Saturday, September 26, 2020

SCOTUS to Rule on Indefinite Immigrant Detention

p_30stk_supreme_court_140612-nbcnews-ux-1080-600

The right of due process is a core tenet of American values. But the issue before the U.S. Supreme Court in oral arguments on Wednesday raises fundamental questions about the scope of those rights for immigrants. Does the federal government have the authority to detain immigrants indefinitely? Or, should immigrants be given the opportunity for release on bond — like all U.S. citizens — once their detention time exceeds a certain limit?

Michael Tan, staff attorney for the ACLU’s Immigrant’s Rights Project, said that while immigrants with the weakest cases would quickly cycle out of detention, the people with the greatest chance of fighting deportation also suffered the harshest consequences. “This is one of the sad ironies of this case,” Tan said. “The people who have the longest period of detention are usually the ones with the strongest cases to stay in the U.S.”

In the case before the high court, Jennings v. Rodriguez, an incomplete panel of eight justices will hear arguments out of a class action lawsuit filed by the ACLU. More than 1,000 immigrants claimed they faced prolonged detention times in facilities throughout California. And not all held in immigrant detention were undocumented. The Ninth Circuit Court of Appeals weighed in last year, ruling that at the six month mark of detention, non-citizens must be given an opportunity to prove they are not a danger to the community or a flight risk if released.

The Obama administration is now pushing back. In the government’s brief filed this year, Gershengorn said it was not up to the courts to rewrite what Congress had already outlined. “Congress weighed the interests in controlling the border, protecting the public from criminal aliens, affording individual aliens adequate protections and opportunities for relief and review, and minimizing the adverse foreign-relations impact of U.S. immigration law,” the DOJ wrote.

In the 2003 case Demore v. Kim, the Department of Justice reported that detention times for immigrants averaged around five months. But those figures were grossly understated. The DOJ was forced to later to admit that in reality, detention times exceeded a full year. Acting Solicitor General Ian Heath Gershengorn apologized for the error in August —14 years after the high court used that data in its decision. Since Demore, lower courts have determined that there should be a bright line indicating how long detention without judicial review was considered unreasonable.

NBC News