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Immigrants just got terrible news from the Supreme Court

Good luck challenging unconstitutional detention now.

WASHINGTON - OCTOBER 13:  Justice Samuel Alito Jr. attends the NIAF's 32nd Anniversary Awards Gala on October 13, 2007 in Washington, DC. (Photo by Nancy Ostertag/Getty Images)
WASHINGTON - OCTOBER 13: Justice Samuel Alito Jr. attends the NIAF's 32nd Anniversary Awards Gala on October 13, 2007 in Washington, DC. (Photo by Nancy Ostertag/Getty Images)

One of the most basic principles of American constitutional law is that a person cannot be detained without adequate access to a court or a similar body that can determine whether their detention is justified. Indeed, the Supreme Court has even held that incorrigible sex offenders enjoy this right.

Tuesday’s Supreme Court’s decision in Jennings v. Rodriguez does not cut this right off entirely for a group of immigrants who may be detained for a very long time without hearings, but it does make it much harder for immigrants to access that right. Indeed, thanks to Rodriguez, an immigrant could potentially be detained for more than a year-and-a-half before a court decides whether their detention is lawful.

Rodriguez is a complicated case, and the breakdown of the various opinions in this case make this complexity clear. Justice Samuel Alito wrote an a opinion that was joined, with the exception of one part, by all four of his Republican colleagues. The Democratic appointees all joined a dissent by Justice Stephen Breyer, except for Justice Elena Kagan, who was recused. There’s also a concurring opinion by Justice Clarence Thomas, which is joined by Thomas’ fellow arch-conservative Neil Gorsuch.

Currently, a web of federal immigration statutes allow certain immigrants to be detained while their deportation proceedings are pending — Rodriguez involves certain classes of these immigrants, including foreign nationals accused of crimes and some non-citizens who are detained at the border. Though their detentions can be quite lengthy — one individual was held for 1,585 days, and the average length of detention is more than a year — about a third of the individuals at issue in Rodriguez ultimately prevail if they challenge the government’s attempt to remove them from the country.

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The United States Court of Appeals for the Ninth Circuit held that the government must “provide periodic bond hearings every six months,” and that the government must prove by “clear and convincing evidence” that a detainee is either a flight risk or a danger to the community. Absent such proof, the detainee must be released while their case is pending.

That a majority of the Supreme Court held that the Ninth Circuit erred (albeit on fairly narrow grounds) is not necessarily a serious blow to to immigrants’ rights. Rather than reach the overarching question of whether the Constitution permits immigrants to be detained for so long without a hearing, the Ninth Circuit construed the relevant immigration statutes to contain an implicit requirement that immigrants must be given periodic bond hearings.

This reading of the law was, admittedly, not the most natural reading of the statutes. And Justice Alito’s opinion concludes that the Ninth Circuit read them wrong. Yet Alito’s opinion also does not rule out the possibility that indefinite detention of immigrants without a hearing is unconstitutional. Instead, it orders the Ninth Circuit to consider this constitutional question “in the first instance.”

Were that the end of Alito’s opinion, Rodriguez would be a very small deal. The case would proceed. The Ninth Circuit would likely rule that such indefinite detention is unconstitutional. And that question would likely wind up before the Supreme Court.

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But Alito’s opinion contained additional language which is likely to have devastating consequences for many immigrants, even if the Supreme Court ultimately concludes that indefinite detention without bond hearings can violate the Constitution.

Rodriguez was brought as a class action on behalf of a group of immigrants who “were detained for longer than six months pursuant to one of the general immigration detention statutes pending completion of removal proceedings.” In the conclusion to his opinion, Alito strongly implied that this case may no longer proceed as a class action. Among other things, he cited a legal provision indicating that lower court decisions enjoining the relevant immigration statute may only be brought by “an individual alien against whom proceedings under such part have been initiated.”

The upshot of Alito’s conclusion is that courts may no longer be able to order a blanket remedy that protects all immigrants subject to lengthy detention without a hearing. Rather, each individual detainee will likely need to obtain counsel (or figure out how to bring a challenge themselves), and work their way through an overburdened court system in order to vindicate their constitutional rights.

In one judicial circuit, as an ACLU attorney who litigated this case noted, it can take as much as 19 months for the courts to resolve each of these individual cases. Thus, while Alito’s opinion may leave immigrants with a theoretical way to challenge their detention, in many cases that challenge could take longer than the length of the detention itself.