High court: Feds have broad authority to detain immigrants
WASHINGTON — The Supreme Court on Tuesday adopted a strict interpretation of a federal immigration law, saying it required the detention of immigrants facing deportation without the possibility of bail if they had committed crimes, including minor ones, no matter how long ago they had been released from criminal custody.
The vote was 5-4, with the court’s more conservative justices in the majority. Justice Samuel Alito, writing for the majority, said the plain language of a federal law required the result.
Justice Stephen Breyer summarized his dissent from the bench, a sign of profound disagreement. He said the majority had violated the nation’s basic values.
“The greater importance of the case,” he said, “lies in the power that the majority’s interpretation grants the government. It is a power to detain persons who committed a minor crime many years before. And it is a power to hold those persons, perhaps for many months, without an opportunity to obtain bail.”
Alito said the law may be subject to constitutional challenges in individual cases, a subject that was not before the justices. It was clear, he wrote, that Congress had required the secretary of Homeland Security to take into custody immigrants released from criminal custody even if years had passed in the meantime.
“An official’s crucial duties are better carried out late than never,” Alito wrote.
Cecillia Wang, a lawyer with the American Civil Liberties Union, which repre-
sented the immigrants challenging the law, said the decision was part of a worrisome trend.
“For two terms in a row now,” she said, “the Supreme Court has endorsed the most extreme interpretation of immigration detention statutes, allowing mass incarceration of people without any hearing, simply because they are defending themselves against a deportation charge.”
The case concerned a law, enacted in 1996, which included a contested phrase. It said federal authorities “shall take into custody any alien” convicted of certain crimes, some serious and some minor, “when the alien is released.” The key word was “when.”
Immigrants’ rights advocates said the law required prompt detention. Lawyers for the federal government said immigrants convicted of crimes may be detained years after their release.
The difference matters, for hundreds and perhaps thousands of immigrants, because people detained under the law are not entitled to a bail hearing to determine whether they are dangerous or pose a flight risk.
The plaintiffs included people who entered the country illegally, tourists or students who overstayed their visas and lawful permanent residents.
Among them were immigrants who arrived in the United States legally as infants, committed minor crimes like possessing marijuana and were detained years after completing their sentences.
The 9th Circuit U.S. Court of Appeals, in San Francisco, concluded that the law requires mandatory detention only if federal authorities take immigrants into custody soon after they are released.
“Because Congress’s use of the word ‘when’ conveys immediacy,” Jacqueline Nguyen wrote for a unanimous three-judge panel, “we conclude that the immigration detention must occur promptly upon the aliens’ release from criminal custody.”
Alito wrote that such a strict deadline could allow local authorities opposed to federal immigration policy to frustrate the goals of the federal law.
“State and local officials sometimes rebuff the government’s request that they give notice when a criminal alien will be released,” he wrote. He cited statistics indicating that there were tens of thousand of such refusals in 48 states from January 2014 to September 2016.
“Under these circumstances, it is hard to believe that Congress made the secretary’s mandatory-detention authority vanish at the stroke of midnight after an alien’s release,” he wrote.
Chief Justice John Roberts and Justices Clarence Thomas, Neil Gorsuch and Brett Kavanaugh joined all or most of the majority opinion.
Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined the dissent in the case, Nielsen v. Preap, No. 16-1363.