On February 27, the Supreme Court of the U.S. (SCOTUS) overturned a previous ruling that required immigrants enduring extended detention be given a hearing to determine if they can be released.
The reaction to the ruling was swift: “Trump Supreme Court Gives ICE Power to Hold People Indefinitely.” “Trump’s Supreme Court has officially turned every detention center in the country into a concentration camp.”
But is that what the ruling means?
Matthew Segal, legal director of the ACLU of Massachusetts, announced on Twitter:
“Despite what some headlines are saying, SCOTUS’s Jennings v. Rodriguez decision does *not* authorize the indefinite detention of certain noncitizens. Instead, SCOTUS left the constitutional question for another day.”
Here’s what happened: Last year, the Ninth Circuit Court ruled that detained immigrants must be given a bond hearing after six months to determine whether they pose a flight risk or a danger to public safety, and therefore whether they can be released and asked to come to court when their case is ready to proceed. The court based that decision on federal immigration laws rather than on the Constitution.
In Tuesday’s SCOTUS ruling, Justice Samuel Alito Jr., writing for the majority opinion, said that the Ninth Circuit Court could not interpret the law the way they had.
So SCOTUS kicked the case back to the lower courts to consider whether the Constitution requires bond hearings. Essentially, they kicked the can down the road.
The Trump administration is trying to expand immigration detention to record-breaking levels as part of its crackdown on immigrant communities… We look forward 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. –ACLU attorney Ahilan Arulanantham
Whether immigrants can be detained indefinitely in the meantime is also up for debate.
Immigration law scholar Shalini Bhargava Ray says that the detention mandate in question is for a “‘specified period of time’ (even if years)” and that people are detained for, on average, one year.
However, Justice Stephen Breyer, writing the dissenting opinion, stated, “Those whose removal is legally or factually questionable could be imprisoned indefinitely while the matter is being decided. Those whose removal is not questionable (for they are under a final removal order) could be further imprisoned for no more than six months.”
What’s unquestionable is that, for now, legal immigrants and asylum seekers could languish in detention for long periods of time, separated from their loved ones and unable to work and provide for their families.
Cecillia Wang, deputy legal director for the national ACLU, summed up what’s at stake: “Before our litigation, people were locked up for years without any hearing, while fighting their deportation cases. Many won, but suffered the loss of jobs [and] homes while detained without a hearing. After winning the rule that you get a hearing after 6 months, 1000s of people were released by immigration judges and showed up for court as ordered.”
One of those people was Mark Hwang, a legal permanent resident who was brought to the U.S. from South Korea when he was 6 years old. He eventually started a shipping and logistics business with his wife, and the couple had three infant children. Then a police officer pulled him over for not signaling when he changed lanes.
The officer asked Hwang if he had been convicted of a crime. He admitted that more than 10 years earlier, he was convicted of marijuana possession with intent to sell. He had done nothing wrong since then. The officer shackled him on the spot and put him in immigration detention for six months.
At that point, due to the lower court’s ruling in Jennings v. Rodriguez, he was permitted a hearing. The judge obviously ruled that Hwang was not a threat to society, so he was allowed to go home to his family. Later, his case was cleared.
“Detention almost broke me, and I could have lost my life in the only country I’ve known since I was six years old,” Hwang wrote.
“I hope the justices make the right choice,” he stated before yesterday’s SCOTUS ruling. “It can make all the difference.”
Now, hopefully the judge in the lower court will make the right choice, because it could make all the difference for thousands of immigrants and asylum seekers.