Immigration and Nationality Act - Mandatory and prolonged detention - Sections 1225 (b), 1226 (a), and 1226 (c) of Title 8 of the U.S. Code – No right to periodic bond hearings during the course of their detention.
In Jennings v. Rodriguez, the United States Supreme reversed a lower court decision holding that some classes of detained immigrants have the right to regular bond hearings during their prolonged detention. In a 5-3 decision, the Court ruled that the Ninth Circuit had incorrectly used the canon of constitutional avoidance to read a six-month limit into sections of the Immigration and Nationality Act (INA) that allow for detention without the possibility of bond. The Court remanded the case to the Ninth Circuit so that it could consider the petitioners’ constitutional arguments in the first instance, more specifically the claim that a prolonged detention without bond hearings is a violation of their rights under the Fifth and Eight Amendments of the U.S. constitution. This case has broad implications for U.S. immigration detention policy. Unless the courts uphold detainees’ due process rights, detained immigrants will continue to be unjustifiably locked up for years by Immigration and Customs Enforcement (ICE).
Jack R. Mangala
A. Background of the case and holding
Alejandro Rodriguez, a Mexican citizen, was a year old when he arrived in the United States with his family. He became a lawful permanent resident in 1987. In 2004, he was detained by Immigration and Customs Enforcement (ICE) after being convicted for “joyriding” in a stolen vehicle in 1998 and possession of a controlled substance in 2003. An immigration judge issued a final order of removal in July 2004. Rodriguez went on to spend three years in immigration detention as he appealed the order, first to the Board of Immigration Appeals (BIA), and then to the Ninth Circuit. As his immigration appeals continued, Rodriguez field an habeas petition in the District Court for the Central District of California in May 2007, seeking a bond hearing on whether his continued detention (over three years at that time) was justified. The case was consolidated with another and, together, petitioners moved for class certification. The district court certified a class of noncitizens who had been detained for longer than six months pending removal proceedings, were not held under a national security statute, and had not been afforded a bond hearing in that time. The class was divided into four subclasses, one for each statutory provision under which class members were held.
It must be noted that four provisions of the Immigration and Nationality Act (INA) allow for the detention of noncitizens without the possibility of bond in various situations. The first provision, 8 U.S.C section 1225 (b), applies to individuals arriving at the border who are seeking admission into the United States. Asylum seekers who establish a credible fear of persecution “shall be detained for further consideration of the application.” All others seeking admission who are “not clearly and beyond a doubt entitled to be admitted…shall be detained” for removal proceedings. Under the second provision, 8 U.S.C. section 1226 (c), “[t]he Attorney General shall take into custody any [noncitizen] present in the United States who has been convicted of certain enumerated crimes.” These individuals may be released “only if the Attorney General decides” it is necessary for witness-protection purposes. The third provision, section 1226 (a) allows for the detention and arrest of any other individual in removal proceedings. Pending removal, the Attorney General “may release the [noncitizen] on bond of at least $ 1,500.” Those denied bond may remain detained until their proceedings end. The fourth provision, 8 U.S.C. section 1231 (a), stipulates that individuals who have been ordered removed “shall” be detained for up to ninety days while the government effectuates their removal. All of the Rodriguez class members challenged the legality of their prolonged detention, pursuant to the above provisions, without the possibility of bond hearings.
The district court granted summary judgment in favor of the detained class members and entered a permanent injunction, ordering the government to provide bond hearings to detainees after six months of detention. The order also required that bond hearings occur automatically and that the burden of proving “by clear and convincing evidence that a detainee is a flight risk or a danger to the community” falls to the government. With respect to three out of the four classes, the Ninth Circuit affirmed the district court order. Relying on the canon of constitutional avoidance, the Ninth Circuit constructed the relevant statutory provisions as imposing an implicit six-month time limit on detention without a bond hearing. The Ninth Circuit reasoned that construing the statute to allow prolonged detention without bond would raise serious constitutional concerns, and therefore adopted an interpretation which granted detainees a statutory right to bond hearings. The Government appealed, and the Supreme Court granted certiorari to review the injunction and habeas claims in 2016. On February 27, 2018, the Supreme Court reversed the Ninth Court. In a 5-3 vote, the court held that Sections 1225 (b), 1226 (a), and 1226 (c) of Title 8 of the U.S. Code do not give detained aliens the right to periodic bond hearings during the course of their detention, and that the Ninth Circuit misplaced the canon of constitutional avoidance in holding otherwise.
