- The Washington Times - Tuesday, March 19, 2019

Immigrants living in the U.S. with serious criminal records can be held without bail while awaiting deportation even if ICE didn’t immediately pick them up when they were released from prison or jail, the Supreme Court ruled Tuesday.

The 5-4 decision marked another rejection for the 9th U.S. Circuit Court of Appeals, the liberal panel that covers the country’s West Coast and that has tested a number of legal theories on immigration law.

In this case, the 9th Circuit had ruled that under the law, if U.S. Immigration and Customs Enforcement immediately arrested someone released from a federal, state or local prison, they could be held without bond in the immigration detention system. But if ICE didn’t immediately arrest them, the migrants must be given a chance to make bond.

The case turned on a phrase in the law that says the no-bail determination applies to someone picked up by ICE “when the alien is released” from prison or jail. The lower court ruled “when” must mean the day of release.

But Justice Samuel A. Alito Jr., writing the majority opinion, said that could create a new loophole for sanctuary cities, which often refuse to alert ICE officers when releasing people from their local prisons and jails.

“Under these circumstances, it is hard to believe that Congress made the secretary’s mandatory-detention authority vanish at the stroke of midnight after an alien’s release,” he wrote.

He said it made more sense that “when” means at some point after the release, not at the exact moment of it.

While many immigrants living in the U.S. illegally are released while they await their court proceedings and possible deportation, Congress has deemed some serious criminals to be such safety risks that they must be held by ICE while their cases proceed.

Those are the ones affected by Tuesday’s ruling.

The American Civil Liberties Union, which had represented the migrants challenging their detention, criticized the court’s decision.

“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,” said Cecillia Wang, the ACLU’s deputy director.

The court’s four Democratic-appointed justices dissented from Tuesday’s decision, saying if Congress had intended to require all serious criminal migrants to be denied bail, regardless of when they were arrested, it would have said that.

The case was limited to the reading of the law and what Congress intended, and did not broach bigger questions about the constitutionality of no-bail proceedings. Justice Alito said “as-applied” challenges to how the administration carries out the law can still be brought.

Justice Clarence Thomas wrote a concurring opinion, joined by Justice Neil M. Gorsuch. They said the lower courts shouldn’t have even got involved in the case because Congress has specifically precluded jurisdiction over these kinds of detention decisions. But since the court was involved, they said they generally agreed with Justice Alito’s conclusions.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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