Immigration Supreme Court

Opinion: Supreme Court Rules Immigrants Can Be Detained Indefinitely


By: Alyssa Isidoridy


The Supreme Court on Tuesday issued a decision that allows the government to continue to detain, without bond hearings, immigrants that have been held in detention for prolonged periods. The decision reversed a Ninth Circuit ruling that interpreted sections of the Immigration and Nationality Act (INA) to grant a right to periodic individualized custody determinations. The Supreme Court based its decision on statutory interpretation of the INA and left the constitutional question to be reexamined on remand.

Who is affected?

The case has tragic implications for two broad categories of non-citizens: immigrants who arrive at the border and seek admission under asylum law, as well as those previously in the country, including legal permanent residents, whom the government seeks to remove because they committed a crime. These individuals are incarcerated, on average, for 13 months despite the fact that most have good chances of ultimately prevailing on their cases and winning legal status to remain in the country (about 70% for the asylum-seekers, and 40% of green card holders).

What are the implications?

Given the huge backlogs in immigration courts throughout the country, the Court’s decision means that many immigrants will continue to face months and years behind bars, away from their homes and families and without and due process protections, before their cases are heard and they are released to live lawfully within the US. The implications of this case are particularly concerning given President Trump’s recent actions, which have not only exacerbated the backlogs in immigration courts by relocating Immigration Judges to areas along the border but have also increased the number of those who are held in detention by directing the Department of Homeland Security to place immigrants in removal proceedings in detention to the maximum extent permitted by law.

What’s next?

The Supreme Court sent back the case to the Ninth Circuit to decide two questions:

  1. The first question is whether the respondents can continue to bring suit as a class, rather than individual respondents. As several lawyers associated with the class have pointed out, a finding that the respondents are not entitled to bring the case as a class action would be devastating to many of those immigrants who are unable to obtain individual lawyers, as there is no right to counsel in immigration court.

  2. Secondly, the Court directed the Ninth Circuit to examine whether a statute that allows immigrants to face prolonged detention without the potential for a bail hearing violates Constitutional guarantees of due process. This constitutional question will have far-reaching consequences for the protections guaranteed to noncitizens within our borders. Justice Breyer, reading from his scathing dissent, posed the following questions: “[w]ould the Constitution leave the Government free to starve, beat, or lash those held within our boundaries? If not, then […] how can the Constitution authorize the Government to imprison arbitrarily those who, whatever we might pretend, are in reality right here in the United States?”


Alyssa is a third-year law student at NYU who has previously worked with the ACLU Immigrants’ Rights Project, Legal Aid Society Immigration Law Unit, and the Capital Area Immigrants’ Rights (CAIR) Coalition in Washington, D.C. Next year she will be a Masiyiwa-Bernstein Fellow at Human Rights First.



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