Before expanding on the court opinion, it is worth noting that Jennings v. Rodriguez followed two Supreme Court cases decided at the dawn of the new millennium, and which offer contrasting approaches to the review of decisions of the U.S. government to detain immigrants. In 2001, in Zadvydas v. Davis, the Supreme Court interpreted an immigration statute to require judicial review of a detention decision because “to permit [ ] indefinite detention of an alien would cause a serious constitutional problem.” Two years later, in Demore v. Kim, the court would invoke the “plenary power” doctrine—something exceptional to immigration law and inconsistent with modern constitutional law—to immunize from review a provision of the immigration statute requiring detention of immigrants awaiting removal based on a crime. In affirming the Circuit Court in Rodriguez, the Ninth Circuit relied on Zadvydas v. Davis and the six-month limitation that the Supreme Court read into the statute governing post-removal-period detention, as long as on its own line of cases limiting excessively long immigration detention.
B. The Court’s opinion
Writing for a 5-3 Court, Justice Alito held the Ninth Circuit incorrectly applied the canon of constitutional avoidance. Using a textual approach to interpreting the immigration statute, the majority found that nothing in the statute supports the imposition of a periodic bond hearings as mandated by the court of appeals. The Court held that, because the statute was clear, the Ninth Circuit had misplaced the doctrine of constitutional avoidance. Alito emphasized that “a court relying on that canon…must interpret the statute, not rewrite it.”
In Part II of the opinion, not joined by Justices Thomas and Gorsuch, a plurality of the Court found that 8 U.S.C. Sections 1252 (b)(9) and 1226 (c) did not preclude the Court from exercising jurisdiction over the case. The plurality suggested that Section 1252 only applied to individual removal orders. Because the detention is not part of the U.S. government’s discretionary authority, Section 1226 (e), which limits review of discretionary judgments, does not apply. Ultimately, the Court found the Ninth Circuit’s interpretations of three provisions at issue to be “implausible.” In Part IV, the plurality challenged Justice Breyer’s dissent for “ignoring the statutory language” and dismissed his reading and interpretation of the statute as “implausible.” In the final Part of the opinion, and because the lower courts had decided the case on statutory grounds, the Court remanded the case to the Ninth Circuit so that it could consider the petitioners’ constitutional arguments in the first instance.
Justice Thomas, joined by Gorsuch, concurred in all but the jurisdictional part of Alito’s opinion. He read the statute as preventing judicial review “except in a petition for review from a final removal order or in other circumstances not present here.” He therefore concluded that, because Rodriguez was not appealing a final order of removal, no court has jurisdiction over the case. While Justice Thomas would have dismissed the case for lack of jurisdiction, he concurred with the majority on its merits.
Justice Breyer, joined by Justices Ginsburg and Sotomayor, dissented. He asserted that the majority’s reading of the statute would “at the very least…raise ‘grave doubts’ about the statute’s constitutionality.” To Justice Breyer, it was clear that individuals held on American soil would receive Fifth Amendment due process protections, including the prohibition on arbitrary detention. After a thorough review of the Court’s detention jurisprudence, Justice Breyer concluded that it “generally has not held that bail proceedings are unnecessary. Indeed, it almost has suggested the contrary.” Having established that reading the statute to allow indefinite periods of detention with no access to bond hearings would raise a constitutional question, the dissent found reason enough to invoke the avoidance canon. “It is neither technical nor unusually difficult to read the words of these statutes as consistent with this basic right [to be free from arbitrary detention],” Justice Breyer concluded. “I would find it far more difficult, indeed, I would find it alarming, to believe that Congress wrote these statutory words in order to put thousands of individuals at risk of lengthy confinement…all without hope of bail.” 
The Supreme Court’s decision in Jennings raises three serious concerns in regard to the basic human rights of noncitizens and U.S. immigration detention practices, especially in light of the hard line policy being pursued by the Trump administration. First, the decision fails to protect the fundamental due process rights afforded to all under the Constitution—citizens and noncitizens alike. It is difficult to reconcile it with the Fifth and Eight Amendments, under the terms of which noncitizens enjoy the same basic due process rights and protection against excessive bail as do U.S. citizens. There is no citizenship requirement under the language of the Fifth Amendment, and the courts have constructed it as extending to “all persons within the United States, whether their presence is lawful, unlawful, temporary, or permanent.” As noted by the dissent in Jennings, the prohibition of “excessive bail” under the Eight Amendment logically applies to situations where bail is denied entirely without a hearing.
