Immigration and Customs Enforcement (ICE) agents can arrest and indefinitely detain undocumented immigrants and green card holders released from custody years ago due to past minor crimes, thanks to a 5-4 ruling by the Supreme Court Tuesday.
The five conservative justices in Nielsen v. Preap argued that a “mandatory detention” provision in the Immigration and Nationality Act warranted such a strict interpretation. The federal law states that federal agents shall “take into custody any alien who […] is deportable by reason of having committed any offense [… ] when the alien is released.” Justice Samuel Alito concluded that immigrants who had not been immediately detained after they are released from criminal custody still qualify as “mandatory detainees,” adding that even if immigration agents are late in executing arrests, it is “better … late than never.”
Plaintiffs in the case, however, argued that if ICE wants to detain an immigrant without bail, they must detain them at the moment of release — instead of waiting years after they have successfully built a life in the country, and should be eligible for bond release rather than immediate detention.
The court’s liberal justices worried that the decision in this case grants significant power to the government, with Justice Stephen Breyer writing in the dissent, “It is a power to detain persons who committed a minor crime many years before. And it is a power to hold those persons, perhaps for many months, without any opportunity to obtain bail.”
Breyer notes that the conservative interpretation of the law could permit federal agents to detain undocumented immigrants indefinitely without bail for minor drug offenses of even “crimes of moral turpitude, such as illegally downloading music or processing stolen bus transfers.”
“I fear,” Breyer added, that the majority’s decision “will work serious harm to the principles for which American law has long stood.”
Access to a bond hearing is critical for immigrants seeking to stay in the United States and denying anyone of that access could have serious repercussions on the lives of immigrants who have spent decades building a life in the United States.
“A bond hearing is everything,” Rachel Naggar, the Board of Immigration Appeals pro-bono project attorney at Clinic Legal, told ThinkProgress. “If someone has an ability to prove to a judge that they have a job and that they are stable and likely to show up to court, they will then have the ability to meet with attorneys.”
Immigrants in detention are less likely to have access to counsel, which drastically impacts their ability to win their case. According to the National Immigrant Justice Center, “detained immigrants are 11 times more likely to pursue relief when they have legal counsel and are twice as likely to obtain relief than detained immigrants without counsel.”
Naggar adds that detention centers are often in remote locations and far from their families, who are typically able to provide evidentiary support to help bolster their cases.
Under the statute upheld by the Supreme Court’s majority, there are two different classes of immigrants who are classified as “removable.” The first are people who haven’t committed crimes, but are facing deportation for another reason. The second are people who are facing deportation because of their criminal convictions.
Undocumented immigrants in that first group are allowed a “bond hearing” once they are detained for removal. Bond hearings are important they allow immigrants to appeal to an immigration judge, during which time they can argue that their release poses no threat and that they will show up for their “removal hearing,” where they must prove to a judge why they should not be deported.
Last fall, the Supreme Court ruled that immigrants in the second group had to be detained until their cases were resolved — even if that takes years or months — and cannot request bond hearings. On Tuesday, the court ruled that the same applies for immigrants who were detained by immigration agents long before they were released from criminal custody.
“What we are seeing is a continual erosion of the due process of immigrants and the continuation of indefinite detention,” Liz Martinez, the director of advocacy and strategic communications at Freedom for Immigrants, told ThinkProgress. “Not having access to a bond hearing is like clipping away a birds wing, because you’re taking away their freedom while they wait for their case to be processed.”
Freedom For Immigrants, which runs a National Bond Fund to provide relief for undocumented immigrants caught up in the system, believes the ruling may impact their ability to reunite families. The bond fund has raised over $339,000 so far to secure the release of over 100 people from immigration detention in 2018.
While the ruling in Preap doesn’t create any new powers for ICE — as mandatory detention without bond is common in most U.S. jurisdictions — it does underscore the Trump administration’s goal of targeting as many vulnerable immigrants as possible and of emboldening ICE to continue detaining record-high numbers of immigrants.
In fiscal year 2018, ICE conducted 158,581 arrests, up from 110,104 in 2016, when Trump was elected, and 143,470 in 2017, his first year in office. According to the agency, 66 percent of the individuals arrested in 2018 were “convicted criminals.” More than half of those were convicted for drunk driving.