Why a recent Supreme Court decision on bonds is a ‘red flag’ for immigrants in detention

In the latest chapter of a closely watched immigration case, the Supreme Court this week shot down a lower court’s ruling that some detained immigrants have a right to bond hearings.

The case centers on the Jennings v. Rodriguez class-action lawsuit. Its lead plaintiff, Alejandro Rodriguez, a legal permanent resident, was convicted as a teenager of joyriding and minor drug possession. He was detained for three years with no bond hearing. Eventually, he won his release.

The lawsuit, which focuses on asylum seekers and legal permanent residents, led to a 2013 ruling by the 9th Circuit Court of Appeals that immigrants detained for six months or longer are entitled to a bond hearing. In 2016, the federal government asked the Supreme Court to review the 9th Circuit’s decision.

Bond hearings for detained immigrants mean the chance to return home and work on building their case from the outside. Without this opportunity, many immigrants face months, even years, in detention. Trying to fight deportation from inside a detention center is also complex, and can happen with or, often, without an attorney. Unlike in criminal courts, immigrants are not given lawyers if they cannot afford them.

In the 5-3 ruling, Justice Samuel Alito wrote for the majority, arguing that federal immigration law does not grant detainees a right to such hearings. Next, the appeals court must reconsider, among other factors, its argument that detention without a bond hearing is unconstitutional.

A spokesperson for the Justice Department said that bond hearings for detained immigrants put “an extraordinary burden on the immigration court system.” However, immigrant rights advocates worry the court’s decision could lead a step further away from due process.

“As the Trump administration detains more immigrants from our communities than ever before, and holds them longer, it is troubling that our nation’s highest court has found that those individuals have no right to have a judge consider, after several months, if their detention should continue,” said Mary Meg McCarthy, who runs the National Immigrant Justice Center in Chicago.

To help break down the significance of this case, and what to look for next, PRI spoke with Kevin R. Johnson, the dean of the law school at the University of California, Davis. He published an analysis of the Supreme Court’s ruling in SCOTUSblog.

Monica Campbell: How do you interpret the Supreme Court’s decision?

Kevin Johnson: What the court did yesterday is deviate in some ways from how ordinary citizens are treated when they're detained by the government. When a suspect has been arrested for a crime, there's a charge filed in the court and then there's a bail hearing and there's a possibility that the person may be able to post a bail bond to be released from custody. For immigrants, some noncitizens are arrested for possible removal from the United States. That includes lawful permanent residents — people with green cards — and undocumented people. What the Supreme Court held was that the immigration statute permits indefinite detention of some of those noncitizens who are arrested and they do not, under the statute, have a right to a bond hearing and possible release from custody.

What the court did not decide — and this is very important — is whether the statute that doesn't require a bond hearing is constitutional. In fact, what the court said is the lower court [the 9th Circuit Court of Appeals] should determine whether or not the statute is constitutional. This case is far from over. The Supreme Court has not said the final word. It just said the statute doesn't require a bond hearing and we're going to send it back to the lower court to determine whether it's constitutional.

Some immigration advocates see the court’s decision as a red flag.

I do think this is certainly a red flag to people interested in immigrant rights. There's a fairly passionate dissent by Justice [Stephen] Breyer, who suggests that the statute could have been read another way — that they couldn't imagine it would be constitutional to have a system where people are detained, immigrants or not, and not have access to a possible release in a bond hearing. And there are some suggestions in Justice Alito’s opinion that it's going to be tough for the immigrants challenging the detention to win in the lower court.

So I do think that there [are] some reasons for concern. But still, the case is going back to the 9th Circuit and the lower court will determine whether or not it's constitutional to detain noncitizens without a hearing — sometimes detain them for years and, in some instances, detain them without any certainty about when they might be released.

How do you view the argument for detained immigrants to have the right to await trial from outside of detention?

The longer you stay in detention, the more likely you're going to forego your legal rights and throw in the towel. You may never end up at an immigration court hearing and given an opportunity to challenge your removal from the United States. One of the reasons that detention is so popular among the Trump administration and also in the Obama administration is that if you keep people in custody, they are more likely to agree to what's called a "voluntary departure" from the country. And some immigrant rights activists say that the government's entire policy is designed to encourage people to self-deport.

On the other hand, if you're able to get a bond hearing, you might be able to establish that you have ties to the community and you're likely to appear at your hearing. At the same time, the court could decide that you are likely to abscond and can keep you in custody. Or, the immigration court could decide you're a danger to the community and we're not going to release you. The only thing that the plaintiffs are asking for in this case is a right to a hearing in the court.

