by Adam Liptak, ‘The New York Times,’ November 30, 2016
WASHINGTON — With the nation on the cusp of a more assertive immigration policy under the administration of President-elect Donald J. Trump, the Supreme Court on Wednesday considered the rights of people held in immigration detention. Their numbers are likely to swell if Mr. Trump follows through on his pledge to deport millions of unauthorized immigrants.
The justices were alert to the potential consequences of their decision. “We’re dealing with tens of thousands, hundreds of thousands or millions of people, possibly,” Justice Stephen G. Breyer said.
The question in the case was whether immigrants fighting deportation are entitled to periodic hearings to decide whether they may be released on bond while their cases move forward. It can take years to resolve immigration cases, and a lawyer for the immigrants said many detainees posed no risk of flight or danger to public safety.
Justice Sonia Sotomayor said such people deserved a hearing. “If these are people who have been here for decades, let’s say, don’t you think due process would require some periodic review to ensure that these people are properly being held?” she asked Ian H. Gershengorn, the acting solicitor general.
Mr. Gershengorn responded that no such hearings were required but that the immigrants could file individual habeas corpus petitions to challenge their detentions.
Ahilan T. Arulanantham, a lawyer with the American Civil Liberties Union, which represents the immigrants seeking the hearings, said Mr. Gershengorn’s alternative was unrealistic. “This is a class of mostly unrepresented people who are obviously not familiar with our legal system,” Mr. Arulanantham said.
He added that habeas petitions could take many months to decide. “As a practical matter,” he said, “it’s not a meaningful remedy for prolonged detention.”
In 2003, the Supreme Court ruled that immigrants facing possible deportation may “be detained for the brief period” needed to resolve their cases. Relying on information provided by the Justice Department, the court said the average period of detention for one set of immigrants was about four months.
In August, Mr. Gershengorn wrote to the court to say that the earlier data had been wrong. In fact, he said, the average detention period had been more than a year.
On Wednesday, Mr. Gershengorn expressed regret for the bad information. “The statistics we provided to the court were inaccurate,” he said, “and we apologize.”
The new case, Jennings v. Rodriguez, No. 15-1204, was an appeal from a ruling of the United States Court of Appeals for the Ninth Circuit, in San Francisco, that required bond hearings after six months. Mr. Gershengorn said that this “one-size-fits-all approach is not the right way to do it.”
The appeals court based its ruling on an interpretation of the federal immigration laws. The justices did not seem particularly receptive to that approach on Wednesday, with several of them saying that the laws themselves could not be read to provide for the hearings. But some justices said the Constitution’s due process clause might require them.
“You can’t just lock people up without any finding of dangerousness, without any finding of flight risk, for an indefinite period of time, and not run into due process,” Justice Elena Kagan said.
Other justices said it mattered that the appeals court decision had turned on statutory interpretation, not on the Constitution. “We do not have the constitutional issue before us,” Justice Anthony M. Kennedy said.
Mr. Arulanantham said his clients were making a modest request for “a hearing in front of a neutral decision maker for people who have had very, very long periods of incarceration.”
By the end of the argument, the court seemed headed for a 4-4 tie or perhaps a compromise ruling that would send the case back to the appeals court for consideration of the constitutional question.
But Justice Kagan said she hoped the Supreme Court would provide concrete guidance.
“Wouldn’t it be better to set some guideposts that everybody in the country would know to follow rather than having one suit pop up here, and one suit pop up here, and another in another place, and everybody would be treated differently?” she asked. “That does not seem like a good immigration system.”