This Supreme Court immigration case could mean more family separations

Tony Chen’s wife Tracy felt like she was drowning. Overnight, her family’s life had turned upside down. She was now working three jobs and was solely responsible for taking care of three children. The rent was nearly $1,900, but she made only $1,200 after taxes. She was tired and worried. While waiting for the New York City subway train, Tracy fainted and fell, requiring medical treatment.

When her husband found out, he was worried sick. But he was across state lines locked up in immigration detention in Bergen County Jail and couldn’t see her. Chen requested a special visit to his wife at the hospital from Immigration and Customs Enforcement (ICE). When they refused, he cried, feeling powerless, Chen told us in a Sept. 24 interview.

{mosads}A lawful permanent U.S. resident from China, Chen never imagined that ICE could reach into his life and pluck him from his home at the crack of dawn in late summer of 2015. He was shocked that seven years after having committed a nonviolent financial crime and serving five years of probation, ICE could lock him up.

Chen’s story is one of many that illustrate the potential consequences of an adverse decision in the upcoming case Nielsen v. Preap, which will be Justice Brett Kavanaugh’s first major case as a member of the Supreme Court. The court is scheduled to hear oral arguments today to decide the scope of a little-known immigration provision, 8 U.S.C. §1226(c).

Since 1996, federal immigration agents have used this provision to detain immigrants who have previous, often years-old, convictions, despite the life these individuals may have rebuilt since their release from criminal custody. Sometimes they haven’t even served time in prison and, like Tony Chen, are put directly on probation or pay fines. Once detained under the statute, they are not allowed a bond hearing to challenge their mandatory detention, meaning they remain behind bars for months — even years — in a prison-like environment rife with human and civil rights abuses.

As a country, we claim to believe in this minimum protection of liberty — that everyone should be granted an opportunity to present their side of the story. But those immigrants detained under 8 U.S.C. §1226 (c) are stripped of this safeguard. They are not given a fair chance to show that they have turned their lives around. And many are from communities of color, who are disproportionately affected by the policies that put them in this situation in the first place.

Take the case of Astrid Morataya, a Guatemalan immigrant who was detained by immigration officials 15 years after committing drug-related offenses while a victim of sex abuse. Instead of taking her daughter to her first day of kindergarten, Morataya was immediately locked up. Without a bond hearing, she spent over two years in detention, separated from her three children, all U.S. citizens. She ultimately won her immigration case, based on her cooperation with law enforcement in testifying against her abuser. But implicit in Morataya’s victory is that all along she had the information necessary to secure a bond. Had she been able to see a judge sooner, her family could have been spared years of devastation.

At stake in the Preap case is an extension of an already cruel policy — the idea that immigrants who’ve peacefully and productively lived in their communities for years following their release from criminal custody should be subject to unquestionable mandatory detention. If the Supreme Court sides with the government, many immigrant families and communities could be at risk of being torn apart unexpectedly and indefinitely.

While in detention, Tony Chen’s son told him he was going to drop out of high school to help his mother pay the rent and other basic necessities. In phone calls and letters, Chen encouraged him to stay in school. Remembering this time, Chen says, “If I’d given up [my immigration case], my son would be another person right now. When I was in detention, he felt he was going to lose his father. … If my wife hadn’t told me, and I hadn’t talked to him and kept writing letters, he might be another person.

“For a family,” Chen told us, “this kind of policy is like a bomb. Even if someone does something wrong, if they can change, have a job, stay well — why send them back [to detention]? Why break the family?”

Liz Martinez is director of advocacy and strategic communications at Freedom for Immigrants, a nonprofit working to abolish immigration detention. Priya Sreenivasan and Daniela Ugaz, second-year law students in the New York University Law School Immigrant Rights Clinic, which handled the case, contributed to this article.