The Supreme Court appeared divided Wednesday over whether the Trump administration can detain immigrants with criminal records indefinitely, years after they’ve served time for the offense.
The government argued aliens who commit crimes that subject them to deportation can be taken into custody at any time and detained for the duration of their removal proceedings without a bond hearing.
But immigrants in two class-action lawsuits — consolidated for arguments Wednesday — claim they are exempt from mandatory detention because the Department of Homeland Security (DHS) didn’t detain them immediately after their sentence ended.
A majority of justices on the court seemed to agree there should be some sort of time limit on the government’s ability to pick them up.
Mony Preap, one of the lead plaintiffs, was arrested in 2013 for a battery charge, which is not a deportable offense, but immigration officials marked him as removable and subjected him to mandatory detention for a 2006 possession of marijuana misdemeanor he had already served time for.
Justice Neil Gorsuch asked if a mandate to detain certain aliens ever lapses. He asked if the government could pick up someone that they’ve known about after 30 years later.
“Is there any limit on the government’s power?” he asked.
Justice Steven Breyer suggested the government should only be able to detain people within a reasonable amount of time.
“What about that typical legal term in order to satisfy what the government says, as you say, is its major interest?” he asked.
Chief Justice John Roberts seemed open to this approach but questioned what the limit should be after the challengers’ attorney, Cecillia Wang, urged the court to affirm the ruling of the 9th Circuit Court of Appeals, which said apprehension must occur with a reasonable degree of immediacy.
Roberts said in his mind there’s a difference between a reasonable degree of immediacy and a reasonable amount of time. He said a reasonable amount of time depends on the resources available to DHS.
“But a reasonable degree of immediacy is something else,” he said. “That strikes me as a half-hour or something, because, otherwise, it’s not immediate.”
The court’s newest justice, Brett Kavanaugh, however, seemed to argue against the court writing a time limit into the law.
On his second day on the bench, Kavanaugh said Congress would have known that DHS wouldn’t be able to immediately detain immigrants after they are released from jail or prison and noted Congress didn’t include a time limit.
“That raises a real question for me whether we should be superimposing a time limit into the statute when Congress, at least as I read it, did not itself do so,” he said.
Justice Samuel Alito also had doubts. He wanted to know how the government is going to quickly determine whether individuals who were just released from custody are subject to the mandatory detention requirement of the statute.
“California is not going to tell the federal government, look, we’re releasing this person and this person is an alien, not a citizen, and this is what the person was convicted of,” he said.
Earlier this year, Gov. Jerry Brown (D-Calif.) signed legislation declaring California a “sanctuary state” that protects immigrants who are in the country illegally.
But Wang argued Congress was thinking about state and local cooperation when it wrote the subsection that authorizes mandatory detention into the immigration law in 1996.
“We have to read what Congress was doing in 1996,” she said. “And whatever’s happening today with controversies over so-called sanctuary jurisdictions don’t really shed light on what Congress wanted in ’96.”
DHS is supposed to know when immigrants who committed a crime are being released from jail or prison.
Zachary Tripp, assistant to the solicitor general, argued criminal aliens are not exempt from mandatory detainment just because DHS didn’t detain them after they were released from jail or prison.
But Breyer asked the government why “in a country which gives every triple axe murderer a bail hearing,” it opposes giving one to these immigrants.
“Why does the government care?” he asked. “Why wouldn’t it want to say, okay, we’ll give him a bail hearing? The baddies will be in jail, and the ones who are no risk won’t be.”
Tripp said Congress decided to make detention indefinite for certain criminal immigrants because it’s hard to predict which criminal aliens are going to flee and which are going to re-offend.
Updated at 1:46 p.m.