In 2013, Juan Lozano Magdaleno gave a speech at his daughter's wedding—or, more accurately, he gave a speech from a detention facility, which his family played, over the phone on speaker, at the wedding reception. At the time, Magdaleno had spent almost five months in Immigration and Customs Enforcement detention. Normally, someone like Magdaleno—a 57-year-old grandfather, who had been a lawful resident in the United States since the day he arrived from Mexico as a teenager—could ask the court to release him on bond while he waited out his deportation proceedings. A judge, after first confirming Magdaleno was not a flight risk or a danger to the community, could've let Magdaleno go home.
But Magdaleno never had the option to petition for release, pay bail, or go home. On his record, he had two prior criminal convictions: one from 2000 and one from 2007. It did not matter that Magdaleno had already served his time in prison and re-entered the community. The Obama administration, interpreting a 1996 law, had decided that immigrants with criminal convictions, like Magdaleno, would be placed in mandatory, non-negotiable detention. This meant Magdaleno would never have the opportunity to ask a judge to let him make bail.
On Tuesday, after more than five years of legal proceedings, the Supreme Court overturned a lower court decision that ended such mandatory detention, putting the practice back in place. Now, immigrants with prior criminal convictions, like Magdaleno, will be placed in detention without the opportunity to petition for release—even if their conviction is from decades earlier, and even though they may have already done their time in prison.
Attorneys with the American Civil Liberties Union—which represented Magdaleno and two other immigrants in similar positions in the original federal lawsuit filed in 2013—reacted to Tuesday's decision with dismay.
"[T]he Supreme Court has endorsed the most extreme interpretation of immigration detention statutes, allowing mass incarceration of people without any hearing, simply because they are defending themselves against a deportation charge," Cecillia Wang, the deputy legal director of the ACLU, who argued the case, said in a statement.
Wang and the ACLU had argued that the federal statute in question had clearly been written to apply to immigrant offenders at the time of their release from prison—not immigrants in deportation proceedings potentially decades after they served their time.
According to the statute (8 U.S. Code 1226), the attorney general "shall take into custody any alien" who is "deportable by reason of having committed" certain crimes "when the alien is released." The ACLU argued that the language "when the alien is released" implies a strict timeframe for mandatory detention to be applicable.
Supreme Court Justice Samuel Alito, writing for the majority of the court, disagreed, arguing that such an interpretation might mean that "even 24 hours is too long" a gap between release and re-arrest for mandatory detention to be applied.
Justice Stephen Breyer, in his dissent, expressed concern about the power the decision gave the government: "It is a power to detain persons who committed a minor crime many years before. And it is a power to hold those persons, perhaps for many months, without any opportunity to obtain bail."
Speaking with Pacific Standard last month, Madhuri Grewal, federal immigration policy counsel for the ACLU, asked why immigrant offenders were not granted the same sort of compassion as citizens: "There's all this talk about giving people second chances: If you commit a crime, that doesn't make you a bad person," Grewal said. "But that hasn't translated into the immigration system. There's no second chance. For immigrants, the crime—and the label of criminal—stays with them forever, even after they've served their sentence."