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Supreme Court Maintains Congress Granted Homeland Security Secretary Broad Power To Detain Immigrants Without Bail

The United States Supreme Court ruled the government has broad executive power to detain immigrants previously convicted of a crime and deny them a bail hearing prior to deportation proceedings.

In a 5-4 decision [PDF], the majority, led by Justice Samuel Alito, argued Congress granted sweeping authority to Secretary of Homeland Security Kirstjen Nielsen when it passed the Illegal Immigration and Immigrant Responsibility Act of 1996.

The justices maintained Congress was concerned “deportable criminal aliens who are not detained” would continue to “engage in crime and fail to appear for their removal hearings in large numbers” so lawmakers mandated arrest without bail or parole.

Attorneys, including lawyers with the American Civil Liberties Union, contended the government did not have the authority to detain immigrants without bail years after they were released from prison and had served a sentence for any offenses. There was a temporal limit to the government’s authority.

But Alito wrote, “As we have held time and again, an official’s crucial duties are better carried out later than never.”

Alito drew attention to how state and local officials “sometimes rebuff the government’s request that they give notice when a criminal alien will be released.” From January 2014 to September 2016, a total of 21,205 declined requests in 567 counties in 48 states including the District of Columbia were recorded.

“Under these circumstances, it is hard to believe that Congress made the Secretary’s mandatory detention authority vanish at the stroke of midnight after an alien’s release,” Alito added.

ACLU deputy legal director Cecillia Wang, who was involved in the case, reacted, “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.”

“We will continue to fight the gross overuse of detention in the immigration system,” Wang declared.

“This is one more sad example of the Supreme Court allowing immigrants’ rights to be trampled,” said Chuck Roth of the National Immigrant Justice Center. “We will continue to argue that mandatory detention is unconstitutional and un-American. We hope the next time the issue reaches the court, it will change course to vindicate the human rights of all people.” (The National Immigrant Justice Center filed an amicus brief in the case.)

Justice Brett Kavanaugh suggested the issue before the court was “narrow” and only related to the interpretation of words in a specific provision of the 1996 law. Much of the decision backed by Alito, Kavanaugh, Neil Gorsuch, Clarence Thomas, and Chief Justice John Roberts was written in the abstract, with little acknowledgment of the implications of their sterile analysis.

However, the dissent written by Justice Stephen Breyer did. “Under the government’s view, the aliens subject to detention without a bail hearing may have been released from criminal custody years earlier, and may have established families and put down roots in a community.”

“These aliens may then be detained for months, sometimes years, without the possibility of release; they may have been convicted of only minor crimes—for example, minor drug offenses, or crimes of ‘moral turpitude,’ such as illegally downloading music or possessing stolen bus transfers; and they sometimes may be innocent spouses or children of a suspect person,” Breyer added.

He further noted, “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 argued Congress did not grant the Homeland Security Secretary such broad power to deny bail hearings, and that this interpretation of the law passed by Congress created “serious problems.”

It would allow the DHS secretary to “hold definitely without bail those who have never been to prison and who received only a fine or probation as punishment.”

Civil violations have apparently been a focus of Immigration and Customs Enforcement (ICE) under President Donald Trump’s administration. So, with this interpretation, the Supreme Court gives a green light to agents to hold someone with a civil violation on their record.

One reason the government would desire broad detention authority is that detained immigrants facing deportation proceedings struggle to obtain legal aid.

It does not necessarily apply to this case, which focused on immigrants like Mony Preap, a lawful permanent resident that had two drug convictions. But the Trump administration has escalated their actions to the point where they are detaining immigrants before charges are even filed against them.

Remarkably, the majority ruling did not consider whether there was any reasonable basis to the fear lawmakers had in 1996.

The Transactional Records Access Clearinghouse (TRAC) at Syracuse University found, “The vast majority of individuals who in recent years were released on bond as a result of their custody hearing before an immigration judge turned up for their court case.”

“During FY 2015, for example, court records indicate that 86 percent of individuals that were released from detention turned up for their court hearing when it was finally held. The remaining 14 percent were recorded ‘in absentia.’ That is, they failed to appear and the immigration judge – in their absence — granted the government’s request for a removal order to deport them,” TRAC reported.

In other words, nearly 9 in 10 immigrants were showing up for their deportation hearing.

As Breyer wrote, “A bail hearing does not mean release on bail. It simply permits the person held to demonstrate that, if released, he will neither run away nor pose a threat. It is especially anomalous to take this opportunity away from an alien who committed a crime many years before and has since reformed, living productively in a community.”

Breyer does not believe Congress meant to allow the government to “apprehend persons years after their release from prison and hold them indefinitely without a bail hearing.”

“I fear that the court’s contrary interpretation will work serious harm to the principles for which American law has long stood,” Breyer concluded.

Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."