Newly seated Justice Brett Kavanaugh spoke up Wednesday in defense of the Trump administration’s view that legal immigrants with criminal records must be arrested and held for deportation, even years after they were convicted and completed their sentences.

At issue is a federal law that calls for mandatory detention and possible deportation for “criminal aliens,” including legal immigrants convicted of crimes ranging from violent felonies to simple drug possession. The law says the Homeland Security secretary “shall take into custody any alien” with a criminal record that could lead to deportation “when the alien is released.”

The debate focuses on when, exactly, is when.

In a class-action suit brought in California, lawyers for the American Civil Liberties Union complained the mandatory detention policy has been applied to lawful immigrants who had lived and worked in the community for decades after being convicted of misdemeanors such as drug possession charges.


The administration argues that a provision of the 1996 law calls for arresting and jailing such immigrants despite their good records since serving their time.

Kavanaugh disputed the ACLU’s contention that this mandatory detention rule applies only to immigrants who can be detained at the time they are being released from local jails or state prisons, not to those released years ago. “Congress did not put in a time limit,” he said. “That raises a real question with me whether we should be superimposing a time limit.”

ACLU lawyer Cecillia Wang pointed to the words of the law. “We’re not asking you to superimpose a time limit. We’re asking you to give meaning to all the words of the statute. “Congress, in saying ‘when,’ meant what ‘when’ means in the common sense, within a reasonable time.”

Wang said a reasonable time would be one day, but several justices said that time limit was too short.


However, Kavanaugh went further and said he saw no basis for putting any time limit on arresting immigrants for past crimes. “My point is that’s very odd when you think what Congress was doing in 1996…. What was really going through Congress’ mind in 1996 was harshness on this topic,” he said.

The ACLU lawyer argued she was not arguing that the detained immigrants had a right to go free. She said they should have hearing for a judge to decide whether they were dangerous or likely to flee.

“The problem is Congress did not trust those hearings,” Kavanaugh said. “For a certain class of criminal or terrorist aliens, [Congress] said, ‘No more.’”

The justices sounded closely split along ideological lines during the argument in Nielsen vs Preap. However, Justice Neil M. Gorsuch questioned whether federal agents can arrest immigrants decades after they have been released. “Could be it 30 years? Is there any limit on the government’s power?” he asked an administration lawyer.


Last year, the U.S. 9th Circuit Court of Appeals ruled the mandatory detention rule does not apply to immigrants who were not taken into federal custody “promptly” after their release. The decision did not shield noncitizens with past crimes from being arrested or deported, but it said they could seek release on bond if the judge found they were not a danger to the public or likely to flee.

The ACLU sued on behalf of lawful noncitizens such as Eduardo Padilla, who came to the United States in 1966 as an infant and became a lawful permanent resident in the Sacramento area. He has five children and six grandchildren, all of whom are U.S. citizens. Padilla had two convictions for drug possession in 1997 and 1999 and served 90 days in jail in 2002 for having an unloaded pistol in a shed.

In 2013, federal agents arrested him for those past crimes and held him for deportation. But he went free after the 9th Circuit court ruled the “mandatory detention” provision did not apply to immigrants such as Padilla. He was released on a $1,500 bond because a judge decided he did not present a danger and was not likely to flee.

A lawyer for the Trump administration urged the high court to reverse the 9th Circuit and uphold mandatory detention for all immigrants with criminal records, regardless of how long they have been free.


“Our position is this is a mandate,” said Zachary Tripp, an assistant to the solicitor general. “The whole point of this statute is to stop doing bail hearings.”

Justice Stephen Breyer, joined by three other liberals, questioned whether Congress intended such a roundup. “There is a huge constitutional question,” he said, over whether people in the United States can be arrested and held indefinitely with no hearing. The Constitution says “no person” shall be “deprived of liberty...without due process of law,” and Breyer noted that clause applies to immigrants living here.

Can the government “arrest a grandfather after 50 years?” he asked.

Yes, the government attorney said, noting there was no time limit on the law.


But the court’s conservatives, led by Justice Samuel A. Alito Jr., said they were not inclined to limit the authority of federal agents. Today in California, he said, “there are dozens, probably hundreds” of immigrants released from jail. “How is the federal government going to be able to determine quickly, within 48 hours or any short period of time, whether those individuals should be subject to the mandatory detention requirement of this statute? California is not going to tell the federal government, ‘Look. We’re releasing this person.’”

The ACLU had argued that many of the detainees had committed minor crimes long ago and were not dangerous.

The lead plaintiff, Mony Preap, had come from Cambodia as a child and been a lawful resident since 1981. He was taken into custody for two convictions for possessing marijuana in 2006, but an immigration judge later canceled his deportation and he was released.

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UPDATES:


1:30 p.m.: This article updated with additional details from the argument.

This article was published at 10:15 a.m.