Children play in a double-fenced playground area outside the T. Don Hutto Family Residential Facility in Taylor, Texas. (CNS photo/Bahram Mark Sobhani)

Will there be due process for immigrants? That question headlined a Commonweal article I wrote last June on Jennings v. Rodriguez, a case before the U.S. Supreme Court. Now the court has answered: No.

The five to three ruling means that large numbers of immigrant detainees, some of whom are jailed for years as cases wind through the notoriously clogged immigration courts, aren’t entitled to bond hearings every six months. The Ninth U.S. Circuit Court of Appeals in San Francisco had granted that right, as did the Second Circuit in New York (on different grounds). The decision is a victory for mass incarceration, since it will help to swell a system in which the average daily population was 38,106 last year—and projected to rise next year to 52,000 as President Donald Trump’s executive order on immigration is further enforced, according to the Department of Homeland Security’s 2019 budget request. About 400,000 immigrants are held in detention each year.

The court’s conservative majority backed the decision, essentially saying that a plain reading of a 1996 immigration law signed by President Bill Clinton allowed Congress to dictate the imprisonment of undocumented immigrants with little inconvenient interference from the courts. The measure was part of a cliffhanger budget deal, with the harsh immigration provisions pushed by House Speaker Newt Gingrich and the emerging nativists in the Republican caucus. Clinton pronounced it a victory and went on to win re-election the next month.

The top court’s conservative block did not rule on the constitutionality of the statute, however. That was left for the Ninth Circuit to determine on remand. So it is still possible that the courts will rule that immigrant detainees’ rights to due process are violated.

The plight that immigrant detainees face under this law has shocked the conscience of many. Court Justice Stephen Breyer among them. He took the unusual step of reading the dissenting opinion from the bench, a sign of how strongly he felt about the case. 

Two-thirds of the asylum seekers who are jailed win their cases. So do 40 percent of those held because they have committed crimes

He notes that two-thirds of the asylum seekers who are jailed win their cases. So do 40 percent of those held because they have committed crimes; the offenses turn out to be too minor to require deportation. (I’ve found that since 2000, more than a quarter-million people detained in immigration jails were ultimately able to stay in the country.) That is: they are jailed unnecessarily. Most detainees don’t have lawyers, since an attorney is not appointed for those too poor to afford one. Many face language barriers, and are detained far from any relatives or friends they might have in the United States.

Breyer argues that that prolonged incarceration without the possibility of bail is a clear violation of the Fifth Amendment’s right to due process, which is supposed to extend to “all persons within the territory of the United States,” including noncitizens. The catch is that according to the government, asylum seekers taken into custody at an airport are considered to have never entered the United States and thus lack these basic protections. Breyer writes:

We cannot here engage in this legal fiction. 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. Whatever the fiction, would the Constitution leave the Government free to starve, beat, or lash those held within our boundaries? If not, then, whatever the fiction, how can the Constitution authorize the Government to imprison arbitrarily those who, whatever we might pretend, are in reality right here in the United States? The answer is that the Constitution does not authorize arbitrary detention. And the reason that is so is simple: Freedom from arbitrary detention is as ancient and important a right as any found within the Constitution’s boundaries.

The case could well return to the Supreme Court. And one wonders where this court would draw the line. During oral arguments last June, Justice Anthony Kennedy, who sided with the majority, asked Deputy Solicitor General Malcolm Stewart how long an immigrant could be detained when delays were the government’s fault. For example, he said, what if immigration judges weren’t available for a year and a half?

“Well, with respect to the arriving aliens, there still is the constitutional rule that they have no due process rights in connection with their initial entry into the country,” Stewart said. (That is, they are always “arriving,” but never arrive.)

The “most extreme” answer is that the jailed immigrant can simply give up on the process and return home, Stewart added. Extreme, maybe, but not unusual. Federal data indicates that in the last fiscal year, immigrants who were detained were 2,600 times more likely than non-detainees to accept what U.S. Immigration and Customs Enforcement terms a “voluntary” departure.

Paul Moses is the author, most recently, of The Italian Squad: The True Story of the Immigrant Cops Who Fought the Rise of the Mafia (NYU Press, 2023). He is a contributing writer. Twitter: @PaulBMoses.

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