In a dramatic win for President Trump’s hardline immigration policies, the Supreme Court ruled along ideological lines that immigrants once convicted of a crime, even when legally immigrated to the United States, can be detained at any time by Immigration and Customs Enforcement.
At issue was the case Nielsen v. Preap, which looked at the statutory authority to detain immigrants once released from criminal detention, when their sentence has been served. This power is ostensibly limited to cases where the offense in question raises the possibility of deportation.
“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 American Civil Liberties Union attorney Cecilia Wang, who argued Preap’s case.
And the list of deportable offenses includes a nebulous concept — crimes of moral turpitude. This definitely includes prostitution, but also included “homosexual congress” prior to Supreme Court rulings that consensual homosexual activity was lawful. This is because moral turpitude is anything that the moral conscience of a community finds “depraved, dishonest, or vile.”
With Tuesday\s ruling, the de facto sentence an immigrant could face for any crime a community deems sufficiently immoral would be indefinite incarceration, or the constant threat that once their time is served they might be, at any time and without notice, incarcerated again, this time indefinitely.
“It runs the gravest risk of depriving those whom the government has detained of one of the oldest and most important of our constitutionally guaranteed freedoms,” wrote Justice Stephen Breyer in the liberal justices’ dissent.
If the concept of indefinite detention sounds familiar, its because America already practices this, notoriously, at the prison in Guantanamo Bay, Cuba. President Trump famously supported the controversial prison.
But indefinite detention isn’t the only trend the Preap ruling develops. A holding last year in Jennings v. Rodriguez — a similar case regarding the indefinite detention of immigrants — was, unlike Preap, found in a very narrow and anticlimactic way. But in that decision’s dissent, Breyer, filled with “righteous disgust“, cautioned about the government’s willingness to strip immigration of civil rights.
In Preap, Breyer’s dissent again squared off with Justice Samuel Alito, who wrote for the majority in both cases.
“In deciphering the intent of the Congress that wrote this statute, we must decide — in the face of what is, at worst, linguistic ambiguity — whether Congress intended that persons who have long since paid their debt to society would be deprived of their liberty for months or years without the possibility of bail,” wrote Breyer in Preap‘s dissent. “We cannot decide that question without bearing in mind basic American legal values: the Government’s duty not to deprive any ‘person’ of ‘liberty’ without ‘due process of law.’”
Alito allowed in his majority decision that there might be constitutional issues with the law that were not raised by the Preap case.
However, Alito also wrote: “As we have held time and again, an official’s crucial duties are better carried out late than never.”
The two justices will likely square off again next term over new immigration-related cases, including one that largely revisits a 2012 decision that a new, bolder conservative majority might reverse.
Katelyn Kivel is a contributing editor and senior legal reporter for Grit Post in Kalamazoo, Michigan. Follow her on Twitter @KatelynKivel.