IELR Blog

On Tuesday, February 27, the Supreme Court ruled in Jennings v. Rodriguez. In a 5-3 ruling, with Justice Elena Kegan recused and Justice Samuel Alito writing for the majority, the Court held that the Ninth Circuit erred in holding that 8 U.S.C. §§ 1225(b), 1226(a), and 1226(c) give detained aliens the right to periodic bond hearings.

The plaintiff in the case, Alejandro Rodriguez, is a lawful permanent resident residing in the U.S. since he was an infant. DHS initiated removal proceedings based on prior convictions of possession of a controlled substance and “joy riding.” DHS detained Rodriguez for over three years while the removal proceedings were ongoing, and Rodriguez filed a habeas petition along with a class of immigrants arguing that the relevant statutes do not authorize “prolonged” detention in the absence of an individualized bond hearing.

The district court issued a permanent injunction requiring individualized hearings before an immigration judge. The Ninth Court affirmed the ruling, and also interpreted the statute to mean that the Government must provide periodic bond hearings to the detained at six-month intervals. Yesterday, the Supreme Court reversed and remanded the Ninth Circuit’s decision.

The Canon of Constitutional Avoidance

In their opposition brief to the Government’s petition for certiorari, the respondents noted that in Zadvydas v. Davis, the Court had applied the canon of constitutional avoidance (also called the canon of constitutional doubt) to read the six-months implied term into the immigration statute in question. The constitutional avoidance rule allows courts to “choose among constructions which are ‘fairly possible,’ Crowell v. Benson, 285 U. S. 22, 62 (1932), not to “’press statutory construction to the point of disingenuous evasion even to avoid a constitutional question.’” (Zadvydas 707) In other words, when faced with the choice of deciding a case on a constitutional basis vs. a nonconstitutional (statutory or regulatory) basis, the canon advises that the Court should avoid ruling on the constitutional question. Citing the canon of constitutional avoidance, the respondents argued that the implicit six-month rule follows from the statutory holding in Zadvydas: “Because Section 1226(c) does not specify its temporal scope, this Court should not read it to implicitly authorize prolonged detention, particularly when Congress has explicitly authorized such detention in other statutes.”

In addition to citing the Zadvydas case, the respondents mention in their brief that all of the six federal circuits to consider the issue have rejected the interpretation that Section 1226(c) authorizes “unlimited detention without review.” The respondents argue that the “absence of any temporal limit” in the aforementioned section, along with the Patriot Act’s “specific authorization for detention beyond six months with limited review,” show that Congress did not intent for Section 1226(c) to authorize prolonged mandatory detention. Furthermore, the existing case law, at both the Supreme Court and federal appeals court level, reveals that the six-month rule “comports with [the Supreme] Court’s use of similar rules of administrability in other contexts.” (Respondents’ Brief, 34)

Alito Rejects the Application of the Canon in This Case

In the majority opinion, Alito rejects the “six-month reasonableness limitation” on the detention of LPRs that the respondents argue is implied in Section 1225(b).  He acknowledges that the Zadvydas Court arrived at the six months rule by applying the constitutional-avoidance canon, albeit by a “notably generous” application. However, he argues that the Ninth Circuit took the canon “much further” than the Zadvydas Court intended. To support this claim, Alito offers that the relevant statute in Zadvydas – §1231(a)(6) – “differs materially from those at issue here.” By examining a set of “textual signals,” Alito concludes that §1231(a)(6) was ambiguous as to a temporal time limit, while  §1225(b)1 and (b)2 “mandate decision until a certain point and authorize” prior release only under “limited circumstances.” Thus, there is no blanket six-month rule implied in either of the latter two statutes.

Breyer’s Dissent: The Majority’s Interpretation Renders the Statute Unconstitutional

In his Dissent, Breyer frames the central question as follows: Does the statute require specific groups of noncitizens held in confinement to “receive a bail hearing, after, say, six months of confinement, with the possibility of release on bail into the community provided that they do not pose a risk of flight or a threat to the community’s safety?” Breyer argues that the majority’s interpretation of the statutes in question would raise “grave doubts” on the statute’s constitutionality.  In particular, the statute would violate the Fifth Amendment Due Process Clause. Breyer notes that case law has established that the Due Process Clause sees “eligibility for bail as part of due process.” (See Salerno)

Furthermore, the Eight Amendment forbids “[e]xcessive bail.” In Salerno, Breyer argues, the Court held that both the Due Process Clause and the Exercise Bail Clause apply in “cases challenging bail procedures,” such as Jennings v. Rodriguez.

Justices Ginsburg and Sotomayor joined Breyer’s dissent. In a rare move, Breyer read from his defense.

Immigrants’ rights advocates worry that the ruling in Jennings v. Rodriguez will have outsize implications on detained immigrants’ rights against the backdrop of the Trump administration’s aggressive rhetoric on and enforcement of immigration policy within U.S. borders. According to NBC News, ICE deportation arrests have soared  by 40 percent since the current administration took office, while border arrests have fallen to a 45-year low. The discrepancy between deportation and border arrests reflects the Trump administration’s focus on internal security, rather than border control.