Supreme Court wrestles with indefinite detention for immigrants awaiting deportation

WASHINGTON – The Supreme Court appeared divided Tuesday over a request from the federal government to deny bond hearings to certain immigrants held in detention for months or even years as backlogs leave them waiting for their cases to be resolved. 

The justices heard arguments in a pair of cases in which immigrants who had repeatedly entered the United States illegally contested their lengthy detentions, asserting they are entitled under federal law to a bond hearing after six months. President Joe Biden's administration countered that no such requirement exists in the text of federal law.

At issue are immigrants who are fighting deportation orders on the grounds that they face persecution in their home countries. The process can take months or years in deluged immigration courts, leaving the applicants languishing in detention.

The court's liberal justices pushed back on the Biden administration's argument that such detentions are generally limited to less than six months. 

Associate Justice Sonia Sotomayor asserted that a 2001 precedent dealing with similar questions found that "you really can't keep someone indefinitely without a reason basically. And that reason, I think you would concede, can't be just whim," she said. 

Prep for the polls: See who is running for president and compare where they stand on key issues in our Voter Guide

Austin Raynor, a lawyer for the Biden administration, countered that the detentions are not "indefinite" because the immigrants affected would eventually either be deported or permitted to stay. Federal officials, he said, conduct a "robust internal

review process" to determine whether they should be held in the meantime.    

The law allows the government to continue to detain an immigrant if the government expects a deportation in the "reasonably foreseeable future." Associate Justice Brett Kavanaugh pressed an attorney representing one of the immigrants about how he would define that term.    

"I think there could be chaos unless we say something more specific," Kavanaugh said. 

The attorney, Pratik Shah, said one possible definition could be when an immigrant hasn't even received an initial hearing on the effort to stop a deportation by six months. 

"That is a bright line that would apply in a lot of these cases," Shah said. "How many of these people get hearings by the six-month mark? The answer is not very many."

Both Sotomayor and Associate Justice Stephen Breyer took part in arguments remotely from their chambers at the Supreme Court's building on Tuesday.  A court spokeswoman said Breyer initially tested positive for COVID-19 but subsequent tests, including a PCR test, showed he was negative.    

The cases arrived at the court at a time when the justices have tended to rule against immigrants.  A divided Supreme Court in August required Biden to reinstate a controversial immigration policy from the Trump administration that requires migrants to wait in Mexico while U.S. officials process their asylum claims.

'Prodigious':Judge David Tatel leaves mark on influential federal appeals court

Abortion:Four clues the Supreme Court is heading toward a shift on Roe v. Wade

A unanimous court in June ruled that a decades-old immigration program that temporarily halts deportation for foreign nationals whose countries are ravaged by war or disaster doesn't guarantee a more permanent stay. Months earlier, the court ruled against an immigrant who challenged his deportation for the relatively minor offense of using a false Social Security card. 

Several administrations have wrestled with how to stem the flow of migrants fleeing violence and instability in their home countries, and many of the policies challenged at the Supreme Court in recent years have been supported by both Democratic and Republican presidents.

Antonio Arteaga-Martinez, a Mexican national who entered the United States four times, sought to have his deportation put on hold in 2018 under a process that is similar to asylum. Four months later, as he remained confined without resolution of his case, he challenged his detention in federal court.

A federal district court in Pennsylvania sided with Arteaga-Martinez, granting the hearing, and he was released. The Trump administration appealed and the U.S. Court of Appeals for the 3rd Circuit in Philadelphia pointed to an earlier case that ruled immigrants in Arteaga-Martinez’s position are entitled to a hearing in immigration court after six months detention.

Federal law allows the government to detain immigrants with deportation orders for up to 90 days but the law is fuzzy on what happens then. The Supreme Court ruled in 2001 that the government must offer "special justification" to extend the detention or risk running afoul of the Constitution’s due process clause.