High Court Blocks Right-to-Bond Hearings for Detained Immigrants

Deportation advocates cheer Supremes' majority decision, argue appellate court decision would have paralyzed immigration enforcement

by Brendan Kirby | Updated 28 Feb 2018 at 6:40 AM

Immigrants detained longer than six months are not entitled to bond hearings, the Supreme Court ruled Tuesday, in a decision that delivers a major victory for President Donald Trump’s efforts to ramp up deportations.

The 5-3 decision overturns a sweeping ruling from the San Francisco-based 9th U.S. Circuit Court of Appeals that guaranteed a hearing to any immigrant with a pending deportation case. Significantly, the appeals court ruled that the burden fell on the government to demonstrate that the immigrant was a danger or a risk to flee.

Justice Samuel Alito wrote in the main opinion that Alejandro Rodriguez, a legal Mexican immigrant slated for deportation because of a 2004 conviction on drug and auto theft charges, was not entitled to a bond hearing.

Justice Clarence Thomas wrote separately, in an opinion joined by Justice Neil Gorsuch, that the courts did not even have jurisdiction to consider the matter because of a 1996 law passed by Congress.

Alito ridiculed the lower court ruling and the Supreme Court dissent, which cited the doctrine of “constitutional avoidance” in justifying the requirement for a bond hearing. That doctrine holds that when there are multiple ways to interpret a statute, the courts should do so in a way that avoids constitutional doubts.

"But a court relying on that canon still must interpret the statute, not rewrite it … Spotting a constitutional issue does not give a court the authority to rewrite a statute as it pleases," he wrote.

Alito rejected the argument that the courts were justified in setting a six-month time limit for detention without judicial review because Congress was "silent" on the length of detention. He noted the statute is not silent, but rather mandates detention "pending a decision on whether the alien is to be removed from the United States."

Advocates of aggressive immigration enforcement, who had feared that a ruling upholding the 9th Circuit opinion would paralyze immigration enforcement, cheered Tuesday's ruling.

"It's consistent with a plain reading of the statute … It's just such common sense," said Andrew "Art" Arthur, resident fellow for law and policy at the Washington-based Center for Immigration Studies (CIS). "And Justice Alito pulls no punches in making that point."

Arthur noted that the 9th Circuit has jurisdiction over a large percentage of the immigrants in the United States and said its ruling applied "to a lot of people, and a lot of dangerous people."

It is not uncommon for immigrants facing deportation to be held longer than six months, particularly when they employ legal tactics to drag out their cases, Arthur said. Requiring the government to prove every six months that illegal immigrants are specific dangers or flight risks, he said, would have forced the release of many of them.

Michael Hethmon, senior counsel at the Immigration Reform Law Institute (IRLI), said Alito's ruling provides "helpful and timely statutory construction for these major statutes on detention that have been under attack."

IRLI, the legal arm of the hard-line Federation for American Immigration Reform (FAIR), filed a friend-of-the-court brief on the issue in 2014, when the case was before the Bureau of Immigration Appeals. Hethmon described the appellate court ruling as "a series of rationalizations built on presumptions."

Hethmon noted that phrases like "sleight-of-hand trick" and "textual alchemy" pepper Alito's opinion.

"Alito is just scathing in his criticism of the technique that the 9th Circuit used," he said.

Hethmon and Arthur predicted that the ruling would reduce the incentive for dragging out deportation cases. Doing so becomes less attractive for an immigrant who must wait out those months in jail, the said. Arthur also said the ruling makes clear that foreigners claiming a "credible fear" of persecution in their homelands also may be detained.

Related: Legal Challenge Could Paralyze Immigration Enforcement

Hethmon said the ruling will "give the Trump administration assurance" in its efforts to increase deportations.

But Justice Stephen Breyer, who dissented with Justices Sonia Sotomayor and Ruth Bader Ginsburg, noted that many immigrants fighting deportation ultimately win their challenges.

"The Court reads the statute as forbidding bail, hence forbidding a bail hearing, for these individuals," he wrote. "In my view, the majority's interpretation of the statute would likely render the statute unconstitutional."

Justice Elena Kagan did not participate in the case because she was solicitor general when the appeal was filed.

PoliZette senior writer Brendan Kirby can be reached at [email protected]. Follow him on Twitter.

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