- Michael Tanstaff attorney at the ACLU’s Immigrants’ Rights Project.
The Supreme Court ruled Tuesday that federal authorities can continue to indefinitely detain some immigrants and asylum seekers without a bond hearing. The 5-3 ruling overturned the rulings of two lower courts that found immigrants facing prolonged detention must be given a custody hearing. But Tuesday’s Supreme Court decision does not end the battle over indefinite detention. The justices sent the case back to the federal appeals court to evaluate the constitutionality of the practice. Tuesday’s decision came a day after the Supreme Court dealt a blow to President Trump’s efforts to rescind DACA, the Obama-era Deferred Action for Childhood Arrivals program, which gives at least 700,000 young immigrants permission to live and work in the United States. The court refused to hear a White House appeal of lower court rulings saying Trump’s move to cancel the program was unconstitutional. We speak to Michael Tan, staff attorney at the American Civil Liberties Union’s Immigrants’ Rights Project.
AMY GOODMAN: The Supreme Court ruled Tuesday that federal authorities can continue to indefinitely detain some immigrants and asylum seekers without a bond hearing. The 5-to-3 ruling overturned the rulings of two lower courts that found immigrants facing prolonged detention must be given a custody hearing. But Tuesday’s Supreme Court decision does not end the battle over indefinite detention. The justices sent the case back to the federal appeals court to evaluate the constitutionality of the practice.
Writing in the majority opinion, Justice Samuel Alito Jr. said, quote, “Detention during those proceedings gives immigration officials time to determine an alien’s status without running the risk of the alien’s either absconding or engaging in criminal activity.”
Justice Stephen Breyer read his dissent from the bench. He said, quote, “I would find it alarming, to believe that Congress wrote these statutory words in order to put thousands of individuals at risk of lengthy confinement all within the United States but all without hope of bail.” Justice Breyer was joined in his dissent by Ruth Bader Ginsburg and Sonia Sotomayor. Elena Kagan recused herself.
The case, Jennings v. Rodriguez, was brought by the American Civil Liberties Union on behalf of a dental assistant named Alejandro Rodriguez, who was born in Mexico but was brought to the United States when he was 1 year old. He ended up spending three years in immigration detention without a bond hearing. The Supreme Court first heard the case in 2016, then again last year, after Justice Gorsuch joined the court. Both the Obama and Trump administrations backed the policy of indefinite detention.
Tuesday’s decision came a day after the Supreme Court dealt a blow to President Trump’s efforts to rescind DACA, the Obama-era Deferred Action for Childhood Arrivals program, which gives at least 700,000 young immigrants permission to live and work in the United States. The court refused to hear a White House appeal of lower court rulings saying Trump’s move to cancel the program was unconstitutional.
To talk more about these court rulings, we’re joined here in New York by Michael Tan, staff attorney at the American Civil Liberties Union’s Immigrant Rights Project.
Welcome to Democracy Now!, Michael.
MICHAEL TAN: Thank you for having me.
AMY GOODMAN: So, explain this case, the Rodriguez case, and what the court actually ruled.
MICHAEL TAN: Sure. So, Rodriguez is a case challenging one of the cruelest practices in our detention and deportation system: the government’s practice of indefinitely detaining thousands of immigrants in jails across the country, for months or even years, while they fight their deportation cases, without ever letting them have a bond hearing, that basic process where you get to see a judge who determines whether you need to be locked up in the first place. On any given day, there are thousands of immigrants in situations like Alejandro Rodriguez, as you said, someone who’s lived here since he was an infant, a green card holder, a dental assistant, who ended up being put in the detention and deportation system and spent three years locked up.
AMY GOODMAN: Why was he put in the system with a green card?
MICHAEL TAN: So, he was referred to the system through the criminal justice system. He had a drug possession conviction and joyriding conviction. And the government decided to pursue his deportation on those grounds. They put him in detention, locked him up for three years without a hearing.
AMY GOODMAN: And this was when?
MICHAEL TAN: This was in early 2000s. He only got out after we filed suit, and the government decided to release him in order to attempt to get rid of him, moot him out from our case. He then went on to fight his deportation case and win it four years later. And so, today he has his green card, and he’s living his life in California. There are countless people in that situation.
And so, what our case seeks to establish is that basic right to a hearing before a judge, where they can look at your facts, see if you’re a flight risk and danger, and determine whether you need to be locked up or not. The 9th Circuit sought to put an end to the government’s detention practices in its ruling in 2015, holding that the immigration laws actually require a bond hearing for immigrants in long-term detention at six months. And the Supreme Court reversed that decision yesterday, holding, in an opinion written by Justice Alito, that Congress in fact authorized detention during the length of people’s deportation proceedings. But the fight’s not over. We’re now back in the 9th Circuit to litigate the constitutional issue, specifically whether due process entitles people to that basic right to a bond hearing.
