High Court Rules 5-4 Against Immigrant Bond Hearings

WASHINGTON (CN) – In a blow to lengthy immigration detentions, the U.S. Supreme Court ruled Tuesday that there is no right to a bond hearing if there is any delay to when an immigration official arrests an alien after his release from jail.

The lead plaintiff in the case is Mony Preap, a lawful permanent resident of the United States who was born in a refugee camp after his family fled Cambodia’s Khmer Rouge.

When the U.S. government took him into immigration detention, Preap had just served a short sentence for simple battery, but this is not one of the classes of offenses covered by the mandatory-detention scheme of the Immigration and Nationality Act.

Rather Preap was subject to detention because of offenses committed years earlier — in 2006, Preap served time for two misdemeanor convictions for possession of marijuana.

After being held without a bond hearing, Preap was granted cancellation of removal and released from immigration custody.

He filed suit in California with two other lawful permanent residents subjected to similar holds, Eduardo Vega Padilla and Juan Lozano Magdaleno.

In addition to certifying them as a class, the lower court issued an injunction that required the government to provide similarly situated persons with bond hearings.

Though the Ninth Circuit affirmed in August 2016, the Supreme Court reversed that decision 5-4 Tuesday, with the court’s Democratic-appointed justices dissenting.

Writing for the majority, Justice Samuel Alito highlighted the failure of Preap, Padilla and Magdaleno to bring a direct constitutional challenge to the law. This leaves open the possibility that individual immigrants could do so if detained long after they serve their sentences.

“Our decision today on the meaning of that statutory provision does not foreclose as-applied challenges — that is, constitutional challenges to applications of the statute as we have now read it,” the opinion says.

Justice Stephen Breyer disagreed with the majority’s broad view of the law, however, noting that it would apply even to immigrants convicted of minor crimes, like drug offenses or illegally downloading music.

“For a high percentage of them, it will turn out after months of custody that they will not be removed from the country because they are eligible by statute to receive a form of relief from removal such as cancellation of removal,” Breyer wrote, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.

Breyer questioned whether Congress intended to grant the secretary of Homeland Security such broad authority, “especially when doing so would run contrary to basic American and common law traditions.”

Citing his opinion in Jennings v. Rodriguez, Breyer noted that indefinite detention without a bond hearing likely violates due process by depriving a person of their liberty.

For the conservative majority, the case turned on their interpretation of language contained in two paragraphs of the Immigration and Nationality Act.

The law details the kinds of crimes that render an immigrant subject to mandatory detention after they’ve been released from prison, stipulating the government must take them into custody “when the alien is released.”

Congress could not have intended that the mandatory detention authority would “vanish at the stroke of midnight after an alien’s release,” the majority opinion says.

“Having thus required the secretary to impose mandatory detention without bond hearings immediately, for safety’s sake, Congress could not have meant for judges to ‘enforce’ this duty in case of delay by — of all things — forbidding its execution,” Alito wrote.

ACLU Deputy Legal Director Cecillia Wang emphasized Tuesday that the group will continue to challenge unjust detentions.

“For two terms in a row now, 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,” Wang said in a statement. “We will continue to fight the gross overuse of detention in the immigration system.”

Another group to condemn the ruling was Freedom for Immigrants, which runs an immigration detention bond fund program. 

“We are disheartened by the Court’s decision in Preap,” said Christina Fialho, an attorney who co-founded the nonprofit and serves as its executive director. “No one should be imprisoned simply for seeking a better life or fleeing persecution, but if they are detained in the United States, they should have the basic right to question their imprisonment before an impartial judge.”

Justice Department spokeswoman Kerri Kupec said: “We are pleased with the decision.”

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