The Supreme Court said Monday it will take up a case that tests how long the government can hold immigrants with serious criminal records in detention while it tries to deport them.
The case comes at a time when the administration is pushing to expand the boundaries of detention to carry out President Trump’s mass-deportation orders. Detaining migrants is crucial to being able to remove them.
Many migrants the government tries to deport are entitled, under the law, to bond hearings. The issue before the justices in the new case is whether that applies to those with major criminal records, and if so, what burden of proof the government bears in arguing against the migrants’ release on bond.
The 2nd U.S. Circuit Court of Appeals had sided with illegal immigrants in two cases, ruling that there came a point at which their detention violated the Constitution because it was “unreasonably prolonged” and they had to be given bond hearings.
In one case, a Jamaican man with convictions of sexual abuse against a minor and endangering the welfare of a child had been held in immigration detention for seven months. In the other, a citizen of the Dominican Republic was held in immigration detention for 21 months after a second-degree assault conviction.
The judges also said the government bore the burden of proof in the bond hearing.
Both men remain in deportation proceedings but, because they are no longer in custody, they are far down the government’s list of priority cases.
U.S. Solicitor General D. John Sauer urged the justices to step in and overturn the lower decision, calling them “deeply flawed” by elevating migrants’ “liberty interest” in being set free over the government’s interest in trying to deport people who have no right to be in the U.S.
“This court should grant review because the 2nd Circuit has held an act of Congress unconstitutional,” Mr. Sauer wrote.
The American Civil Liberties Union, arguing against the government, had urged the justices not to take the case. The ACLU said the Jamaican migrant has already left the U.S. voluntarily, and the other man is not in custody at this time.
That makes the case “purely academic,” the ACLU said.
It took at least four of the nine justices to agree to hear the case.
The case is Genalo v. Black. Kenneth Genalo was director of the field office in New York for U.S. Immigration and Customs Enforcement. Mr. Black is the Jamaican convicted of sex abuse against a minor.
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