High court could af­fect Trump plans

Jus­tices to hear case on in­def­i­nite im­mi­grant jail­ing

Baltimore Sun - - TRUMP TRANSITION - By David G. Sav­age

WASH­ING­TON — A Supreme Court dis­pute over the gov­ern­ment’s power to in­def­i­nitely jail im­mi­grants fac­ing de­por­ta­tion has taken on added sig­nif­i­cance with the elec­tion of Don­ald Trump, who has vowed to re­move mil­lions of for­eign­ers in the coun­try il­le­gally.

The case, to be ar­gued Wed­nes­day, pits civil lib­er­tar­i­ans and fed­eral judges in Cal­i­for­nia against the Obama ad­min­is­tra­tion.

At is­sue is whether im­mi­grants fight­ing de­por­ta­tion have a le­gal right to a bond hear­ing and pos­si­ble re­lease if they are held more than six months while await­ing res­o­lu­tion of their case. The im­mi­grants in­volved in­clude long-time le­gal res­i­dents as well as those here il­le­gally.

Civil lib­er­tar­i­ans say in­def­i­nitely hold­ing such im- mi­grants vi­o­lates the Fifth Amend­ment guar­an­tee that “no per­son...may be de­prived of liberty...with­out due process of law.” In the past, the court has said the word “per­son” in­cludes im­mi­grants as well as cit­i­zens.

They also ar­gue that many of th­ese im­mi­grants have lived and worked legally in the United States and are be­ing held for long pe­ri­ods over mi­nor or non­vi­o­lent of­fenses, in­clud­ing sim­ple drug pos­ses­sion.

Gov­ern­ment lawyers counter that fed­eral law man­dates that non-cit­i­zens con­victed of crimes “shall be de­tained.”

In 2001, Supreme Court jus­tices said the Con­sti­tu­tion “en­ti­tles aliens to due process of law in de­por­ta­tion pro­ceed­ings.” By a 5-4 vote, how­ever, they said for­eign­ers fac­ing pos­si­ble de­por­ta­tion may “be de­tained for the brief pe­riod” re­quired to de­cide their im­mi­gra­tion case.

More re­cently, fed­eral ap­peals court judges in Cal­i­for­nia and New York have set six months as the Fed­eral agents would likely pre­fer a free hand to ar­rest and keep cer­tain im­mi­grants in jail. limit for what that “brief pe­riod” could con­sti­tute. The case be­fore the high court in­volves a rul­ing by the 9th Cir­cuit Court of Ap­peals, which up­held a judge’s or­der in Los An­ge­les that re­quired the gov­ern­ment to give a bond hear­ing to de­portable im­mi­grants who are held in jail for more than six months.

Civil lib­er­ties ad­vo­cates say that with­out a limit of that sort, the gov­ern­ment could wield the threat of i ndef­i­nite de­ten­tion against im­mi­grants who might be pres­sured to sim­ply give up and re­turn home rather than spend years be­hind bars await­ing res­o­lu­tion.

The case has drawn greater at­ten­tion since Trump’s elec­tion and may well por­tend some le­gal bat­tles. In his first TV in­ter­view af­ter the elec­tion, Trump spoke of ar­rest­ing and de­port­ing up to 3 mil­lion for­eign­ers who have crim­i­nal records.

Im­mi­gra­tion ex­perts say that num­ber is not lim­ited to peo­ple who have been com­mit­ted felonies or vi­o­lent crimes but in­cludes many with lesser of­fenses, in­clud­ing traf­fic vi­o­la­tions. To carry out such de­por­ta­tions, fed­eral agents would likely pre­fer to have a free hand to ar­rest and keep th­ese im­mi­grants in jail.

Of­fi­cials at Trump’s tran­si­tion team did not re­spond to a re­quest for com­ment.

Le­gal ex­perts say a Supreme Court rul­ing up­hold­ing the pres­i­dent’s power to de­tain im­mi­grants in­def­i­nitely would give his ad­min­is­tra­tion greater lever­age in crack­ing down against il­le­gal im­mi­gra­tion.

“I thought this case was im­por­tant be­fore, but ob­vi­ously it is more im­por­tant with an ad­min­is­tra­tion that wants to do even more de­por­ta­tions,” said Karen Tum­lin, le­gal di­rec­tor for the Na­tional Im­mi­gra­tion Law Cen­ter. “You would think manda­tory de­ten­tion is for peo­ple with very se­vere crimes, but it is not. It can be for rel­a­tively low-level charges.”

Each day, more than 40,000 peo­ple are held in im­mi­gra­tion jails be­cause they have a crim­i­nal con­vic­tion on their records or be­cause they en­tered the coun­try seek­ing asy­lum, ac­cord­ing to the ACLU.

The lead plain­tiff, Ale­jan­dro Ro­driguez, was brought to this coun­try as an in­fant and ob­tained law­ful sta­tus but was jailed for pos­si­ble de­por­ta­tion be­cause of a drug pos­ses­sion and a “joyrid­ing” con­vic­tion as a teenager. Af­ter more than three years in jail, he won his im­mi­gra­tion case and was re­leased.

ACLU at­tor­ney Ahi­lan Aru­lanan­tham says im­mi­grants like Ro­driguez should be given a hear­ing and re­leased on bond if it is de­cided they are not a dan­ger to the com­mu­nity nor are likely to flee.

But lawyers for the Obama ad­min­is­tra­tion urged the high court to throw out the 9th Cir­cuit’s de­ci­sion, which they said calls for a “dra­matic and whole­sale re­vi­sion” of im­mi­gra­tion laws. They said the jus­tices should af­firm “the long­stand­ing rule that the po­lit­i­cal branches have ple­nary con­trol over which aliens may phys­i­cally en­ter the United States and un­der what cir­cum­stances.”

The high court is ex­pected to rule early next year in the case of Jen­nings vs. Ro­driguez.

ERIC GAY/AP

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