Deportation Clash Divides U.S. Supreme Court Justices

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  • Justices debate bond hearings while people are being detained
  • Lower court said hearings required every six months for some

U.S. Supreme Court justices suggested they are divided on whether foreigners have a right to periodic bond hearings while they are held in custody during deportation proceedings.

The justices heard arguments Wednesday on a federal appeals court ruling that would give many people a bond hearing, and the possibility of release, after six months of detention.

The case is likely to have implications for President-elect Donald Trump’s vow to step up deportation efforts. It affects some legal permanent residents convicted of crimes, as well as foreigners who are in the country illegally or seeking asylum.

The Obama administration is challenging the appeals court ruling, saying it runs afoul of federal immigration law and would undercut the government’s border-control efforts. The administration says the ruling threatens to free people who were apprehended while crossing the border illegally, as well as unauthorized immigrants who have been convicted of crimes.

In requiring bond hearings every six months, the San Francisco-based appeals court said indefinite detention would raise serious questions under the Constitution’s due process clause.

Justice Sonia Sotomayor suggested she agreed with the lower court. She pressed acting U.S. Solicitor General Ian Gershengorn about the detention of people who have been in the country for decades.

"Don’t you think due process would require some periodic review?" Sotomayor asked.

Gershengorn argued that individual detainees have the right to file so-called habeas corpus petitions to seek release. He got support from Chief Justice John Roberts, who questioned whether federal immigration statutes permitted the appeals court’s more far-reaching approach.

"We can’t just write a different statute because we think it would be more administrable," Roberts said to the lawyer representing the detainees, Ahilan Arulanantham of the American Civil Liberties Union.

Vacant Seat

The lingering vacancy on the high court could complicate the handling of the case. Should the justices divide 4-4 in their initial vote behind the scenes, they could hold onto the case until the Senate confirms Trump’s nominee to fill the empty ninth seat.

The court is considering a class-action lawsuit pressed by immigrants being detained by the Department of Homeland Security in California. The group includes Alejandro Rodriguez, a legal permanent resident who was detained for about three years while he challenged deportation charges that centered on convictions for possession of a controlled substance and driving a stolen vehicle. Rodriguez ultimately won his case and wasn’t deported.

The appeals court also required the government to meet a tough legal test to justify the continued detention of an alien. The three-judge panel said the government must show "clear and convincing evidence" that a person is either a flight risk or a danger to the community.

The case is Jennings v. Rodriguez, 15-1204.