A provision of the immigration laws, 8 U.S.C. § 1231(a)(6), allows the government to detain people who have been ordered deported pending their removal from the country, or to release them on bond. The removal process, for various reasons, can take months or years to carry out. After spending more than six months in immigration detention, the plaintiffs in these cases filed suit to challenge the constitutionality of their ongoing detention, arguing that such prolonged imprisonment requires an adversarial hearing before a neutral decisionmaker to determine whether they can safely be released on bond. The government, however, argues that the statute allows it to imprison such people indefinitely—without an adversary hearing, without approval by an independent decisionmaker, and without having to demonstrate that the person it wants to detain is dangerous or a flight risk.

Because such an interpretation of the statute would raise serious constitutional concerns, two federal courts of appeals ruled in favor of the detained noncitizens, interpreting the statute as requiring bond hearings before an immigration judge after sixth months of detention, with the burden on the government to demonstrate flight risk or dangerousness. The Supreme Court agreed to review those rulings, and CAC filed an amicus brief in both cases, urging the Court to affirm the decisions.

Our brief made three essential points.

First, the brief explained that our legal tradition has long safeguarded the right to be free of wrongful imprisonment, and that this right been long been afforded to citizens and noncitizens alike. At the time of the Founding, English common law entitled “aliens,” not just subjects, to due process of law before being deprived of their liberty or property. Aliens were expelled from England only under the same terms and procedures as subjects were—as punishment for a criminal conviction—and there was no form of civil or criminal detention that applied only to aliens. Like subjects, aliens could be imprisoned only with the approval of an independent decisionmaker after being given an opportunity to be heard. Therefore, the common law that shaped the Framers’ understanding of “due process” offered no precedent for singling out noncitizens to receive any less protection of their physical liberty than citizens.

Consistent with this tradition, our brief explained next, the Fifth Amendment protects noncitizens as fully as citizens—shielding every “person” (not just every “citizen”) from deprivations of life, liberty, or property without due process of law. In contrast with other constitutional provisions that apply only to “citizens,” the fundamental guarantees of the Due Process Clause protect all people in the United States without regard to nationality. As we further described, the ratification of the Fourteenth Amendment removed any possible doubt that where the Constitution uses the word “person,” it must be taken literally.

Finally, our brief demonstrated that without the interpretation given by the courts of appeals in these cases, the immigration statute at issue would violate the Due Process Clause. In other situations where the government is allowed to detain someone as a preventive measure without a criminal conviction, the minimum requirements of due process are well established by Supreme Court precedent: a fair hearing before an impartial decisionmaker with the burden of persuasion on the government. The same procedural safeguards are required before noncitizens may be detained in connection with deportation. Noncitizens have as strong an interest as citizens in freedom from unjustified physical confinement, and the government’s broad authority to enforce immigration measures does not alter the equation. While noncitizens are vulnerable to a form of detention and expulsion from which citizens are exempt, they remain fully protected by the Fifth Amendment against the risk of erroneous decisions made in the course of those enforcement efforts. Before the government imprisons anyone, due process requires at least that the government persuade an impartial decisionmaker of the need for detention.

On June 13, 2022, the Supreme Court issued its decisions. In Garland, the Court held that a separate provision of the immigration laws deprived the district court of jurisdiction to consider the plaintiffs’ request for class-wide relief. In Johnson, the Court held that 8 U.S.C. § 1231(a)(6) cannot be interpreted to require the government to provide noncitizens detained for six months with bond hearings in which government bears the burden of proving, by clear and convincing evidence, that a noncitizen poses a flight risk or a danger to the community. The Court declined to address the constitutional challenges to the statute and left them for the lower courts to resolve in the first instance.