AMY GOODMAN: I want to turn to the oral arguments last year. Deputy Solicitor General Malcolm Stewart was questioned by Justice Sonia Sotomayor.
JUSTICE SONIA SOTOMAYOR: So, my question is—it’s obviously the executive alone making this determination. What other area of law have we permitted a government agent, on his or her own, without a neutral party looking at that decision, to detain someone indefinitely?
DEPUTY SOLICITOR GENERAL MALCOLM STEWART: Well, first of all, I would not accept the premise that this is indefinite detention. It’s true that there is no outer limit in terms of a number of days, but it is detention that is specifically pending a determination of eligibility for—
JUSTICE SONIA SOTOMAYOR: Well, but that assumes that that determination is going to be done in some expeditious way, but we know, as a matter of fact, that these determinations can sometime take years.
DEPUTY SOLICITOR GENERAL MALCOLM STEWART: They can sometimes take a long time.
AMY GOODMAN: Deputy Solicitor General Malcolm Stewart was also questioned by Justice Kagan.
JUSTICE ELENA KAGAN: Mr. Stewart, is your argument about the new admits, the people who are coming to the border, premised on the idea that they simply have no constitutional rights at all?
DEPUTY SOLICITOR GENERAL MALCOLM STEWART: It is premised on that. Now, we do have the—
JUSTICE ELENA KAGAN: OK, if it is premised on that, I mean, Justice Scalia, in one of his opinions, talked about, surely, that can’t be right. Could we torture those people? Could we put those people into forced labor? Surely, the answer to that is no. Is that right?
DEPUTY SOLICITOR GENERAL MALCOLM STEWART: Yeah. I should have been more precise in saying they have no constitutional rights with respect to the determination whether they will be allowed to enter the country.
JUSTICE ELENA KAGAN: OK, so, but they do have some constitutional rights—not to be tortured, not to be placed in hard labor. Why isn’t it pretty close to that not to be placed in arbitrary confinement, arbitrary detention?
DEPUTY SOLICITOR GENERAL MALCOLM STEWART: Because when they arrive at—I mean, if by “arbitrary” you meant—
JUSTICE ELENA KAGAN: Arbitrary means that nobody gave them an individualized hearing, and so we don’t know whether they’re being held for any good reason. Nobody’s made that decision. So, usually, in our—you know, usually, in our constitutional law, we think that that’s a problem.
AMY GOODMAN: That was Justice Elena Kagan in the oral arguments. Now, Michael Tan, if you can respond to the content of what they’re saying, in the questioning of Sotomayor and Kagan? And then, Sotomayor dissented in this decision, Kagan recused herself—if you could talk about that?
MICHAEL TAN: Sure. So, just to start with Justice Kagan’s questioning, I think the justice’s points made clear how extreme the government’s position is in this case. And this is the position the Obama administration took and the Trump administration has taken, as well, which is that certain immigrants, and specifically mostly asylum seekers, who are coming to our borders, presenting themselves to the authorities and seeking refuge in our country, in the eyes of the government, don’t have due process rights at all, because of a legal doctrine that’s called the entry fiction. The fiction is they were stopped at the border, so even though we’re detaining them on U.S. soil, holding them indefinitely, for months or even years—the fiction is they’re still outside the country, right at the border, and the Constitution doesn’t apply to them. As the justice was pointing out, if that’s true, can we torture them? Can we subject them to extrajudicial execution? Can we throw them into the ocean? And so, really, the position that the government is taking is quite extraordinary.
And going to Justice Sotomayor’s point, really nowhere in our legal system do we allow the government to take people’s freedom away for months, for a year, for five years, 10 years, 20 years, without ever letting them see a judge to determine whether they should be behind bars. It’s truly extraordinary. And certainly, the fact that people are immigrants doesn’t mean we get to strip them of their rights and treat them in this manner.
Justice Kagan did recuse herself after the second argument. Our understanding, it’s because she was involved in an earlier phase of the case, when she was solicitor general, and that came to light after the second oral argument.
AMY GOODMAN: And talk about the significance of this, what it means that she was involved as an Obama administration official. Is that right?
MICHAEL TAN: Right. That’s right. So, to be clear, this practice of indefinite detention dates from the late Clinton administration, was carried forward by the Bush administration, was carried forward by the Obama industry, defended by the Solicitor General’s Office, and certainly carried over as a legacy to the Trump administration. I will say, in this moment, when we have an administration in the office that’s committed to locking up more immigrants than ever before, it’s all the more important that people have access to court process to ensure that they’re not locked up arbitrarily. But this is a legacy or sort of—you know, this has been bequeathed to the Trump administration by prior administrations.
AMY GOODMAN: Is Trump breaking records when it comes to detaining and deporting immigrants? I mean, President Obama was known as the “deporter-in-chief”—
MICHAEL TAN: That’s right.
