A seemingly divided U.S. Supreme Court on Wednesday tried to figure out whether the government can detain immigrants indefinitely without providing hearings in which they could argue for their release.
The justices heard argument in a class-action lawsuit brought by immigrants who spent long periods behind bars, including many who are legal residents of the United States or are seeking asylum.
The issue for the court is whether people the government has detained while it is considering deporting them can make their case to a judge that they should be released.
The case pits the Obama administration against immigration advocates, and the court hearing comes as President-elect Donald Trump has said he will step up deportations.
The San Francisco-based 9th U.S. Circuit Court of Appeals ruled for the immigrants, including Mexican immigrant Alejandro Rodriguez, who was detained for more than three years without a bond hearing.
Rodriguez is a legal U.S. resident who was brought to the country as an infant. The Homeland Security Department detained him when it began deportation proceedings because Rodriguez had been convicted of possession of a controlled substance and driving a stolen vehicle, according to the appeals court. He spent no time in jail for the criminal convictions.
In another case, an Ethiopian asylum-seeker was kept in detention partly because a DHS officer wrongly labeled him a Somali, according to the American Civil Liberties Union, which is representing the immigrants.
The 9th Circuit ruled that immigrants generally should get bond hearings after six months in detention, and then every six months if they continue to be held. The government must show why they should remain locked up, the court said.
Justice Stephen Breyer, voicing a sentiment that appeared to be shared by other liberal justices, expressed astonishment that the provisions of immigration law at issue would allow someone released after a hypothetical four-year prison term to be held the same amount of time by U.S. immigration authorities. "How can they be punished for four more years?" Breyer asked.
Acting Solicitor General Ian Gershengorn defended the law, saying Congress clearly gave DHS considerable power to hold people in custody while determining whether to deport them.
Ahilan Arulanantham, the ACLU lawyer representing the immigrants, told the justices the ultimate decision about whether to hold or release people was not at issue before the court. "We're just talking about the need for an inquiry, the need for a hearing," Arulanantham said.
But the court's conservative justices sounded skeptical of Arulanantham's and the appeals court's reading of immigration law. "The problem is, that looks an awful lot like drafting a statute or a regulation. ... We can't just write a different statute," Chief Justice John Roberts said.