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On February 27, 2018 the Supreme Court decided Jennings v. Rodriguez, a case involving a lawsuit by aliens challenging their continued detention under civil immigration statutes without the benefit of an individualized bond hearing as to the justification for ongoing detention.

Alejandro Rodriguez, a Mexican citizen and legal permanent resident of the United States, was convicted of a drug offense and vehicular theft, and ordered removed from the country. He was detained under 8 U.S.C. § 1226, which generally requires detention of aliens convicted of certain criminal offenses until removal proceedings are resolved. In addition to challenging his removal order, however, Rodriguez also sought habeas relief in federal court in the form of a bond hearing to determine whether his continued detention was justified.  His case was consolidated with a related case, and after a round of litigation in the U.S. Court of Appeals for the Ninth Circuit, was certified as a class to address whether aliens in situations like Rodriguez, who had been detained longer than six months pursuant to an immigration detention statute, were entitled to a hearing to assess the justification for continued detention. They argued that the immigration statutes did not justify such detention in the absence of an individualized bond hearing at which the Government proves by clear and convincing evidence that the class member’s detention remains justified. The District Court granted the class injunctive relief along these lines and the Ninth Circuit affirmed, relying on the canon of constitutional avoidance. The Supreme Court thereafter granted the Government’s petition for certiorari.

This case was originally argued before the Supreme Court in November 2016, but the Court thereafter ordered supplemental briefing and the case was then reargued in October 2017. The supplemental briefing directed the parties to address whether the alleged bond hearing requirement extended to aliens detained while seeking admission to the United States, to criminal or terrorist aliens, and how the proposed standard of proof applied to the bond hearing.

By a vote of 5-3 the Supreme Court reversed the judgment of the Ninth Circuit and remanded the case. In an opinion authored by Justice Alito, the Court held that the immigration provisions at issue--§§ 1225(b), 1226(a) and 1226(c) of Title 8--do not give detained aliens the right to periodic bond hearings during the course of their detention; the Ninth Circuit erred in applying the canon of constitutional avoidance to hold otherwise. That court should consider the aliens’ constitutional claims on remand, but should first reexamine whether they may continue litigating as a class.

Justice Alito delivered the opinion of the Court except as to Part II. The Chief Justice and Justice Kennedy joined Justice Alito’s opinion in full, while Justices Thomas and Gorsuch joined as to all but Part II, and Justice Sotomayor joined only as to Part III-C. Justice Thomas filed an opinion concurring in part and concurring 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 was recused.

To discuss the case, we have Richard Samp, Chief Counsel of the Washington Legal Foundation. 



As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.