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.