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Right-Wing Supreme Court Majority Decrees Refugee Asylum Seekers Can Be Jailed Indefinitely Without Bail Hearing

The U.S. Supreme Court has issued what may become one of the most consequential anti-immigrant rulings in the Trump era, declaring that asylum seekers—non-citizens—are not entitled to bail hearings and can languish in jail for years.


The majority’s ruling in Jennings v. Rodriguez, written by Justice Samuel Alito, reverses and remands a ruling by the California-based Ninth Circuit Court of Appeals, which said a non-citizen could not be held for longer than six months without a bail hearing.

“The noncitizens at issue are asylum seekers, persons who have finished serving a sentence of confinement (for a crime), or individuals who, while lacking a clear entitlement to enter the United States, claim to meet the criteria for admission,” wrote Alito, summarizing the case. The court’s majority concluded that several immigration statutes “do not give detained aliens the right to periodic bond hearings during the course of their detention. The Ninth Circuit misapplied the canon of constitutional avoidance in holding otherwise.”

In late 2017, federal immigration authorities held approximately 40,000 asylum seekers in various detention centers around the country, Human Rights First reported. Asylum seekers are a subset of the estimated 11 million visa-less immigrants in the U.S. 

Alito's conclusion was slammed in a dissent from the court’s more liberal justices as turning a blind eye to American legal history, from its founding documents to previous Supreme Court rulings dating to the 19th century. As Justice Stephen Breyer noted, the majority’s conclusion was at odds with the Declaration of Independence, the Bill of Rights, the British Magna Carta—which influenced those founding documents—and centuries of subsequent American Supreme Court rulings.

“First, as I have said, the respondents in this case are members of three special classes of noncitizens, the most important of whom (1) arrive at our borders seeking asylum or (2) have committed crimes but have finished serving their sentences of imprisonment,” said Breyer, explaining those the ruling will affect. “We also consider those who (3) arrive at our borders believing they are entitled to enter the United States for reasons other than asylum seeking, but lack a clear entitlement to enter.”

The country’s founding documents were based on enshrining the right to preserve liberty and obtain one’s day in court—concepts the conservative majority just stepped on.

Breyer’s dissent, which Justices Ruth Bader Ginsburg and Sonia Sotomayor signed (Justice Elena Kagan recused herself), said, “The Fifth Amendment says that ‘[n]o person shall be...deprived of life, liberty, or property without due process of law.’ An alien is a ‘person.’ To hold him without bail is to deprive him of bodily ‘liberty.’ And, where there is no bail proceeding, there has been no bail-related ‘process’ at all. The Due Process Clause—itself reflecting the language of the Magna Carta—prevents arbitrary detention. Indeed, ‘[f]reedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action.’”

In plainer language, Breyer summed up by saying what the Court’s majority was doing was unconstitutional and that the legal statutes they cited to build their argument should have been overruled as such, not affirmed.

“The upshot is the following: The Constitution’s language, its basic purposes, the relevant history, our tradition, and many of the relevant cases point in the same interpretive direction. They tell us that an interpretation of the statute before us that would deny bail proceedings where detention is prolonged would likely mean that the statute violates the Constitution,” Breyer said.

“The bail questions before us are technical but at heart they are simple. We need only recall the words of the Declaration of Independence, in particular its insistence that all men and women have ‘certain unalienable rights,’ and that among them is the right to ‘liberty.’ We need merely remember that the Constitution’s due process clause protects each person’s liberty from arbitrary deprivation. And we need just keep in mind the fact that, since Blackstone’s time and long before, liberty has included the right of a confined person to seek release on bail. It is neither technical nor unusually difficult to read the words of these statutes as consistent with this basic right. I would find it far more difficult—indeed, I would find it alarming—to believe that Congress wrote these statutory words in order to put thousands of individuals at risk of lengthy confinement all within the United States but all without hope of bail.”

That last point—that asylum seekers now face the prospect of lengthy confinement without any hope of bail—will now empower the Trump administration’s aggressive anti-immigrant policing.

International human rights groups quickly criticized the ruling.

“The Court’s decision in Jennings v. Rodriguez is an affront to our nation’s commitment to liberty and to U.S. human rights treaty obligations that prohibit arbitrary detention,” said Eleanor Acer of Human Rights First. “How can we as a nation, remain a haven for the prosecuted when we lock up asylum seekers—who are in this country legally to escape violence—for prolonged periods of time without access to an immigration court custody hearing? These are individuals who fled traumatizing circumstances many of us cannot imagine, and yet this country sends them to jails and correctional facilities and blocks their access to hearings to contest their continued detention. Immigration and Customs Enforcement will now have an even greater ability to act as both jailer and judge, an astonishing and horrifying power.”  

Acer feared that the Court’s ruling could accelerate the Trump administration’s construction and use of domestic prisons for immigration roundups and deportation.  

“Today’s ruling is particularly alarming given the policies of the Trump administration,” she said in a statement. “On January 25, President Trump signed an executive order directing the Department of  Homeland Security (DHS) to construct and operate immigration detention facilities and hold immigrants there for the duration of their immigration court proceedings. A 2017 Human Rights First report found that in the eight months since President Trump signed his January 25 executive order calling for increased immigration detention, asylum seekers are largely refused parole, leaving many locked up in immigration detention facilities and jails for months or longer.”

That 2017 report noted the Department of Homeland Security’s proposed budget sought “$2.7 billion to fund an average daily level of 51,379 detention beds for fiscal year 2018… [making it] clear that these policies are aimed at penalizing those who seek protection in the United States and attempting to deter others from the same.”

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