Supreme Court case could make it harder for Donald Trump to deport millions of people

The Supreme Court heard an immigration case Wednesday that could complicate President-elect Donald Trump’s plan to deport millions of people from the U.S.

The case, Jennings v. Rodriguez, deals with how long immigrants can be locked up by the government before they receive a chance for bail. Under the current rules, immigrants facing deportation can be detained indefinitely — sometimes for months or years — even if they have a green card or are otherwise here legally. Only two federal jurisdictions, which include California and New York, place limits on how long immigrants can be held without bail.

In his first interview after the election, Trump pledged to deport or incarcerate up to 3 million people that he said “are criminal and have criminal records” and are “here illegally.” If the Supreme Court, which has been operating with only eight justices since Antonin Scalia died in February, decides to make it easier for immigrants facing deportation to get out on bail, Trump may find it harder to follow through on his promise.

According to the ACLU, which argued Wednesday’s case at the Supreme Court, immigrants who are free on bond are five times more likely to avoid deportation than people who are detained, in part because freedom makes it easier to hire and work closely with attorneys.

“It would ensure that people who have claims to lawful status are given a fair shot at pursuing those claims and not forced to litigate their deportation cases from behind bars, when we know that doing so is extremely prejudicial,” said Michael Tan, part of the ACLU legal team presenting at the Court on Wednesday.

During arguments, the federal government tried to make the case that a ruling by the Ninth Circuit Court of Appeals in California, which requires that all immigrant detainees receive a bond hearing within six months, should not be allowed to stand.

Solicitor General Ian H. Gershengorn argued that most immigration detainees already have opportunities to get released, and said adopting a “one-size-fits-all approach” like the Ninth Circuit’s six-month rule is not the right way to fix the system.

Several justices seemed skeptical and peppered Gershengorn with questions, some focusing on the Fifth Amendment of the Constitution, which guarantees all people in the U.S. the right to due process.

“You can’t just lock people up without any finding of dangerousness, without any finding of flight risk, for an indefinite period of time, and not run into due process,” said Justice Elena Kagan.

At one point, Gershengorn apologized to the court for previously misinforming them about the average length of time that immigrants who are fighting deportation spend in detention. When he said that it’s typical — and acceptable, in the government’s view — for some people to be held for a year and a half or more, Justice Sonia Sotomayor was incredulous.

“We’re in an upended world when we think 14 months or 19 months is a reasonable time to detain a person,” Sotomayor said.

ACLU attorney Ahilan Arunlanantham noted that guaranteeing every immigrant a chance for bail within six months is “not a cap on detention at all,” adding, “Many people don’t get out.” He also said the current options for immigrants to be released from detention often involve decisions made by Immigrations and Customs Enforcement officers, who are “are essentially the jailer.” He argued that every detainee be given the chance to have a neutral judge decide his or her fate.

But some of the court’s conservative-leaning justices seemed wary of foisting the six-month bond rule on the entire country. Chief Justice John Roberts said creating “some kind of temporal limit” for when a bond hearing is required “looks an awful lot like drafting a statute or a regulation.”

A split decision by the court would maintain the status quo, meaning immigrants in the Ninth Circuit and Second Circuit, which includes New York, Connecticut, and Vermont, would be entitled to bond hearings within six months, while immigrants in the rest of the country would not.

That prospect did not seem appealing to Justice Kagan, who asked, “Wouldn’t it be better to set some guideposts that everybody in the country would know to follow rather than having one suit pop up here and one suit pop up here and another in another place and everybody would be treated differently? That does not seem like a good immigration system.”

The court’s ruling in the case is expected sometime in 2017.