Tuesday, after five years of legal wrangling, the U.S. Supreme Court issued a 5-4 decision in a challenge to rules allowing the federal government to detain immigrants with criminal convictions, even if they entered the U.S. lawfully, and even after they have served their time. The decision prevents such an immigrant from appealing a detention decision, and could allow indefinite detention.
The case was brought by Juan Lozano Magdaleno. In 2013, 57-year-old Magdaleno did what many fathers dream of doing: he gave a speech at his daughter’s wedding reception. But he did it by phone and a loudspeaker. Magdaleno was on the phone, sitting in an immigration detention facility where he’d been held for almost five months at that point.
Magdaleno has been a lawful resident of the United States since arriving from Mexico as a teenager. But his record include two criminal convictions – one from 2000 and another from 2007 – and even though he had served his time, the Obama administration decided that immigrants with criminal convictions could be apprehended at any time after their release and placed in mandatory detention, pending a deportation hearing, and without the opportunity to petition for bail or any other form of release.
Fatma Marouf is the director of the Immigrant Rights Clinic at Texas A&M University. She says this week’s decision means that an immigrant who is detained, no matter how long after a previous criminal conviction, does not have the right to a bond hearing.
“This case isn’t about whether people should be released,” Marouf says. “It has to do with whether they even have the right to request a hearing – for a judge to consider that they be released.”
Marouf says that the court’s ruling also hinges on the wording of the immigration statute, and how precisely it should be interpreted.
“The way the statue is written, it says the government ‘shall take a noncitizen into custody,’ which is a form of mandatory detention, when that person is released from jail,” Marouf says.
Associate Justice Samuel Alito, writing for the court majority, accepted the strictest interpretation.
“Judge Alito’s opinion really applies a very hyper-grammatical interpretation of the statute,” Marouf says.
In criminal cases, judges have more latitude when making decisions about bail, Marouf says. But they are more constrained in immigration cases.
“So, if this statute, written by Congress, prevents judges from considering release, they’re not allowed to consider release,” she says.
Appellate courts have sided with immigrants in attempts to limit mandatory detention, but the current case is the second in which the Supreme Court has sided against immigrants fighting for release from detention.
“It basically opens the door to indefinite detention,” Marouf says.
Marouf says that changing the statute would require an act of Congress.
Written by Shelly Brisbin.