In Rodriguez v. Robbins, 804 F.3d 1060 (9th Cir. 2015), the Ninth Circuit had determined that bond hearings are required after the length of detention pursuant to 8 USCA § 1225(b), § 1226(a), or § 1226(c) exceeds six months, and that immigration judges must provide bond hearings periodically at six-month intervals for individuals detained for more than 12 months. The court had held that at the bond hearings, the government bears the burden of proving by clear and convincing evidence that the detainee is a danger to the community or a flight risk.
On October 3, 2017, following the appointment of Justice Neil Gorsuch, the Supreme Court heard re-argument in Jennings v. Rodriguez. Under the constitutional avoidance canon, the Court explained, “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, the Court cautioned, “a court relying on that canon still must interpret the statute, not rewrite it.”
The Immigration and Nationality Act (INA) provisions applicable primarily to non-citizens seeking entry to United States, stating that certain non-citizens claiming credible fear of persecution shall be detained “for” further consideration of the application for asylum, and that all other aliens seeking entry, with specific exceptions, shall be detained “for” a removal proceeding, authorizes detention throughout the completion of those asylum or removal proceedings, as opposed to ending the detention authority when the asylum or removal proceedings begin, the Court explained. The Court called the respondents’ interpretation that the term “for” mandates detention only until the start of applicable proceedings rather than all the way through to conclusion “inconsistent with ordinary English usage” and incompatible with the rest of the statute.
The Court found the language of the INA provision applicable to aliens already present in the U.S. even clearer.
That provision, which carves out narrow conditions under which the Attorney General may release on bond non-citizens detained pending their removal based on several enumerated categories involving criminal offenses and terrorist activities, could not, the Court said, be plausible interpreted as implicitly placing a six-month limit on detention or requiring periodic bond hearings. The Court dismissed the respondents’ argument that the statute is silent as to the length of detention and thus cannot be construed to authorized prolonged mandatory detention, explaining that the section is not silent, as “[i]t mandates detention ‘pending a decision on whether the alien is to be removed from the United States,’ § 1226(a).”
There is a silver-lining here–in rendering this decision, the Supreme Court may just have rendered the entire mandatory detention scheme unconstitutional. While Rodriguez is no longer good law in the Ninth Circuit, we will continue to file habeaus petitions on behalf of non-citizens who are “mandatorily detained.” And I reckon that not before too long, we will be back at the Supreme Court to render the entire statute unconstitutional.