J. Scott Applewhite/Associated Press
Jonathan Kwan (@MigrationEthics) is the Inclusive Excellence Postdoctoral Fellow in Immigration Ethics with the Markkula Center for Applied Ethics. Views are his own.
On Tuesday, June 29, the Supreme Court strengthened the power of the government to indefinitely detain certain immigrants, ruling that those who illegally re-enter the country have no right to a bond hearing. The case concerns a subset of immigrants who had been deported once before and when detained after re-entering the United States illegally, claimed that they faced persecution or torture in their countries of origin. An immigration officer had determined that the immigrants involved in the case did in fact have credible and reasonable fears for their safety if they returned to their countries of origin. Rodriguez Zometa, for instance, said he was threatened with death by the 18th Street Gang when he was deported to his home country of El Salvador.
The legal question at stake involves which part of a complex federal law applies to this category of immigrants. One piece of the law says that immigrants may receive a bond hearing before an immigration judge while another piece says that indefinite detention is warranted for immigrants who are considered “removed.” Justice Samuel Alito and his fellow conservative justices determined that the second applies to this group of immigrants and that they do not have a right to a bond hearing. Writing for the majority, Justice Alito said, “Aliens who re-entered the country illegally after removal have demonstrated a willingness to violate the terms of a removal order, and they therefore may be less likely to comply with the re-instated order,” and that they leave. The court’s three liberal justices dissented.
Legalities aside and ethically speaking, immigrants who have credible fears of persecution or torture should have a right to a bond hearing in front of an immigration judge and should not be indefinitely detained. The fact that these immigrants were deported once before should not make a difference on the matter. If someone has a credible fear of persecution, torture, or death and so is unable or unwilling to return to their country of origin, then they should be a candidate for refugee status and entitled to certain protections such as asylum. (And if their fear of persecution is based on certain protected grounds due to race, religion, nationality, or membership in a particular social group or political opinion, then they are in fact refugees according to international law.) Note too that here the government itself determined via an immigration officer that the fears of the immigrants under consideration were reasonable and credible. If anything, this class of immigrants should be entitled to additional and special protections rather than subject to indefinite detention without the right to a bond hearing.
It could be the case that an immigrant did not fear persecution or torture until after they were previously deported. But then this would mean that their moral status as an immigrant, such as what protections they are entitled to, has changed since their initial deportation. So even if their prior deportation was legitimate and justified (a significant assumption), the question as to what these immigrants are now entitled to must be considered anew. Their illegal re-entry into the country does not necessarily demonstrate a willingness to violate the terms of their removal order, as Justice Alito suggests. Instead, it just shows that they fear for their lives and safety and illustrates the urgency of their situation.
Another possibility is that immigrants of this kind did not have their asylum cases adequately heard when they were deported the first time—a very real possibility given the variety of mechanisms put in place by the Trump administration that were designed to prevent asylum seekers from accessing protection, mechanisms which the Biden administration has not yet fully reversed or undone. For immigrants who were deported instead of having their asylum cases adequately heard the first time, eliminating their right to a bond hearing and detaining them indefinitely when they re-enter the country a second time is simply to incur an additional injustice upon a pre-existing one. Not only is indefinite detention harmful and unjust in itself (violating, among other rights, rights to due process that should be afforded everyone subject to our legal system including noncitizens), it makes little practical sense not to give these immigrants a chance to be free while proceedings continue on their case, which could take months or years. As Justice Stephen Breyer wrote in his dissenting opinion, “Why would Congress want to deny a bond hearing to individuals who reasonably fear persecution or torture, and who, as a result, face proceedings that may last for many months or years...? I can find no satisfactory answer to this question.” On any ethical grounds, I cannot either.