Last week, the government argued before the Supreme Court that it has the power to keep you locked away for up to twenty years, without ever having to justify your imprisonment. Jennings v. Rodriguez, a case heard by the Supreme Court on November 30, asks whether the government must give someone imprisoned in immigration detention for longer than six months periodic bond hearings to determine if she is dangerous or a flight risk and should therefore remain locked up. The answer to that question is more important than ever now that the president-elect has pledged to deport “or incarcerate” as many as 3 million people upon his inauguration. Those numbers are certain to include longtime green card holders, refugees fleeing persecution and torture, and even United States citizens.
As you read this, the federal government is indefinitely incarcerating 45,000 people in immigration prisons across the country while they await deportation hearings. Of those, some 8,000 people a day, or over 20,000 a year, are imprisoned in mandatory detention, meaning they will never be given a bond hearing, where they would have a chance to argue for release on bail prior to the end of their deportation cases. In other words, the government will never have to show any justification at all for their imprisonment.
These thousands of people are trapped in immigration detention because the government believes, but has not yet proven, that they are recent arrivals to the United States who do not qualify for protection under immigration law or because they have criminal convictions that make them deportable. But the government is often wrong, forcing thousands of people to defend themselves against erroneous immigration charges from inside a prison cell. These people will eventually win their deportation cases because they qualify for an immigration benefit like asylum or because the government incorrectly charged them with an immigration violation. In other words, they were innocent of the charges the government brought against them. Yet perversely, they will remain locked away for years while their cases slowly grind through administrative proceedings.
Bedrock American principles of fairness, due process, and limited government should make Jennings an open-and-shut case.
Such was the case with Sayed Omargharib, a 30-year lawful permanent resident running a successful hairdressing business when the government erroneously charged him as deportable. Mr. Omargharib had pleaded guilty to larceny in state court for taking two pool cues following a dispute with an opponent in a local pool league, but was not sentenced to serve jail time. Though he had no other criminal record, he was then rearrested by immigration authorities after his guilty plea in state court and thrown into mandatory detention for two years. Only after years of litigation did a federal Court of Appeals rule that the government could not deport noncitizens for such a minor offense.
While that ruling prevented the government from unlawfully deporting Mr. Omargharib, it couldn’t replace the two years stolen from him. By the time Mr. Omargharib was released, he had lost both his home and business due to bills he had been unable to pay while locked up. He had also missed his son’s high school graduation while in immigration detention; the two became estranged. Today, he sleeps in a friend’s basement while waiting to apply for citizenship. Had Mr. Omargharib been given access to a bond hearing, his substantial community ties and total lack of dangerousness would have given him a chance at release from prolonged detention before it left his life in shambles.
As the government interprets immigration law, it can indefinitely detain you without ever having to show dangerousness or flight risk, based on a charge of an immigration violation that it has yet to prove occurred. But it bears emphasizing that even if the Supreme Court were to decide in favor of the detained individuals who brought the Jennings case, not a single person would be released. Instead, a favorable ruling would only grant a detained person the right to present evidence that she is neither dangerous nor a flight risk. A neutral adjudicator would then weigh that evidence and decide if release is appropriate on a case-by-case basis. Such minimal protections of our liberties are indispensable in a time when politicians advocate for large-scale surveillance and detention of millions of Americans, citizens and noncitizens alike.
Bedrock American principles of fairness, due process, and limited government should make Jennings an open-and-shut case. Or as Justice Kagan put it during the Jennings argument, “I think we would all look at our precedent and we would say, you can’t just lock people up without any finding of dangerousness, without any finding of flight risk, for an indefinite period of time, and not run into due process.” In the coming years, our courts are likely to see serious challenges to our constitutional protections, democratic traditions, and civil liberties. With Jennings, the Supreme Court should draw a clear line in the sand by protecting our rights against prolonged deprivation of liberty without justification.