ICYMI: SCOTUS Says ICE Can Detain Immigrants Based on Prior Convictions

By Shani Saxon Mar 22, 2019

The Supreme Court ruled this week that Immigration and Customs Enforcement (ICE) can detain immigrants for an indefinite amount of time without bond based on past convictions, Vox reports. In the 5-4 ruling in Preap v. Nielsen on Tuesday (March 19), the justices decided that this law even applies to green card holders, and it doesn’t matter if the past convictions were minor. They also ruled that it doesn’t matter if the detained person already paid fines and completed a prison sentence related to the crime.

Vox reports that the Court’s decision, which could result in detention of thousands more immigrants, does not create new powers for ICE because in most states, immigrants could not receive bond hearings after being detained for past convictions. The question in this case was if that law still applies years after the crime took place. 

From Vox,


Legally, the Court’s decision was a question of grammar: If the government was supposed to pick up mandatory detainees “when they are released,” but did not, would they still count as mandatory detainees? The conservative majority said yes, they would.

The Court’s liberal justices exprssed worry about the unconstitutionality of mandatory detention in general. Justice Stephen Breyer (joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan) rejected the “broad interpretation the majority now adopts” in this case. He wrote in a dissent, "I fear [Tuesday’s ruling] will work serious harm to the principles for which American law has long stood." Those principles, as Vox points out, "say that, as a rule, the government can’t detain anyone indefinitely without showing cause and that people who have served criminal sentences can’t be summarily reimprisoned for the same crime."

Justice Breyer also wrote that immigrants "may be detained for months, sometimes years, without the possibility of release; they may have been convicted of only minor crimes…; and they may sometimes be the innocent spouses or children of suspect persons. Moreover, for a high percentage of them, it will turn out after months of custody that they will not be removed…because they are eligible by statute to receive a form of relief."

Vox expands on that thought, writing:


The irony is that about 40 percent of the immigrants subject to mandatory detention end up winning their cases and being allowed to stay in the country. But after years or months in detention, it’s possible that some immigrants who would be allowed to stay end up giving up the fight and accepting deportation, rather than continuing to go without income or freedom.

The liberal justices on the Court wrote that the ruling is "unconstitutional." The conservative justices agreed that they might be right, but said that they "need a case that is explicitly about constitutionality to determine whether mandatory detention without bond is constitutional or not."