals at risk of lengthy confinement all within the United States but all without hope of bail.
At SCOTUSblog, Kevin Johnson pointed out that the Trump Administration is using detention as part of its effort to deter undocumented immigration. That strategy also involves separating families, and Professor Karen Musalo, Director of the Center for Gender and Refugee Studies, fears the real, human damage that can occur as a result. “Detention has devastating impacts on the physical and mental health of immigrants, exponentially more over time, especially for those who have escaped unimaginable horrors in their home countries and on the perilous journeys to our shores,” she said.
In a statement, the Southern Poverty Law Clinic wrote:
In reversing the Ninth Circuit’s decision, the Supreme Court allowed some immigrants to be detained for years without the right to intermittent bond hearings to determine whether their continued detention is justified.
We doubt that Congress so fundamentally ignored the principles of fairness, justice, and proportionality upon which our system is based, but with the Supreme Court so interpreting the statute, the courts must determine whether the statute passes constitutional muster.
The case was brought as a class action suit on behalf of tens of thousands of detained immigrants during the second term of Barack Obama’s presidency, which is why Kagan recused herself. Because the Trump Administration has pursued immigration enforcement more aggressively, many fear that the delays some detained immigrants face will become longer. “There are over 667,000 cases pending in immigration court, with an average backlog of almost two years,” says Cornell law professor Stephen Yale-Loehr. “The Trump administration has asked Congress to increase funding to detain more immigrants. Thus, even more immigrants may be detained in the coming months and will have to wait even longer for their day in court."
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