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A detainee walks through the Northwest ICE Processing Center (NWIPC), formerly known as the Northwest Detention Center, during a press tour on Monday, Dec. 16, 2019, in Tacoma, Wash. Credit - Jovelle Tamayo/For The Washington Post—Getty Images
The U.S. Supreme Court ruled on Monday that immigrants detained in the United States are not entitled to a bond hearing, a decision that means that the thousands of people with open immigration cases who are currently in federal holding facilities can continue to be detained indefinitely.
The high court also ruled that federal courts lack the authority to grant class-wide relief to detainees. In other words, if any detainees want to argue in the future that they have a right to a bond hearing, they will need to bring their cases individually, despite the fact that immigrants are not entitled to counsel during immigration proceedings.
The Court’s ruling maintains the status quo. For-profit corporations, like Geo Group and others, currently detain thousands of immigrants in prison-like centers. Such immigrants are not charged with a crime, nor do they have a right to a hearing justifying their detention. The Court also maintains the U.S. government’s broad discretion over immigrant detention, ruling that immigrants can only have a bond hearing if the government says so.
The ruling is not a surprise, says Muzaffar Chishti, a senior fellow at the Migration Policy Institute (MPI), a nonpartisan research organization. But, he adds, “it’s a pretty strong statement” from the highest court in the land. “It does not raise any more hopes for people who have been held in prolonged detention, that there may be a reprieve for them,” he says.
The two cases, Johnson v. Arteaga-Martinez and Garland v. Aleman Gonzalez, were brought by unauthorized immigrants who challenged their prolonged detention by the U.S. government. They argued that immigrants held in detention for longer than six months are entitled to individualized bond hearings where the government must prove the necessity of their detention.
At the center of the lawsuits was a 1996 immigration statute that states an unauthorized immigrant “may” remain in detention for an extended period of time if they fail to meet certain criteria. Several detained immigrants sued the U.S. government, arguing that because the statute says “may” be detained rather than “shall” be detained, it connotes discretion by judges and entitles them to a hearing. The case was appealed to the Supreme Court, where the Biden Administration argued that the law grants the U.S. Attorney General the power to detain unauthorized immigrants for any period of time while their cases are litigated. (The Department of Justice declined to respond to TIME’s request for comment.)
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In 2020, the Ninth Circuit Court of Appeals ruled detainees are entitled to a bond hearing. Because Garland was brought as a class action lawsuit, the Ninth Circuit granted class-wide relief and extended the right to a bond hearing to every person named in the suit.
On Monday, the Supreme Court reversed the Ninth Circuit, ruling that detainees are not entitled to such a bond hearing and cannot be granted relief on a class-wide basis. Going forward, those asserting a right to a bond hearing, either on statutory or Constitutional grounds, will have to bring their cases individually.
The court ruled 8-1 in Johnson v. Arteaga-Martinez on the question of bond hearings, with Justice Sonia Sotomayor writing the majority opinion and Justice Clarence Thomas filing a concurring opinion which Justice Neil Gorsuch joined in part. Justice Stephen Breyer also filed an opinion concurring in part and dissenting in part. In Garland v. Aleman Gonzalez, on the question of class-wide relief, the court ruled 6-3, with Justice Samuel Alito writing the majority opinion. Justice Sotomayor filed an opinion concurring in part and dissenting in part which Justice Elena Kagan joined and Justice Breyer joined in part.
Unlike people charged with a crime in the U.S., those in immigration detention centers are not entitled to counsel in immigration proceedings, says Leah Litman, a professor at University of Michigan Law School who filed a brief in support of Gonzalez. As a result, she argues that the decision is “just completely unworkable and unrealistic.”
“It makes it impossible to ensure that everyone who is potentially entitled to a bond hearing will get one,” she says.
On average, only about 21% of people in immigrant detention are able to access legal representation, according to the Transactional Records Access Clearinghouse (TRAC), a research organization at Syracuse University. TRAC data also finds that lawyers increase the chance that a person can win their immigration case.
As of June 5, more than 24,500 people were held in immigration detention, according to TRAC. Nearly 5,800 of them were held in facilities operated by Immigration and Customs Enforcement (ICE), where, as of December 2019, the average length of stay is 55 days, according to the American Immigration Council, an immigrant advocacy and research organization. However, it is common for lengths of stay in ICE detention to last for several years as their case makes its way through an increasingly backlogged immigration court system.
Immigrants and advocates have long raised concerns about safety in immigration detention, and individual facilities have been the subject of controversy and federal investigations for how immigrants are treated. In May 2021, the Biden Administration shut down two ICE detention centers in Georgia and Massachusetts after launching investigations into allegations of abuse, including the Irwin County Detention Center, where women have accused a gynecologist of conducting forced sterilizations.
Matt Adams, the legal director of the Northwest Immigrant Rights Project who argued the Garland v. Aleman Gonzalez case before the Supreme Court, said the ruling raises ethical concerns.
“To now find that the statute allows for indefinite detention is contrary to a fundamental principle upon which our system was founded—that government officials may not lock up a person without at least providing them their day in court to contest whether their confinement is justified,” Adams said in a statement to the ACLU. “But we are not done, and will return to court to address the constitutional claim that must now be resolved.”