This week, the U.S. Supreme Court heard the Trump administration argue for extensive government authority to detain certain immigrants who served sentences for committing crimes, even years after leaving prison.
In the case, Nielsen v. Preap, the plaintiffs included two legal permanent residents (or green card holders) involved in separate lawsuits filed in 2013.
Mony Preap, a Cambodian immigrant, was convicted of marijuana possession, and Bassam Yusuf Khoury, a Palestinian immigrant, was convicted of attempting to manufacture a controlled substance.
“A criminal alien does not become exempt from mandatory detention by the happenstance that [the U.S. Department of Homeland Security] did not arrest them immediately or promptly after they got out of jail or prison,” Zachary Tripp, assistant to the solicitor general at the U.S. Department of Justice, told the nine justices Wednesday.
Immigration law allows for immigrants convicted of certain offenses to be held indefinitely under mandatory detention during their deportation process. They can also be held without a bond hearing after completing their sentences.
The immigrants in class suits, mostly green card holders, say they should get hearings where they can present their arguments for their release while deportation proceedings against them are ongoing.
Inside the court, Justice Stephen Breyer pointed out that the United States “gives every triple ax murderer a bail hearing. But these people don’t, OK?”
“Why would the government really care? Why does the government care? Why wouldn’t it want to say, ‘OK, we’ll give him a bail hearing'? The baddies will be in jail, and the ones who are no risk won’t be,” Breyer said.
Tripp replied that the “real concern,” and the one that Congress was getting at when writing the statute, is that “criminal aliens are going to flee” and eventually “going to re-offend.”
Those affected by the law are not always picked up by immigration authorities immediately after being released.
Khalil Cumberbatch is the associate vice president at the Fortune Society in New York City and a legal permanent resident from Guyana. His family moved to the United States when he was 4 years old. At 20, he was convicted of robbery.
While in prison, Cumberbatch decided to finish college. After his release in 2010, he got married, had two daughters, completed parole and received a bachelor’s degree.
Four years later, U.S. Immigration and Customs Enforcement officers under the Obama administration showed up at his doorstep. He was one week from getting a master’s degree in social work.
ICE reminded him of his old conviction, for which he had served his sentence, and detained him for five months in New Jersey.
“In this country, there is a strong idea and a strong embracing of the idea of perpetual punishment,” Cumberbatch told VOA. “That someone can forever, always, be held accountable for something that they did.”
After support from his community, Cumberbatch was released from detention and was eventually pardoned by New York Gov. Andrew Cuomo.
“There is an entire system that exists to hold someone accountable. ... Then you go into that system, and that system treats you however they treat you while inside. You are then released, and you achieve all of the goals that the system set forth. Successfully completed parole. Pay supervision fee. Pee in a cup, whenever they need you to ... and say you completed all of that. One would argue that on some level, you’ve achieved rehabilitation,” he said.
“Now, we’re saying that we have a system in place that we trust to a certain extent, except for when you’re not a citizen, because then there’s this extra level of punishment,” Cumberbatch said.
Reasonable amount of time
Just like the Obama administration, the Trump administration also argued against hearings for people convicted of any crimes and affected by the law. Government officials interpret immigration law to mean that detention is mandatory for convicted immigrants, whether they are picked up a day, 48 hours or years after they are released.
Justice Neil Gorsuch asked Tripp if there was “any limit on the government’s power?”
“We understand that to be a continuing obligation. It does not lapse,” Tripp said.
To Cecillia Wang, deputy legal director of the American Civil Liberties Union, who is representing the immigrants in the case, immigration law should “stay true to the words Congress wrote.” She asked the court to affirm the 9th Circuit ruling in this case, which said that a “reasonable degree of immediacy is appropriate when arresting an immigrant after he or she was released from jail.”
Wang said she believed Gorsuch saw a “problem” with her interpretation.
Justices Elena Kagan and Sonia Sotomayor asked questions that appeared to side with the immigrants.
“Are you saying, Mr. Tripp, that there’s no constitutional claim as to any of these people, even if a person has been out for 15 years, has established ties in the community? Are you saying that there’s no constitutional problem with that?” Kagan asked.
Justice Samuel Alito said bail hearings were unreliable.
“Congress, wisely or not, thought that this class of aliens was dangerous, and they should not be trusted,” he said.
On his second day of arguments on the Supreme Court, Justice Brett Kavanaugh told Wang that Congress “did not put in a time limit” in the law.
“Justice Kavanaugh, we’re not asking you to superimpose a time limit. We’re asking you to give meaning to all the words of the statute that Congress enacted,” Wang said. The ACLU opposed Kavanaugh’s nomination.
A ruling is expected in June 2019.