Supreme Court Appears Divided Over Key Immigration Case

by | December 1, 2016 AT 2:30 PM

By David G. Savage

The Supreme Court justices gave a mostly skeptical hearing Wednesday to a Los Angeles lawyer who argued for limits on the government's power to indefinitely jail immigrants facing deportation because of crimes they've committed.

The court's conservative justices said they were inclined to reverse a 9th Circuit Court decision requiring immigration judges to give a bond hearing and consider possible release for noncitizens who have been jailed for more than six months as they fight their deportation.

Liberal justices sounded unsure as to whether a specific time limit can be upheld.

"We are only talking about an individualized hearing," Ahilan Arulanantham, an American Civil Liberties Union attorney, told the high court.

The case could prove to be the first major Supreme Court decision of the Trump presidency and may have a direct impact on his plans to crack down on illegal immigration.

Shortly after this election, President-elect Donald Trump spoke of deporting as many as 3 million immigrants who have criminal records. That number appears to include many immigrants with minor convictions from the past.

The lead plaintiff in the high court case is Alejandro Rodriguez, who came to the U.S. as a baby and eventually obtained lawful status. Because of a drug possession and a "joyriding" conviction as a teenager, he was slated for possible deportation and detained for more than three years as the case proceeded. He eventually won and was released.

Government lawyers say they were simply complying with a 1996 immigration law that mandates the "detention of criminal aliens," including people who have been convicted of past crimes.

The same law allows such people to fight deportation if they have jobs and families in the United States.

At issue is whether the government may jail these immigrants for long periods without a hearing while judges weigh their claims.

Acting Solicitor General Ian Gershengorn urged the court to rule no hearings are required. He said Congress made a "categorical judgment" that there is a "real flight risk" if these "criminal aliens" are released. Therefore, he said, they can be held indefinitely until their claims are resolved.

Justice Elena Kagan objected, saying the Constitution has been understood to mean "you can't just lock people up for an indefinite period of time. Why doesn't the Constitution set an outer bound?" she asked.

The government's lawyer said the Constitution does not set a specific time limit for a hearing.

Chief Justice John G. Roberts Jr. said that people who think they are being held unconstitutionally can hire a lawyer and file a "habeas corpus" lawsuit before a federal judge.

The ACLU lawyer said that was an unrealistic option for most immigrants who are taken into custody. Such a suit could take years to resolve, he said.

At one point, Justice Stephen G. Breyer said the outcome could affect "hundreds of thousands, maybe millions" of people, if a new administration moves aggressively to carry out deportations. But he too said he was struggling to decide whether the law requires hearings for all jailed immigrants after a certain time period.

In 2003, when the justices last dealt with this issue, they said immigrants who face deportation can be "detained for a brief period" while their claims were resolved.

More recently, the 9th Circuit Court in California and the 2nd Circuit Court in New York defined that period as no more than six months. After that, the courts said, jailed immigrants are entitled to a bond hearing in which a judge can decide if they can be released, provided they present no danger and are not a flight risk.

In their comments and questions, the justices indicated they were weighing several possibilities. They could send the case back to the 9th Circuit to decide directly whether the Constitution sets a six-month limit on detentions without a hearing.

This will test "the courage of their convictions," Roberts said, referring to the 9th Circuit judges who had stopped short of saying the Constitution itself required a time limit on detentions.

In the past, Justice Anthony M. Kennedy has voiced concern about holding people in immigration jails with no hearing. But he said little Wednesday to suggest he would uphold the 9th Circuit's ruling.

The eight justices may split 4-4 on the outcome. If so, they are likely to hold the case and await the arrival of a ninth justice appointed by President Trump.

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