Published on: Tuesday, February 27, 2018

Today, the United States Supreme Court issued a 5 to 3 decision in Jennings v. Rodriguez, No. 15-1204, holding that U.S. immigration law does not give certain detained noncitizens the right to periodic bond hearings during the course of their detention. The question in this case centered on whether several statutory provisions of the Immigration and Nationality Act, see 8 U.S.C. §§1225(b), 1226(a), and 1226(c), give certain detained noncitizens a right to bail hearings.  These three provisions of immigration law  authorize the government to detain certain aliens in the course of immigration proceedings.  The group of noncitizens effected includes “asylum seekers, persons who have finished serving a sentence of confinement (for a crime), or individuals who, while lacking a clear entitlement to enter the United States, claim to meet the criteria for admission.”  Some of the group members have been detained by the government for months, and sometimes years, while the government considers their claims to enter and remain in the United States.

Under the constitutional-avoidance canon (which applies when statutory language is susceptible of different interpretations, courts may adopt an interpretation that avoids serious constitutional problems), the Ninth Circuit had interpreted the three immigration provisions as providing detained aliens a right to periodic bond hearings during the course of their detention. The Supreme Court disagreed, concluding the Ninth Circuit misapplied the canon of constitutional avoidance in holding otherwise. 

Justice Alito delivered the 91-page opinion of the Court, except as to Part II (which addresses whether the Court has jurisdiction to entertain respondents’ claims).  Chief Justice Roberts and Kennedy joined that opinion in full.  Justices Thomas and Gorsuch joined as to all except Part II, with Thomas concurring separately, joined by Gorsuch, as to all except n. 6 of Thomas’s concurrence.  Breyer filed a dissenting opinion joined by Ginsburg and Sotomayor.  Justice Kagan took no part in the decision. 

The Training Division provides litigation resources for immigration offenses involving noncitizens, immigration consequences of conviction, as well as several webinars on strategies for defending noncitizens from basic to advanced issues.