ARI SHAPIRO, HOST:
The U.S. Supreme Court appeared closely divided today as it tried to figure out whether immigrants can be detained indefinitely without a chance to persuade a neutral judge that they're entitled to temporary release. NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG, BYLINE: The people who brought today's case are a special subset of immigrants. They number 6,000 to 8,000 on any given day. They are long-term residents of the U.S. whose legal status has been revoked after they committed a crime, often a relatively minor crime like possession of a drug or petty theft. Or they are asylum seekers who claim a reasonable fear of persecution in their home countries.
Ultimately these asylum seekers win legal status here 70 percent of the time, and the long-term permanent residents have prevailed 40 percent of the time. But their cases take a long time - on average 13 months. Representing them as a group before the Supreme Court was lawyer Ahilan Arulanantham.
AHILAN ARULANANTHAM: We have a group of people who are unrepresented for the most part, who were incarcerated for years. They're in prison-like conditions. And all we're asking is that they get a chance to ask a judge to be released. We're not talking about the rules for how long you can detain someone. We're talking about how long you can detain somebody without a hearing.
TOTENBERG: A federal appeals court in San Francisco agreed. It ruled that after six months detention, these individuals are entitled to a hearing to determine if they are a safety or a flight risk. And if not, they can be temporarily released by posting a money bond or agree to electronic monitoring or both. The Obama administration then appealed that ruling to the Supreme Court.
Inside the high court chamber today, the three most conservative justices seemed to have little sympathy for the immigrants' position. A fourth conservative, Justice Kennedy, seemed only marginally more supportive. The four liberal justices were a bit more concerned about the constitutional problems of long-term detention without a hearing, but the justices all wrestled with multiple and sometimes conflicting statutory provisions, and the argument splayed out into something of a mess.
Acting Solicitor General Ian Gershengorn told the court that the reason deportations take so long is that federal law allows detained immigrants to submit evidence proving that they are entitled to stay here legally. As long as the government is diligently pursuing a determination on the immigrant status, he said, there should be no time limit. Though he conceded that 20 years would be too long.
Justice Kagan interrupted. We would all say you can't just lock people up without any finding of dangerousness or flight risk. Why not set some guideposts for evaluating these cases after six or nine months instead of having one suit pop up here and one suit pop up there with everybody being treated differently? Lawyer Gershengorn responded that while the court has the power to do that, it is unnecessary. He noted that 90 percent of these cases are concluded after 19 months.
Justice Sotomayor, caustically - we are in an up-ended world when we think 19 months is a reasonable time to detain a person. In response, Chief Justice Roberts adopted the government's suggestion that detainees could file a writ of habeas corpus demanding a hearing on the reasons for their imprisonment. But the lawyer for the detainees rejected that idea, noting that most of the people in this class action do not have individual lawyers. They aren't familiar with the ins and outs of the American judicial system. And as a practical matter, he said, requiring such a legal action would be to close the courtroom door to them.
Arulanantham told the justices that under other statutes, accused terrorists get a bond hearing in six months. In contrast, he noted, legitimate asylum seekers escaping torture and persecution are detained on average for more than a year before they get a bond hearing.
A decision is expected in the case by spring. Nina Totenberg, NPR News, Washington.