Last week, the US Supreme Court ruled that immigrants with criminal convictions, no matter how minor the crime and no matter how long ago the conviction (and time served, and fines paid), can be detained indefinitely without any possibility of a bond hearing. The 5-4 decision in Nielsen v. Preap is a clear victory for US Immigration and Customs Enforcement (ICE) and the Trump administration’s immigration policies.
Based on a 1996 law, this statute allows immigration authorities to take into custody any immigrant, even immigrants with permanent residency status, who had committed certain criminal offenses “when” they were released from jail and hold them without bond for deportation. Writing for Slate, Mark Joseph Stern points out that, “It doesn’t matter if the immigrant was convicted a half-century ago and has fully rejoined his community; according to ICE, he remains subject to indefinite detention.”
“When” is not the only issue at play in this case, but it certainly puts the Supreme Court in a position of interpreting just what kind of time frame fits into that “when” scenario. Is it within six days of release? Six weeks? Six months? Six years? Or an indefinite time period?
And why no bond? Are these detainees flight risks when the government is detaining them in order to deport them? The suit Mony Preap brought was around the lack of bond, not around the rearrests and detention. Preap held a green card and has been a lawful permanent resident of this country since 1981. He sought relief from indefinite detention but knew he still might be deported.
What is also puzzling is the bypassing of a major constitutional question at the heart of this case. It was not raised by either side, but was acknowledged by both the conservative and the liberal justices as something that could and perhaps should come up as a future challenge to the court.
The court’s liberals appear increasingly worried that the mandatory-detention law itself is unconstitutional. “I fear,” wrote Justice Stephen Breyer in a dissent for the Court’s four liberals, that Tuesday’s ruling “will work serious harm to the principles for which American law has long stood”—principles that say that, as a rule, the government can’t detain anyone indefinitely without showing cause and that people who have served criminal sentences can’t be summarily reimprisoned for the same crime.
Those principles don’t hold in quite the same way when it comes to the immigration system—even though detention and deportation may seem as harsh as criminal punishments, they’re technically part of a civil system that doesn’t give the same protections to defendants. But as immigration enforcement has swelled in the 21st century, that’s started to seem to some like cognitive dissonance.
Even the conservative majority didn’t argue that mandatory detention as it exists is constitutional. Instead, it all but invited a challenge to the constitutionality of the law—even while using that law’s grammar to justify a policy that could result in detention of thousands more immigrants in the meantime.
There are many other things about this ruling that do not sit well. The offenses that might qualify under this law as “moral turpitude” and allow ICE grounds for arrest are the kinds of things that we often seize on among people of color but ignore among white citizens. There is an inequity in how we interpret just what is meant by these vaguely described crimes; even possession of a stolen bus transfer might qualify for mandatory detention.
In arguing for Preap, the American Civil Liberties Union (ACLU) seemed to focus on the technicalities of the law and how it should be interpreted rather than raising the issue of the basic constitutionality of holding people without bond. If Congress is mandating that judges not release immigrants back into society, does this intimate that we are dealing with dangerous people? What kind of image of immigrants are we creating?
Clearly, this decision reinforces a multi-tiered system of rights and privileges in the US. If you are a citizen, you have certain entitlements and rights. But what if you are not? We have divided our nation in so many ways and segmented people by race and ethnicity, gender choices, socioeconomic status, and more. This decision by the Supreme Court in Nielsen v. Preap seems to widen those divisions. Many of us had hoped for better.—Carole Levine