A Supreme Court ruling Tuesday stating undocumented immigrants with criminal records can be detained indefinitely by U.S. authorities at any time after an initial arrest—even years later—generated outrage and disappointment from advocacy groups around the country.
The case, Nielsen v. Preap, was decided by a majority of 5-4. The American Civil Liberties Union (ACLU) brought the suit against Department of Homeland Security (DHS) Secretary Kirstjen Nielsen to the Supreme Court in October 2018.
The case rested on whether or not the government can detain immigrants convicted of crimes at any time after their sentences and for any amount of time.
A law passed by Congress in 1996 allowed for the detention of undocumented immigrants after their sentence was served, but that law had largely, until now, been interpreted as only applying immediately after sentencing. Tuesday’s ruling means that application parameter no longer exists.
“For two terms in a row now, the Supreme Court has endorsed the most extreme interpretation of immigration detention statutes, allowing mass incarceration of people without any hearing, simply because they are defending themselves against a deportation charge,” Cecilia Wang, ACLU deputy legal director, said in a statement. “We will continue to fight the gross overuse of detention in the immigration system.”
Wang argued the case in front of the judges.
Justice Samuel Alito wrote the decision, joined by justices Brett Kavanaugh, Neil Gorsuch, John Roberts, and Clarence Thomas. The quintet are considered the court’s conservative block.
The liberal minority of Justices Stephen Breyer, Sonia Sotomayor, Ruth Bader-Ginsberg, and Elena Kagan was represented in a dissent by Breyer which asked if Congress “meant to allow the government to apprehend persons years after their release from prison and hold them indefinitely without a bail hearing.”
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“This is terrible news,” said Slate writer Mark Joseph Stern.
In a late February piece for Slate, Stern argued that the court’s decision in Jennings v. Rodriguez, where the court sent a case involving indefinite detention of immigrants back to lower courts, indicated the new majority was prepared to strip immigrants of Constitutional protections.
That’s what happened on Tuesday, Scott Hechinger, senior attorney and director of policy at Brooklyn Defender Services, said on social media: the majority ruled “in favor of *indefinite detention* for immigrants.”
The ruling was “a major setback for civil liberties,” said the Asian Law Caucus, “but the battle isn’t over.”
Despite the setback, the ACLU’s Wang promised that the organization would continue bringing cases like Preap to the court.
“We will never give up fighting against the senseless mass incarceration without a hearing,” said Wang.
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