Is It Constitutional to Lock Up Immigrants Indefinitely?

Last week, the U.S. Supreme Court issued its decision in Jennings v. Rodriguez, a class action lawsuit challenging the federal government’s practice of jailing immigrants for months or years while they litigate their deportation cases. The ACLU had argued that neither the immigration laws nor the Constitution permit such detention unless a judge determines, at a hearing, that the immigrant will pose a danger or flight risk if released.

In a 5-to-3 decision (Justice Kagan was recused), the court overturned a 2015 ruling from the Court of Appeals for the Ninth Circuit that required the government to give immigrants a custody hearing after six months of imprisonment. But in doing so the court only addressed one of the two arguments advanced by the ACLU. It rejected the ACLU’s claim that the immigration laws require hearings. But the ACLU had also asked the Supreme Court to rule on whether the Constitution permitted lengthy imprisonment without hearings, and on that question, the court sent the case back to the Ninth Circuit to address first.

In failing to address whether due process permits indefinite detention without hearings in the immigration system, the Supreme Court missed an opportunity to ensure justice for thousands of vulnerable immigrants. These are perilous times for immigrant communities, with the Trump administration bent on locking up and deporting more immigrants than ever before.

Alejandro Rodriguez, the plaintiff in the lawsuit brought by the ACLU, provides a good example. He came to the U.S. from Mexico with his parents as a baby, and grew up as a lawful permanent resident (a “green card” holder). As an adult, he worked as a dental assistant to support his children. But he also ran into legal trouble and was convicted of joyriding and misdemeanor drug possession. Immigration agents detained him after the second conviction and began deportation proceedings to send him to Mexico. He remained in an immigration prison for three years while he fought deportation – far longer than he had spent in criminal custody for his crimes – but never got a custody hearing to determine if his detention was necessary. After the ACLU filed suit, the government released Alejandro from custody. Ultimately he won his immigration case and kept his legal right to remain in the United States.

The Supreme Court ruling puts the freedom of thousands of people like Alejandro in jeopardy. Detained immigrants around the country – most of whom do not have lawyers  - will now have to file suits asking courts across the country to rule on the important constitutional question the Supreme Court did not decide.

While the road will be long, the fight is not over.  The answer to the question the Supreme Court left open – whether indefinite detention without a hearing violates the Constitution - is clear. The Fifth Amendment  protects all “persons”— including immigrants — from the deprivation of liberty without due process of law. As Justice Breyer wrote in his dissent:

The bail questions … at heart … are simple. We need only recall the words of the Declaration of Independence, in particular its insistence that all men and women have ‘certain unalienable Rights,’ and that among them is the right to ‘Liberty.’ We need merely remember that the Constitution’s Due Process Clause protects each person's liberty from arbitrary deprivation. And we need just keep in mind the fact that … liberty has included the right of a confined person to seek release on bail.

Nowhere else in the U.S. legal system do we let the government take people’s freedom away for months or years without a hearing before a judge who determines whether their incarceration is necessary. We’re confident that courts around the country will find that indefinite imprisonment without hearings violates due process, and that ultimately the Supreme Court will agree. Imprisonment without trial is contrary to our most basic values. We will end it.

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Dr. Timothy Leary

People who live in glass houses should not throw stones. As a green card holder, joyriding and illegal drug possession, are throwing stones at his own glass house.


So you advocate indefinite detention without due process for mistakes made?

Nuevo cicero

They are here illegally. They should be immediately deported. No need to hold them at all


How was Alejandro here illegally if he was issued a green card? To be issued any type of visa you must be permitted entry through inspection. Clearly he is not illegal if he was permitted to be in this country. I agree he should not have committed crimes especially under the restrictions visa holders have. Not every Spanish person you cross is illegal. It's 2018 stop being ignorant


WHY should these "illegals" have any protection at all since they are not here as immigrants, but law breakers?? If you would follow the laws that are in place, they should all be deported until they come to this country as my ancestors did "LEGALLY"!!!! You should be ashamed of yourself as ACLU members and quit looking for notoriety.


lol you should be ashamed of yourself for not reading that Alejandro was a LEGAL PERMANENT RESIDENT WHO WAS PERMITTED TO BE HERE. He asked for a visa and through ENTRY and INSPECTION he was allowed in. I agree he shouldn't have committed crimes but he was not illegal you dumbass


STFU...These people contribute to our economy and are a major part of the WORKFORCE regardless of STATUS. Stop being such a TRUMP #IDEALOGICAL and realize they have the same rights as any.

Stupid Ass...


Our roots are deeper than you could even comprehend.


You ancestors did not in anyway go to the United States Illegally. They invaded and murdered the Native Americans to steal their lands. So stop deceiving yourself or trying to console yourself that your illegal ancestors did the right thing. Everyone but the Native Americans living in the US are all Immigrants.

Paul Rodriguez

Ignorance surely is bliss-how is it that, anyone walk away with the notion of green card holding residents in our country can be called "Illegal?" You either have to be willfully ignorant or just lame with that type of understanding. No, green card holders (that includes Europeans-many that are Spaniards and Latinos.) have entered our country and can not be identified as "Undocumented.) Stay focused before knee-jerking tendency of blatant xenophobe, otherwise, you're comments betray your better judgement.


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