The Supreme Court appeared divided Wednesday over whether the government should be allowed to detain immigrants for more than six months if they aren’t a flight risk or a danger to national security.

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“But at what point does the indefinite, albeit with a lengthy, far-off detention date, become unconstitutional?” Justice Sonia Sotomayor asked acting Solicitor General Ian Gershengorn.



The government is appealing a 9th U.S. Circuit Court of Appeals ruling in a class action lawsuit. The ruling requires detained immigrants to be given a bond hearing every six months to “ensure that after a lengthy period of detention, the government continues to have a legitimate interest in the further deprivation of an individual’s liberty.”



At the bond hearing, the government must show clear, convincing evidence that the detainee is a danger or a flight risk to keep them in custody.



The ruling applies to immigrants caught at the border, detained for alleged ties to terrorism and those with criminal records.

“To impose a rigid six-month rule like the Court of Appeals did is really a mistake,” Gershengorn said.

The government argues the proper way for immigrants to seek relief is by filing a habeas corpus petition.



But Ahilan Arulanantham, the attorney for the immigrants in the class action lawsuit, said habeas corpus cases can take anywhere from six to 19 months.



Chief Justice John Roberts appeared to struggle with whether to affirm the lower court ruling.

“Our job is to read the statute, and if it's unconstitutional, that's our job. But we can't just write a different statute because we think it would be more administrable.”

But earlier in the argument, Roberts seemed reluctant to rule that it's unconstitutional for immigrants to be for prolonged periods of time without a bond hearing when the lower court hadn't ruled on the constitutional question.

“Well do you expect us to do it in the first instance?” he asked Arulananthan.

The members of the court’s liberal wing spent time questioning whether they had the power to provide guidance for immigrant detainment, but Justice Anthony Kennedy said that wouldn’t resolve the case.

“In a class action, the court has to grant or deny relief,” he said.

"And I don't know. What would be the relief if the court says, well, we're not going to say, you know, what the situation is going to be for any of the members of this class, but here are our thoughts about how individual determination should be made.”

Alejandro Rodriguez, a Mexican immigrant who came to the U.S. as an infant and was working as a lawful permanent resident until he was convicted of drug possession, brought the case, known as Jennings v. Rodriguez. He was held for three years before challenging his detainment.



Updated at 1:56 p.m.