WASHINGTON (AP) — A seemingly divided Supreme Court tried to figure out Wednesday whether the government can detain immigrants indefinitely without providing hearings.
The justices heard argument in a class-action lawsuit brought by immigrants who’ve spent long periods in custody, including many who are legal residents of the United States or are seeking asylum.
The issue for the court is whether people the government has detained while it is considering deporting them can make their case to a judge that they should be released.
The case pits the Obama administration against immigration advocates, and the court hearing comes as President-elect Donald Trump has said he will step up deportations.
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Even as the current administration has pushed for comprehensive immigration reform and tried to help longtime U.S. residents who are in the country illegally, it has moved aggressively to deport more recent immigrants and those who have been convicted of crimes.
The number of people in detention awaiting deportation has ballooned to more than 40,000, according to the American Civil Liberties Union, which is representing the immigrants in the Supreme Court.
The San Francisco-based 9th U.S. Circuit Court of Appeals ruled for the immigrants, including Mexican immigrant Alejandro Rodriguez, who was detained for more than three years without a bond hearing.
Rodriguez is a legal U.S. resident who was brought to the country as an infant. The Homeland Security Department detained him when it began deportation proceedings because Rodriguez had been convicted of possession of a controlled substance and driving a stolen vehicle, according to the appeals court. He spent no time in jail for those criminal convictions.
In another case, an Ethiopian asylum-seeker was kept in detention partly because a DHS officer wrongly labeled him a Somali, the ACLU said.
The 9th Circuit ruled that immigrants generally should get bond hearings after six months in detention, and then every six months if they continue to be held. The government must show why they should remain locked up, the court said.
Justice Stephen Breyer, voicing a sentiment that appeared to be shared by other liberal justices, said it seemed unfair that the law would, for example, allow an immigrant released after a four-year prison term to be held the same amount of time by U.S. immigration authorities. “How can they be punished for four more years?” he asked.
Acting Solicitor General Ian Gershengorn defended the law, saying Congress clearly gave the Homeland Security Department considerable power to hold people in custody while determining whether to deport them. People who are held for unusually long periods can file individual lawsuits, Gershengorn said.
Justice Elena Kagan said that approach would result in haphazard rulings. “Well, wouldn’t it be better to set some guideposts that everybody in the country would know to follow, rather than having one suit pop up here and one suit pop up here … That does not seem like a good immigration system,” Kagan said.
Ahilan Arulanantham, the ACLU lawyer representing the immigrants, told the justices the ultimate decision about whether to hold or release people was not at issue before the court. “We’re just talking about the need for an inquiry, the need for a hearing,” Arulanantham said.
But the court’s conservative justices sounded skeptical of Arulanantham’s and the appeals court’s reading of immigration law. “The problem is, that looks an awful lot like drafting a statute or a regulation. … We can’t just write a different statute,” Chief Justice John Roberts said.
The immigrants also argued that they have a basic constitutional right to a bond hearing, that holding them indefinitely without one violates the Fifth Amendment’s prohibition on depriving people of “life, liberty, or property, without due process of law.”
Justice Anthony Kennedy, whose vote the immigrants probably would need if they were to prevail, was dubious the justices could even take up that question. “We do not have the constitutional issue before us,” he said.
If the justices are split when they take an initial vote on the case in a private session on Friday, they can hold the case in the hope of having a ninth, Trump-appointed justice join them before the term ends in early summer. In that circumstance, they could order a second round of arguments before a full bench.
A decision in Jennings v. Rodriguez, 15-1204, is expected by late June.