Last chance this term for the Supreme Court to stand up for immigrants in detention
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Astrid Morataya, a green card holder and mother of three, has lived in the United States since she was eight years old. Early one morning in 2013, at a time when she and her youngest daughter Jazlynn were preparing for her first day of kindergarten, immigration authorities knocked on her door and took her into custody. She was put in deportation proceedings for something she barely remembered: a conviction from almost twenty years prior for selling $10 worth of drugs. Even though she did no jail time for that offense, immigration detained her for the next two and half years while she fought her case. By the time Astrid was able to go home again, Jazlynn was in third grade.
This is the Obama administration’s legacy: a well-oiled detention and deportation machine, with a sprawling complex of over two hundred immigration facilities across the country in which a record number of people--now over 41,000--languish as they await their immigration fate. A civil procedure in name, yet wholly punitive in practice, detention subjects immigrants to jails and prisons where they are shackled, punished with solitary confinement for minor infractions, and in some places, denied all access to direct sunlight.
President-elect Trump has vowed to escalate this already vast and inhumane system and focus his efforts on deporting immigrants convicted of crimes. This includes people like Astrid, long-time lawful permanent residents with old convictions that warranted no jail time. The implications of Trump’s promise are terrifying: a massive expansion in immigration detention to the benefit of the private prison industry--whose stocks skyrocketed in the days after the election--and the ripping apart of countless families, forcing U.S. citizen children into the foster care system.
If Trump intends to follow through on his rhetoric, we need the Courts and Congress to be unflinching in standing up for the rights and values that define us as a nation. Two days from now, the Supreme Court will be presented with the opportunity to do just that in Jennings v. Rodriguez.
Jennings challenges a particularly egregious aspect of immigration detention: our government’s practice of jailing thousands of immigrants for months and years without a day in court. In Jennings, the Supreme Court can affirm that people held in detention for six months have the right to a bond hearing where a judge can consider releasing them while their case is pending if their continued detention serves no legitimate purpose.
A bond hearing after six months of detention is a modest, but crucial, protection in an immigration system that tears apart families, needlessly incarcerates people with strong claims to stay in this country, and sends asylum seekers back to mortal danger, all at enormous cost to taxpayers. By upholding the right to this hearing, the Court can ensure that immigration laws are interpreted and applied in line with a core due process principle--that our justice system should not take away a person’s liberty without giving them a day in court.
Anti-immigrant rhetoric galvanized Donald TrumpDonald TrumpRomney blasts end of filibuster, expansion of SCOTUS McConnell, GOP slam Biden's executive order on SCOTUS US raises concerns about Iran's seriousness in nuclear talks MORE’s campaign and fuels his darkest ambitions. Such rhetoric evokes the xenophobia that courses through our national story and has justified our most shameful episodes: Chinese exclusion, the Japanese internment recently cited as precedent for Trump’s proposed Muslim registry, and “Operation Wetback.” In Jennings, the Supreme Court can send an unequivocal message: those times are behind us, and detention centers are not Constitution-free zones where the government can lock people away with impunity. People like Patrick Thaxter, a chef and devoted father, whose young children were evicted during his three-year-long detention. People like Sylvester Owino, an activist who fled to the United States after surviving torture in Kenya and was held for nine years in immigration detention.
People like Astrid, who was finally released from detention and reunited with her daughter last year after winning her immigration case. Jazlynn turned nine in September. She went through kindergarten, first, and second grade without her mother by her side. Now, Astrid’s biggest concern is helping Jazlynn recover from their painful separation. She walks Jazlynn to school each day, joins her for lunch at the cafeteria, and takes her to the zoo on the weekends.
“I don’t understand why they needed to detain me” Astrid reflects.  “I had every reason to fight to keep my family together. I’ll never get back that time with my daughter.”  
Kristina Shull, Ph.D., is a Soros Justice Fellow at Community Initiatives for Visiting Immigrants in Confinement (CIVIC) and a Lecturer in History at UC Irvine.  Rachel Levenson and Terry Ding are student advocates in the Immigrant Rights Clinic at New York University School of Law.
