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  March 1, 2018

Supreme Court: Indefinite Detention for Immigrants is Allowed

The US Supreme Court ruled that indefinite detention for immigrants, undocumented or resident, is allowable. The decision exacerbates an already intolerable situation for over 400,000 immigrants who are caught up in the US immigrant detention system
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Sejal Zota works on issues of removal defense, post-conviction, enforcement, and immigration consequences of crimes through litigation, education, and technical assistance. Previously, Sejal taught and wrote about the impacts of immigration on state and local government at University of North Carolina's School of Government. She also regularly trained and advised defense attorneys throughout North Carolina on the immigration consequences of crime, and is the lead author of Immigration Consequences of a Criminal Conviction in North Carolina.


GREG WILPERT: Welcome to The Real News Network. I am Greg Wilpert coming to you from Quito, Ecuador. The US Supreme Court issued a major ruling on Tuesday, which in effect, legalizes the possibility of indefinite detention of immigrants in the US. The decision affects not only undocumented immigrants, but also legal immigrant residents and refugees.

Back in 2009, the Ninth Circuit Court of Appeals had ruled that immigrant detainees have a right to hold Bond Hearings once every six months to see if they can be released from detention. The Obama Administration, and now the Trump Administration, however, appealed this ruling to the Supreme Court successfully now.

Joining me to discuss the consequences of this decision is Sejal Zota. She is Legal Director at the National Immigration Project of the National Lawyers Guild, where she supports immigrants' rights through nationwide litigation, education and technical assistance. She joins us from Durham, North Carolina. Thanks for being here today, Sejal.

SEJAL ZOTA: Yeah, happy to be here.

GREG WILPERT: So, what will the Supreme Court decision mean for an individual detained immigrants. That is, what are the conditions at the moment, and how might these conditions change as a result of this decision?

SEJAL ZOTA: That's a great question. You know, the first thing that I want to make clear about this decision is that the court did not say that prolonged detention without Bond Hearings is lawful. They did not say it's lawful. What they did say is that the statutes that authorize this detention, that the statutes do in fact authorize this detention.

The court did not address the constitutional questions, even though those were briefed before the court. And so, now, this case is going to be sent back to the Ninth Circuit for the Ninth Circuit to resolve whether this practice of holding people indefinitely is passed this constitutional muster.

What we're talking about here is the government's practice of locking up immigrants indefinitely as they defend their right to remain in the US, without a Hearing before a judge to determine whether detention is appropriate, whether they're a flight risk or present a danger to the community.

So, immigrants here, they're not asking for release. They're simply asking for some process, the right to a hearing as to whether detention is appropriate as opposed to the policies that we have right now of blanket detention. And that's really why the constitutional argument is so strong. Here, you're depriving someone of their liberty without any process at all, and historically our country has had very strong protections against this.

And so, just to give you an idea, I know you asked about how people will be impacted, and the conditions. Just to give you an idea of the detention regime, in the United States, our government detains about 400,000 immigrants every year. As you mentioned, that includes lawful permanent residents who are green card holders, it includes asylum seekers, it includes survivors of torture. Many of these people will ultimately win their deportation cases, but they're forced to unjustly suffer prolonged detention along the way.

For example, two thirds of asylum seekers eventually receive asylum. About 40% of those who are here lawfully or those who have prior criminal records, they ultimately receive relief from removal. So, I think on average, people are held for about a year, but sometimes it's three years, sometimes it's four years. And sometimes it's people with the most meritorious cases that are detained the longest.

GREG WILPERT: So, you mentioned something like 400,000 immigrants are in detention centers at any given day in the United States. This decision, what impact will it have on the detention system as such? I think you mentioned also that many of these detention centers are privately run. Does that mean that more will have to be constructed and that there will be more immigrants in detention in total? And if so, who would stand to benefit from this increase in detentions?

SEJAL ZOTA: Yes, I think for the time being, until we answer the question as to whether detention is constitutional that there will be fewer Bond Hearings and that more people will be detained. I think as we've all seen, the Trump Administration has expanded the crackdown on immigration, more raids. And so, the government is in the process of trying to expand its detention facilities.

I think that Detention Watch Network had obtained some documents through a Freedom of Information request, which documents that they're trying to reopen new facilities for detention, and that's right, most of these are either local jails, or private prisons. So, it is those owners of private prisons who will benefit. There's lots of research showing how lucrative detention is as a business.

GREG WILPERT: Now, it seems that also the dissenting judges that tend to be the ones who are appointed by democratic presidents were strong, actually, in their arguments against the decision. I was wondering if you could just summarize to us, just briefly, what some of the arguments were in favor of getting rid of this six month limitation for Bond Hearings.

You've kind of said that already, I guess, in terms that the statute apparently doesn't provide for it. But the dissenting judges were very strong, it seems, in their arguments about having Bond Hearings because it would allow indefinite detention. Can you just summarize some of those arguments for us?

SEJAL ZOTA: Yeah, I think that they really start out by talking about the strong tradition in our country of having bail protections. There are sometimes bail protections for people charged with capital crimes, people who are civilly committed. They pointed out that even for people who have already been ordered removed, who can't be deported because their country won't take them, they get a Bond Hearing at six months.

On the one hand, you have someone who's fighting removal, who has an argument that they're not removable. They don't get a Bond Hearing. On the other hand, you have someone who's already been ordered removed, but the country won't accept the person, and that person can get a Bond Hearing. So, they were saying essentially they made some policy arguments that these folks, in a similar vein should get Bond Hearings.

They're really pointed to the constitutional problem. They were, in some ways, like the Ninth Circuit said because they didn't want to read the statute to be unconstitutional, that they read in this requirement and the dissenting judges were doing something similar. They pointed to some different things, but again, we're saying that there would be a big constitutional problem if we read the statute to allow this sort of prolonged detention without bond.

GREG WILPERT: So now, you also mentioned that the decision is not final because the Supreme Court is sending the decision back to the Ninth Circuit court for it to determine the constitutionality of this issue. Part of it was also this issue about whether or not immigrants have a right to a class action proceeding. Explain to us exactly the significance of that decision to move it back to the Ninth Circuit court and does that mean now that this decision could still be reversed?

SEJAL ZOTA: The court was saying, "Look, we are not going to speak to an argument that hasn't been reviewed by the lower court in the first instance." They said, "Look, the Ninth Circuit has not reviewed the constitutionality argument, so we're not either. We're going to send it back." I think that's not unexpected from this court. This court generally does not like to speak to an argument in the first instance.

I think that many of us are hopeful about the constitutionality argument in the Ninth Circuit. You're right, they did seem to suggest that it's questionable whether this group of people are properly classified as a class. One reason is because they're different classes of people who have different relief.

And so, once the constitutionality of the statute's at play, the relief might be different for the asylum seekers versus the people with convictions. And so, that was one basis for saying that it might not be appropriate to review that question as a class. I do think that what the court said around the class actions is going to be harmful to habeas class actions.

GREG WILPERT: Ok well, we'll continue to follow this as the new developments come. I'm speaking to Sejal Zota, Legal Director at the National Immigration Project of the National Lawyers Guild. Thanks for having joined us, Sejal.

SEJAL ZOTA: Okay, thank you.

GREG WILPERT: And I am Greg Wilpert for The Real News Network.


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