Supreme Court Weighs Immigrants’ Rights to Have Detention Reviewed

https://www.nytimes.com/2017/10/03/us/supreme-court-immigrants-detention-jennings-rodriguez.html

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WASHINGTON — Amid a nationwide surge in immigration arrests spearheaded by the Trump administration, the Supreme Court weighed on Tuesday whether immigrants facing deportation are entitled to have their detentions, which can stretch for years, reviewed by a judge.

The justices were considering whether immigrants fighting deportation or applying for asylum in the United States are entitled to periodic hearings before a judge to decide whether they can be released on bond while their cases make their way through the nation’s clogged immigration courts.

Lawyers for the immigrants argue that the government’s practice of keeping immigrants in jail-like detention facilities indefinitely, without independent reviews of whether there are grounds for keeping them there, violates their due process rights.

It was the second time the justices had heard arguments in the case, Jennings v. Rodriguez, No. 15-1204. The case was first presented to the court last year without receiving a decision, requiring a rehearing before the full nine-member court that now includes Justice Neil M. Gorsuch. The court presumably deadlocked 4 to 4 last year, so Justice Gorsuch is likely to cast the deciding vote.

Some justices seemed sympathetic to the immigrants’ plight. “No neutral magistrate of any kind is looking at the decision to make sure it’s not arbitrary,” Justice Sonia Sotomayor said. “Someone should be looking at it.”

But many justices seemed interested in unraveling whether a six-month deadline for a bond hearing a lower court had mandated was the right answer, or whether individualized hearings based on a variety of factors were preferable. Even if it seemed reasonable for a judge to review an immigrant’s detention, several justices suggested, why was six months the magic number?

“Where does it say six months in the Constitution?” Justice Samuel A. Alito Jr. asked. “Why isn’t it seven? Why isn’t it eight?”

The United States Court of Appeals for the Ninth Circuit has ruled that immigrants are entitled to a bond hearing every six months and that the government must show that the immigrant poses a flight risk or a danger to the community to justify extending the detention. But the government — first the Obama administration, and now the Trump administration — has strongly opposed imposing any such one-size-fits-all deadline, and appealed the appeals court’s decision to the Supreme Court. It has argued that immigrants can file individual habeas corpus petitions to challenge their detentions.

Several of the more liberal-leaning justices seemed deeply skeptical of the idea that immigrants, even those who had just shown up at the border to ask for asylum and had no community ties to the United States, would be afforded no protections against arbitrary detention.

“I’m pretty nervous about that,” Justice Stephen G. Breyer said. He asked why immigrants could not expect to have their detentions reviewed by a judge, “particularly when,” he said, “we give triple ax murderers” such hearings.

Justice Gorsuch, meanwhile, quizzed the lawyer representing the immigrants seeking the bond hearings, Ahilan T. Arulanantham, of the American Civil Liberties Union, about what would happen under the six-month standard if an immigrant wanted to challenge his or her detention before the six-month mark or at some point after being detained more than six months but less than a year.

Mr. Arulanantham said imposing a six-month deadline made the standard easier to administer and ensured that immigrants who lacked the legal knowledge or resources to file their own habeas petitions would get a hearing.

As a practical matter, Mr. Arulanantham said, though individuals might file habeas petitions before the six-month mark, the courts move so slowly that there is little chance the petitions would be resolved until much later.

“When detention becomes prolonged, you have to draw the line somewhere,” he said.

He acknowledged that 90 percent of detention cases were resolved within six months, with the immigrant either deported or released, but emphasized that thousands of people remained in limbo beyond that mark.

Several of the more conservative justices seemed to accept the government’s contention that some immigrants might stay in detention longer than they otherwise would because they were contesting their deportation cases.

“It’s really the alien’s choice to trigger further delay,” said Malcolm L. Stewart, a deputy solicitor general representing the government in the case.

In a previous case, in 2003, the Supreme Court ruled that immigrants facing deportation may “be detained for the brief period” required to resolve their cases. The Justice Department had told the court that the average time that one set of immigrants was detained was about four months. In August, however, the government told the court the earlier data had been wrong; in fact, the average detention lasted more than a year.

At the moment, many immigrants are detained for long periods without the ability to ask for hearings. When some receive hearings, a substantial number may win release: According to A.C.L.U. data, of the 1,680 bond hearings held in the Los Angeles area between October 2012 and April 2014 under the six-month rule imposed by the Ninth Circuit, immigration judges granted release in 70 percent of the cases.

Lawyers for the immigrants seeking hearings also argue that those held in detention often go on to win their deportation cases or to earn asylum.