The Supreme Court hears this Tuesday oral arguments on two cases of undocumented migrants detained for more than 6 months without the right to a bail hearing in front of an immigration judge.
The court's decision may influence immigrant rights litigation for years to come, as many remain in custody for extended periods of time waiting for their cases to be resolved.
The Mexicans Antonio Arteaga-Martínez and Esteban González claim in a class action lawsuit that a judge determine if they have the right to be released from custody in exchange for the payment of a bond while their case is resolved or if they represent a risk of flight or for the community.
The Government, through the Department of Justice, does not agree, as it ensures that the Immigration and Customs Enforcement Service (ICE, for its acronym in English) assesses the situation of each detainee.
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Arteaga-Martínez crossed the border into the United States several times without authorization and was deported by the US government back to his country.
In 2018 immigration authorities re-detained him, but while in custody an asylum official concluded that he had a "reasonable fear" of future persecution and torture in his country.
After four months in custody while waiting for his asylum request to be resolved, Arteaga-Martínez challenged his detention through a petition for habeas corpus, which serves to request the judge to release a person who, allegedly, has been illegally detained. .
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"The Supreme Court is going to clarify for everyone in the country what this law requires. If the Government really has the power to detain [someone] regardless of the circumstances of the person or if each person has the right to a hearing of a judge, "the lead lawyer in the case, Matt Adams, a lawyer for the Northwest Immigrant Rights Project, explained to Noticias Telemundo.
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The Zadvydas v. Davis case, a 2001 Supreme Court ruling, found that the government cannot detain immigrants for more than 6 months if their deportation is not "reasonably foreseeable," as could happen if their country of origin is not accepts it back.
Although the Supreme Court has never made a clear decision on when a detainee is entitled to a bail hearing, the U.S. Courts of Appeals for the Third Circuit and the Ninth Circuit concluded that these hearings are necessary after half a year withheld, and that the Government must prove that non-citizens are dangerous or that there is a risk of flight.
The Supreme Court will now review those decisions.
As of December, there were 20,623 migrants detained in the United States, 75% with no criminal records, according to Syracuse University.