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Supreme Court Could Split Over Rights of Immigrant Detainees

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By Casey C. Sullivan, Esq. on December 02, 2016 12:57 PM

The Supreme Court on Wednesday heard oral arguments on the extent of the government's power to detain immigrants facing removal, without the opportunity for release. Currently, thousands of immigrants and asylum seekers are held in prison-like conditions while their cases work through the immigration system. Those detentions are long, taking over a year in most cases, and detained immigrants are offered no bond hearings.

The Ninth Circuit ruled last year that such detainees must be given a bond hearing within six months and that the government must release those who it cannot prove are a flight risk or danger to the public. The Supreme Court Justices, however, appeared to split 4-4 during oral arguments, raising the possibility that the Court could deadlock on the issues raised.

America's Long and Slow and Long Immigration Detention System

At issue here are three classes of detained immigrants, those detained under 8 U.S.C. Sections 1225(b), 1226(a) and 1226(c), whose numbers include immigrants who have been convicted of a deportable offense, asylum seekers, and others stopped at the border without U.S. immigration papers.

The time such immigrants are held in detention is significant, with the average detainee here spending over a year behind bars while their case is addressed by the understaffed and underfunded immigration system. Few have access to attorneys and few bring habeas petitions that could result in their earlier release. Ninety percent of detainees have their cases completed within 14 or 19 months, depending on whether their case is through an immigration judge or a BIA proceeding, the government said during oral arguments.

Currently, the number of such detained immigrants at any point is within the low thousands, about 6,000 to 8,000 on a particular day, NPR reports. But, their numbers could swell in the future, as President-elect Trump has pledged to increase immigration enforcement, deportation, and thus detention.

Ejection from the country is not a sure thing and not just a matter of time, however. Detained asylum seekers win legal status 70 percent of the time. Long-term permanent residents facing deportation prevail 40 percent of the time.

For example, the lead plaintiff in this case, Alejandro Rodriguez, was detained for over three years before his case was resolved. A legal permanent resident who was brought to the country by his parents when he was one year old, Rodriguez faced deportation over a joyriding conviction at age 19. Rodriguez was not deported and eventually became a U.S. citizen, but not until after he had been separated from his work and children for years.

"We Are in an Upended World"

Such detentions are ostensibly preventative, rather than punitive, meant to ensure that immigrants cannot evade immigration control. But the extent of the detentions and the lack of legal recourse raise significant constitutional issues.

"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," Justice Kagan said during oral arguments.

Her concerns were echoed by Justice Sotomayor, who said that "we are in an upended world if we think 14 months or 19 months is a reasonable time to detain a person."

A Possible 4-4 Split

Chief Justice Roberts, however, noted that the case's constitutional issues hadn't been fully addressed by the lower courts. The Ninth Circuit, for example, relied on the Court's 2001 decision in Zadvydas v. Davis, to read the detention statute at issue in order to avoid those due process concerns. In Zadvydas, the Court interpreted an immigration statute to require a regular bond hearing within a reasonable time frame so as to avoid due process issues. The government, however, has argued that the canon of constitutional avoidance should not be used as "a tool for courts to comprehensively rewrite" immigration laws.

Justice Alito, joined by the Chief Justice Roberts, also questioned whether a class action such as this is the proper vehicle for challenging such detentions.

Overall, the Court seemed evenly divided between its conservative and liberal wings, with Justice Kennedy likely to decide whether the outcome is a 4-4 tie or not. If the Court does deadlock, the Ninth Circuit's opinion will stand.

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