High court ponders big change to immigration legal system

The Supreme Court heard oral arguments in November in a case that could bring big changes to the U.S. immigration legal system.

Justices are considering whether it’s legal to detain a non-citizen for months or years without a bond hearing if they have a criminal conviction. Bond hearings allow judges to determine whether detainees pose a danger to the community or represent a flight risk.

Those who don’t can go about their lives until the government decides how to resolve their immigration cases.

The plaintiff in this case, Alejandro Rodriguez, came to the United States with his parents when he was a toddler. At age 9, Rodriguez became a lawful permanent resident. But he got involved in unlawful conduct a decade later.

At age 19 and again at 24, Rodriguez’s joyriding and misdemeanor drug possession earned him some jail time. Not long after that, Rodriguez found himself in detention.

Federal authorities held Rodriguez for three years without a hearing to determine whether he could post bond and earn temporary release, perhaps with electronic monitoring. He eventually gained his release and avoided deportation. But his lengthy detention placed Rodriguez at the top of a class-action lawsuit on behalf of thousands of immigrants similarly held.

The class action contends that due process and fundamental fairness require timely hearings to justify continued detentions.

The 9th U.S. Circuit Court of Appeals agreed, ruling all such detainees must receive a bond hearing every six months, automatically—the same treatment a U.S. citizen would receive.

In this case, the Obama administration disagrees and is asking the Supreme Court to overturn the 9th Circuit ruling.

Acting Solicitor General Ian Gershengorn accused the appeals court of legislating from the bench to create a novelty in the law for the sake of convenience. The court’s ruling undermines the Department of Homeland Security’s enforcement priorities and creates incentives for immigrants to delay their removal proceedings, he told the Supreme Court during oral arguments.

Gershengorn said the government needs flexibility to deal with deportations. He also argued much of the delay in the system is caused by the detainees’ numerous appeals, making a blanket six-month hearing rule unreasonable.

The Supreme Court’s four most-liberal justices—Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor—seemed to favor the automatic, every-six-months hearing rule of the lower courts. After all, reports show that 7-in-10 detainees who do get a hearing are allowed to post bail and go free.

Gershengorn stressed it’s just unreasonable to have a blanket standard for every single detainee. Hardened criminals are a different subset of detainee, so they shouldn’t receive the same treatment.

But Breyer highlighted the situation faced by the non-criminal subset of detainee, who could be locked up indefinitely over something like a paperwork problem.

“So I’m simply asking, if that human being, who has a family in the United States is, in the view of the government, locked up for five years without any hearing whatsoever, without any opportunity for bail, even though he can get out of it simply by abandoning his family and returning to another country, is that the position of the government as to what this statute means?” Breyer asked.

The position of the government, Gershengorn replied, is to let immigration courts handle each case on an individual basis.

But Rodriguez and other plaintiffs in the case, represented by the American Civil Liberties Union, want the government to abide by a blanket rule.

Attorney Ahilan Arulanantham insisted it’s unfair to detain people for so long without a hearing and that the only fair remedy is to order the government to provide hearings every six months, in every case.

Right now, the system presumes everyone is dangerous or a flight risk. That’s a blanket approach, too, but the wrong one, Arulanantham argued.

Despite the emotional appeals involved, the Supreme Court’s conservative justices thought the lower courts were trying to do the job of Congress.

“Our job is to read the statute, and if it presents—if it’s unconstitutional, that’s our job,” Chief Justice John Roberts said. “But we can’t just write a different statute because we think it would be more administrable.”

The justices are clearly struggling with this one. On Friday, they asked both sides for supplemental briefings on the constitutional aspects of the case.

If they uphold the six-month automatic hearing rule imposed by the lower court, the backlogged system will choke. That almost certainly will mean thousands of immigrants, dangerous or not, will be set free.

So the court must balance public safety with fairness to innocent people stuck behind bars without a hearing, all within the practical confines of an overloaded immigration system.

Listen to the Dec. 19, 2016, edition of “Legal Docket” on The World and Everything In It.