Justice Samuel Alito Jr. Credit: Diego M. Radzinschi / ALM

In a closely watched immigration case, the Justice Department urged the U.S. Supreme Court on Wednesday to find that immigrants who have been released after serving criminal sentences can be picked up at any time—even a dozen years or more later—and detained without hearings until their deportation cases are resolved.

In his second day on the bench, Justice Brett Kavanaugh, confirmed Oct. 5 after a bruising Senate fight, appeared sympathetic, along with Justice Samuel Alito Jr., to the government’s arguments that federal immigration law does not impose a time limit on when immigration enforcement officials must act after an immigrant is released from criminal custody.

Kavanaugh challenged the argument of Cecillia Wang of the American Civil Liberties Union, counsel to a class of immigrants who were released and returned to their families and communities only to be detained years later without bond hearings. Wang argued the law’s mandate requires the government to act “with a reasonable degree of immediacy,” meaning the same day or within 48 hours at the outside.

“That’s very odd when you think about what Congress was doing in 1996, because they were well aware that would not happen, A, because of resources, B, because they’re not learning about [the alien’s release] right away,” Kavanaugh said, responding to Wang. “And so when you combine those two points, Congress knew it wouldn’t be immediate, and yet Congress did not put in a time limit. That raises a real question for me whether we should be superimposing a time limit into the statute when Congress, at least as I read it, did not itself do so.”

Alito pushed back at Wang’s contention that Congress, in the 1996 law, had anticipated that federal immigration authorities would need information about when aliens were released so they could move quickly to detain them by enacting mechanisms for state and local cooperation.

“And is that what is happening now?” asked Alito, in an apparent reference to ongoing sanctuary city litigation in the lower courts.

“It’s largely what is happening now,” said Wang, noting that there is data showing that in fiscal years 2015 through 2017, 94 percent of federal requests to state and local jurisdictions were complied with.

Zachary Tripp, an assistant to the U.S. solicitor general, encountered skepticism from many of the remaining justices over his argument that the law imposes a “continuing urgent obligation” to detain, without bail.

Justice Stephen Breyer pointed to one case in which an alien was detained 14 years after his arrest and release for stealing bus transfers.

“To me, I’m not saying to you, that isn’t a parade of possible future horribles. Those are the horribles,” Breyer said. “Every person in the United States, just about, if he’s arrested has the right to a bail hearing.

In Nielsen v. Preap, the U.S. Court of appeals for the Ninth Circuit agreed with district courts in California and Washington that the mandatory detention law applied only to those aliens who were detained shortly after they completed their sentences.


Read more:

Marcia Coyle: Kavanaugh’s Partisanship Doesn’t Just Vanish Now

Appellate Lawyers Who Backed Kavanaugh Say He’s Still Their Man

As Justice, Like Circuit Judge, Kavanaugh Shows Active Style on Bench

Kavanaugh’s Supreme Court Clerk Hires in Perspective

With Kavanaugh Now Sitting, Several Big Petitions Await Action