On eve of Trump presidency, Supreme Court takes up key immigration case
For Arnold Giammarco, apprehended for several petty offenses and drug possession convictions, the prospect of deportation meant 18 months in a Massachusetts jail,聽before being sent to Italy, where he had not lived since he was age 4.
For Sayed Omargharib, taking two pool cues from a bar led to 22 months in detention and the memory of the weight of the shackles on his wrists and legs when immigration agents came to his house at 5 a.m. In the end, a federal appeals court decided officials had been wrong to hold him and set him free.
And for Sylvester Owino, it was nine years in detention until a federal appeals court decided to allow him to post bond. Now, he鈥檚 still in the United States 鈥� and still fighting deportation 鈥� though at least he can 鈥渂reathe fresh air.鈥�
On Wednesday, the United States Supreme Court will hear arguments in a case examining whether immigrants facing deportation from the US can get the small but potentially life-altering right to a bond hearing 鈥� and the opportunity to avoid years-long detentions as they await immigration hearings.
The case cuts to the notion of fairness within the deportation process 鈥� raising the question of how long someone guilty of nonviolent crimes should be allowed to be held in detention. But with President-elect Donald Trump mulling policies that could aggressively expand America鈥檚 already sprawling detention and deportation system, the stakes in the case have become that much higher.
Wednesday鈥檚 arguments will be a glimpse 鈥� for the first time in more than a decade 鈥� into how the high court sees the constitutionality of a key part of the US immigration system.
鈥淲e only expect that the Trump administration is going to increase the use of [immigration] detention,鈥� says Sejal Zota, legal director at the National Immigration Project of the National Lawyers Guild. 鈥淭he case certainly has even more import now, because it would ensure built-in constitutional protections for immigrants.鈥�
The exploding detainee population
The case, , stems from a class action lawsuit against the federal government聽brought by Alejandro Rodriguez and other detained immigrants. It concerns whether certain immigrants are entitled to a bond hearing after being detained for more than six months.
In the decade since the high court heard a major immigration detention case, the legal and political landscape has changed significantly. The federal government has ramped up detentions as a means to increasing deportations, and Jennings will give the court a chance to react to these developments.
Between 1995 and 2016, the average daily immigration detention population grew from 7,475 to almost 33,000, according to a 聽 from the American Civil Liberties Union (ACLU). A significant portion of these detainees are immigrants subject to 鈥渕andatory detention鈥� statutes.聽
Under these statutes, the government can detain certain noncitizens targeted for deportation while their removal proceedings are ongoing, without having to justify their ongoing detention to a judge.聽Immigrants eligible for mandatory detention include legal permanent residents with criminal records and immigrants arriving at the US border for the first time.
Mandatory detention laws are in place ostensibly to prevent immigrants from going on the run during their deportation proceedings. And many detainees are deported within six months. But the ACLU argues the government is getting away with glaring violations of constitutional due process.
The government is 鈥渢rying to make this an issue of border security, where we鈥檙e just talking about having a hearing,鈥� says Cecillia Wang, director of the ACLU鈥檚 Immigrants鈥� Rights Project. 鈥淲e鈥檙e talking about fundamental civil liberties issues.鈥�
As the number of deportations has increased 鈥� with President Obama deporting more immigrants than every 20th century president combined 鈥� proceedings have become more focused. They are targeting those who have a weak case for staying.
Life in detention
A consequence of that, however, has been that those with strong cases against removal are often those who stay in detention the .
After his 18 months of detention, Mr. Giammarco decided to, in his words, 鈥渞aise the white flag鈥� and accept deportation to Italy.
A Connecticut resident for 50 years and a US Army veteran, he had struggled with drug addiction for several years. After leaving prison in 2008, he got a job at McDonalds, became a father, and on July 4, 2010, married Sharon, his US citizen wife.
They had been living together for about a year when Immigration and Customs Enforcement (ICE) officials arrested him. While in detention, his appeals drained the couple鈥檚 personal savings, their daughter鈥檚 college fund, and $25,000 of his parents鈥� savings.
