The U.S. Supreme Court will hear two cases on Tuesday that could impact thousands of unauthorized immigrants detained in the United States.

Unauthorized immigrants are often detained indefinitely in prison-like settings while their immigration cases are adjudicated. The plaintiffs in the two cases coming before the high court argue that immigrants held in detention for longer than six months are entitled to a bond hearing in which a judge determines whether they should continue to be detained. (Oral arguments in the two cases, Garland v. Gonzalez and Johnson v. Arteaga-Martinez, will be heard Tuesday morning.)

“We could never treat a citizen like this,” says Muzaffar Chishti, senior fellow at the Migration Policy Institute (MPI), a nonpartisan research institution. “A citizen cannot be held without bail for any length of time. But here we are saying that a noncitizen who has not committed any crime can be held forever.”

The Biden Administration disagrees. The Justice Department (DOJ) argues the immigration statute in question does not entitle immigrants to a hearing and that the lower courts do not have the authority to grant class-wide relief—as the Ninth Circuit Court of Appeals did in Esteban Aleman Gonzalez’s case in 2020. How the Supreme Court rules on the issue of bond hearings and on whether the lower courts can grant class-wide relief to thousands of immigrants in these cases could have sweeping implications for how immigration claims are litigated going forward.

At the center of the lawsuits is a 1996 immigration statute that states an unauthorized immigrant “may” remain in detention for an extended period of time if they fail to meet certain criteria. Several detained immigrants, including Gonzalez, sued the U.S. government, arguing that because the statute says “may” be detained rather than “shall” be detained, it connotes discretion by judges and entitles them to a hearing. Biden’s Department of Justice—which is taking the same position as Trump Administration—argues that the law grants the Attorney General the power to detain unauthorized immigrants for any period of time while their cases are litigated.


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