Supreme Court Appears Divided Over Bond Hearings For Illegal Immigrants

REUTERS/Joshua Roberts

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Kevin Daley Supreme Court correspondent
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The Supreme Court appeared divided in a case that asks the justices to determine whether certain classes of illegal immigrants in deportation proceedings are entitled to a bond hearing.

The Court seemed to split along ideological lines during oral arguments Wednesday.

The case is a class action organized by the American Civil Liberties Union (ACLU) implicating three groups of illegal immigrants: Those who are deported for committing crimes, aliens arrested and detained pending a decision about deportation, and immigrants detained at the border.

Immigrants detained prior to deportation proceedings face prolonged periods of incarceration. The average detention period for members of the ACLU class was 13 months.

The 9th U.S. Circuit Court of Appeals ruled that aliens in these categories are entitled to individual bond hearings if their detention lasts longer than six months. The court grounded its decision on a statutory — and not constitutional — basis. The Obama administration appealed the decision to the Supreme Court.

Arguing for the government, acting Solicitor General Ian Gershengorn said Congress promulgated deliberate and categorical rules that balance protections for illegals while addressing legitimate concerns about security and recidivism. He also criticized the 9th Circuit for destabilizing this “legislative balance.” He also urged the justices not to think of the case in terms of the length of detention, asserting extended detention occurs because immigrants seek continuances to prepare a defense.

“We are in an upended world when we think 14 months or 19 months is a reasonable time to detain a person,” Justice Sonia Sotomayor said. (RELATED: Federal Court: Children Must Face Deportation Proceedings Alone)

Justice Elena Kagan echoed those sentiments. “I think we would all look at our precedent and we would say, 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,” she said.

Assuming there was a constitutional issue at stake, there was also disagreement among the justices as to how the ACLU’s class would seek relief. Chief Justice John Roberts and Justice Samuel Alito appeared sympathetic with Gershengorn’s argument that the ACLU’s clients could not seek relief as a class, and would instead need to file habeas petitions on an individual basis. Kagan argued the Court could set “guideposts” for lower courts, and allow individual determination to take place within the framework they establish.

Roberts also criticized the 9th Circuit for grounding its decision on a statutory rationale. Though the 9th Circuit did not reach a decision on the constitutional due process argument the immigrant class made, Kagan suggested the lower court obviously believed unlimited detention without a bond hearing was unconstitutional.

“Well, maybe they didn’t have the courage of their convictions,” he responded. “I mean, if they do think it’s unconstitutional, they could have said so rather than stretching the principles of constitutional avoidance to the length they did.”

The doctrine of constitutional avoidance requires the courts to resolve controversies on non-constitutional basis whenever possible.

Another split emerged between Kagan and the chief when Roberts suggested the immigrant class was essentially asking the Court to rewrite the Immigration and Nationality Act to make it easier to administer. Kagan argued the Court would simply by defining a new constitutional limit.

Justice Anthony Kennedy, often the deciding vote in closely-divided cases, offered few hints as to where he stood. In the event of a 4-4 split at the Court, the 9th Circuit’s decision will be affirmed. The case could be re-argued once a ninth justice joins the bench.

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