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Supreme Court Ruling Paves Way for Indefinite Detention of Convicted Immigrants

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By Sylvia Longmire
Columnist, In Homeland Security

sylvia longmire contributorOn March 19, the U.S. Supreme Court endorsed the government’s authority to detain immigrants awaiting deportation for any amount of time — potentially even years — after they have completed prison terms for criminal convictions.

The court ruled 5-4 along ideological lines, with its conservative justices in the majority and its liberal justices dissenting, that federal authorities could pick up such immigrants and place them into indefinite detention anytime, not just immediately after they finish prison sentences.

Illegal Immigration Reform and Immigrant Responsibility Act

The relevant ederal law in this case is the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. According to the Cornell Law School’s Legal Information Institute, “The Act was designed to improve border control by imposing criminal penalties for racketeering, alien smuggling and the use or creation of fraudulent immigration-related documents and increasing interior enforcement by agencies charged with monitoring visa applications and visa abusers. The Act also allows for the deportation of undocumented immigrants who commit a misdemeanor or a felony.”

Immigration Bar

Authorities utilize this law when U.S. immigration officials impose an ‘immigration bar.’ This says that if you are caught residing in the U.S. illegally for a certain amount of time, you are prohibited from applying for re-entry for a certain amount of time. Between 180 and 365 days results in a three-year bar, and over 365 days results in a 10-year bar.

The law also states the government can detain convicted immigrants “when the alien is released” from criminal detention. Usually, this detention only lasts until the completion of removal processing and the immigrant is deported. Civil rights lawyers in the Supreme Court case argued that the language of the law shows that it applies only immediately after immigrants are released.

However, the Trump administration said the government should have the power to detain such immigrants at any time. This is also not the first Supreme Court case addressing the detention of convicted illegal immigrants. In February 2018, the conservative majority also limited their ability to argue for release from long-term detention while going through deportation proceedings.

The Current Claim

The current claim involves two separate cases from 2013 involving legal U.S. residents — a Cambodian immigrant named Mony Preap convicted of marijuana possession and a Palestinian immigrant named Bassam Yusuf Khoury convicted of attempting to manufacture a controlled substance. In 2016, the 9th Circuit Court had ruled that convicted immigrants who are not immediately detained by immigration authorities after finishing their sentences, but then later picked up by immigration authorities, could seek bond hearings to argue for their release. This is the ruling just overturned by the Supreme Court after it was appealed by the Trump administration.

Justice Breyer’s Dissent from Supreme Court Ruling

Critics of the ruling say it provides an extreme interpretation of immigration law that places misdemeanors and felonies on the same level when evaluating the treatment of convicted immigrants upon release. In his dissent, Justice Stephen G. Breyer stated, “It is a power to detain persons who committed a minor crime many years before. And it is a power to hold those persons, perhaps for many months, without an opportunity to obtain bail.”

The Interpretation of the Word: ‘When’

The controversy lies in the interpretation of one word. The law in question states that federal authorities “shall take into custody any alien” convicted of certain crimes, some serious and some minor, “when the alien is released.” The key word was “when.” According to the New York Times, immigrants’ rights advocates said the law required prompt detention—more specifically, within 24 hours. Justice Alito claimed in his majority opinion that this assertion was “especially hard to swallow.” Lawyers for the federal government said immigrants convicted of crimes might remain detained years after their release.

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