The Supreme Court appeared divided Wednesday over whether the Trump administration can detain immigrants indefinitely with criminal records years after they’ve served time for the offense.
The government argued criminal aliens who commit crimes that subject them to deportation can be taken into custody at any time and detained for the duration of their removal proceedings without a bond hearing.
But immigrants in two class action lawsuits – consolidated for arguments Wednesday – claim they are exempt from mandatory detention because the Department of Homeland Security (DHS) didn’t detain them immediately after their sentence ended.
A majority of justices on the court seemed to agree there should be some sort of time limit on the government’s ability to pick them up.
Justice Neil Gorsuch asked if the immigration enforcement officials under the administration’s reading of the Immigration and Nationality Act would be able to detain immigrants 30 years after they’ve been released from criminal custody, or 50.
Justice Breyer suggested the government should only be able to detain people within a reasonable amount of time.
Chief Justice John Roberts seemed open to this approach but questioned what the limit should be after the challengers' attorney, Cecillia Wang, urged the court to affirm the ruling of Ninth Circuit, which said apprehension must occur with a reasonable degree of immediacy.
Roberts said in his mind there’s a difference between a reasonable degree of immediacy and a reasonable amount of time.
“A reasonable degree of immediacy strikes me as a half hour,” he said.
“Which is it?”
The court’s newest justice, Brett Kavanaugh, however, seemed to argue against the court writing a time limit into the law.
He said Congress would have known that DHS wouldn’t be able to immediately detain immigrants after they are released from jail or prison and noted Congress didn’t include in a time limit.
He said those two points make him question whether the court should be superimposing a time limit into the statute.
Tripp argued criminal aliens are not exempt from mandatory detainment due to the happenstance that DHS didn't detain them after they were released from jail or prison.
But Justices Stephen Breyer asked the government why it cares so much about offering detainees a hearing. He said the bad ones would go to jail and the good ones would get released.
The government, however, fears immigrants who get released on bond will flee or reoffend.