Last week, The U.S. Supreme Court heard oral arguments in a pair of cases that will determine whether the federal government can lock up non-criminal immigrants in jail for long stretches while they wait for their immigration hearings.  The two cases are related to appeals court rulings that found that the federal government must hold hearings for non-citizens with final deportation orders who are still in government custody after six months, rather than keeping them locked up indefinitely while the government processes their requests for deportation relief. SCOTUS previously ruled in 2001 that the government must provide bond hearings for detainees after six months if their deportation isn’t “reasonably foreseeable.”

The immigration court backlog is now over 1.5 million cases, and many immigrants can spend months or even years in detention waiting for their hearings even if they haven’t committed any crimes. The average wait for a hearing date at the end of December 2020 was 1,642 days, or about 4.5 years, with the time to complete court cases nearly doubling in 2021. This means that more immigrants will be held in unsafe detention centers and prisons for even longer as they wait for their hearings.

Unlike the criminal courts, many Constitutional rights and principles are not available to people in the immigration courts. The immigration system contains almost none of the procedural safeguards found in the U.S. justice system: immigrants facing deportation have no right to a government-appointed lawyer and no right to a speedy trial, while also facing harsh retroactive laws (what the U.S. Constitution prohibits as ex post facto laws), limited Fourth Amendment search and seizure protections, and virtually no rules of evidence to prevent the government from using otherwise inadmissible evidence in court.