Frontera Facts: Troubling U.S Supreme Court decision in Jennings v. Rodriguez upholds legality of indefinite immigrant detention

 

The Supreme Court’s alarming decision on February 27th in the Jennings v. Rodriguez case decided by a 5 to 3 vote that indefinite detention of migrants and asylum seekers is permissible under federal immigration law. It also refused to consider challenges to the constitutionality of indefinite detention. Tens of thousands of immigrants, their families and communities throughout the country will be affected by this decision.

 

The Jennings decision reflects and reinforces broader trends toward the restriction of basic rights in U.S immigration policy that have deepened during the Trump administration. This case disturbingly takes the U.S one step further towards a legal system that assumes, as Deputy Solicitor General Malcolm Stewart has argued, that people at the border “have no constitutional rights at all” and that “whatever Congress chooses to give is due process.”

 

As Justice Sotomayor responded at oral argument in the case, such an approach constitutes “lawlessness” (id.). Justice Kagan meanwhile pressed Stewart at the oral argument of the Jennings case as to whether his position implied that arriving immigrants could be tortured or submitted to forced labor.  She additionally questioned how such outrages could be differentiated in constitutional terms from indefinite detention.

 

The three dissenting justices (Breyer, Ginsburg, and Sotomayor) insisted that indefinite detention of immigrants without periodic bail hearings should be ruled unconstitutional. The majority’s decision reversed the Ninth Circuit Court of Appeals’ carefully reasoned decision in 2015 in response to a case brought by the ACLU. The Ninth Circuit’s decision required that bond hearings be held at least every six months in such cases, as long as they did not involve individuals who were flight risks or posed a danger to national security.

 

The Supreme Court’s decision in the Jennings case fails to wrestle with this question that strikes at the heart of the abuses of current U.S immigration policy. Justice Breyer noted in the dissenting opinion joined by Justices Sotomayor and Ginsburg that “freedom from arbitrary detention is as ancient and important a right as any found within the Constitution’s boundaries”.  

 

It is worth noting in this context that under international human rights law, indefinite and arbitrary detention under the kinds of inhumane conditions that prevail in immigration detention centers and prisons throughout the U.S may themselves be considered a form of torture, as the UN, the International Committee of the Red Cross, Physicians for Human Rights and other leading human rights organizations throughout the world have noted in multiple contexts.

 

Many of the cases at issue in the Jennings decision involve persons seeking asylum who have been determined to have a “credible fear of persecution” in their home countries. Indefinite detention under such circumstances is clearly punitive and in violation of U.S. obligations under international law.

 

Our most recent research report, Sealing the Border, documents how intensified immigration enforcement nationally since the Trump administration took office has exacerbated and deepened pre-existing patterns of serious human rights violations in the U.S-Mexico border region. This includes the arbitrary denial of asylum, bond, and legal representation and the punitive detention of asylum seekers, increasing numbers of families that have been separated, the further erosion of due process for detained migrants, the imposition of inhumane conditions of confinement and denial of necessary medical care to pregnant women and persons who have been determined to be HIV positive, as well as the criminalization of migrant families and communities throughout the region.  

 

All of this undermines our nation’s compliance regarding international law as to refugees and asylum seekers and the overall rule of law. Indefinite detention of migrants and asylum seekers betrays our deeper ethical and moral commitments to fair treatment and justice for all persons, regardless of their immigration status.  Indeed, the United States Conference of Catholic Bishops asserts in its report exploring the injustices present in U.S. immigrant detention centers that the system as it is now is “neither humane nor [...] necessary.”  

 

Meanwhile it is widely assumed within the beltway in D.C. and beyond, on both sides of the aisle, that further intensification of what is referred to as “border security” is the necessary price for some semblance of “comprehensive immigration reform” (possibly including unprecedented changes in legal mechanisms for immigration such as family reunification) or specifically for the extension of the protections of DACA.  

 

Our experience and faith-based witness with immigrant families and communities at the border tells us that this price is much too high, and in fact unconscionable and thus unacceptable. Additional measures of so-called border “security” will result in greater human insecurity for residents in our region and their increased vulnerability to unacceptable human rights violations. The Jennings decision adds further fire to this dangerous trend.  

 

Read Sealing the Border.