WASHINGTON – The Supreme Court wrestled for a second time Tuesday with whether the government can indefinitely detain certain immigrants it is considering deporting without providing a hearing.
An eight-member court, deadlocked 4-4, didn’t decide the issue last year. Now that Justice Neil Gorsuch has joined the court he will presumably break a tie. But the justices seemed to struggle Tuesday with the issue just as they did when the case was first heard last November.
The case the justices were hearing 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 ruled for the immigrants, saying they generally should get bond hearings after six months in detention, and then every six months if they continue to be held. The court said the government must show why they should remain locked up.
The government disputes that ruling, a position shared by the Obama and Trump administrations.
The American Civil Liberties Union, which brought the case on behalf of the immigrants, says 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 the case before the justices, Mexican immigrant Alejandro Rodriguez was detained for more than three years without a bond hearing. He was fighting deportation after being convicted of misdemeanor drug possession and joyriding, and was ultimately released and allowed to stay in the United States.
The court’s liberal justices suggested sympathy for immigrants like Rodriguez who face lengthy detention. Justice Stephen Breyer said that in most other cases where someone is detained they get a hearing to determine whether they should be freed.
“We give triple ax murderers, at least people who are accused of such, bail hearings,” Breyer said.
Justice Elena Kagan told the government’s lawyer, Malcolm Stewart, that asylum seekers have some constitutional rights, such as “not to be tortured, not to be placed in hard labor.” She suggested a similar right “not to be placed in arbitrary confinement.”
But the appeals court’s decision that a hearing is necessary at six months and every six months thereafter seemed to give other justices pause. Justice Samuel Alito told ACLU lawyer Ahilan Arulanantham that “it’s quite something to find six months in the Constitution.”
“Where does it say six months in the Constitution? Why is it six? Why isn’t it seven? Why isn’t it five? Why isn’t it eight?” he asked.
A decision in the case, Jennings v. Rodriguez, 15-1204, is expected by June.
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