Supreme Court Weighs Limits on Detention of Noncitizens

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 (Mark Fiore/KQED)

Sylvester Owino spent nine years locked in immigration detention before he was released on bond last year.

The Kenyan-born Owino was finally able to win a bond hearing before an immigration judge as a result of a class-action lawsuit brought by the American Civil Liberties Union.

The suit was first heard in federal court in the Central District of California, where a judge ruled in 2014 that noncitizens in immigration detention are entitled to a hearing at least every six months to argue for their release.

That ruling was affirmed in 2015 by the 9th U.S. Circuit Court of Appeals. The appeals court also held that immigrants like Owino must be released unless the government can prove that they are a danger to public safety or a flight risk.

Now the case has made its way up to the U.S. Supreme Court, which heard oral arguments Wednesday.


Owino recalled the night he was released from Immigration and Customs Enforcement custody, dropped off on a street corner in downtown San Diego, where he lived before and after his incarceration.

“I was glad I was free," he said. "The air was fresh.”

While Owino waited for friends to pick him up, he says he veered from ecstasy to paranoia.

“Oh my God, I’m free," he said. "I couldn’t believe it.”

When Owino’s friends asked what he wanted to eat, he replied, “Some real meat!”

So his friends cooked up pork chops.

“We stayed up all night talking, calling friends, family from Europe, from Kenya, eating the pork chops,” says Owino “I can’t express how I felt. I cannot, after all those years.”

Owino left Kenya in 1998 and came to the United States on a student visa. Years later, after Owino had become a permanent legal resident, he was convicted of armed robbery. He calls it a “mistake” he made when he was struggling with alcohol addiction.

That crime landed Owino in state prison for three years. He says serving that time was hard, but not as hard as what followed.

Legal resident immigrants who commit certain crimes are subject to mandatory detention and deportation under federal law. So when Owino was released from state prison in 2006, he was handed over to Immigration and Customs Enforcement to be detained until he could be deported. But Owino challenged his removal order, setting off a years-long legal struggle.

Extensive Use of Detention

He said conditions in ICE detention were far worse than prison.

“They think because you’re a noncitizen you have no rights. They can lock you down anytime they want,” Owino said.

The United States detains more than 400,000 immigrants a year, according to the Department of Homeland Security. And 30,000 to 40,000 people are held in ICE custody on any given day. The government deports most of them within months, but others are locked up for a year or more -- sometimes many years. They include longtime legal immigrants as well as those seeking asylum.

An immigrant detainee looks out from his 'segregation cell' at the Adelanto Detention Facility in Adelanto, California.
An immigrant detainee looks out from his 'segregation cell' at the Adelanto Detention Facility in Adelanto, California. (John Moore/Getty Images)

It took the ACLU's legal victory to secure Owino’s release and that of other long-term ICE detainees in California and other western states.

“We don’t live in a country where the government -- especially the executive branch -- can simply detain people because it says so,” says Cecillia Wang, who directs the ACLU's Immigrants' Rights Project.

Wang says the government's indefinite detention defies legal norms around detaining people for a civil purpose -- in this case, to make sure the person applying for legal status shows up for an immigration hearing. She believes the Constitution requires giving the person a hearing at which to argue for release.

"You get your day in court to tell an independent adjudicator, 'I shouldn’t be in jail,' " said Wang. "'I’m not a flight risk; I don’t pose a danger to anybody. I should be able to fight my case while I’m home with my family.'"

The Obama administration appealed the case to the Supreme Court after it challenged the ruling in the 9th Circuit last year and lost.

Administration officials hope the high court will uphold ICE's ability to detain people indefinitely.

The ACLU estimates that as many as 8,000 immigrants nationally have been detained longer than six months without an opportunity for a bond hearing. Most are lawful permanent residents who committed minor crimes, like drug possession, or they are people apprehended at the border who are seeking asylum.

Fighting 'Wholesale Revision' of Detention System

U.S. Solicitor General Ian Heath Gershengorn did not respond to KQED’s request for an interview, and ICE declined to comment on the case.

