Terry H. Schwadron
March 31, 2019
With President Trump planning to close the southern border to all commercial traffic and immigration next week, some of the specific squalls over security seem smaller.
Once again, we are in the position of reacting to fear rather than pursuing a well-thought, bipartisan comprehensive policy goal. Indeed, a newly announced plan to withhold aid from three Central American countries likely will spur more migrants.
Still in the midst of agitation over illegal immigration, last week a divided Supreme Court adopted a strict, narrow interpretation of federal immigration law in a way that puts legal immigrants at risk. The court ruled 5–4 that even legal immigrants who have completed any punishment for crimes can face deportation.
Even if the crime and punishment ended years ago, the individual can still face deportation, the court’s conservative wing decided.
Sometimes we need to look at narrower cases to get a sense of larger issues, in this case, immigration enforcement.
Justice Samuel A. Alito wrote the majority decision saying that federal law allows for detention and deportation for immigrants who commit a crime, even a traffic violation. The ruling this week is that time is not a factor.Even years later, officials can come after a legal immigrant in such an instance.
Justice Stephen G. Breyer summarized the opposing dissent from the bench, what Adam Liptak of The New York Times said was “a sign of profound disagreement.”
“As we have held time and again, an official’s crucial duties are better carried out late than never,” wrote Alito, joined in the outcome by Neil Gorsuch, John G. Roberts and Clarence Thomas. Justice Brett Kavanaugh concurred, but had a separate decision.
As The Washington Post noted, while the Obama administration held the same view of the law, it has become more important for the Trump administration, which has stepped up deportation enforcement and complained that policies of “sanctuary cities” hinder its ability to learn of the release of those whose crimes make them deportable.
As is often the case, the justices were debating what lower courts have found to be ambiguous wording in a federal statute. It says the attorney general “shall take into custody any alien” who has committed certain offenses “when the alien is released” from custody. The U.S. Court of Appeals for the 9th Circuit said that meant immediately upon release from custody. Other courts have said that is impractical, and that “when” means when the government learns of the person’s release, even if it is years later.
Alito said the plaintiffs’ claims that “they are owed bond hearings in which they can earn their release by proving that they pose no flight risk and no danger to others” is not supported by the statute’s text. Breyer said the opposite, asserting that the conservatives were dismantling a basic, constitutionally protected right to exactly such a bond hearing and due process. Breyer was joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.
Alito allowed that there could be constitutional issues with the law but that the plaintiffs in the case had not raised them.
The 9th Circuit case involved two people in unrelated cases. Mony Preap was born in a refugee camp after his parents fled Cambodia, and he lived legally in the United States since 1981. He was convicted in 2006 of marijuana possession but was not picked up by federal authorities after he was sentenced to time served. In 2013, he served another criminal sentence for battery, a charge that is not a deportable offense. He was detained for months but was released and no longer faces deportation.
Bassam Yusuf Khoury has been a lawful permanent resident of the United States since 1976. In 2011, he was released after serving a 30-day sentence for a drug charge. Nearly two years later, federal authorities picked him up for deportation and he was detained for more than six months before a judge said he could be released.
But Alito said it would be impossible to hold federal authorities to a standard that said someone must be picked up the day he is released from criminal custody.
American Civil Liberties Union Deputy Legal Director Cecillia Wang, who argued the case at the Supreme Court, said the case was reminiscent of one last term in which the court limited the ability of immigrants to object to their detention. “For two terms in a row now, the Supreme Court has endorsed the most extreme interpretation of immigration detention statutes, allowing mass incarceration of people without any hearing, simply because they are defending themselves against a deportation charge,” Wang said in a statement. “We will continue to fight the gross overuse of detention in the immigration system.”
It feels as if this is anything but a narrow decision. It feels like a weapon in the hands of a government that wants to use any means at hand to rid itself of immigrants without regard to legal status.