Supreme Court Disregards Due Process, Allows ICE to Detain Certain Immigrants Indefinitely

Critics of the family separation policy protest in downtown Los Angeles on June 14.
Critics of the family separation policy protest in downtown Los Angeles on June 14. Robyn Beck/AFP/Getty Images

The Supreme Court delivered a brutal blow to immigrants’ rights on Tuesday morning, ruling that the Trump administration may detain unauthorized immigrants indefinitely once they have been taken into criminal custody. Its 5–4 decision permits the government to arrest and imprison undocumented individuals who were released from custody years, even decades ago. Even immigrants convicted in the distant past of a minor crime, like possession of a stolen bus transfer, may now be apprehended and detained without bond. To reach this result, the court’s conservative justices manipulated the plain text of a federal statute and ignored basic principles of due process. Their decision hands Immigration and Customs Enforcement even more power to terrorize immigrant communities, suspending due process for certain unauthorized immigrants snatched up by ICE.

Tuesday’s ruling in Nielsen v. Preap revolves around a 1996 law designed to crack down on unauthorized immigration. One section of the statute compels the Department of Homeland Security to detain certain non-citizens without a bond hearing as the government awaits permission to deport them. This provision states that immigration officials “shall take into custody” any unauthorized immigrant who has committed a certain criminal offense “when the alien is released” from jail. (Qualifying offenses include crimes of “moral turpitude,” drug violations, and aggravated felonies.) Officials may not release these individuals prior to deportation unless they are participating in witness protection. ICE interprets this statute to permit it agents to arrest and detain any unauthorized immigrant who was convicted of a crime, then hold him without a bond hearing. It doesn’t matter if the immigrant was convicted a half-century ago and has fully rejoined his community; according to ICE, he remains subject to indefinite detention.

Attorneys for the American Civil Liberties Union, which brought this case on behalf of multiple immigrants ensnared by ICE, read the law differently. The ACLU notes that the statute has two parts: First, it directs the government to take certain aliens into custody “when the alien is released” from prison; second, it instructs the government to hold aliens “described in” this first section without bond. (Emphasis mine.) The ACLU argues that the law does not give ICE a blank check to arrest and indefinitely detain these aliens years after they’ve been freed. Instead, it gives ICE an opportunity to detain immigrants without bond—if agents arrest them “when” they’re released from custody. If ICE instead waits for months, years, or decades to arrest these individuals, the ACLU asserts, they must treat them like other unauthorized immigrants by providing them with an opportunity for release.

The plaintiffs in Preap, who were picked up by ICE long after they completed their criminal sentences, are not asking for much. They are not asking for guaranteed freedom, just a bond hearing to prove that they aren’t flight risks or dangers to their communities. Most would probably meet that standard because they have families and roots and gave up crime long ago. But ICE won’t give them the chance to prove it, citing the 1996 statute. And now the Supreme Court has agreed with the Trump administration’s reading of the law—by essentially ignoring a substantial portion of the text itself.

Justice Samuel Alito, writing for the majority, held that this “when … released” clause “plays no role in identifying” which aliens must be arrested and held without bond. To the contrary, Alito, claimed, these words merely clarify that ICE cannot “cut short an alien’s state prison sentence in order to usher him more easily right into immigration detention.” They also “exhor[t] the Secretary to act quickly” once an unauthorized immigrant is freed, but do not require her to do so. Thus, the government can wait years to detain an immigrant who has completed his sentence, and once it arrests him, it can still deny him a bond hearing.

To Justice Stephen Breyer, who dissented along with his liberal colleagues, this reasoning is dangerous nonsense. “The issue may sound technical,” he acknowledged. “But it is extremely important,” because it implicates “the longstanding right of virtually all persons to receive a bail hearing.” The plain language of the statute, Breyer asserted, resolves this case in favor of the plaintiffs. Remember: The first part of the law directs immigration officials to detain a class of aliens “when [they are] released” from jail. The second part declares that aliens “described in” this first section must be held without bond. But an alien who was not detained “when” he was released from prison—and is instead seized years after release—isn’t “described in” the first section. And so he does not qualify as an alien whom ICE must hold without bond.

Breyer did not argue that these immigrants are permanently shielded from ICE custody. Rather, he wrote that the word “when” should be interpreted “in the same manner as we interpreted other parts of this statute”: as creating a six-month time limit. Under Breyer’s theory, if ICE detains an unauthorized immigrant who has committed a qualifying crime within six months of his release from jail, he must be held without bond. If ICE waits any longer, it must offer him a bond hearing.

Breyer also addressed the problem that underlies this litigation: If Congress truly did prescribe the result outlined by the majority, it has trammeled immigrants’ constitutional rights. The court “cannot interpret the words of this specific statute,” Breyer wrote, “without also considering basic promises that America’s legal system has long made to all persons.” He continued:

We cannot decide that question without bearing in mind basic American legal values: the Government’s duty not to deprive any “person” of “liberty” without “due process of law” … I would have thought that Congress meant to adhere to these values and did not intend to allow the Government to apprehend persons years after their release from prison and hold them indefinitely without a bail hearing. In my view, the Court should interpret the words of this statute to reflect Congress’ likely intent, an intent that is consistent with our basic values. … I fear that the Court’s contrary interpretation will work serious harm to the principles for which American law has long stood.

Here, Breyer waves a red flag that he raised last year in another case undermining immigrants’ due process rights. Both the Trump administration and the Supreme Court’s conservatives, Breyer suggested, doubt whether unauthorized immigrants have any right to due process—even “freedom from arbitrary detention,” a right “as ancient and important” as “any found within the Constitution’s boundaries.” In light of this fundamental guarantee, the court should interpret statutes to avoid the indefinite detention of immigrants.

Breyer read his Preap dissent from the bench to emphasize his dire concerns. It was so trenchant that it drew a response from Justice Brett Kavanaugh, who wrote to assert that the “question before us is narrow” and compelled by a law “signed by President Clinton.” (He does not explain why it matters that “President Clinton” approved this particular statute.) But Breyer criticized Kavanaugh’s attempt to downplay the ruling. “In terms of potential consequences and basic American legal traditions,” Breyer wrote, “the question before us is not a ‘narrow’ one.” Instead, it goes to the heart of the Constitution’s guarantee of liberty to all persons, citizen and immigrant alike.

A professorial and even-tempered justice, Breyer is not prone to overstatement. When he issues a warning this urgent and ominous, we should listen. Preap is another dent in the constitutional rights of immigrants who, as Breyer put it, have “established families and put down roots in a community.” When ICE seeks to detain these individuals without any chance of release—years after they’ve “paid their debt to society”—it must comply with due process. Yet a majority of the justices have now rejected efforts to make ICE honor its detainees’ constitutional rights. Breyer has good reason for alarm.