High court nixes periodic hearings for detained immigrants

High court nixes periodic hearings for detained immigrants


Originally published by The Washington Post

A divided Supreme Court ruled Tuesday that immigrants the government has detained and is considering deporting aren’t entitled by law to periodic hearings on whether they should be released on bond.

The case the justices ruled in is a class-action lawsuit brought by immigrants who’ve spent long periods in custody. The group includes some people facing deportation because they’ve committed a crime and others who arrived at the border seeking asylum.

The San Francisco-based U.S. Court of Appeals for the 9th Circuit had ruled for the immigrants, saying that under immigration law they had a right to periodic bond hearings. The appeals court said the detained immigrants generally should get bond hearings after six months in detention, and then every six months if they continue to be held.

But the Supreme Court, splitting along liberal-conservative lines, reversed that decision Tuesday and sided with the Trump administration, which had argued against the 9th Circuit’s decision, a position also taken by the Obama administration.

Justice Samuel Alito wrote for five conservative-leaning justices that periodic bond hearings are not required by immigration law. He said that the court of appeals had adopted “implausible constructions” of the immigration law provisions at issue. But the decision doesn’t end the case. The justices sent the case back to the appeals court to consider whether the case should continue as a class action and whether the provisions of immigration law violate the Constitution.

Justice Stephen Breyer, joined by liberal justices Sonia Sotomayor and Ruth Bader Ginsburg, wrote in dissent that he would have read the provisions of immigration law to require hearings for people detained for a prolonged period of time because otherwise they would be unconstitutional.

“The bail questions before us are technical but at heart they are simple. We need only recall the words of the Declaration of Independence, in particular its insistence that all men and women have ‘certain unalienable Rights,’ and that among them is the right to ‘Liberty,’” Breyer wrote in dissent. He emphasized his disagreement by taking the rare step of reading a summary of his dissent from the bench.

The American Civil Liberties Union, which brought the case on behalf of the immigrants, had previously said that about 34,000 immigrants are being detained on any given day in the United States, and 90 percent of immigrants’ cases are resolved within six months. But some cases take much longer.

In a statement after the ruling, ACLU attorney Ahilan Arulanantham, who argued the Supreme Court case, said the group looks forward to returning to lower courts to argue that the statutes are unconstitutional.

Justice Department spokesman Devin O’Malley said in a statement that the department is “pleased” with the Supreme Court’s decision and that the 9th Circuit’s previous ruling “resulted in unnecessary bond hearings being conducted by immigration judges over the last few years, adding cases to the so-called backlog and placing an extraordinary burden on the immigration court system.” He said the administration is working to reduce the backlog.

Stephen W. Yale-Loehr, an immigration law professor at Cornell, said once the 9th Circuit rules in the case again, there’s a strong chance one of the parties will appeal to the Supreme Court and ask it to take the case again. He said the 9th Circuit’s previous ruling suggests it will find the statutes unconstitutional.


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