High court could affect Trump plans
Justices to hear case on indefinite immigrant jailing
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.