Immigrants awaiting deportation hearings have no right to bail, court says

SAN FRANCISCO -- Detained immigrants can be held in jail indefinitely while awaiting deportation proceedings or hearings on whether they can legally enter the United States, the Supreme Court ruled Tuesday.

The decision, by the court's conservative majority, could affect thousands of immigrants now in detention. It reverses a ruling by an appeals court in San Francisco to require bail hearings every six months.

It came a day after the justices, in another immigration case, rejected President Trump's request to bypass a federal appeals court and consider his attempt to abolish a program protecting nearly 700,000 young, undocumented immigrants from deportation. The justices also will review the president's immigration authority in an April hearing on Trump's ban on U.S. entry by residents of a group of mostly Muslim-majority nations.

Tuesday's case involved immigrants, including legal residents, who are held for possible deportation after criminal convictions, and others who seek the right to enter the U.S. or remain in the country after being stopped at the border or arrested by immigration agents.

About 40,000 immigrants were held in detention on a typical day, at least 10 percent of them for more than six months, when the case was filed during President Barack Obama's administration, said Ahilan Arulanantham, an American Civil Liberties Union lawyer in Los Angeles. He said those numbers have probably increased in the Trump administration.

The Ninth U.S. Circuit Court of Appeals in San Francisco ruled in 2013 that those immigrants were entitled to judicial hearings after six months in custody, and must be released on bond while their cases were pending unless the government could show they were dangerous or likely to flee.

That conclusion, the Supreme Court said Tuesday, ignored the language of the law, which says immigrants ``shall be detained'' while awaiting deportation proceedings.

Except for immigrants who are freed under protection to aid criminal prosecutors, ``the statute expressly and unequivocally imposes an affirmative prohibition on releasing detained aliens,'' Justice Samuel Alito said in the 5-3 decision. He derided the Ninth Circuit's interpretation as ``textual alchemy'' and said the court had created the six-month standard ``out of thin air.''

While rejecting the Ninth Circuit's reading of the law, Alito said the appeals court could reconsider the case and decide whether the U.S. Constitution entitles a detained immigrant to a bail hearing. He questioned, however, whether the court could consider that claim in a class action on behalf of all detainees.

Arulanantham said the ACLU would take up the case again in the lower courts.

``We have shown through this case that when immigrants get a fair hearing, judges often release them based on their individual circumstances,'' he said.

Justices Clarence Thomas and Neil Gorsuch signed a separate opinion saying courts lacked authority even to consider an immigrant's challenge to detention.

In dissent, Justice Stephen Breyer said the law requiring immigrants to be locked up while awaiting hearings would probably be unconstitutional unless interpreted to make them eligible for bail within six months. He said undocumented immigrants are certainly no more dangerous than defendants held on criminal charges, who are legally entitled to be considered for bail.

``The Constitution does not authorize arbitrary detention,'' Breyer said. In the Anglo-American legal tradition, he said, ``liberty has included the right of a confined person to seek release on bail.''

Justices Ruth Bader Ginsburg and Sonia Sotomayor joined the dissent. Justice Elena Kagan did not participate because she was U.S. solicitor general in the Obama administration's Justice Department.

The case is Jennings vs. Rodriguez, 15-1204.