Immigration activists demonstrate at the Supreme Court earlier this year in support of President Obama's executive order to grant relief from deportation in order to keep immigrant families together. The court heard a new immigration case Wednesday. (Photo: J. Scott Applewhite, AP)
WASHINGTON — President-elect Donald Trump wants to deport millions of undocumented immigrants, but the Supreme Court appeared potentially deadlocked Wednesday over how long immigrants facing deportation can be detained without court hearings.
Under current law, immigrants who have committed even minor criminal offenses and those picked up crossing the border can be held indefinitely during deportation proceedings. But a federal appeals court ruled last year that they cannot be held more than six months without a hearing.
The Obama administration appealed the ruling, and on Wednesday the high court seemed deeply divided. On one hand, its more conservative justices saw little reason to second-guess federal laws giving the government wide latitude in such cases. On the other hand, its more liberal justices questioned whether those laws circumvent the Constitution's due process guarantee.
It seemed possible that the justices could deadlock 4-4 while the vacancy created by Justice Antonin Scalia's death in February remains unfilled. That could lead to the case being sent back to the lower court for further consideration, or a lengthy delay while a ninth justice is nominated and confirmed, so that the case can be reheard.
The court deadlocked on four cases last term, including on President Obama's effort to protect millions of undocumented parents from deportation. A federal appeals court's ruling against the program remains intact.
Thousands of immigrants facing possible deportation are held for a year or longer before getting a hearing, which the U.S. Court of Appeals for the 9th Circuit in California found to be intolerable. The American Civil Liberties Union lawyer representing a group of immigrants held on average for 13 months, Ahilan Arulanantham, said even some terrorism suspects get better procedural safeguards.
"The (Immigration and Customs Enforcement) officials who are making these decisions are essentially the jailer," Arulanantham said. "They're local detention officers."
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But Acting Solicitor General Ian Gershengorn said immigrants facing deportation have procedural rights, such as seeking release in a federal court while their immigration cases proceed. "With that process comes time," he said.
It didn't take long for the justices to divide along familiar lines. Chief Justice John Roberts said the court "can't just write a different statute" and should not decide the case on constitutional grounds because the debate is over federal statutes. But Justice Elena Kagan said the Constitution should protect immigrants detained for lengthy periods without hearings.
Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor voiced the most concern for those immigrants held in detention while federal officials decide if they deserve to be deported. In those cases, they said, the immigrants should be released unless they are a danger or a flight risk.
"Prolonged detention without reason is not appropriate for these aliens," Sotomayor said. "Don't you think due process would require some periodic review to ensure that these people are properly being held?"
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