At Immigration Argument, Justice Kavanaugh Takes Hard Line – The New York Times

WASHINGTON — A Supreme Court argument on Wednesday over the detention of immigrants during deportation proceedings seemed to expose a divide between President Trump’s two appointees, Justices Neil M. Gorsuch and Brett M. Kavanaugh.

The question in the case was whether the federal authorities must detain immigrants who had committed crimes, often minor ones, no matter how long ago they were released from criminal custody. Justice Kavanaugh said a 1996 federal law required detention even years later, without an opportunity for a bail hearing.

“What was really going through Congress’s mind in 1996 was harshness on this topic,” he said.

But Justice Gorsuch suggested that mandatory detentions of immigrants long after they completed their sentences could be problematic. “Is there any limit on the government’s power?” he asked.

Justice Stephen G. Breyer pressed the point, asking a lawyer for the federal government whether it could detain “a person 50 years later, who is on his death bed, after stealing some bus transfers” without a bail hearing “even though in this country a triple ax murderer is given a bail hearing.”

The lawyer, Zachary D. Tripp, hedged, and Justice Gorsuch grew frustrated.

“Mr. Tripp, we’re quibbling,” Justice Gorsuch said. “Justice Breyer’s question is my question, and I really wish you’d answer it.”

Mr. Tripp eventually responded, “This applies regardless of time.” He added that Congress had intended that harsh result.

“Basically, at the end of the day, Congress’s answer was enough is enough,” Mr. Tripp said. “If you’re an alien, you come here, you commit one of these crimes, you’ve effectively forfeited whatever right you have to remain at large in the community.”

In April, Justice Gorsuch joined the court’s four liberal members in a 5-to-4 decision striking down a law that allowed the government to deport some immigrants who had committed serious crimes, saying it was unconstitutionally vague. Some of his questions on Wednesday in the new case, Nielsen v. Preap, No. 16-1363, left open the possibility of a similar alliance.

The 1996 law includes a contested phrase. It says the federal authorities “shall take into custody any alien” convicted of certain crimes, some serious and some minor, “when the alien is released.” The key word is “when.”

Cecillia D. Wang, a lawyer for the American Civil Liberties Union, which represents immigrants challenging the mandatory detentions, said the law requires prompt action. Mr. Tripp, taking into account other parts of the law, said immigrants convicted of crimes may be detained years after their release.

The difference matters, for hundreds and perhaps thousands of immigrants, because people detained under the law are not entitled to a hearing to determine whether they are dangerous or pose a flight risk.

The plaintiffs include people who entered the country illegally, tourists or students who overstayed their visas and lawful permanent residents. Among them are immigrants who arrived in the United States legally as infants, committed minor crimes like possessing marijuana and were detained years after completing their sentences.

The United States Court of Appeals for the Ninth Circuit, in San Francisco, concluded that the law requires mandatory detention only if the federal authorities take immigrants into custody soon after they are released.

“Because Congress’s use of the word ‘when’ conveys immediacy,” Jacqueline H. Nguyen wrote for a unanimous three-judge panel, “we conclude that the immigration detention must occur promptly upon the aliens’ release from criminal custody.”

Justice Kavanaugh disagreed, saying the 1996 law put no time limits on the detentions it required.

“That raises a real question for me whether we should be superimposing a time limit into the statute when Congress, at least as I read it, did not itself do so,” he said.

Justice Breyer said the solution was to allow immigrants detained long after release from criminal custody to have bail hearings. He said those would allow immigrants who were not dangerous and who posed no flight risk to return to their communities. “The baddies will be in jail,” he said, “and the ones who are no risk won’t be.”

Justice Kavanaugh disagreed. “The problem is that Congress did not trust those hearings,” he said. “Congress was concerned that those hearings were not working in the way that Congress wanted and, therefore, for a certain class of criminal or terrorist aliens said, ‘No more.’”

Justice Samuel A. Alito said that not all states and municipalities were cooperating with the federal government when they released immigrants from custody, making it hard for the federal authorities to detain people promptly. Ms. Wang responded that current tensions had been overstated and did not, in any event, illuminate the intent of Congress when it enacted the law.

“Whatever’s happening today with controversies over so-called sanctuary jurisdictions don’t really shed light on what Congress wanted in ’96,” she said.

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