Jennings v. Rodriguez: Against the Backdrop of Executive Enforcement and Legislative Inaction, the Court Revisits the Issue of Prolonged Immigration Detention -

Mar. 5, 2018

Jennings v. Rodriguez, 583 U.S. ___ (2018) (Alito, J.).
Response by Cori Alonso-Yoder
Geo. Wash. L. Rev. On the Docket (Oct. Term 2017)
Slip Opinion | New York Times | SCOTUSblog

Jennings v. Rodriguez: Against the Backdrop of Executive Enforcement and Legislative Inaction, the Court Revisits the Issue of Prolonged Immigration Detention

Today marks President Trump’s deadline to Congress for addressing the question of Deferred Action for Childhood Arrivals, known as DACA. In the months since the Administration announced the end of the DACA program, the debate on immigration reform has expanded from the initial ultimatum to create a legislative alternative to the program, to new issues of restriction on current legal immigration, including the elimination of certain family-based categories and the repeal of the visa lottery system. After months of opportunity to address these questions, congressional efforts to reform immigration appear stalled beyond salvation, in no small part due to a clear lack of direction from the President himself. As a result, DACA seems destined to expire today due to inaction from leaders at the legislative and executive levels.

Onto this backdrop, the Supreme Court handed down its decision in Jennings v. Rodriguez¹ on February 27th. Writing for a five-to-three majority on issues related to immigration detention, Justice Samuel Alito reversed the Ninth Circuit Court of Appeals’ decision granting semiannual bond hearings to certain categories of immigrant detainees. Only Chief Justice Roberts and Justice Kennedy joined the Alito opinion in full, with Justices Gorsuch and Thomas declining to endorse the plurality’s view of a jurisdictional question in the case (for which Justice Thomas authored a concurrence). In the dissent, Justices Sotomayor and Ginsburg signed onto Justice Breyer’s passionate and lengthy opinion arguing for bail provisions to be extended to these detainees.

At issue in Jennings are conditions of detention and related questions of bond eligibility for individuals falling within three statutory categories, all of whom have been detained longer than six months. Lead plaintiff, Alejandro Rodriguez, represents the class as a whole as well as the category of individuals detained under 8 U.S.C. § 1226(c) (individuals who have been convicted of certain crimes or engaged in terrorist activities). The class also includes individuals detained under § 1225(b)(1)(B)(ii) (asylum seekers), and under § 1225(b)(2)(A) (applicants for admission who are not clearly entitled to be admitted, otherwise known as “arriving aliens”).

In its opinion, the Court rejected the Ninth Circuit’s construction of §§ 1225(b), 1226(a), and 1226(c) as requiring a six-month periodic review to save the statutory framework from constitutional nullification. Relying on the Court’s decision in Zadvydas v. Davis² and the canon of constitutional avoidance, the lower court reasoned that a six-month bond review must be interpreted into the relevant provisions in order for the framework to survive constitutional scrutiny under the Fifth Amendment’s Due Process Clause. The Court found this interpretation “implausible,” holding that the clear language of those statutory provisions is susceptible to only one interpretation that does not contemplate a periodic custody review, and that the canon of constitutional avoidance only applies where more than one plausible interpretation of the statute is available.³ The Court also distinguished its decision in Zadvydas by underscoring the ambiguity of the potential length of detention in the statute at issue in that case. By contrast, in Jennings the Court reasons that Congress left no room for similar interpretation in this case, having explicitly provided for conclusion of detention of these individuals only in certain circumstances clearly expressed in the relevant statutes.

The majority proceeds to reverse the Ninth Circuit’s construction of the detention statutes, but declines to reach the Fifth Amendment and Due Process arguments raised by the respondents. Instead, the Court remands the case to the Court of Appeals for further proceedings to consider the constitutional merits of those claims, while simultaneously suggesting that a class action may not be the appropriate vehicle for those individualized claims.

The opinion of the Court is striking because the dissenting justices feel no such compunction to reserve the constitutional questions. In fact, Justice Breyer’s opinion rests almost exclusively on Due Process and, to a lesser extent, Eighth Amendment jurisprudence, spending little time relative to the majority in interpreting the relevant statutory provisions. Instead, Justice Breyer points to numerous factors to argue why the majority’s reading of the detention statutes cannot survive constitutional scrutiny and must be reconstructed to include a bond provision. Among these factors, he notes the sheer number of individuals detained under §§ 1225 and 1226, the increasingly lengthy terms of their detention, and the high likelihood of success on the merits for many within these categories in their claims for immigration relief.

