The Supreme Court ruled on Tuesday that immigrants being detained as part of potential deportation proceedings do not have the right to periodic bond hearings. It’s a decision that essentially allows the government to lock away immigrants with criminal convictions—even those with protected statuses—indefinitely while their deportation case works its way through the legal system.
In a 5–3 ruling, the court reversed a decision from the Ninth Circuit Court of Appeals which granted immigrants regular bond hearings. The split was predictable, with the court’s five conservative justices outvoting three liberals. (Justice Elena Kagan recused herself from the case due to conflicts from her time as Solicitor General for the Obama administration.)
The specifics of the case (officially Jennings v. Rodriguez) center around Alejandro Rodriguez, a Mexican citizen and lawful American resident who came to the U.S. as a child. Rodriguez was convicted of joyriding as a teenager, and later confessed to possession of a controlled substance in his 20s—a misdemeanor crime. He was subsequently detained for three years for deportation proceedings with no bond hearings.
In its initial ruling, the Ninth Circuit wrote that “an alien must be given a bond hearing every six months and that detention beyond the initial 6-month period is permitted only if the Government proves by clear and convincing evidence that further detention is justified.”
Ahilan Arulanantham, the ACLU attorney who helped argue on Rodriguez’s behalf before the Supreme Court, told NPR that immigrants—even lawful ones, or those seeking asylum—are detained on average for 13 months. “If you walk into a detention center, you would think you were in a prison,” Arulanantham said.
In his majority opinion, Justice Samuel Alito made it clear that he saw no need for the flexibilities ordered by the Ninth Circuit, writing, “Immigration officials are authorized to detain certain aliens in the course of immigration proceedings while they determine whether those aliens may be lawfully present in the country.”
Justice Stephen Breyer dissented passionately from the ruling, which he called “legal fiction” and even a betrayal of the Declaration of Independence.
“Whatever the fiction, would the Constitution leave the Government free to starve, beat, or lash those held within our boundaries?” Breyer wrote. “If not, then, whatever the fiction, how can the Constitution authorize the Government to imprison arbitrarily those who, whatever we might pretend, are in reality right here in the United States?”
The court returned the case to the Ninth Circuit, where it can be litigated once again through different constitutional arguments. For now, however, immigrants must now contend with being jailed indefinitely.