But in court papers, Gershengorn called the ACLU's efforts an end run around Congress and the executive branch:

“Unsatisfied with the current immigration detention system established by the political branches, respondents seek a dramatic and wholesale revision of that system through court order,” he wrote.

Gershengorn said Congress was clear in its intent.

“Some may believe that the Ninth Circuit’s vision of immigration detention is wiser or more humane, while others would disagree," he wrote. "But Congress weighed the interests in controlling the border, protecting the public from criminal aliens, affording individual aliens adequate protections and opportunities for relief and review, and minimizing the adverse foreign-relations impact of U.S. immigration law.”

Professor Stephen Yale-Loehr, an immigration law expert at Cornell, called the case a test of the due process rights of noncitizens.

“This is an important case because it pits the constitutional rights of immigrants versus the government’s power to detain individuals,” said Yale-Loehr.

He added: “As immigration procedures have increased in complexity, and in length of time and in importance -- in terms of our national dialogue -- this case will be very interesting to watch.”

A guard escorts an immigrant detainee from his 'segregation cell' back into the general population at the Adelanto Detention Facility in Adelanto, California.
A guard escorts an immigrant detainee from his 'segregation cell' back into the general population at the Adelanto Detention Facility in Adelanto, California. (John Moore/Getty Images)

Professor Mary Fan with the University of Washington School of Law says the Supreme Court justices must decide whether the law supports the power of Congress and the executive branch to hold immigrants -- or whether the 9th Circuit was right to impose some limits.

“Immigration detention is very tough and very controversial -- and there’s been long-standing concern among many -- including judges -- that it’s harsh and that it sweeps up too many people.”

Fan, a former federal prosecutor for the district that includes the San Diego border region, says the government is in a difficult position -- tasked with upholding laws on mandatory detention while also grappling with a huge influx of people.

“The administration faced the difficult decision to have to expand immigration detention to deal with the huge inflow of people, including, very controversially, family detention,” she said.

'Surge' of Asylum Seekers Continues

A spike in immigration began in 2014, driven by tens of thousands of Central American children and families fleeing violence in their home countries. Many of them are seeking asylum but remain in detention while awaiting their day in court.

In a Nov. 10 statement, Homeland Security Secretary Jeh Johnson wrote that 46,195 individuals were apprehended on the U.S.-Mexico border in October, up from 37,048 in August.

“I have told our border security and immigration enforcement personnel that we must keep pace with this increase,” he wrote.

Two young girls watch television from their holding area where hundreds of mostly Central American immigrant children were being processed and held at the U.S. Customs and Border Protection Nogales Placement Center in June, 2014.
Two young girls watch television from their holding area, where hundreds of mostly Central American immigrant children were being processed and held at the U.S. Customs and Border Protection Nogales Placement Center in June 2014. (Ross D. Franklin/Getty Images)

As a result, ICE detention facilities were holding 10,000 more people than usual this month.

Johnson has authorized ICE to acquire more detention space to be able to process and deport people faster.

“Those who attempt to enter our country without authorization should know that, consistent with our laws and values, we must and will send you back,” he wrote.

The ACLU’s Cecillia Wang says increasing investment in immigrant detention is a waste of taxpayer money and comes at too great a human cost.

“The majority of our clients prevail in their cases at the end of the day, and the government’s assertions to the contrary -- that people are dangerous, that we’re going to have a border security problem -- are completely unsubstantiated.”

Adjusting to Freedom

When Sylvester Owino finally got his bond hearing in 2015, the immigration judge decided it was safe to release him. Community groups raised his $1,500 bond in just 30 minutes.

Owino still faces deportation, but while he waits for his day in court he’s supporting himself selling Kenyan soul food at farmers markets -- dishes like coconut rice and chicken stew. He has also gotten sober.

He hopes the U.S. government will give more immigrants a chance to be free from detention while they go through immigration courts.

“We immigrants, we are also human," he said. "We breathe the same air. We inhale, exhale.”

Owino said he’s still adjusting to freedom. After years on thin mattresses on narrow frames, he struggles to sleep in a normal bed. Often he dreams he’s still locked up.

The Supreme Court will rule on the case by next June.