(Bloomberg) -- The U.S. Supreme Court and new Justice Brett Kavanaugh grappled with a Trump administration appeal in a deportation clash that touches on the debate over so-called sanctuary cities.
Hearing arguments on Kavanaugh’s second day on the bench Wednesday, the justices questioned a lower court ruling that made it harder for the federal government to detain some immigrants who are facing possible deportation because of crimes they committed.
It wasn’t clear how the high court, or Kavanaugh, would come out. Most of Kavanaugh’s questions and comments seemed to favor the government, as when he said the 1996 statute at issue in the case reflected a policy of "harshness" toward immigrants who commit crimes. But at the end of the hour-long session, Kavanaugh hinted he might be open to a suggestion by Justice Stephen Breyer that could form the basis of a consensus opinion.
The case centers on people who are released after serving a criminal sentence and are later arrested by federal immigration agents. A San Francisco-based federal appeals court said those people are entitled to a bond hearing, and the possibility of re-release, while the Department of Homeland Security presses its case for deportation.
Federal agents often aren’t on hand to take custody when an immigrant is released by state or local officials. President Donald Trump’s administration says the problem is especially acute in jurisdictions that don’t cooperate with requests to hold a prisoner until federal officials arrive. The Trump administration inherited the case from the Obama administration.
‘Triple Ax Murderer’
In the case before the court, some of the affected people had been living in their communities for years before facing deportation proceedings.
Breyer questioned whether such a person could be held indefinitely without any possibility of bail after being arrested for a minor crime.
"In this country, a triple ax murderer is given bail, a hearing," Breyer said. He asked why people facing deportation should be treated more harshly.
The key to the case could be another Trump appointee, Justice Neil Gorsuch, who said he too wondered whether the government should have such broad power to hold people without bail. "Justice Breyer’s question is my question," he said.
But later Gorsuch suggested he viewed the government’s reading of the disputed statute as the better one.
Under federal immigration law, people are subject to "mandatory detention," meaning they don’t get a bond hearing, if they finish their criminal sentences and are immediately taken into custody by DHS agents. The law, however, is unclear whether mandatory detention applies if DHS doesn’t take custody right away and the person has already been released.
Breyer suggested the court could interpret the law to give the government a "reasonable" period of time to take someone into custody.
Kavanaugh said Congress was concerned that people given bail would either flee or commit additional crimes. "Congress did not trust those hearings," he said.
He also said Congress knew that federal officials wouldn’t be able to take custody immediately in many cases.
"And yet Congress did not put in a time limit, whether it’s reasonable time, as Justice Breyer says, or a year or two years or six months or 48 hours," Kavanaugh said. "That raises a real question for me whether we should be superimposing a time limit into the statute when Congress, at least as I read it, did not itself do so."
But minutes later Kavanaugh said that "maybe we should" adopt Breyer’s approach. And Kavanaugh asked a government lawyer at the end of the session to say what he thought a "reasonable" amount of time would be for federal officials to take custody.
The case focuses on people who are legal residents of the U.S., not people who entered the country illegally. The people involved include Mony Preap, a lawful permanent resident who came to the U.S. as an infant in 1981 when his family fled Cambodia’s Khmer Rouge.
Preap was convicted of two counts of marijuana possession in California and released from jail in 2006. Although that offense potentially made him vulnerable to deportation, federal officials didn’t seize him until 2013, after he was convicted of the non-deportable offense of battery.
Federal officials then held him for three months without a bond hearing while trying to deport him over the marijuana conviction. Preap eventually won the deportation case and was released to his family.
The new case is Nielsen v. Preap, 16-1363.
(Updates with excerpts from arguments starting in third paragraph.)
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