By: Attorney Amanda Kwong
On March 19, 2019, the Supreme Court of the United States decided that the government may indefinitely detain certain non-U.S. citizens while they await their immigration court removal proceedings. These non-U.S. citizens may be detained without bond or parole.
The Supreme Court examined the relevant law that had two subsections. The first says that the Department of Homeland Security (“DHS”) or an immigration judge (“IJ”) may exercise discretion in releasing a noncitizen on bond or parole if they find that the noncitizen is not a danger to the community and not a flight risk. In this situation, noncitizens can ask for bond or parole at a bail hearing and try to persuade the DHS or IJ by showing evidence of community ties, good moral character, length of duration in the U.S., and other discretionary factors. If the IJ or DHS agrees that s/he will not endanger others and will appear at specified court dates, then bond or parole can be ordered.
However, under a second subsection, the DHS is mandated to take certain criminal aliens into custody. The noncitizens argued that they were not subject to the mandatory detention provision unless they were arrested by ICE “when released” from state or local custody. In their cases, some of the noncitizens were not arrested by ICE until 5, 7, and 11 years after they were released from criminal custody.
The Supreme Court ultimately decided that the government is supposed to detain noncitizens who have committed certain crimes, with no possibility of bond or parole, because Congress had determined that those crimes are generally committed by people who are more dangerous and more likely not to appear for their court dates. The Court interpreted the “when released” language to mean any time after the noncitizen has completed his/her criminal jail time, and not to cut the number of days in custody short. The Court indicated that the DHS is not be obligated to immediately arrest and detain noncitizens who had just been released from criminal custody as a practical matter and that “an official’s crucial duties are better carried out late than never.”
This decision recognized that some noncitizens may have never been arrested on criminal charges, such as representatives of terrorist organizations, those that the government has reasonable grounds to believe are likely to engage in terrorist activities, or even spouses or children of a noncitizen who recently engaged in terrorist activities. The Court believed that Congress, in the way that the law was written, would have wanted those noncitizens to have been covered by mandatory detention even if they were not previously placed in criminal proceedings.
Some members of the Court believed they were going too far in concluding that bail hearings are forbidden for all noncitizens who have ever committed one of the listed offenses regardless of whether they are taken into custody when released from prison, even if years or decades after release. They wondered why Congress would have granted the DHS this broad authority to deny bail hearings after noncitizens may have established roots in their communities for years if they had been convicted of minor drug offenses or illegally downloaded music or were in the possession of stolen bus transfers. They believed that Congress did not intend the law to be contrary to “basic American and common-law traditions.” They also said that the majority of the Court should have given more consideration to how indefinite detention without a bail hearing likely deprives a “person” of his/her “liberty…without due process of law.” The minority view stated that when the noncitizen is released, placing him/her into custody should occur within a reasonable time of no more than six months. The presumptive six months is consistent with the amount of time that the government can detain certain noncitizens while they are waiting for removal from the country.
The implications of this decision do not favor noncitizens. Any noncitizen who committed or is suspected by the government of having ties to certain criminal conduct may be detained indefinitely with no possible request for parole or bond. They can still challenge removal or request relief, but must do so while in custody for the months or years that the proceedings remain pending. It is a challenging time to be an immigrant, and choosing the right attorney is of utmost importance.
