WASHINGTON _ Newly seated Justice Brett Kavanaugh spoke up Wednesday in defense of the Trump administration's view that legal immigrants with criminal records can be arrested and held for deportation, even years after they were convicted and completed their sentences.
At issue is a federal law that calls for mandatory detention and possible deportation for "criminal aliens," including legal immigrants convicted of crimes ranging from violent felonies to simple drug possession. The law says the Homeland Security secretary "shall take into custody any alien" with a criminal record that could lead to deportation "when the alien is released."
The debate focuses on when exactly is "when"?
In a class-action suit brought in California, lawyers for the American Civil Liberties Union complained the mandatory detention policy has been applied to lawful immigrants who had lived and worked in the community for decades after being convicted of misdemeanors, such as drug possession charges.
The administration argues that a provision of the 1996 law calls for arresting and jailing such immigrants, despite their good records after serving their time.
Kavanaugh disputed the ACLU's contention that this mandatory detention rule applies only to immigrants who can be detained at the time they are being released from local jails or state prisons, not to those released years ago.
"Congress did not put in a time limit," Kavanaugh said. "It raises a real question over whether we should put in a time limit."
Kavanaugh also questioned ACLU arguments that detained immigrants are entitled to bond hearings for release.
"The problem is Congress didn't trust those hearings," Kavanaugh said.
The justices sounded closely split along ideological lines during the argument in Nielsen v. Preap.
Last year, the U.S. 9th Circuit Court of Appeals ruled the mandatory detention rule does not apply to immigrants who were not taken into federal custody "promptly" after their release. The decision did not shield noncitizens with past crimes from being arrested or deported, but it said they could seek release on bond if the judge found they were not a danger to the public or likely to flee.
The ACLU sued on behalf of lawful noncitizens such as Eduardo Padilla, who came to the United States in 1966 as an infant and became a lawful permanent resident in the Sacramento area. He has five children and six grandchildren, all of whom are U.S. citizens. Padilla had two convictions for drug possession in 1997 and 1999 and served 90 days in jail in 2002 for having an unloaded pistol in a shed.
In 2013, federal agents arrested him for those past crimes and held him in jail for deportation. But he went free after the 9th Circuit Court ruled the "mandatory detention" provision did not apply to immigrants such as Padilla. He was released on a $1,500 bond because a judge decided he did not present a danger and was not likely to flee.
A lawyer for the Trump administration urged the high court to reverse the 9th Circuit and uphold mandatory detention for all immigrants with crimes on their records, regardless of how long they have been free.
"Our position is this is a mandate," said Zachary Tripp, an assistant to the solicitor general. "This is an urgent priority."
Justice Stephen Breyer, joined by three other liberals, questioned whether Congress intended such a roundup. "There is a huge constitutional question," he said, over whether people in the United States can be arrested and held indefinitely with no hearing. The Constitution says "no person" shall be "deprived of liberty ... without due process of law," and Breyer noted that clause applies to immigrants living here.
Can the government "arrest a grandfather after 50 years?" he asked.
Yes, the government attorney said, noting there was no time limit on the law.
Justice Neil M. Gorsuch objected. "You are quibbling," he said. "Is there any limit?"
But the court's conservatives, led by Justice Samuel A. Alito Jr., said they were not inclined to limit the authority of federal agents. He said that in California, hundreds of immigrants leave jail, and local officials refused to notify federal agents.
ACLU lawyer Cecillia Wang said the mandatory detention rule should not apply to immigrants who are not taken into custody within 24 hours, but several justices said that time limit was too short.
The lead plaintiff, Mony Preap, had come from Cambodia and been a lawful resident since 1981. He was taken into custody for two past marijuana convictions, but an immigration judge later canceled his deportation and he was released.
