WASHINGTON (CN) - The Supreme Court heard arguments Wednesday that could determine the fate of thousands of immigrants languishing indefinitely under mandatory detention in more than 180 immigration-detention centers nationwide.
Immigrants can spend months and sometimes years in detention before they get a bond hearing. This fact has raised due process concerns about what, if any, safeguards should be in place to counter prolonged detention.
The eight-member U.S. Supreme Court agreed in June to decide whether immigrants in mandatory detention should be guaranteed an individualized bond hearing and the possibility of release in the U.S. if their detention lasts more than six months.
Arguing on behalf of the government Wednesday, Ian H. Gershengorn, acting solicitor general with the Department of Justice, says the answer to that question is a resounding "no" - Congress implemented mandatory detention for certain classes of immigrants out of concern about recidivism and flight risk, he told the court during oral arguments.
The case, brought by Alejandro Rodriguez, found its way to the Supreme Court after the Ninth Circuit "undid that legislative balance," as Gershengorn put it to the court.
Rodriguez, a lawful permanent resident who came to the U.S. as a baby, was placed in deportation proceedings after he was convicted for drug possession, and earlier for joyriding.
The Department of Homeland Security detained Rodriguez for three years before he could challenge his detention.
In 2007, Rodriguez, who had been working as a dental assistant before he was detained, filed a class-action lawsuit challenging the statutes governing mandatory detention for immigrants being held for crimes. On average, immigrants who joined the lawsuit were detained for 13 months.
However, Rodriguez's attorney, Ahilan Arulanantham, legal director of the American Civil Liberties Union in California, told the high court that mandatory detention can sometimes last three to four years. Some of his clients have been detained for as many as seven years, he said.
In the course of three appeals, the Ninth Circuit certified the class action and confirmed a lower court ruling that three classifications of immigrants subject to mandatory detention - those convicted of crimes, apprehended at the border, or arrested and detained to determine if they should be deported - deserve individualized hearings.
The appeals court also ruled that detention becomes prolonged after six months without a hearing.
According to Gershengorn, the Ninth Circuit erred in its rulings by "invoking principles of constitutional avoidance," which requires the government to release immigrants unless it can prove that prolonged detention is necessary, either because the immigrant poses a threat to public safety, or is a flight risk.
"The Ninth Circuit's decision is a serious misuse of the constitutional avoidance canon," he said, resulting in a "one-size-fits-all rule" that contradicts the text of the law by adopting a clear and convincing evidence standard. That undermines DHS's enforcement priorities and incentivizes immigrants to delay deportation proceedings, he added.
"We believe that the - whatever due process rights that they have are met by the statutory scheme which gives them an initial bond hearing and then allows them, if there are changed circumstances, to seek a redetermination," Gershengorn argued.
Justice Sonia Sotomayor asked about immigrants who have been in the country for decades.
"Don't you think due process would require some periodic review to ensure that these people are properly being held?" she asked.