Supreme Court Weighs Immigrants’ Rights to Have Detention Reviewed

WASHINGTON — Amid a nationwide surge in immigration arrests spearheaded by the Trump administration, the Supreme Court weighed on Tuesday whether immigrants facing deportation are entitled to have their detentions, which can stretch for years, reviewed by a judge.

The justices were considering whether immigrants fighting deportation or applying for asylum in the United States are entitled to periodic hearings before a judge to decide whether they can be released on bond while their cases make their way through the nation’s clogged immigration courts.

Lawyers for the immigrants argue that the government’s practice of keeping immigrants in jail-like detention facilities indefinitely, without independent reviews of whether there are grounds for keeping them there, violates their due process rights.

It was the second time the justices had heard arguments in the case, Jennings v. Rodriguez, No. 15-1204. The case was first presented to the court last year without receiving a decision, requiring a rehearing before the full nine-member court that now includes Justice Neil M. Gorsuch. The court presumably deadlocked 4 to 4 last year, so Justice Gorsuch is likely to cast the deciding vote.

Some justices seemed sympathetic to the immigrants’ plight. “No neutral magistrate of any kind is looking at the decision to make sure it’s not arbitrary,” Justice Sonia Sotomayor said. “Someone should be looking at it.”

But many justices seemed interested in unraveling whether a six-month deadline for a bond hearing a lower court had mandated was the right answer, or whether individualized hearings based on a variety of factors were preferable. Even if it seemed reasonable for a judge to review an immigrant’s detention, several justices suggested, why was six months the magic number?

“Where does it say six months in the Constitution?” Justice Samuel A. Alito Jr. asked. “Why isn’t it seven? Why isn’t it eight?”

The United States Court of Appeals for the Ninth Circuit has ruled that immigrants are entitled to a bond hearing every six months and that the government must show that the immigrant poses a flight risk or a danger to the community to justify extending the detention. But the government — first the Obama administration, and now the Trump administration — has strongly opposed imposing any such one-size-fits-all deadline, and appealed the appeals court’s decision to the Supreme Court. It has argued that immigrants can file individual habeas corpus petitions to challenge their detentions.

By Vivien Yee for THE NEW YORK TIMES
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