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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G. Rosa-Rey

It's inaccurate to claim that your ancestors came here legally. Before 1924 there was no legal process. Racist immigration policy favored/favor Europeans. Chinese excluded with the Exclusion Act of 1882 and by 1924 all Asians barred. Mexicans were here first and the boarder crossed over them when their land was stolen. They became a migrant exploited population with no rights. Illegality is used now to criminalize them.


Ask Hillary Clinton and Bill Clinton that question, because while in the white house, They sought and were presented legislation passed by both houses of Gpngress, That added criminal law to existing criminal laws, To combat the criminally Insurgent, President Clinton went before the cameras, where he announced he had received that legislation and would sign it into law that very day, And he did, He said we must face the biggest problem this nation faces, That being the problem of the Criminally Insurgent Illegal Alien Militants as Congressman Luis Gutierezz calls his minions. This legislation made it illegal for the criminally Insurgent, To work for anyone Holding a Federal Contract! We also saw Hillary Clinton cathing hell because she wasnt doing enough Combat the criminally Insurgent, She explained before the cameras, " I have voted numerous times, To Enforce laws, To Deport, To put more Law Enforcement at the Bordr, And to Build Barriers, A Fence, A all, A combination of both! Now the Clintons and party, call Trump a Racist, Bigot, when he has only called for the exact same things thay did, Which they took futher with the legislation they sought , Got and signed into law, The racist, Bigots, Trump has called for Enforceing laws, Deportaitions, Putting more Law enforcement at the Border, And Building a wall! Hum go back and read here, what Hillary said she voted for Numerous Times. And then remember that the Clintons also sough and were presented with another legislation, Passed by both houses of congress, The Super Predator Law, That made prison sentences much longer, And targeted the Clintons life long tatrgets of their racism, Hillary also addressed the nation regarding this legislation, She stated while before the cameras, that his legislation is need to bring the Roving ganags of african American Youths to Heel, As if they were her dogs, because we bring dogs to heel, Nit African American young people!


Take a look at your own ancestry...unless your forebears are Native American Indians., YOU...are here illegally. Cheezus some of you writers combine ignorance with a keyboard with amazing speed. Think before you write. Look at the situation. Let go of your racial and ethnic biases, and get over the idea that because YOUR relatives arrived here SECOND, that YOU are entitled to full title to the universe. You make me want to puke.


Green cards are a contract. The recipient agrees to the terms which do include not committing crimes. He breached the contract at last twice so why would we want to keep him? His crimes had no justification, either. You make my might be able to justify something like theft if it was to get money for a really sick child or something but joyriding is just hurting others for kicks. It's sociopathic and childish. I'm definitely not impressed that a "parent" did it. There are plenty of better candidates for permanent residency. What keep this guy when we could choose someone with integrity and maturity instead?


Really? and you of course, were a perfect teenager who never mad dumb choices? You left your closet door open, your skeletons are falling out


every green card holder knows that if convicted of any crime they are subject to deportation. the second alejandro was convicted of a crime his legal status was null and void making him an illegal.

Timothy Davis

ACLU, how about protecting the liberties of the people around this man? He "Ran into a little legal trouble" Translation: He stole a car while doing drugs. (Joyriding: the action or practice of driving fast and dangerously in a stolen car for enjoyment) I love the spin of the ACLU here. As if he just ran into this trouble. As if the stolen car just wrapped around him and made him hit the gas and endanger peoples lives. Don't protect the innocent around this lawless man! No! Protect this man that breaks the law and endangers innocent citizens just like his parents and should go back where he belongs. Great job ACLU.! You often do great things but, in this case; You have failed us.


I have never quite understood this whole idea of deporting people if they commit a crime.
I thought "all men are created equal" applied to all.
The man, referenced in the article, might have been smoking weed or had a few drinks. He may have borrowed a friend's car who then in turn said it was stolen AFTER this guy was pulled over and ticketed for intoxication. Otherwise, the car is impounded, etc
I don't know if that is what happened, nor do you.
Yet, a productive member of society has been incarcerated for twice the amount of time as you or I would have been. By the way, stealing a car for joyriding would not have gotten you or I a 3 year sentence.
3 years for the crime.
3 years for breach of contract.....without a hearing.
There is obvious discrimination here.
If you want things done your way? "Go back where he belongs " then that should apply equally to ALL in the USA. Including you and I.
Either the law is applied equally or it is discrimination.


This is bullshit. The law is an ass. People don't deserve to be abused like this.

Anthony in NY State

I'm literally amazed at the mentality of people who post on social media or public forums and such. To all of you who feel illegals are not worthy of consideration please allow me to offer this. What did Jesus say? Thou who is without sin cast the first stone. I'm amazed at the number of people who claim to be sin free. With all due respect when you wish to persecute people based of your feelings and not due process you publicly display that you have the mentality of dictators as Hitler. I think those with Hitler mentality are as dangerous as the most hardened criminals.


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