To many people, the thought of indefinite detention at the hands of the government without access to a bond hearing is the antithesis of liberty and other dearly held ideals. For some detained immigrants in the United States, a recent Supreme Court decision makes this access more complicated – but the media simplifies the decision and implies a sense of finality to the idea that immigrants do not have access to bond hearings. The legal reality is more complicated.
Last week, the United States Supreme Court held in Jennings v. Rodriguez that the immigration statute does not grant certain detained immigrants a right to periodic bond hearings. This overruled a 9th Circuit decision finding that immigration judges “must consider the length of detention and provide bond hearings every six months” for immigrants in detention longer than twelve months. The named plaintiff of this class action lawsuit, Alejandro Rodriguez is a legal permanent resident who spent three years in immigration detention without appearing before a judge and brought his case to the federal courts. While last week’s Jennings decision is a disappointing loss for immigrants and advocates, it is premature to interpret the decision as the Supreme Court’s stamp of approval for the indefinite detention of immigrants.
Media interpretation of this decision implies a sense of Supreme Court approval of indefinite immigration detention. The New York Times opened their article on the decision with: “people held in immigration detention, sometimes for years, are not entitled to periodic hearings to decide whether they may be released on bail.” NPR’s headline read “Supreme Court Ruling Means Immigrants Could Continue To Be Detained Indefinitely” and much commentary on social media skipped over the quiet could in that headline. Fox News’ headline stated, “Supreme Court rules that detained immigrants don’t get automatic bond hearings” and opened with the interpretation that the “Supreme Court has concluded that certain immigrants or asylum seekers do not have an automatic right to periodic custody or bail hearings.” This framing in the media is technically accurate, yet deceptive, and a better phrasing of both the Times and Fox News reporting would include the words under the statute.
Despite being fully briefed on the constitutional issues, the Supreme Court did not rule on constitutional grounds. In the divided opinion, Justice Alito, writing for the majority, took issue with how the 9th Circuit used the constitutional avoidance doctrine. The doctrine of constitutional avoidance is the idea that the federal courts should avoid ruling on constitutional issues if the matter at hand can be resolved on other grounds. Under this doctrine, if there are two plausible interpretations of a law and one avoids invalidating the law on constitutional grounds, the Court should avoid invalidating the law. Justice Alito found that the 9th Circuit “misapplied the canon in this case because its interpretations of the three provisions at issue here are implausible.” Echoing long-standing differences of judicial interpretation, Alito wryly notes “[s]potting a constitutional issue does not give a court the authority to rewrite a statute as it pleases.”
According to the majority opinion, this misapplication of the constitutional avoidance doctrine results from the lack of multiple plausible interpretations of the law. Rather, the opinion details the Court’s perceived clarity of the statute; finding there is only one plausible interpretation of the statute. Justice Alito succinctly states, “nothing in the statutory text imposes any limit on the length of detention.” Specific to the six-month timeline imposed by the Court below, Justice Alito comments “[h]owever broad its interpretation of the words ‘detain’ and ‘custody,’ nothing in any of the relevant provisions imposes a 6-month time limit on detention without the possibility of bail.” The Court then remanded the case to the 9th Circuit for a re-examination of the class status and the constitutional issues. The question of whether immigrants can be detained indefinitely under the Constitution remains unanswered.
Justice Breyer observes in his scathing dissent that the “majority’s interpretation of the statute would likely render the statute unconstitutional.” Justice Breyer, citing United States v. Jin Fuey Moy, would follow a “practice of construing a statute ‘so as to avoid not only the conclusion that it is unconstitutional but also grave doubts upon that score.’” Justice Breyer goes on to frame his grave doubts in eloquent detail: the Constitution does not allow for indefinite detention without due process, and eligibility for bond is key to this constitutional protection.
Yet the majority opinion not once mentions Jin Fuey Moy, and the opinion was resolute in the clarity of the statute (“the meaning of the relevant statutory provisions is clear”). Justice Breyer’s quote from Jin Fuey Moy omits the three words immediately prior to the statement: “if fairly possible.” These three words seem to be the crux of the disagreement: the majority finding that the statute can only be construed one way, and the dissent arguing that it is fairly possible to construe it in another manner.
Certain detained immigrants still have access to a bond hearing via a different part of the immigration statute. In Zadvydas v. Davis, the majority opinion written by Justice Breyer used the doctrine of constitutional avoidance to hold that the immigration statute implicitly limited the period of time an immigrant could be detained after a final order of removal is issued. On the surface, this sounds very similar to Jennings, indeed, the 9th Circuit relied heavily on Zadvydas when it made its decision. Yet as in most areas of the statutory labyrinth that makes up immigration law, the devil is in the details. There are multiple parts of the statute that refer to immigration detention, and multiple stages of the removal process where detention is authorized. In short, according to Jennings, Zadvydas applies to immigrants denied under one part of the statute (8 U.S. Code §1231(a)(6)) and not those discussed in Jennings (§§1225(b), 1226(a), and 1226(c)). Despite this, Zadvydas is left standing as the “outer limit” of the doctrine of constitutional avoidance, remaining a tool for advocates and a possible reassurance to at least some detained immigrants.
Additionally, individual immigrants are still able to petition for habeas corpus and challenge the legality of their detention. A habeas corpus petition asks the court to bring the petitioner to court and examine the legality of their ongoing detention. The right to this petition is rooted in the Constitution, and applies to immigrants in federal detention.
While this distinction means little to the immigrants currently detained, the result of the Supreme Court’s decision in Jennings is not that it affixes a judicial stamp of approval on the indefinite detention of immigrants without bond. Indeed, Jennings specifically avoids making such a determination, narrowly holding instead on a misapplication of a legal doctrine to specific parts of the statute.
The only thing left to do is to actually apply the Constitution to the parts of the statute in question. As law professor Michael Kagan observed, “it will now require a bit more courage from judges. They will have to say whether key immigration detention provisions enacted by Congress are constitutional, yes or no. There literally is no longer an avoidance option.” Not only is the “[c]onstitutional review of individual detention decisions . . . alive” (AILA President Annaluisa Padilla), but so is the judicial opportunity to once and for all find the current practices of detention of immigrants without bond hearings unconstitutional.