Opinion: The Supreme Court just reinforced the government’s power to detain migrants indefinitely

The Supreme Court sided again with the government Tuesday in giving it broad power to indefinitely detain some immigrants facing deportation.
The Supreme Court sided again with the government Tuesday in giving it broad power to indefinitely detain some immigrants facing deportation.
(Susan Walsh / Associated Press)

A Supreme Court decision Tuesday morning that backed the government’s power to indefinitely detain some immigrants wasn’t much of a surprise, though it was still a disappointment.

And once again, Justice Steven G. Breyer in a dissent zeroed in on the issue to which the conservative majority of the court has remained blind: The government should not be able to detain immigrants indefinitely without giving them a chance to argue for bond before an immigration judge.

The case, Nielsen versus Preap, hinged on murky wording and timing. A 1996 immigration law says the government “shall take into custody any alien” convicted of specific crimes “when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense.”

Note the word “when.”


Mony Preap was born in a Cambodian refugee camp and became a lawful permanent resident in 1981. In 2006 he was convicted of two misdemeanor pot possession charges, and seven years later immigration agents detained him under that law as they sought to deport him.

Preap joined with the American Civil Liberties Union in a class-action suit arguing that the wording of the law meant the government could only detain him if he was grabbed as he was released from jail, which the government missed. By a long shot.

That sounds like a political decision, not a legal one.

A district court judge in San Francisco and the 9th U.S. Circuit Court of Appeals agreed, but the conservative Supreme Court majority did not. The opinion, written by Justice Samuel A. Alito, held that “Congress enacted mandatory detention precisely out of concern that such individualized [bond] hearings could not be trusted to reveal which ‘deportable criminal aliens who are not detained’ might ‘continue to engage in crime [or] fail to appear for their removal hearings.’”

That’s preposterous — the government can detain all lawful immigrants convicted of certain crimes after they have served their sentence, and who it is seeking to deport, because some of them might commit another crime? And none have a right to court review of their detention?

That’s precisely the kind of decision that is made every day in bail and bond hearings.

Alito went further, essentially saying that given lack of cooperation with immigration enforcement by local officials around the country — so-called “sanctuary” jurisdictions — it was necessary to go with the looser interpretation of the timing of the detention.

That sounds like a political decision by the court, not a legal one.

And it avoids the more significant issue which the court also sidestepped in the Jennings vs. Rodriguez case last year, in which it ruled that federal law does not grant immigrants facing deportation — a civil matter — the right to a bond hearing even if they are held for more than six months, though it sent the case back to the 9th Circuit to determine if the Constitution granted that right. Breyer, who also dissented in the Jennings vs. Rodriguez decision (Alito again writing for the majority), hit that nail on the head in his dissent in the new ruling:

“Under the Government’s view, the aliens subject to detention without a bail hearing may have been released from criminal custody years earlier, and may have established families and put down roots in a community. These aliens may then be detained for months, sometimes years, without the possibility of release; they may have been convicted of only minor crimes — for example, minor drug offenses, or crimes of ‘moral turpitude’ such as illegally downloading music or possessing stolen bus transfers; and they sometimes may be innocent spouses or children of a suspect person. Moreover, for a high percentage of them, it will turn out after months of custody that they will not be removed from the country because they are eligible by statute to receive a form of relief from removal such as cancellation of removal. These are not mere hypotheticals.”

No, they are real people being held in jails indefinitely while the swamped immigration court system tries to determine whether they can stay or must go, at huge risk to the stability of their families.

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It is reasonable for the government to seek to detain people it genuinely believes pose a threat to public safety or national security, or who are a flight risk.

But it should not have the power to deprive a class of people of their liberty because some might commit a crime. And it certainly shouldn’t be able to deprive anyone of freedom for a protracted period without court oversight. We don’t stand for that in criminal cases, and we shouldn’t stand for it in civil deportation proceedings.

But the immigration law involved in this case orders just that. The law is wrong and Congress should fix it. Alternatively, the Supreme Court should strike it down. In fact, it should have already.

As Breyer argued, it is fundamental to civil liberties that the government cannot seize and imprison someone without due process of law. Yet this immigration law mandating detention of people in a civil proceeding because they previously were convicted and sentenced in a criminal matter — one that might not even involve jail time — flouts that bedrock principle.

“I fear,” Breyer wrote, “that the Court’s contrary interpretation will work serious harm to the principles for which American law has long stood.”


As for Preap, he was eventually released — after he won permission to remain in the country. So Preap, living here lawfully, was deprived of his freedom for nothing.

And only because a misguided and patently unfair immigration law said he had to be.