Supreme Court Disregards Due Process, Allows ICE to Detain Certain Immigrants Indefinitely

The Supreme Court delivered a brutal blow to immigrants’ rights on Tuesday morning, ruling that the Trump administration may detain unauthorized immigrants indefinitely once they have been taken into criminal custody. Its 5–4 decision permits the government to arrest and imprison undocumented individuals who were released from custody years, even decades ago. Even immigrants convicted in the distant past of a minor crime, like possession of a stolen bus transfer, may now be apprehended and detained without bond. To reach this result, the court’s conservative justices manipulated the plain text of a federal statute and ignored basic principles of due process. Their decision hands Immigration and Customs Enforcement even more power to terrorize immigrant communities, suspending due process for certain unauthorized immigrants snatched up by ICE.

Attorneys for the American Civil Liberties Union, which brought this case on behalf of multiple immigrants ensnared by ICE, read the law differently. The ACLU notes that the statute has two parts: First, it directs the government to take certain aliens into custody “when the alien is released” from prison; second, it instructs the government to hold aliens “described in” this first section without bond. (Emphasis mine.) The ACLU argues that the law does not give ICE a blank check to arrest and indefinitely detain these aliens years after they’ve been freed. Instead, it gives ICE an opportunity to detain immigrants without bond—if agents arrest them “when” they’re released from custody. If ICE instead waits for months, years, or decades to arrest these individuals, the ACLU asserts, they must treat them like other unauthorized immigrants by providing them with an opportunity for release.

The plaintiffs in Preap, who were picked up by ICE long after they completed their criminal sentences, are not asking for much. They are not asking for guaranteed freedom, just a bond hearing to prove that they aren’t flight risks or dangers to their communities. Most would probably meet that standard because they have families and roots and gave up crime long ago. But ICE won’t give them the chance to prove it, citing the 1996 statute.

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