Is It Constitutional to Lock Up Immigrants Indefinitely?
& Michael Tan, Senior Staff Attorney, ACLU Immigrants’ Rights Project
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.