New York Times
By Adam Liptak
February 27, 2018
The Supreme Court ruled on Tuesday that people held in immigration detention, sometimes for years, are not entitled to periodic hearings to decide whether they may be released on bail.
The vote was 5 to 3, with the court’s more conservative members in the majority. Justice Stephen G. Breyer summarized his dissent from the bench, a rare move signaling intense disagreement.
The majority ruled on narrow grounds, saying that the immigration laws do not by their terms authorize the hearings. It sent the case back to the United States Court of Appeals for the Ninth Circuit, in San Francisco, instructing it to consider whether the Constitution requires the hearings.
The Ninth Circuit had ruled that bond hearings are required after six months to determine whether detainees who do not pose flight risks or a danger to public safety may be released while their cases proceed. The court based its ruling on an interpretation of the federal immigration laws, not the Constitution, though it said its reading was required to avoid constitutional difficulties.
Justice Samuel A. Alito Jr., writing for the majority on Tuesday, said that this interpretive approach, called “constitutional avoidance,” was unavailable here, as the words of the immigration laws were plain. “The meaning of the relevant statutory provisions is clear — and clearly contrary to the decision of the court of appeals,” Justice Alito wrote.
Chief Justice John G. Roberts Jr. and Justice Anthony M. Kennedy joined all of the majority opinion, and Justices Clarence Thomas and Neil M. Gorsuch most of it, though those two justices also wrote that the Supreme Court was powerless to hear the case at all.
In dissent, Justice Breyer wrote that “we can, and should, read the relevant statutory provisions to require bail proceedings in instances of prolonged detention without doing violence to the statutory language or to the provisions’ basic purposes.”
Justices Ruth Bader Ginsburg and Sonia Sotomayor joined Justice Breyer’s dissent.
In response, Justice Alito accused his colleagues of taking extreme liberties with the English language. “The dissent evidently has a strong stomach when it comes to inflicting linguistic trauma,” Justice Alito wrote. “The contortions needed to reach these remarkable conclusions are a sight to behold.”
Justice Breyer wrote that the Supreme Court, which had asked for additional briefs on the constitutional question, should have reached that question and decided whether people held in the United States have a right to be free of unjustified indefinite detention.
He noted that the average time of detention was a year and was often much longer, adding that “many of those whom the government detains eventually obtain the relief they seek.” For instance, he wrote, “two-thirds of the asylum seekers eventually receive asylum.”
Justice Breyer concluded the dissent he read from the bench with references to the nation’s founding documents and principles.
“We need only recall the words of the Declaration of Independence, its insistence that all men and women have ‘certain unalienable rights,’” he said. “We need merely recall that among them is the right to ‘liberty.’”
“It is not difficult to read the words of the statute as consistent with this basic right,” he said. “I would find it far more difficult, indeed I would find it alarming, to believe that Congress wrote these statutory words in order to put thousands of individuals at risk of lengthy confinement all within the United States but all without hope of bail.”
Justice Elena Kagan recently announced her recusal from the case, presumably after discovering that she had worked on an aspect of it as United States solicitor general. She had participated in both arguments in the case, and her questioning suggested that she would have voted with the court’s liberal wing.
“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,” she said in 2016.
Ahilan Arulanantham, a lawyer with the American Civil Liberties Union who represents the immigrants seeking hearings, expressed disappointment with the decision but said he hoped that his clients would now prevail on their constitutional arguments.
“The Trump administration is trying to expand immigration detention to record-breaking levels as part of its crackdown on immigrant communities,” he said. “We have shown through this case that when immigrants get a fair hearing, judges often release them based on their individual circumstances.”
“We look forward,” he said, “to going back to the lower courts to show that these statutes, now interpreted by the Supreme Court to require detention without any hearing, violate the due process clause.”
For more information, go to: www.beverlyhillsimmigrationlaw.com
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