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February 27, 2018

SCOTUS finally resolves Jennings v. Rodriguez, ruling Ninth Circuit erred when deciding detained aliens have a statutory right to periodic bond hearings

The Supreme Court granted cert in Jennings v. Rodriguez nearly two years ago, but the case got set for re-argument this Term and now has finally resulted in an opinion concerning certain procedural rights for detailed aliens.  The full Jennings opinion is lengthy and intricate, and the opinion for the Court authored by Justice Alito sets up the discussion this way:

In this case we are asked to interpret three provisions of U.S. immigration law that authorize the Government to detain aliens in the course of immigration proceedings.  All parties appear to agree that the text of these provisions, when read most naturally, does not give detained aliens the right to periodic bond hearings during the course of their detention.  But by relying on the constitutional-avoidance canon of statutory interpretation, the Court of Appeals for the Ninth Circuit held that detained aliens have a statutory right to periodic bond hearings under the provisions at issue.

Under the constitutional-avoidance canon, when statutory language is susceptible of multiple interpretations, a court may shun an interpretation that raises serious constitutional doubts and instead may adopt an alternative that avoids those problems.  But a court relying on that canon still must interpret the statute, not rewrite it.  Because the Court of Appeals in this case adopted implausible constructions of the three immigration provisions at issue, we reverse its judgment and remand for further proceedings.

I believe the context and content of the majority's ruling likely mean the Jennings decision will not have many big implications outside the immigration detention setting. But Justice Breyer's lengthy dissenting opinion discusses bail and due process more broadly, and his closing sentiments highlights why a ruling the other way in Jennings might have been significant for a broad array of criminal defendants:

The relevant constitutional language, purposes, history, traditions, context, and case law, taken together, make it likely that, where confinement of the noncitizens before us is prolonged (presumptively longer than six months), bail proceedings are constitutionally required.  Given this serious constitutional problem, I would interpret the statutory provisions before us as authorizing bail.  Their language permits that reading, it furthers their basic purposes, and it is consistent with the history, tradition, and constitutional values associated with bail proceedings.  I believe that those bail proceedings should take place in accordance with customary rules of procedure and burdens of proof rather than the special rules that the Ninth Circuit imposed.

The bail questions before us are technical but at heart they are simple.  We need only recall the words of the Declaration of Independence, in particular its insistence that all men and women have “certain unalienable Rights,” and that among them is the right to “Liberty.”  We need merely remember that the Constitution’s Due Process Clause protects each person’s liberty from arbitrary deprivation.  And we need just keep in mind the fact that, since Blackstone’s time and long before, liberty has included the right of a confined person to seek release on bail.  It is neither technical nor unusually difficult to read the words of these statutes as consistent with this basic right.  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 within the United States but all without hope of bail.  I would read the statutory words as consistent with, indeed as requiring protection of, the basic right to seek bail.

February 27, 2018 at 10:29 AM | Permalink


Any opinions as to why Justice Sotomayor alone among the dissenters joined a small section of the majority?

Posted by: Joe | Feb 27, 2018 10:50:42 AM

For those of us who practice criminal law and do not practice immigration law, the "correct" interpretation of these statutes was not what made Jennings interesting. What made Jennings interesting was the claim that a literal interpretation of the statutes raised constitutional issues about due process and the constitutional right to bond.

This opinion seems to say that the statute is clear enough that the constitutional issues are separate from the proper reading of the statute. As such, the Supreme Court has sent the case back to the Ninth Circuit to directly address the constitutional issues without much, if any, further guidance on those issues.
Given that the Ninth Circuit felt compelled to re-interpret the statutes to fix the constitutional problems with the statute, I am fully expecting to see the same remedy with the justification rewritten to make it clear that the Ninth believes that the detention is improper without such relief being available. The government will then seek cert for round 2.

Bottom line, this case will not end for at least another two or three years. Until we reach that point, it is unclear if Jennings will mean anything outside of the immigration context.

Posted by: tmm | Feb 27, 2018 4:09:27 PM

🤔The easy fix ?🤔
IF an alien,
THEN enter or remain here pursuant to USA law ...
AND obey the penal laws that apply, wherever you may be, while here ...
ELSE answer to the consequences of failure.
👇🏿And, of course👇🏿
☠️ Nemo ☠️ Me ☠️ Impune ☠️ Lacessit ☠️

Posted by: Docile the Wimpy Terrorist In OR | Feb 27, 2018 4:32:49 PM

I asked the author of the SCOTUSBlog analysis of the opinion and he replied:

"It is odd and hard to say why. It does suggest that a bond hearing is required, however."

tmm's analysis seems reasonable to me though fwiw the Think Progress piece argued Alito's opinion seemed to put its thumb on the scales some there in a negative way.

Posted by: Joe | Mar 1, 2018 1:59:06 PM

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