Legal Review: Supreme Court Allows Indefinite Detention of Immigrants

By immigration lawyer Natalia Segermeister, who is barred and practices in the state of New York, with The Visa Firm.

The Supreme Court overturned a Ninth Circuit ruling from 2015 that held that immigrants held in custody awaiting a removal hearing were entitled to a bond hearing after six months of detention, and then every six months after that, finding instead that no such right existed, and remanded the decision back to the Ninth Circuit for a ruling consistent with the Supreme Court’s decision.

Currently, immigrants who are detained by immigration enforcement officials can be detained indefinitely while awaiting a hearing to determine whether they should be removed.

There is no consistency in determining who is released while awaiting hearings and who is detained. The American Civil Liberties Union (ACLU) filed a class-action lawsuit on behalf of numerous detained individuals seeking to ensure that those detained had a bond hearing.

“What this means is that all immigrants should be aware of their current status, and know that arrest for even minor violations could result in long-term detention,” said Natalia Segermeister, an immigration law attorney with The Visa Firm in Washington, DC. “No final decision has been made, but the Supreme Court has made it clear that they believe the Constitution does not provide a right to a regular bond hearing. This creates serious jeopardy for any immigrant that is detained. The current administration’s approach to immigrants only increases their anxiety.”

The ACLU estimates that 10 to 20 percent of the 36,000 immigrants currently detained and awaiting hearing have been detained longer than six months.

Justice Stephen Breyer, writing for the dissent in the Supreme Court decision, felt that this indefinite detention without any sort of hearing was a clear violation of an individual’s right to liberty, and a violation of the immigrant’s due process right to a hearing.

Writing for the majority, Justice Samuel Alito found that it was not the Court’s job to add language to what the majority considered to be a clearly-written statute. The majority felt that a finding of required bond hearings unnecessarily infringed on the intent of the statute, which was to allow detention for as long as necessary.

“One of the real problems is the massive case backlog facing immigration officials,” said Segermeister. “The backlog drives a lot of the hearing delays. Does it mean that individuals should not have due process rights? Not in my estimation, but the problem could certainly be reduced by adding additional Immigration Judges. Regardless, immigrants facing criminal charges should be aware of how those charges could affect their status and rights,” she said.