Why Is the Obama Administration Opposing Rights for Immigrant Detainees?

By Daniel Denvir, Guardian UK

03 December 16

Non-citizens are often locked up as they fight deportation proceedings, even if they’re in the country legally or don’t pose a flight risk

mmigrants detained for months and even years by the federal government should have no right to a bond hearing to determine whether their detention is necessary or justified. That might seem like an extreme statement. It is. But it’s not coming from Donald Trump. That’s what lawyers for the Obama administration this week argued before the US supreme court in Jennings v Rodriguez.

Non-citizens, including lawful permanent residents, are often locked up for lengthy periods in prison-like conditions while fighting deportation proceedings. That’s a result of a 1996 law, signed by President Bill Clinton, which made detention mandatory for a huge swath of immigrants convicted of crimes – even minor ones and even cases where an immigrant poses no public safety or flight risk.

It’s a remarkable case that encapsulates the absurd brutality of contemporary immigration politics: so-called moderates like Clinton, George Bush and Barack Obama have built and defended a monstrously efficient deportation machine that will soon be handed over to a hardcore nativist.

As of October, a record 40,000-plus immigrants, including many asylum seekers, were detained by the federal government, mostly in private facilities. That number that could grow much larger under Trump. The president-elect has pledged to orchestrate mass deportations and also promised to freeze federal hiring, which could make an already severely backlogged immigration court system grind to nearly a halt. It’s no surprise that private prison company stocks soared after Trump’s win.

“If the president-elect means what he says on detention and means what he says on the hiring freeze, inevitably detention times are going to skyrocket,” said Michael Tan, a staff attorney with the ACLU’s Immigrants’ Rights Project and one of the attorneys on the case.

The Obama administration’s response is that immigrants can file habeas corpus petitions in federal court – a complicated and time-consuming process that would provide no due process for most immigrants subject to imprisonment by the federal government.

The case before the supreme court is a class-action lawsuit represented by Alejandro Rodriguez, a lawful permanent resident brought to the United States as an infant whom the government sought to deport because of convictions for drug possession and “joyriding”. Rodriguez was imprisoned for more than three years with no bond hearing while he fought deportation – a fight he ultimately won.

In fact, it is the very people detained for lengthy periods like Rodriguez who are most likely to win their cases and be allowed to remain in the US because they have substantive claims to make. Those without such claims are typically subject to rapid deportation.

“The sad irony is the people who have the strongest claim to lawful status in the United States are the most likely to end up in detention for months or years without ever being able to see a judge and seek relief,” said Tan.

Those detained for six months or longer, according to the ACLU, are five times more likely to win their case than the average immigration detainee.

Though Trump has made brazen racism and xenophobia the centerpiece of his political persona, his policy agenda echoes that pursued by Obama: deporting those convicted of crimes. But the majority of those detained by immigration authorities for six months or longer, according to the ACLU, were convicted of crimes so minor that they carried a conviction of no longer than six months.

The US court of appeals for the ninth circuit found that non-citizens like Rodriguez did have a right to a bond hearing every six months. The Obama administration disagreed and appealed to the supreme court.

In the 2003 case Demore v Kim, the supreme court ruled in favor of the government’s power to detain non-citizens for a limited amount of time without a bond hearing – a period that the court found, based on information provided by the government, averaged roughly five months for those fighting their deportation before the Board of Immigration Appeals. The problem, the government conceded in an August letter to the court, is that that figure is bogus. In reality, the average detention time for such non-citizens was more than a year.

The government, according to Scotusblog’s bloodless analysis, is in part relying on the 1953 case Shaughnessy v United States ex rel Mezei, which “denied judicial review to an immigrant held in indefinite detention based on secret evidence, an outcome next to impossible to square with modern constitutional law.”

Trump has made it clear that he has little respect for constitutional rights. Obama’s dismal record will make it all the easier for the president-elect to shred them.