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story.lead_photo.caption In this Nov. 17, 2016 file photo, Supreme Court Justice Samuel Alito speaks at the Federalist Society's National Lawyers Convention in Washington.

A narrowly divided Supreme Court said Tuesday that federal authorities have broad authority to detain -- without a bail hearing -- immigrants legally in the U.S. who have committed certain crimes that make them eligible for deportation.

It does not matter whether authorities pick up such noncitizens years after they have been released from criminal custody, Justice Samuel Alito wrote for the majority in the 5-to-4 decision. Federal law mandates detention for certain aliens while awaiting deportation proceedings, he said.

"As we have held time and again, an official's crucial duties are better carried out late than never," wrote Alito, joined in the outcome by his fellow conservatives.

While President Barack Obama's administration held the same view of the law, it has become more important for President Donald Trump's administration, which has stepped up deportation enforcement and complained that policies of "sanctuary cities" hinder its ability to learn of the release of those whose crimes make them deportable.

Department of Justice spokesman Kerri Kupec said the administration was "pleased with the decision."

The justices were debating what lower courts have found to be ambiguous wording in a federal statute. It says the attorney general "shall take into custody any alien" who has committed certain offenses "when the alien is released" from state or local custody.

The U.S. Court of Appeals for the 9th Circuit said that meant immediately upon release from custody.

"Because Congress' use of the word 'when' conveys immediacy," Jacqueline H. Nguyen wrote for a unanimous three-judge panel, "we conclude that the immigration detention must occur promptly upon the aliens' release from criminal custody."

Other courts have said that is impractical and that "when" means when the government learns of the person's release, even if it is years later.

Alito said the claims of the plaintiffs in the case that "they are owed bond hearings in which they can earn their release by proving that they pose no flight risk and no danger to others" is not supported by the statute's text or structure.

"In fact, both cut the other way," he wrote, joined in the outcome by Chief Justice John Roberts and Justices Clarence Thomas, Neil Gorsuch and Brett Kavanaugh.

Justice Stephen Breyer wrote for the court's dissenting liberals and underlined his disagreement by reading part of his opinion from the bench.

"In deciphering the intent of the Congress that wrote this statute, we must decide -- in the face of what is, at worst, linguistic ambiguity -- whether Congress intended that persons who have long since paid their debt to society would be deprived of their liberty for months or years without the possibility of bail," Breyer wrote.

"We cannot decide that question without bearing in mind basic American legal values: the Government's duty not to deprive any 'person' of 'liberty' without 'due process of law.'"

Breyer was joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.

Alito allowed that there could be constitutional issues with the law but that the plaintiffs in the case had not raised them.

In a concurring opinion, Kavanaugh wrote that the question before the court was a narrow one.

He said it was beyond dispute that the government can deport immigrants convicted of some crimes and that it can detain them during deportation proceedings.

The question the court decided, he wrote, was merely whether "the executive branch's mandatory duty to detain a particular noncitizen when the noncitizen is released from criminal custody remains mandatory if the executive branch fails to immediately detain the noncitizen when the noncitizen is released from criminal custody."

It would be odd, he wrote, for that requirement to change, for example, "if the executive branch fails to immediately detain the noncitizen because of resource constraints or because the executive branch cannot immediately locate and apprehend the individual in question."

In dissent, Breyer wrote that the case was neither narrow nor technical.

"Under the government's view," he wrote, "the aliens subject to detention without a bail hearing may have been released from criminal custody years earlier, and may have established families and put down roots in a community."

"These aliens," Breyer wrote, "may then be detained for months, sometimes years, without the possibility of release; they may have been convicted of only minor crimes -- for example, minor drug offenses, or crimes of 'moral turpitude' such as illegally downloading music or possessing stolen bus transfers; and they sometimes may be innocent spouses or children of a suspect person."

He wrote that in his view the law requires immigrants who have committed crimes to be detained "within a reasonable time after their release" from custody, "presumptively no more than six months." If the person is not detained within that time, they should get a hearing where they can argue for their release, Breyer wrote.

The 9th Circuit case involved two people in unrelated cases.

Mony Preap was born in a refugee camp after his parents fled Cambodia, and he has lived legally in the United States since 1981. He was convicted in 2006 of marijuana possession but was not picked up by federal authorities after he was sentenced to time served.

In 2013, he served another criminal sentence for battery, a charge that is not a deportable offense. He was detained for months but was released and no longer faces deportation.

Bassam Yusuf Khoury has been a lawful permanent resident of the United States since 1976. In 2011, he was released after serving a 30-day sentence for a drug charge. Nearly two years later, federal authorities picked him up for deportation and he was detained for more than six months before a judge said he could be released.

American Civil Liberties Union Deputy Legal Director Cecillia Wang, who argued the case at the Supreme Court, said the case was reminiscent of a case last term in which the court limited the ability of immigrants to object to their detention.

"For two terms in a row now, the 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," Wang said in a statement. "We will continue to fight the gross overuse of detention in the immigration system."

The case is Nielsen v. Preap.

Information for this article was contributed by Robert Barnes of The Washington Post; by Adam Liptak of The New York Times; and by Jessica Gresko of The Associated Press.

A Section on 03/20/2019

Print Headline: Ruling lets U.S. hold migrant criminals

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