February 27, 2018

Supreme Court Decides Jennings v. Rodriguez

On February 27, 2018, the U.S. Supreme Court decided Jennings v. Rodriguez, holding that 8 U.S.C. §§ 1225(b), 1226(a), and 1226(c) do not give detained aliens the right to periodic bond hearings during the course of their detention.

Following a 2004 conviction, Alejandro Rodriguez, a Mexican citizen and lawful permanent resident of the United States, was detained while the Government sought to remove him from the country. In 2007, while removal proceedings were ongoing, Rodriguez filed a habeas petition, claiming he was entitled to a bond hearing to determine whether his continued detention was justified. Rodriguez and a class of aliens he represents argued that §§ 1225(b), 1226(a), and 1226(c) do not authorize “prolonged” detention in the absence of an individualized bond hearing at which the Government proves by clear and convincing evidence that the detention remains justified.

The district court entered a permanent injunction requiring the Government to provide individual hearings before an immigration judge to determine whether detention remains justified. The Ninth Circuit affirmed, relying on the canon of constitutional avoidance to construe §§ 1225(b) and 1226(c) as imposing an implicit six-month time limit on an alien’s detention and that, after that point, the Government may continue to detain the alien only under the authority of § 1226(a). The Ninth Circuit then construed § 1226(a) to mean that an alien must be given a bond hearing every six months and that detention beyond the initial six-month period is permitted only if the Government proves by clear and convincing evidence that further detention is justified.

Part II of the decision did not command a majority of the Court. In that discussion, the joining justices evaluated whether § 1252(b)(9) or § 1226(e) prevented the Court’s jurisdiction and reasoned that neither provision barred the Court from considering respondents’ claims.

In Parts III-A and III-B, the Court held that the Ninth Circuit had misapplied the canon of constitutional avoidance to construe §§ 1225(b), 1226(a), and 1226(c) to limit the permissible length of an alien’s detention without a bond hearing. “The canon of constitutional avoidance ‘comes into play only when, after the application of ordinary textual analysis, the statute is found to be susceptible of more than one construction.’” Clark v. Martinez, 543 U.S. 371, 385 (2005). According to the Court, the Ninth Circuit misapplied the doctrine because its interpretations of the three provisions at issue were “implausible.”

First, the Court held that the most natural reading of §§ 1225(b)(1) and (b)(2) mandates detention of applicants for admission until certain proceedings have concluded. Until that point, nothing in the statutory text imposes any limit on the length of detention, and neither section says anything about bond hearings. According to the Court, because nothing in the text of these sections “even hints that those provisions restrict detention after six months,” the Ninth Circuit’s application of the canon of constitutional avoidance was in error.

Second, the Court found that § 1226(c)’s language is “even clearer,” holding that by allowing aliens to be released “only if” the Attorney General decides that certain conditions are met, the statute “reinforces the conclusion that aliens detained under its authority are not entitled to be released under any circumstances other than those expressly recognized by the statute.” Thus, “together with § 1226(a), § 1226(c) makes clear that detention of aliens within its scope must continue ‘pending a decision on whether the alien is to be removed from the United States.’” § 1226(a). As such, the Court held that the Ninth Circuit’s determination that § 1226(c) should be interpreted to include an implicit six-month time limit on the length of mandatory detention “falls far short” of a plausible statutory construction necessary to invoke the canon of constitutional avoidance.

In Part III-C of the opinion, the Court held that nothing in § 1226(a)’s text supports the Ninth Circuit’s imposition of periodic bond hearings every six months in which the Attorney General must prove by clear and convincing evidence that the alien’s continued detention is necessary. Nor, according to the Court, does this section “even hint that the length of detention prior to a bond hearing must specifically be considered in determining whether the alien should be released.”

For these reasons, the Court reversed and remanded with instructions for the Ninth Circuit consider respondents’ constitutional arguments on their merits and to reexamine whether respondents can continue litigating their claims as a class.

Justice Alito delivered the opinion of the Court, except as to Part II. Chief Justice Roberts and Justice Kennedy joined that opinion in full; Justices Thomas and Gorsuch joined as to all but Part II; and Justice Sotomayor joined as to Part III-C. Justice Thomas filed an opinion concurring in part and concurring in the judgment, in which Justice Gorsuch joined except for footnote 6. Justice Breyer filed a dissenting opinion, in which Justices Ginsburg and Sotomayor joined. Justice Kagan took no part in the decision of the case.

Download Opinion of the Court.

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