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.
Gershengorn responded, “No, your Honor, we don’t think that.”
Sotomayor appeared perplexed by the argument that an immigration judge should not consider length of detention, because “the balance changes when the detention becomes unreasonable.”
Absent “very unusual circumstances” or unnecessary government delay in deporting someone, Gershengorn insists that prolonged detention is constitutional. As it grappled with concerns about recidivism and flight risk, Congress found that these were difficult to predict, he said.
Justice Elena Kagan pressed Gershengorn on his position.
“I think we would all look at our precedent and we would say, you can’t just lock people up without any finding of dangerousness, without any finding of flight risk, for an indefinite period of time, and not run into due process,” she said.
Gershengorn responded by noting “a substantial number of substantive and procedural protections for individuals.” That includes the right to an attorney at their own expense, as well as the right to an interpreter, to present and gather evidence, and to appeal.
All of that, however, takes time, he said, reiterating the government’s position that imposing “a rigid six-month rule” as the Ninth Circuit did, is a mistake. The timeframe is not what should be used to determine the constitutionality of an immigrant’s detention, he said.
When prompted by Justice Samuel Alito, Gershengorn said that question can only be addressed in individual habeas cases.
Later, Gershengorn noted that 90 percent of immigration hearings and Board of Immigration Appeals proceedings are completed within 14 and 19 months, respectively. This could serve as a basis for deciding when additional inquiries are warranted.
This stunned Sotomayor.
“We are in an upended world when we think 14 months or 19 months is a reasonable time to detain a person,” she responded.
When Arulanantham had his turn to woo the justices, he noted that he agreed with Gershengorn that a hard cap on detention length is unnecessary.
“We’re just talking about the need for an inquiry – that is, the need for a hearing that is individualized rather than a categorical presumption that someone is a danger and flight risk,” he said.
He flatly rejected the use of habeas petitions as a solution.
The relevant class of people are mostly unrepresented who are unfamiliar with the U.S. legal system and are, as a practical matter, unable to file habeas petitions, Arulanantham said. Moreover, habeas petitions can take six to 19 months to decide, depending on the court.
Everyone in the class action is entitled to an individualized determination of whether an immigrant is a flight risk or is a threat to public safety, he argued.
“Someone has to look at the detention and decide, is this a detention which remains reasonable? Does it continue to be reasonable in relation to its purpose? That’s our argument,” Arulanantham said.
Any such review would need to be carried out by a neutral decision-maker, like an immigration judge.
“The ICE officials who are making these decisions are essentially the jailer. They’re local detention officers,” he noted.
Chief Justice John Roberts thought Arulanantham’s arguments would require rewriting the statute.
“It seems to be that that’s quite a leap,” Roberts said. “Our job is to read the statute, and if it’s unconstitutional, that’s our job. But we can’t just write a different statute because we think it would be more administrable.”
What is required, Arulanantham retorted, is not a new statute but a constitutional limit. He said all the class participants are asking for is a minimal requirement for a hearing before a neutral decision-maker.
“And that minimal requirement we think is available under the statute and also under the due process clause,” he concluded.