March 5, 2018 – In a profound loss for immigrants living in immigration detention — sometimes indefinitely — the U.S. Supreme Court ruled last week they do not have a legal right to periodic hearings to determine if they should be released on bond. Many detainees are lawful permanent residents, asylum seekers, and/or survivors of torture who are held an average of 13 months and forced to unjustly suffer prolonged detention. The decision is a huge win for private prisons, which have seen soaring billion dollar profits under the Trump Administration.

The case, Jennings v. Rodriguez, impacts legal permanent residents and asylum seekers. Originally filed by the American Civil Liberties Union (ACLU) as a class-action lawsuit, it stated that the roughly 34,000 immigrants detained in the U.S. at any given time must be given access to a relatively prompt bond hearing.

The lead ACLU plaintiff is a legal permanent resident, Alejandro Rodriguez, who arrived in the U.S. as a child and, as a teenager, was convicted for joyriding. At 24, he pleaded guilty to misdemeanor possession of a controlled substance. After Rodriguez was detained for three years without being able to request bond, the ACLU filed suit and won his release as well as the cancellation of his deportation order.

The San Francisco-based Ninth Circuit Court of Appeals ruled for Rodriguez, saying that under immigration law he had a right to periodic bond hearings after six months in detention, and every six months thereafter. The decision was reversed last week by the Supreme Court in a 5-3 decision.

Justice Samuel Alito, writing for the conservative majority, said periodic bond hearings are not required by U.S. immigration law and that detention of asylum seekers or those fighting deportation was needed to give immigration officials time “to determine an alien’s status without running the risk of the alien’s either absconding or engaging in criminal activity.”

In a rare move for the court and indicating how passionately he disagreed, Justice Stephen G. Breyer read from his dissent, recalling the Declaration of Independence that all men and women have certain unalienable Rights, “and that among them is the right to Liberty.”

Justice Breyer said the decision was “legal fiction” and likely “the first ever” time the Supreme Court had interpreted federal law to allow the long-term confinement of people held in the United States and accused of misconduct without an opportunity to obtain bail:

No one can claim, nor since the time of slavery has anyone to my knowledge successfully claimed, that persons held within the United States are totally without constitutional protection.

The Democratic members of the House Judiciary Immigration Subcommittee expressed disappointment, while Ruth Marcus at the Washington Post called out the ruling for taking away due process.

Fight for immigrant rights continues

The Supreme Court returned the case back to the lower Ninth Court, which will decide if immigrant detainees have a Constitutional right to bond hearings (as opposed to a right given by current U.S. immigration law).

ACLU attorney Ahilan Arulanantham, who argued the Supreme Court case, expressed disappointment in what the ruling represents:

The Trump administration is trying to expand immigration detention to record-breaking levels as part of its crackdown on immigrant communities. We have shown through this case that when immigrants get a fair hearing, judges often release them based on their individual circumstances. 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.

As Karen Tumlin, Legal Director for the National Immigration Law Center, said via Twitter:

Let’s be clear, while the wheels of justice turn (all too slowly) to consider these important constitutional Qs, real people will suffer in detention w/o relief. And, that is a fact we should all find repugnant. Justice was not served today.

The mission of America’s Voice (AV) and America’s Voice Education Fund (AVEF) is to harness the power of American voices and American values to enact policy change that guarantees full labor, civil and political rights for immigrants and their families.