Will the Constitution Protect Thousands of Immigrants Now Living in Limbo?

ELIZABETH MONTANO—Approximately 70% of immigrants (around 280,000 people) in pending immigration proceedings are detained pursuant to statutes that decree mandatory detention—that is, detention that is required without any opportunity for individualized assessment of whether the detention is appropriate or even necessary. 8 U.S.C. § 1225(b) provides for the mandatory detention of individuals, such as asylum seekers, pending a determination of their admissibility into the United States. 8 U.S.C. § 1226(a) provides for general detention and gives the Attorney General the discretion to release an individual on bond or conditional parole. 8 U.S.C. § 1226(c) provides for the mandatory detention of individuals with certain criminal convictions.

On June 20, 2016, the Supreme Court granted cert in Rodriguez v. Robbins. In Robbins, the Ninth Circuit held that the certified class of detainees who had been subject to “prolonged” detention under the immigration detention statutes were entitled to bond hearings and stated that “detention becomes ‘prolonged’ at the six-month mark.” However, the Ninth Circuit did not address the constitutional arguments offered by the ACLU, but rather practiced “constitutional avoidance” by interpreting the immigration detention statutes to avoid the potential due process issues that could arise from an alternative interpretation.

The Supreme Court disagreed, and on February 27, 2018, the Court published its decision, written by Justice Samuel Alito for a 5-3 court, in Jennings v. Rodriguez. According to the majority, the plain reading of the immigration detention statutes does not give detained individuals the right to bond hearings during the course of their detention. The constitutional-avoidance canon, according to the majority, allows a court to “shun” a statutory interpretation that would raise serious constitutional doubts and adopt an alternative interpretation that avoids those doubts, but it does not authorize a court to “rewrite” the statute. Because it found that the Ninth Circuit adopted “implausible constructions” of the immigration detention statutes, the Court directed the Ninth Circuit, on remand, to consider the merits of the constitutional arguments in the first instance. However, before reaching the constitutional arguments, the Court directed the Ninth Circuit to reexamine whether the respondents can continue litigating their claims as a class.

The class action question is extremely important. Most class members do not have, and cannot afford, attorneys. Therefore, if the Ninth Circuit decertifies the class, many detained individuals will never be able to pursue their claims. In Part V of its opinion, the majority heavily implied its belief that such an outcome was warranted. Specifically, the Court directed the Ninth Circuit to determine whether an order granting relief now solely on constitutional grounds would provide sufficient relief to the class as a whole when the Ninth Circuit previously acknowledged that some class members would not be entitled to bond hearings as a constitutional matter. Indeed, the First Circuit has previously decertified a similar class on the grounds that the reasonableness inquiry used to determine whether detention has been “prolonged” requires an “individualized assessment.”

The constitutional issue, however, is potentially more successful. Despite directing each party to file supplemental briefs addressing questions directly relating to the constitutionality of the statutes, the majority refrained from making any constitutional argument and instead relied solely on statutory interpretation. In their supplemental brief, Respondents asserted that the statutes, if interpreted the way the majority ultimately did, would violate the Due Process Clause. Reading from his dissent, Justice Stephen G. Breyer stated that “any interpretation of the statute [which] would deny bail proceedings where detention is prolonged would likely mean that the statute violates the Constitution.” In concluding that “all men and women have ‘certain unalienable Rights,’” including “the right to Liberty[,]” Justice Breyer urged the Ninth Circuit, and his fellow justices, to “keep in mind the fact that…liberty has included the right of a confined person to seek release on bail.” Presumably, these are the arguments the Ninth Circuit will now consider on remand.

Interestingly, all six circuits that have addressed this issue have found it necessary to read an implicit reasonableness limitation into the statutes to avoid troubling due process issues that would arise otherwise. The circuits were split only on the exact method for determining when detention was considered “prolonged.” The First, Third, Sixth, and Eleventh Circuits found that the reasonableness inquiry required individualized review based on all of the circumstances of any given case. In contrast, the Ninth and Second Circuits adopted a more bright-line rule, finding that the statutes only authorized mandatory detention for six months, after which detention became presumptively unreasonable without an individualized bond hearing. Now that the Supreme Court has found contrary to each of these circuits and ruled there is no reasonableness limitation in the statutes themselves, it seems likely that the circuits would believe the statutes violate the Due Process Clause of the Fifth Amendment.

The decision has left many immigrants in limbo. Because of the large backlog in immigration court, a person in mandatory immigration detention will be incarcerated for an average of thirteen months and will be subject to the same treatment and conditions as prisoners in federal and state prisons. Furthermore, it is unclear what lies ahead for individuals previously released on bond based on the conclusions of the six circuits that have addressed the issue. The Constitution, and the Ninth Circuit, now hold the fate of these individual’s futures in their hands.

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