By: CLDC Staff
Recently, the U.S. Supreme Court upheld yet another draconian interpretation of federal immigration law. In the case, Nielsen v. Preap, the question before the court was whether 8 U.S.C. § 1226(c) requires the Department of Homeland Security to take certain immigrants into custody immediately after the release of the immigrant from criminal custody and, if such immigrants are not taken into custody immediately, whether such immigrants are entitled to a bond hearing to be released pending a decision to deport.
Under the statute at issue, those that are taken into custody immediately after criminal custody are not entitled to a bond hearing and may be held in custody indefinitely, pending a decision to deport. After the ruling by the Supreme Court, those that are not taken into custody immediately after release from criminal custody may be picked up years later and held indefinitely without a bond hearing.
The Supreme Court’s decision overrules the decisions of the Ninth Circuit and U.S. District Court for the District of California–decisions that, arguably, tried to maintain some semblance of Due Process. The case arose from two classes of individuals that were released from criminal custody after serving their sentence. Upon release, these individuals were not “immediately” taken into ICE custody. In one instance, a man was taken into custody seven years after he served his prison sentence.
This ruling comes on the heels of an even more draconian ruling last year in Jennings v. Rodriguez. In that case, the Supreme Court (again overruling the Ninth Circuit) held that immigrants, regardless of whether they have legal status short of citizenship or not, could be held indefinitely without a bond hearing pending a decision on their legal status or decision to deport. Justice Breyer issued a scathing dissent in that case, noting: “Whatever the fiction, would the Constitution leave the Government free to starve, beat, or lash those held within our boundaries?…If not, then whatever the fiction, how can the Constitution authorize the Government to imprison arbitrarily those who, whatever we might pretend, are in reality right here in the United States.”
The statute at issue in Nielsen applies to four broad categories of individuals. If you are unsure whether you might fall into one of these categories, contact an immigration attorney immediately (note: the CLDC does not handle immigration cases but we do provide Know Your Rights trainings for immigrants and their allies).
It is unfortunately common for ICE agents to wait outside courthouses, jails, and prisons to seize individuals that are not U.S. citizens after such individuals have been released from criminal custody. The individuals that challenged the law had paid their figurative “debt” to society. They created a life in the U.S. and, years after planting roots in their communities, were seized by ICE and indefinitely held in an immigration detention center while they awaited deportation or a decision to deport.
This recent decision is important for communities that care for the well-being and dignity of immigrants. Even if you think your loved ones are not in any danger of being indefinitely detained and deported because they were previously released from criminal custody and ICE never showed up, there is a possibility that such individuals will eventually be picked up and detained with little to no recourse.
For activists without permanent legal status in the U.S., it is important to consider the risks and consequences to yourself when engaged in activism. The federal government, in conjunction with several extractive industry corporations, is looking for any excuse to detain or deport people who are not U.S. citizens. Simultaneously, both the state and corporations have been relentless in their attempts to cast environmental and social justice activists as terrorists, or their activism as some form of heinous criminal activity. This should not dissuade our movements from advocating for basic human dignity or a livable planet, but it is something that must be taken into account.
The Supreme Court’s decision was predictably 5-4 and those in the majority are decidedly ideological and associated with the right to far-right. In his dissent, Justice Breyer remarked that “[u]nder the majority’s view, the statute forbids bail hearings even for aliens whom the Secretary has detained years or decades after their release from prison.” Justice Breyer emphasized the due process concerns wrought by the majority’s opinion on the statute: “It runs the gravest risk of depriving those whom the government has detained of one of the oldest and most important of our constitutionally guaranteed freedoms.”
With the current composition of the U.S. Supreme Court, it seems likely that we can expect additional draconian rulings that continue to strip the rights and dignity away from non-U.S. citizens.