Bill Mears, Fox News, February 27, 2018
A sharply divided Supreme Court has concluded that certain immigrants or asylum seekers do not have an automatic right to periodic custody or bail hearings.
The 5-3 decision comes as the Trump administration looks to shore up rules governing those seeking permanent entry into the country.
At issue is whether aliens requesting admission to the U.S. who are subject to mandatory federal detention must be afforded court status hearings, with the possibility of release into the country, if the detention lasts more than six months. That could include lawful permanent residents charged with a crime; those detained at the border seeking entry who might lack valid documentation; or those claiming fear of persecution if they return to their home country.
In the majority ruling, Justice Samuel Alito said the government’s authority was clear: “Detention during those proceedings gives immigration officials time to determine an alien’s status without running the risk of the alien’s either absconding or engaging in criminal activity before a final decision can be made.”
Alito also accused the three dissenting justices of ignoring the relevant law. “How does the dissent attempt to evade the clear meaning of ‘detain’? It resorts to the legal equivalent of a sleight-of-hand trick.”
Chief Justice John Roberts, and Justices Anthony Kennedy, Clarence Thomas and Neil Gorsuch, supported the judgment.
But Justice Stephen Breyer said the fact these are immigrants in custody does not diminish their right to a hearing.
Breyer was backed by Justices Ruth Bader Ginsburg and Sonia Sotomayor. Justice Elena Kagan recused from the case back in November, citing an unspecified conflict.
Both the Trump and Obama administrations had taken the same position on the bond-hearing question.