A case that threatens the most fundamental of American values

On Feb. 27, the U.S. Supreme Court issued a decision in the long-fought case of Alejandro Rodriguez, holding that noncitizens do not have a statutory right to a bond hearing while in immigration detention. Put simply, in a splintered 5-3 decision, the court held in Jennings v. Rodriguez that the indefinite detention of noncitizens is authorized by statute. That, in fact, green card holders and refugees can be locked up in jumpsuits and held in cells, referred to by number rather than name, for months, or even years, without allowing a judge to review the necessity of such detention.

Make no mistake, the court’s decision is a devastating blow to noncitizens facing deportation — a group that has grown, and continues to grow, exponentially during this administration.

{mosads}The case began with Mr. Rodriguez, a longtime lawful permanent resident from Mexico, who was brought to the United States as a baby, and later faced deportation following a conviction for misdemeanor possession of a controlled substance. The U.S. government has broad discretion to detain noncitizens, and the immigration statute dictates that certain classes of noncitizens are subject to so-called “mandatory detention.” As a result, despite his long residence in the United States and minor crime, Mr. Rodriguez was not entitled to a bond hearing during his more than three years in detention.

He later appealed his case to the Ninth Circuit, which held that immigrant detainees and asylum seekers can’t be detained indefinitely, and are in fact entitled to a bond hearing every six months. It may come as a surprise that the Obama administration appealed that decision to the Supreme Court, but it should not. That the Trump administration has continued to fight the Ninth Circuit’s decision is emblematic of the sometimes similar enforcement agenda shared by the two administrations; President Obama deported more noncitizens than any president in history, and immigration arrests under President Trump are up more than 70 percent in some parts of the country.

In the Rodriguez case, both administrations have argued that the court stepped on congressional toes, trying to impermissibly “make law” by reading into the statute a requirement that a bond hearing be held every six months.

In this case, the Supreme Court seemed to wrestle with both statutory and constitutional questions. Indeed, the immigration statute is a sometimes inscrutable labyrinth of cross-referenced statutory provisions. But here, said Justice Alito, writing for the majority, the statute was clear — and nothing in the statute provided a basis for imposing the requirement of bond hearings every six months. The majority did not reach the constitutional issue, despite a rehearing in October and subsequent request for supplemental briefing on that question, likely because Justice Kagan recused herself and the court was unable to cobble together a majority.

Whether or not the prolonged detention of noncitizens is constitutional remains an open question. Still, Justice Breyer, in an impassioned dissent, which he took the unusual step of reading from the bench, argued that “the majority’s interpretation of the statute would likely render the statute unconstitutional.” Justice Breyer and his fellow dissenters would have found that to read the statute as not requiring bail hearings would run afoul of the constitution.

The practical impact of the court’s decision is startling. Today there are more than 38,000 people held in immigration detention across the United States. The months, and years, that they spend in immigration detention take them away from their families, communities and businesses. What’s worse, the prospect of prolonged and indefinite detention leads many of these noncitizens, unable to withstand the physical and emotional toll of life behind bars, to give up meritorious claims for relief.

Indefinite detention without the opportunity to see a judge threatens the most fundamental of our American values. In 2001, the Supreme Court, in a decision written by Justice Breyer, held that freedom from prolonged immigration detention lies “at the heart” of the Due Process clause of the Constitution; that all persons, including immigrants, are protected from being deprived of their liberty without due process of law. But because the Supreme Court did not reach the constitutional question in its majority decision in Jennings v. Rodriguez, the case now returns to the Ninth Circuit. There, we will see just what is left of due process for detained noncitizens in this country.

Sarah Sherman-Stokes is associate director of the Immigrants’ Rights and Human Trafficking Program at Boston University School of Law.