鈥淗e was changing as a person, just becoming depressed. We could see pain and agony in his eyes,鈥� says Mrs. Giammarco. 鈥淚 couldn鈥檛 imagine him in that place for another year, another day.鈥�
鈥淲e made a decision: I would rather have him free in Italy than locked up here,鈥� she adds. 鈥淎t least we could call him if we wanted, and go visit him if we could. We鈥檇 figure out something from there.鈥�
For Mr. Omargharib, it was the courts that changed course. The Washington hairdresser, a green-card holder for 28 years, recalls getting sick during his 22 months in the detention center and, as the weeks dragged on, he lost his job, his cars, and his house. He鈥檚 now unemployed and living with another former detainee in Richmond, Va.
If he had received a bond hearing after six months of detention, he says, his life would be different.
鈥淚f I had got out I鈥檇 have my job, I鈥檇 be OK,鈥� he says.
How the courts have ruled
The US Court of Appeals for the Ninth Circuit seemed to agree when it ruled in 2013 that certain immigrants subject to mandatory detention must receive a bond hearing in after six months.
鈥淲hile ICE is entitled to carry out its duty to enforce the mandates of Congress,鈥� a three-judge panel of the Ninth Circuit , 鈥渋t must do so in a manner consistent with our constitutional values.鈥�
In its appeal to the Supreme Court, the Obama administration is that the Ninth Circuit has 鈥渞ewritten鈥� the laws governing immigration detention with a 鈥渞adical鈥� decision.
In 2003, the Supreme Court ruled that the government can detain deportable immigrants without bond during 鈥渢he limited period necessary for their removal proceedings.鈥� But in that ruling, Demore v. Kim, the court cited government data showing that the average detention period in such cases was roughly four months 鈥� data that聽the Justice Department admitted in August was wrong. Its聽new estimate puts the average detention period at more than a year.
Justice Anthony Kennedy, in particular, 鈥渟eemed to assume certain things in the Demore case,鈥� says Muzaffar Chishti, head of the Migration Policy Institute鈥檚 New York office. 鈥淗ow he reacts to the new information presented to the court [will be] important to see in the final outcome of the case.鈥�
The justices could find consensus around a narrow, technical decision. But if there is a broader decision, in either direction, it will have a significant impact on the future of US immigration policy.
A 'modest first step'
ICE is currently holding over in immigration detention centers 鈥� more than it ever has before 鈥� and 5,000 more detainees are expected to enter the system over the coming months. Mr. Trump, meanwhile, has said he plans to deport up to 3 million immigrants with criminal records 鈥� a plan that would require 鈥渁 massive 鈥� and costly 鈥� expansion of America鈥檚 prison and detention infrastructure,鈥� according to the .
A bond hearing would be a 鈥渕odest first step鈥� toward reining in such an expansive vision, says Christina Fialho, executive director of Community Initiatives for Visiting Immigrants in Confinement (CIVIC).
During the nine years that Mr. Owino was detained, immigration officials repeatedly denied his requests for bond, calling him a flight risk and a threat to public safety. He had already served two years in state prison for robbing a convenience store in 2003.
While in detention, Owino鈥檚 parents, and then his brother, died. He watched as his friends were either freed or deported. 鈥淲hen I hit the seven-year mark I was like, 鈥楾his is too much.鈥� 鈥�
In 2014, the Ninth Circuit finally granted Owino a bond hearing. The immigration judge who heard his case in 2015 released him on a $1,500 bond, which was paid for by funds raised by CIVIC.
Today, Owino lives in San Diego, where he runs a food stall at the local farmer鈥檚 market while his case continues to be processed through the courts. He鈥檚 ready to keep fighting to remain in the US.
To Owino, a win for Mr. Rodriguez in Wednesday鈥檚 Supreme Court case would be one important step toward ensuring fewer people have to go through what he did.
鈥淩ealistically I could have been out a long time ago,鈥� Owino says. 鈥淚 could have been living my life.鈥�
Staff writer Jessica Mendoza contributed to this report.
