WASHINGTON — In a case which could have major implications on plans by President-elect Donald Trump to ramp up deportations, the U.S. Supreme Court is considering whether immigrants facing removal proceedings can be detained indefinitely, or if they are entitled to a bond hearing within six months to make a bid for release.

The eight justices of the court appeared divided yesterday during arguments in a class-action lawsuit brought by a group of detained immigrants who claim that being locked up for six months or more without a bond hearing violates the Due Process Clause. They also claim that in some cases, the government must prove by clear and convincing evidence that detainees are either a flight risk or a danger to the community or release them.

The class includes a wide range of aliens facing removal, from undocumented immigrants already in the country to lawful green card holders with past arrests, to those crossing the border illegally or seeking asylum.

The Obama administration defended the detention rules, citing security concerns among other reasons, but some justices expressed doubt about the constitutionality of the indefinite detention scheme.

“I think we would all look at our precedent and we would say, you can’t just lock people up without any finding of dangerousness, without any finding of flight risk, for an indefinite period of time, and not run into due process,” said Justice Elena Kagan.

Others, noting that the lower court’s ruling didn’t consider the constructional issue at all, disagreed.

“I mean, if they do think it’s unconstitutional, they could have said so,” Chief Justice John Roberts Jr. said.

Anthony Enriquez, a fellow at the Immigrant Defense Project who wrote a friend-of-the-court brief supporting the class of detainees, said the election of Trump, who pledged to immediately begin deportation proceedings against as many as 3 million undocumented immigrants, raised the stakes.

“The case has really assumed incredibly high importance because of what the incoming administration has pledged to do,” Enriquez said. “The government has the ability to detain people just based on violation of a student visa alone.”

Dan Stein, president of the Federation for Immigration Reform, said the immigrants’ claim defies legal precedent that gives Congress broad authority to decide the immigration rules and procedures.


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