WASHINGTON — The Supreme Court on Tuesday adopted a strict interpretation of a federal immigration law, saying it required the detention of immigrants facing deportation without the possibility of bail if they had committed crimes, including minor ones, no matter how long ago they had been released from criminal custody.
The vote was 5 to 4, with the court’s more conservative justices in the majority. Justice Samuel A. Alito Jr., writing for the majority, said the plain language of a federal law required the result.
Justice Stephen G. Breyer summarized his dissent from the bench, a sign of profound disagreement. He said the majority had violated the nation’s basic values.
“The greater importance of the case,” he said, “lies in the power that the majority’s interpretation grants the government. It is a power to detain persons who committed a minor crime many years before. And it is a power to hold those persons, perhaps for many months, without an opportunity to obtain bail.”
Justice Alito said the law may be subject to constitutional challenges in individual cases, a subject that was not before the justices. It was clear, he wrote, that Congress had required the secretary of Homeland Security to take into custody immigrants released from criminal custody even if years had passed in the meantime.
“An official’s crucial duties are better carried out late than never,” Justice Alito wrote.
Cecillia Wang, a lawyer with the American Civil Liberties Union, which represented the immigrants challenging the law, said the decision was part of a worrisome trend.
“For two terms in a row now,” she said, “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.”
The case concerned a law, enacted in 1996, which included a contested phrase. It said 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 was “when.”
Immigrants’ rights advocates said the law required prompt detention. Lawyers for the federal government 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 bail hearing to determine whether they are dangerous or pose a flight risk.
The plaintiffs included people who entered the country illegally, tourists or students who overstayed their visas and lawful permanent residents. Among them were 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 Alito wrote that such a strict deadline could allow local authorities opposed to federal immigration policy to frustrate the goals of the federal law.
“State and local officials sometimes rebuff the government’s request that they give notice when a criminal alien will be released,” he wrote. He cited statistics indicating that there were tens of thousand of such refusals in 48 states from January 2014 to September 2016.
“Under these circumstances, it is hard to believe that Congress made the secretary’s mandatory-detention authority vanish at the stroke of midnight after an alien’s release,” he wrote.
Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Neil M. Gorsuch and Brett M. Kavanaugh joined all or most of the majority opinion.
In a concurring opinion, Justice Kavanaugh wrote that the question before the court was a narrow one.
He said it was beyond dispute that the government can deport immigrants convicted of some crimes and that it can detain them during deportation proceedings.
The question the court decided, he wrote, was merely whether “the executive branch’s mandatory duty to detain a particular noncitizen when the noncitizen is released from criminal custody remains mandatory if the executive branch fails to immediately detain the noncitizen when the noncitizen is released from criminal custody.”
It would be odd, he wrote, for that requirement to change, for example, “if the executive branch fails to immediately detain the noncitizen because of resource constraints or because the executive branch cannot immediately locate and apprehend the individual in question.”
In dissent, Justice Breyer wrote that the case was neither narrow nor technical.
“Under the government’s view,” he wrote, “the aliens subject to detention without a bail hearing may have been released from criminal custody years earlier, and may have established families and put down roots in a community.”
“These aliens,” Justice Breyer wrote, “may then be detained for months, sometimes years, without the possibility of release; they may have been convicted of only minor crimes — for example, minor drug offenses, or crimes of ‘moral turpitude’ such as illegally downloading music or possessing stolen bus transfers; and they sometimes may be innocent spouses or children of a suspect person.”
Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined the dissent in the case, Nielsen v. Preap, No. 16-1363.
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