President Trump’s Department of Justice is arguing against immigrants' right to these hearings. But this pushback began under Obama. How much do you see Trump relying on immigration cases and programs set in place under Obama in order to fulfill his immigration agenda?

This whole case arose challenging the Obama administration's detention policies. In fact, President Obama detained more noncitizens than any president in United States history. He used detention aggressively, perhaps not as aggressively as President Trump has promised to. But part of Obama’s immigration agenda really was to increase the number of removals and use detention to facilitate removals. And in some ways, he hoped to convince Congress that the administration was serious on enforcement and therefore they should consider comprehensive immigration reform. In the end, with the Obama administration, what you got was record numbers of removals, about 400,000 a year, record numbers of detentions, in the hundreds of thousands per year, and no comprehensive immigration reform.

I think it's important to remember that the Trump administration is relying in large part on many of the removal programs that President Obama used. Secure Communities was a program that the Obama administration refined and it led to large numbers of deportations of noncitizens who had brushes with the criminal justice system. President Obama did try to get rid of that program, try to narrow it, but President Trump has brought it back. I think that in many ways President Trump is building on the immigration enforcement tools that the Obama administration used extensively.

A class action lawsuit is at the center of this case. Many people are involved. What binds their cases?

Right, it's not an action brought on behalf of one noncitizen. It's a challenge to the entire detention system and it covers tens of thousands of different people subjected to that system.

This class included many different kinds of immigrants, asylum seekers and lawful permanent residents and others. The potential impact of the case is quite broad because it affects so many different groups. Also, one of the interesting things about the case is that there were some noncitizens in detention for a number of years without a bond hearing. And so that was striking to many people. And the idea of being in detention for years waiting to pursue your legal rights without a hearing and possible release seemed anomalous with what we think of as the constitutional rights of anybody being subjected to governmental authority.

It's not the case that you can detain citizens for crimes without a hearing. There has to be a right to a bond hearing. And that's true whether or not they might be guilty. And what immigrants are saying in this lawsuit is that they have a right to be released from custody, whether or not they might lose in the end. And to many people, this idea that government shouldn't be taking your liberty without at least a hearing of some sort, is very un-American.

How in-step is the current US immigration system, when it comes to detainees’ rights, with other parts of the world?

I think that we are anomalous in some respects. We tend to limit the rights of immigrants more than citizens in ways that other countries do not. We, for example, don't provide immigrants with full access to the social safety net that European nations commonly do. We are quick to use detention as a device, even in cases where we're not dealing with mass migrations. Other nations tend to limit detention to situations of mass migrations, like large numbers of Syrians trying to enter Europe, for example. We as a nation have used detention as an ordinary tool in run-of-the-mill immigration cases.

At the same time, we're relatively generous as a nation in terms of the numbers of immigrants that we accept every year, roughly about a million immigrants. It's not a huge percentage of the overall population, but it's significant. Other nations can be much more stingy in terms of their immigrant admissions. So, as a nation, we are, in large respects, a mixed bag when it comes to immigration.

Getting back to this week’s news and the Supreme Court’s decision. What do you see happening next?

Jennings v. Rodriguez will end up back in the court of appeals. My guess is these are complicated constitutional issues that have been teed up for the 9th Circuit. I assume there will be a new briefing on the case, and I assume there will be oral arguments. I think it will probably be a year before the 9th Circuit issues a decision. It's possible, depending on how the court rules, that one of the parties will seek review in the Supreme Court. But my guess is, probably, we wouldn't see Jennings v. Rodriguez in the Supreme Court again until roughly 2020.

In the meantime, some of the headlines around this case add to news of stepped-up immigration arrests and tough talk, nearly daily, from the Trump administration. You have followed immigration for decades. How do you compare this time, and what you are hearing from some immigrant communities, to previous years?

There are a lot of things going on in the immigration realm that have stricken fear in the communities. You hear reports of raids, you hear some harsh language from Washington, DC. You hear mixed news about DACA [Deferred Action for Childhood Arrivals]. There’s a lot of fear and uncertainty in immigrant communities right now, and it's at a level that hasn't really been seen certainly in California for an awfully long time. So it's hard to underestimate the sheer fear and worry among people. And sometimes it's not concerning themselves. It's concern for their families and their friends, their co-workers. I don't want to say it is unprecedented, but certainly, it is very, very rare in modern United States history.

This conversation has been edited for clarity and length.