The first case Brett Kavanaugh will hear as a newly appointed Supreme Court justice on Wednesday deals with the government's interpretation of mandatory detention laws in deportation proceedings. Lawyers for the American Civil Liberties Union will argue that the government is incorrectly interpreting decades-old legislation, and authorities are keeping certain immigrants imprisoned for unnecessarily long periods of time without hearings.
In 2003, the ACLU challenged legislation passed in the 1990s that requires the government to put immigrants with certain criminal histories in detention during their deportation proceedings. The statute in question made these immigration cases distinct from the rest of the criminal justice system: Normally, defendants will have the chance to make bail (or otherwise be released) during their trials if they're deemed to be neither a flight risk nor a danger to public safety. However, mandatory detention meant that immigrants would remain in jail during the entirety of their deportation proceedings (which can last a long time because of immigration courts' propensity for getting clogged with backlogs).
The ACLU lost its initial challenge, and mandatory detention remained in place. However, the organization is now challenging a specific facet of the law, contending that overly broad interpretation has led the government to detain people who should not be subject to mandatory detention.
Specifically, in Nielsen v. Preap, the ACLU's lawyers will argue that the government should not mandatorily detain immigrants whose "criminal histories" consist of crimes committed years, or even decades, ago. In press releases, the ACLU describes the cases of people like Astrid Morataya, a legal permanent resident who the government arrested and tried to deport for a low-level drug charge she had committed over 10 years earlier. Even though Morataya was a mother of three children (all of whom were U.S. citizens), she had to remain in jail without bail for two and a half years during her lengthy deportation proceedings.
The ACLU believes that immigrants who have re-entered and rehabilitated into society after their criminal proceedings should not be subject to mandatory detention during subsequent deportation hearings. Their argument centers on a part of the law that explains that immigrants should be placed in detention "when [they are] released" from criminal proceedings. According to the ACLU, a correct interpretation of the law would lead the government to only mandatorily detain immigrants in the immediate wake of criminal proceedings and not years later, as in the case of Morataya.
Lawyers for Secretary of Homeland Security Kirstjen Nielsen will respond that the government's interpretation is valid and correct, and that the government ought to continue detaining immigrants with criminal histories during deportation proceedings. As other outlets have noted, the outcome of the case could affect thousands of immigrants and their families.