The Supreme Court Said No Required Review For Bond After 6 Months In Immigration Detention – But Don’t Despair – The Statute Might Be Unconstitutional
As many of you have heard, this week the Supreme Court issued its long-awaited decision in Jennings v. Rodriguez. The case was set over after Justice Scalia’s death for the 2018 session after the Court could not come to a decision in 2017. Not surprisingly, the result is not good for noncitizens – but it’s not dire. Here are the two take-aways: 1) the underlying mandatory detention statutes themselves may be unconstitutional; and, 2) the courts may not have jurisdiction as a class action lawsuit in this case might be improper. The case was remanded to the Ninth to determine these two issues. If your client is stuck in mandatory detention, I recommend arguing that the detention itself is unconstitutional and I would fight it. I would like to remind everyone that it was the Obama DOJ that appealed the original Ninth Circuit decision to the Supreme Court – so we cannot entirely blame McConnell and Gorsuch for this fiasco.
Here’s the important background. Back in 2015, the Ninth Circuit, in a wonderful decision, that took me hours to understand, found that the immigration statutes mandating indefinite detention were problematic. The statutes allowed for indefinite detention for three groups of immigrants: 1) arriving aliens who either did not have documentation or were suspected of fraud or misrepresentation; 2) arriving aliens who were applying for asylum who had established a credible fear of persecution; and 3) lawful permanent residents who had been convicted of either a crime involving moral turpitude or an aggravated felony and were removable under INA § 237(a)(2). The Ninth Circuit did not want to declare the statutes unconstitutional, so they used a technique known as "constitutional avoidance," and interpreted the statutes so that they would conform to the U.S. Constitution. The Ninth Circuit, relying on Supreme Court precedent, held that after six months of immigration detention, the detention had become prolonged and the noncitizen was entitled to a hearing, known as a Rodriguez bond hearing before an immigration judge. At that hearing, ICE had the burden to show by clear and convincing evidence, that the noncitizen was either a flight risk or a security risk. If ICE could not meet its burden, then the immigration judge had to set a bond. The Ninth Circuit held that these cases had to be reviewed every six months on an on-going basis to revisit the issue of bond and that ICE had the burden of proof after the six-month mark to establish the need to keep the noncitizen in detention. Rodriguez v. Robbins, 804 F.3d 1060 (9th Cir. 2015). Needless to say, this case was only valid in the Ninth Circuit. For those of you who are truly law geeks, (like me) the theory was that a detention under INA § 236(c), 8 U.S.C. § 1226(c) (mandatory detention of criminal aliens) became prolonged detention after six months and at the six-month mark a hearing was required under INA § 236(a), 8 U.S.C. § 1226(a) (arrest, detention, and release). I spent hours trying at AILA conferences trying to understand this concept. I would like to thank Bob Jobe and Steve Manning for their excellent presentations over the years on this issue.
Now, the Ninth Circuit did not pull this six-month mark out of thin air; it relied on a Supreme Court case, Zadvydas v. Davis, 533 U.S. 678 (2001). In Zadvydas, the Supreme Court held that if a noncitizen has a final removal order but s/he cannot be removed from the United States either because the noncitizen is stateless or because the United States does not have a repatriation treaty with the noncitizen’s home country, there is a time limitation of six months in detention. Once the noncitizen has been in detention over six months, the detention has become prolonged and the case must be reviewed to comply with the Constitution. The Supreme Court, a few years later, relied on Zadvydas in finding that mandatory detention under INA § 236(c) (detention for lawful permanent residents who have been convicted of crimes) was constitutional because the government assured the Court that these cases typically lasted last than 90 days. Demore v. Kim, 538 U.S. 510 (2003). Ha, ha, ha! Enough mirth, the Supreme Court held that because the detention was not prolonged, it was constitutional. So, the Ninth Circuit relied on the reasoning in these two Supreme Court cases and found that after six months, detention per se was prolonged and unconstitutional. Accordingly, after six months the noncitizen was entitled to a bond hearing.
With that background, we can now look at Jennings v. Rodriguez. In a hotly contested 5-3 decision (Justice Kagan recused herself because she had worked on this case while at the Solicitor General’s office) the Supreme Court reversed the Ninth Circuit. Justice Alito wrote the majority opinion. The Court had two important holdings: 1) the Ninth Circuit misapplied the doctrine of "constitutional avoidance" and that they had to "interpret the statute and not rewrite it." The good news here, is that the Ninth Circuit might get to decide whether the underlying statutes themselves are unconstitutional. No one is saying that indefinite detention for noncitizens is constitutional, just that the courts now must determine whether indefinite detention for noncitizens is constitutional. The Supreme Court held that the Ninth Circuit erred in effectively rewriting the statute to create this new six-month mark at which point the noncitizen was entitled to a bond hearing. 2) the Supreme Court questioned whether the Ninth Circuit even had jurisdiction over the case. More specifically, was a class action law suit the appropriate tool for resolving due process claims that are fact-specific? This case has been sent back to the Ninth to determine those two issues.
In the meantime, our clients are stuck in mandatory detention without a Rodriguez hearing after six months of detention. But, don’t give up all hope, because the statute itself might be found to be unconstitutional.
I said that this case was hotly contested. Justice Thomas wrote a concurring opinion which Justice Gorsuch joined (except for footnote 6 – I just love that). The most important part of the concurrence is the first line: "In my view, no court has jurisdiction over this case." I’ll just let that stand.
Justice Breyer, by all accounts was furious and insisted on reading his dissent from the bench, which is very unusual. Breyer’s dissent was joined by Justice Ginsburg and Justice Sotomayor. Breyer stated that constitutional protections apply to everyone in the United States, including arriving aliens and asylum seekers. The Government had argued that because the law treats arriving aliens as if they had never entered the United States, they are not afforded Constitutional protections. Justice Breyer noted that this claim is false and that we should not engage in this legal fiction.
No one can claim, nor since the time of slavery has anyone to my knowledge successfully claimed, that persons held within the United States are totally without constitutional protection. Whatever the fiction, would the Constitution leave the Government free to starve, beat, or lash those held within our boundaries? If not, then, whatever the fiction, how can the Constitution authorize the Government to imprison arbitrarily those who, whatever we might pretend, are in reality right here in the United States? The answer is that the Constitution does not authorize arbitrary detention. And the reason that is so is simple: Freedom from arbitrary detention is as ancient and important a right as any found within the Constitution’s boundaries.
Jennings v. Rodriguez, 583 U.S. ___, No. 15-1204 slip op. (Breyer, J. dissenting at 7) (Feb. 27, 2018).