U.S. urges no leeway for deportation-held

WASHINGTON — Biden administration lawyers Tuesday urged the U.S. Supreme Court to deny bond hearings and a chance to go free to people who are being held for deportation after returning illegally to the United States.

In a pair of cases, the Justice Department called on the court to overturn rulings by judges in California and Pennsylvania, who said such migrants deserve a bond hearing if they are held for more than six months.

The judges said some detainees feared they would be subjected to violence and torture if sent home, and it could take a year or more to resolve their legal claims. In such cases, they said, the people should have a chance to be released if they are not likely to flee and represent no danger to public safety.

But the Justice Department lawyers said the law says people in this category are to be held until they are deported.

They were “already removed, and they illegally reentered the United States,” said Austin Raynor, an assistant to the U.S. solicitor general. “We know, by definition, those noncitizens pose a greater risk of flight based on their past conduct.”

This is the third time in recent years that the high court has tried to resolve the conflict between the government’s wish to hold people who face deportation and the pleas of civil libertarians who say migrants should not be jailed indefinitely while their claims slowly move through the legal system.

The American Civil Liberties Union said the administration “is on the wrong side in this crucial immigration case.” But the Justice Department noted that the high court had rejected a right to a bond hearing for other detained migrants in 2018 and again last year.

Looming over the arguments was an opinion written 20 years ago by Justice Stephen Breyer. Speaking for a 5-4 majority, he said the Constitution would not allow for holding people indefinitely in jail without a hearing, and the same is true for migrants who are detained. The court said migrants usually must be given a hearing if they are held more than six months.

The justices and lawyers spent much of their time Tuesday debating whether to follow the strict words of the immigration laws or the Constitution’s guarantee of due process of law.

Breyer thought the court had all but decided the issue. Under the Constitution, “everybody gets a bail hearing that you are going to detain for a significant period of time,” he said.

Curtis Gannon, another lawyer in the solicitor general’s office, said: “Congress can make rules for noncitizens that it can’t for citizens, and detention during removal proceedings is constitutionally permissible.”