AMY GOODMAN: —deported more immigrants, millions upon millions upon millions of immigrants, than all presidents in U.S. history combined.
MICHAEL TAN: Right. My understanding is, he hasn’t gotten there yet. He hasn’t topped Obama’s deporter-in-chief title. But we are seeing a very disturbing increase in the detention and arrest of people inside the United States. I think the only reason he hasn’t been able to reach those numbers is border apprehensions have been going down. What we’re seeing, though, is open season on immigrant communities who live here and an end to any kind of rational, prioritized approach to enforcement. It’s really scattershot, random. I think Thomas Homan, who’s the head of ICE, famously said, notoriously said, “If you’re here and you’re undocumented, you committed a crime by crossing the border, and you should be scared. You should look over your shoulder.” And so, I think the numbers will, sadly, continue to climb as this administration continues to gear up the detention and deportation machine.
AMY GOODMAN: And you have data showing that people subjected to long-term immigration detention are five times more likely to win a legal right to stay in the United States than the typical immigration detainee.
MICHAEL TAN: That’s right. And that’s really one of the tragic ironies of this case. What we were able to determine, through working with experts, is that the people who stick it out in long-term detention, who are willing to sit in a jail for months or years, are those asylum seekers who are genuinely afraid of being killed in their home countries, are those green card holders, like Alejandro Rodriguez, who have family here and pathways to seek immigration relief and a legal right to stay in this country. Those are the people that have real incentives to stick it out behind bars.
And so, as you pointed out, our class members, who, by definition, were locked up at least since months or longer, were five times more likely, at the end of the day, to win their cases. So, not only is this policy incredibly unconstitutional, it’s cruel, it’s irrational. Why are we spending taxpayer dollars to lock up immigrants who very well likely have a right to live here among us?
AMY GOODMAN: I want to also talk about DACA now, the Obama-era Deferred Action for Childhood Arrivals program, which gives at least 700,000 immigrants permission to live and work in the United States, because on Monday the Supreme Court refused to hear a White House appeal of lower court rulings saying Trump’s move to cancel the program was unconstitutional. President Trump criticized the court’s decision.
PRESIDENT DONALD TRUMP: You know, we tried to get it moved quickly, because we’d like to help DACA. I think everybody in this room wants to help with DACA. But the Supreme Court just ruled that it has to go through the normal channel, so it’s going back in. And there won’t be any surprise. I mean, it’s really sad when every single case filed against us—this is in the 9th Circuit—we lose, we lose, we lose, and then we do fine in the Supreme Court. But what does that tell you about our court system? It’s a very, very sad thing. So, DACA is going back, and we’ll see what happens from there.
AMY GOODMAN: So that’s—that’s President Trump. Michael Tan?
MICHAEL TAN: Yeah, so, what happened in DACA was that the Supreme Court essentially rejected the administration’s attempt to do an end run around the regular judicial process. A lower court, as you pointed out, had issued a nationwide injunction requiring the administration to bring DACA back online and accept applications for DACA renewals. They appealed that to the 9th Circuit, which is what you usually do, but at the same time tried to get the Supreme Court to take the case right away and jump over the 9th Circuit, which is extraordinary, and says something, I think, about the administration’s true feelings about DACA and its real commitment to doing harm to immigrant communities.
I’d also point out the president’s comments about the 9th Circuit are very disturbing. I mean, it’s a real attack on judicial independence and very insulting to one of our federal courts. I actually worked for the 9th Circuit as a clerk, and the judges are true servants of the public good. They are neutral. They are smart. And it’s completely unfair. It’s outrageous for a sitting president to insult members of the—of Article III, of the third branch. It’s absolutely—it’s appalling. It’s appalling.
AMY GOODMAN: The U.S. Citizenship and Immigration Services agency announced last week it’s changing its mission statement in order to drop the phrase, the agency, quote, “secures America’s promise as a nation of immigrants.” Interestingly, the federal agency’s new director, L. Francis Cissna, who made the change, is himself the son of a Peruvian immigrant. So, no longer referring to this “nation of immigrants.” Michael?
MICHAEL TAN: Yeah, I mean, in my view, that’s red meat to the base, to the administration’s white nationalist and anti-immigrant base. And although they can change the mission statement of the agency, the fact is, the country is a nation of immigrants. And it’s changing demographically, and we should be proud of our immigrant tradition. And so, you can change what’s on the USCIS website, and I do think there are real consequences for the message you’re sending to people in the bureaucracy and the marching orders they’re getting, but, ultimately, we are a country of immigrants. We should be proud of that. And nothing that CIS says is going to be able to change that.
AMY GOODMAN: Well, I want to thank you for being with us, Michael Tan, ACLU staff attorney at the Immigrant Rights Project.
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