Second, there appears to be no legitimate reason to deny a simple bail hearing to noncitizens. Even if we concede, as the Jennings Court noted, that the mention of any bail hearings is absent from the statutory text, it is a stretch to infer that the Congress’ intent was to authorize prolonged detention. The section governing detention of asylum seekers, for instance, provides that noncitizens “shall be detained,” but it does not explicitly require that they be detained without bail. This reading is consistent with the fact that people detained under criminal law and other forms of civil commitment have the right to periodic hearings to justify their continued detention. Immigration detention is substantively similar to other forms of detention. The justification for a pretrial detention in criminal law generally rests on the reason that the defendant poses a flight risk or a danger to the community. The vast majority of immigrants subject to prolonged detention under the provisions of the INA at issue in Jennings did not commit any crime. And, for those who did, there is no evidence that they represented a flight risk or a danger to the community.
Finally, by explicitly authorizing indefinite detention, Jennings will certainly worsen the problems already existing in the immigration detention system. Where the courts may have had some discretion to grant bail hearings before, Jennings now explicitly calls for mandatory detention without the opportunity for bail under the statutory provisions at issue. While before Jennings, the circuit courts were divided on whether the Constitution requires a bond hearing after six months, or whether the reasonableness of detention should be decided on a case-by-case basis, the courts will now uphold mandatory detention without bail in many immigration cases. The net result will be the worsening of an already unsustainable immigration detention situation with significant financial, psychological and human cost to the detained individuals and the government. At present, the federal government detains almost 360,000 immigrants a year. The number of detained immigrants on any given day has increased from 5,000 in 1994 to more than 39,000 in 2017.
In some respects, the Supreme Court’s decision in Jennings v. Rodriguez takes us back to the drawing board. After sparing among themselves over two terms, the justices remanded the case to the Ninth Circuit to decide a key constitutional question—whether indefinite detention of noncitizens without a bond hearing as authorized by the immigration statute is constitutional. Let us hope that the Ninth Court would, on remand, find that the statutory provisions at issue do, in fact, provide noncitizens with a constitutional right to periodic bail hearings. Such a decision would do justice to the basic procedural rights afforded to all persons within the United States, regardless of their citizenship status. It would also help to alleviate the worsening problem of prolonged immigration detention that sees many noncitizens locked up for years in flagrant violation of their basic human rights and denial of the values we hold dear as a democratic society.
D. Suggested reading
To read the case: Jennings v. Rodriguez, 138 U.S. 830 (2018)
-Lutz K., “The implications of Jennings v. Rodriguez on immigration detention policy,” Minnesota Law Review, vol. 103, 2019.
-Jennings v. Rodriguez, Harvard Law Review, vol. 132: 417, 2018.
To cite this contribution: J. R. Mangala, “Immigration and Nationality Act. Mandatory and prolonged detention. Sections 1225 (b), 1226 (a), and 1226 (c) of Title 8 of the U.S. Code do not give detained aliens the right to periodic bond hearings during the course of their detention”, Cahiers EDEM, May 2019.
 8 U.S.C. § 1225 (b)(I)(B)(ii) (2012).
 8 U.S.C. § 1225 (b)(2)(A).
 Id. § 1226(c)(I).
 Id. § 1226(c)(2).
 Id. § 1226(a).
 Id. § 1231(a)(I)(2).
 Rodriguez III, 804. F.3d at 1071; see also Singh v. Holder, 638 F.3d 1196, 1206 (9th Cir. 2011).
 Rodriguez III, 804. F.3d at 1090. However, the Ninth Circuit ruled that the fourth subclass, comprised of individuals held under § 1231 (a) was improperly certified. Id. at 1074, 1085-86
 The canon of constitutional avoidance calls on the Court to avoid deciding constitutional questions if the statute could be interpreted to foreclose those questions.
 The court was split along ideological lines with the five conservative justices in the majority. Justice Kagan recused herself after the second round of arguments upon discovering that she had authorized the filing of a pleading in the case while serving as Solicitor General.
 Rodriguez, 138 S. Ct at 843.
 Rodriguez, 138 S. Ct at 842.
 Id. at 848.
 Id. at 853. Justice Thomas, concurring in part and concurring in the judgment.
 Id. at 861.
 Id. at 866.
 Rodriguez, 138 S. Ct at 876.
 Zadvydas v. Davis, 533 U.S. 678, 679.
 Rodriguez, 138 S. Ct at 862.
 Rodriguez, 138 S. Ct at 864-865.
 See Paoletti S., “Jennings v. Rodriguez in an era of mass incarceration of non-citizens”, The Regulatory Review, July 23, 2018.