Court weighs bond hear­ings for over 40,000 de­tained im­mi­grants

The Washington Times Daily - - POL­I­TICS - BY MARK SHER­MAN

A seem­ingly di­vided Supreme Court tried to fig­ure out Wed­nes­day whether the gov­ern­ment can de­tain im­mi­grants in­def­i­nitely without pro­vid­ing hear­ings.

The jus­tices heard ar­gu­ment in a class-ac­tion law­suit brought by im­mi­grants who’ve spent long pe­ri­ods in cus­tody, in­clud­ing many who are le­gal res­i­dents of the United States or are seek­ing asy­lum.

The is­sue for the court is whether peo­ple the gov­ern­ment has de­tained while it is con­sid­er­ing de­port­ing them can make their case to a judge that they should be re­leased.

The case pits the Obama ad­min­is­tra­tion against im­mi­gra­tion ad­vo­cates, and the court hear­ing comes as Pres­i­den­t­elect Don­ald Trump has said he will step up de­por­ta­tions.

Even as the cur­rent ad­min­is­tra­tion has pushed for com­pre­hen­sive im­mi­gra­tion re­form and tried to help longtime U.S. res­i­dents who are in the coun­try il­le­gally, it has moved ag­gres­sively to de­port more re­cent im­mi­grants and those who have been con­victed of crimes.

The num­ber of peo­ple in de­ten­tion await­ing de­por­ta­tion has bal­looned to more than 40,000, ac­cord­ing to the Amer­i­can Civil Lib­er­ties Union, which is rep­re­sent­ing the im­mi­grants in the Supreme Court.

The San Fran­cisco-based 9th U.S. Cir­cuit Court of Ap­peals ruled for the im­mi­grants, in­clud­ing Mex­i­can im­mi­grant Ale­jan­dro Ro­driguez, who was de­tained for more than three years without a bond hear­ing.

Ro­driguez is a le­gal U.S. res­i­dent who was brought to the coun­try as an in­fant. The Home­land Se­cu­rity De­part­ment de­tained him when it be­gan de­por­ta­tion pro­ceed­ings be­cause Ro­driguez had been con­victed of pos­ses­sion of a con­trolled sub­stance and driv­ing a stolen ve­hi­cle, ac­cord­ing to the ap­peals court. He spent no time in jail for those crim­i­nal con­vic­tions.

In another case, an Ethiopian asy­lum­seeker was kept in de­ten­tion partly be­cause a DHS of­fi­cer wrongly la­beled him a So­mali, the ACLU said.

The 9th Cir­cuit ruled that im­mi­grants gen­er­ally should get bond hear­ings af­ter six months in de­ten­tion, and then ev­ery six months if they con­tinue to be held. The gov­ern­ment must show why they should re­main locked up, the court said.

Jus­tice Stephen G. Breyer, voic­ing a sen­ti­ment that ap­peared to be shared by other lib­eral jus­tices, said it seemed un­fair that the law would, for ex­am­ple, al­low an im­mi­grant re­leased af­ter a four-year prison term to be held the same amount of time by U.S. im­mi­gra­tion au­thor­i­ties. “How can they be pun­ished for four more years?” he asked.

Act­ing So­lic­i­tor Gen­eral Ian Ger­shen­gorn de­fended the law, say­ing Congress clearly gave the De­part­ment of Home­land Se­cu­rity con­sid­er­able power to hold peo­ple in cus­tody while de­ter­min­ing whether to de­port them. Peo­ple who are held for un­usu­ally long pe­ri­ods can file in­di­vid­ual law­suits, Mr. Ger­shen­gorn said.

Jus­tice Elena Ka­gan said that ap­proach would re­sult in hap­haz­ard rul­ings. “Well, wouldn’t it be bet­ter to set some guide­posts that ev­ery­body in the coun­try would know to fol­low, rather than hav­ing one suit pop up here and one suit pop up here? … That does not seem like a good im­mi­gra­tion sys­tem,” Jus­tice Ka­gan said.

Ahi­lan Aru­lanan­tham, the ACLU lawyer rep­re­sent­ing the im­mi­grants, told the jus­tices the ul­ti­mate de­ci­sion about whether to hold or re­lease peo­ple was not at is­sue be­fore the court. “We’re just talk­ing about the need for an in­quiry, the need for a hear­ing,” Mr. Aru­lanan­tham said.

But the court’s con­ser­va­tive jus­tices sounded skep­ti­cal of Mr. Aru­lanan­tham’s and the ap­peals court’s read­ing of im­mi­gra­tion law. “The prob­lem is, that looks an aw­ful lot like draft­ing a statute or a reg­u­la­tion. … We can’t just write a dif­fer­ent statute,” Chief Jus­tice John G. Roberts Jr. said.

The im­mi­grants also ar­gued that they have a ba­sic con­sti­tu­tional right to a bond hear­ing, that hold­ing them in­def­i­nitely without one vi­o­lates the Fifth Amend­ment’s pro­hi­bi­tion on de­priv­ing peo­ple of “life, lib­erty, or prop­erty, without due process of law.”

Jus­tice An­thony M. Kennedy, whose vote the im­mi­grants prob­a­bly would need if they were to pre­vail, was du­bi­ous the jus­tices could even take up that ques­tion. “We do not have the con­sti­tu­tional is­sue be­fore us,” he said.

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