Supreme Court must protect immigration detainees

Is it right to lock people away for months, or even years, before they have seen a judge?

That’s the question that the Supreme Court is weighing now. Alejandro Rodriguez, 39, is a green card holder who was brought to the U.S. as a child. He was picked up and detained for possible deportation based on two past offenses: joyriding when he was 19 and drug possession at 24.

{mosads}Although he was later allowed to stay in the U.S., he spent three years in immigration detention without any substantive legal hearing. So the American Civil Liberties Union (ACLU) brought a class action suit challenging such practices on behalf of Rodriguez and others, and the high court heard arguments in Jennings v. Rodriguez last week.

Several immigration statutes come into play here, but this case should turn on the basic idea of due process. Constitutional guarantees, legal precedent and the reality of immigration detention support Rodriguez’s position. What is mystifying is why the Obama administration is challenging the lower courts that have ruled in favor of Rodriguez.

To be clear, this is not a case about illegal immigration — and no one is asking the Supreme Court for permission to stay in the country.

The ACLU brought this lawsuit on behalf of detainees like Rodriguez, who are legal residents facing deportation for past offenses, and asylum seekers, who often turn themselves into officials at the border.

What these people want is a chance to go before a judge and ask for temporary release on bond or subject to electronic monitoring. Whether they are allowed to remain in the U.S. is still up to an immigration judge. The issue is only whether people detained over six months have the right to a bond hearing.

With that in mind, the proper outcome of the case is easier to grasp. The Fifth Amendment to the Constitutionstates that, “No person shall … be deprived of life, liberty, or property without due process of law.”

The amendment does not say no citizen shall be deprived of liberty, because our Founders intended it to apply to all people within our borders.

And consider that immigration “detention” is basically a euphemism for immigration “prison.” Detainees are held behind bars, in cells or barracks, with their movements limited and controlled by guards. Detainees are often required to wear colored jumpsuits. They are typically held in remote locations, far from family and friends.

Such conditions would clearly seem to fall within the protections of the Fifth Amendment’s due process clause.

There are past cases that support a ruling in favor of Rodriguez. In U.S. v. Salerno (1987), the Supreme Court upheld the pretrial detention of criminal defendants only after individualized findings of danger or flight risk.

In Zadvydas v. Davis (2001), the court interpreted immigration statutes as requiring judicial review of detention decisions. As Justice Stephen Breyer noted, “Freedom from imprisonment lies at the heart of the liberty protected by the Due Process Clause.”

Countering such reasoning, Obama administration members offer two arguments.

They point to the decision in Demore v. Kim (2003), which allowed detention for brief periods without judicial review.

But the government won this case with incorrect data about the length of time that detainees are held. The administration also maintains that anyone who wants to challenge his detention can bring a habeas corpus petition.

Really? Most people, unless they are high-level attorneys, do not have the slightest idea of how to file a habeas corpus petition. It is doubtful that women and children feeling violence in Central America and seeking asylum, for example, would even know how to start such a process.

Besides, decisions made on a case-by-case basis can result in arbitrary, inconsistent findings; clear guidance from the high court that detainees are entitled to a hearing after six months would be preferable.

The Rodriguez case is especially significant because it is the last immigration case that the court will hear before our next president takes over in January. A win by the government could be used by the Trump administration to keep more people in detention in potential violation of their rights.

With huge backlogs in immigration courts, the U.S. is holding about 40,000 immigrant detainees, and people like Rodriguez spend an average of 404 days — over 13 months — in detention. When their cases are ultimately decided, many detainees have a fair chance of winning, so it is wrong to keep them incarcerated without any judicial review in the meantime.

No wonder that groups ranging from the American Bar Association to the American Immigration Lawyers Association to the UN High Commissioner on Refugees filed briefs in support of Rodriguez.

It is unreasonable and inhumane to hold people for long periods of time without the possibility of seeing a judge. The Supreme Court must rule for Rodriguez, and protect the rights of immigration detainees.

Raul A. Reyes is an attorney and columnist in New York City. He is also an NBCNews.com contributor.

The views expressed by contributors are their own and not the views of The Hill.