The Supreme Court ruled in a pair of decisions released on Monday that some illegal aliens do not have a right to bond hearings for release from federal detention. One case involved two Mexican nationals who re-entered the U.S. illegally after having been previously deported. The other case involved an illegal migrant from El Salvador who had also been previously deported.
The case was originally appealed to the Supreme Court by the Trump administration. The Biden Department of Justice elected to continue to pursue the position taken by the previous administration. The American Civil Liberties Union (ACLU) sharply criticized that decision, saying the Biden DOJ was “decidedly on the wrong side of this fight.”
The statute that applies to deportation proceedings against such individuals allows them to seek “withholding of removal.” If granted, that bars the government from sending an illegal migrant back to a country where they “fear persecution or torture.”
Claims for withholding of removal often take several months or even years to be resolved in court. The Supreme Court was asked to decide if the statute authorizes detention of an illegal immigrant seeking withholding of removal for more than six months without a bail hearing.
If granted a bail hearing, an immigration judge would be required to consider traditional bail criteria. The factors involved are the danger presented by the defendant to the community and the flight risk presented.
The result of the decision will mean that illegal immigrants who wish to challenge indefinite detention while waiting for the resolution of their cases will have to resort to constitutional challenges alleging some violation of fundamental civil rights resulting from incarceration. However, noncitizen aliens must retain a private lawyer at their own cost for such cases or attempt to handle complex federal litigation on their own.
In dissent, Justice Sonya Sotomayor expressed a common liberal sentiment about decisions that favor immigration enforcement, writing that the majority denies illegal immigrants “a meaningful opportunity to protect their rights.”