Regarding the number of detainees affected by this decision, the dissent notes that nearly 20,000 individuals, 7500 asylum seekers, and 12,220 noncitizens who have completed terms of confinement for criminal convictions, fall within two of the three categories of detainee considered by the Court. The dissenting opinion also cites the length of detentions at issue, noting that they are now considerably longer than six months, and distinguishing this from the short-term detention of immigrant detainees addressed by the Court in Demore v. Kim.⁴ In concluding that the respondents should have access to a more flexible opportunity to apply for bond, the dissent is also persuaded by statistics showing that nearly two-thirds of the asylum seekers and 40% of those detained following criminal confinement ultimately prevail in applications to remain in the United States.

Also present in the dissent, but not in the opinion of the Court, is limited reference to increased immigration enforcement by the Trump Administration. While the politics of enforcement are not met head on, Justice Breyer’s dissent alludes to current events by citing President Trump’s Executive Order⁵ directing parole of detainees only under certain limited circumstances.⁶

As the lower court is left to address the constitutional questions, the Breyer dissent proves instructive by reaching elements of those arguments that the Court declines to take up in its majority opinion. Among the issues previewed in the dissent that are likely to arise on remand is the Government’s assertion that many of the respondents in Jennings cannot claim the protection of the Fifth Amendment because “the law treats arriving aliens as if they had never entered the United States; hence they are not held within its territory.”⁷ The dissent roundly dismisses this interpretation as “of course, false,”⁸ but the question will become an increasingly important one for the courts to address, especially as Jennings continues its trajectory through the federal appellate courts.

Indeed, the unsettled nature of the Jennings decision foreshadows a future in which the courts are likely to wrestle with increased calls to address these issues of detention and enforcement. For example, 8 U.S.C. § 1357(a)(3) gives Customs and Border Protection Agents broad powers of search and seizure without a warrant to enforce immigration laws within a broad reach of an international border,⁹ generally held to reach within 100 miles of the U.S. interior.

In addition, the Trump Administration has signaled an intent to aggressively enforce the nation’s existing immigration laws, while also expanding the reaches of the law to further restrict legal immigration. Along with Executive Order No. 13,767, cited in the Jennings dissent, the Trump Administration also published Executive Order No. 13,768, “Enhancing Public Safety in the Interior of the United States.”¹⁰ Taken together (and issued the same day within the first week of the new administration), these two Executive Orders enshrined the campaign promises of the new President to act aggressively and expansively to secure the border and enforce immigration law within the interior of the United States.

According to Immigration and Customs Enforcement data, these efforts have proven effective, with immigration officials charting an increase of 42% in administrative arrests.¹¹ Meanwhile, the immigration courts’ backlogs continue to grow, expanding from approximately 212,000 cases at the beginning of fiscal year 2006 with a median wait pending time of 198 days, to approximately 437,000 cases in fiscal year 2015 with a median pending time of 404 days.¹² These numbers reflect a judiciary crippled by backlog and increased enforcement even before the injection of the new administration’s revamped and expanded priorities for enforcement. In the current climate of legislative inaction, it is likely the courts will continue to be the explainers and problem solvers for a system desperately in need of reform. As with questions of immigration reform, the Jennings remand means that we are likely to be revisiting these issues again not long from now.

Ana Corina “Cori” Alonso-Yoder is the Practitioner-in-Residence and Clinical Professor of Law with the Immigrant Justice Clinic at the American University Washington College of Law. Professor Alonso-Yoder’s commentary on immigration law and immigrants’ rights has been featured by ABC News, The Atlantic, Washington Monthly, and The National Law Journal & Legal Times among others.

No. 15–1204, slip op. (U.S. Feb. 27, 2018).
533 U.S. 678 (2001) (requiring a custody review hearing after six months of detention in order to avoid unconstitutional indefinite detention where an individual cannot be removed from the United States).
Jennings, slip op. at 12–13.
538 U.S. 510, 530 (2003) (noting that the detention at issue in that case “lasts roughly a month and a half”).
Exec. Order No. 13,767, 82 Fed. Reg. 8793 (Jan. 30, 2017).
Jennings, slip op. at 25 (Breyer, J., dissenting).
Id. at 7.
Id.
8 U.S.C. § 1357(a)(3) (2012).
Exec. Order No. 13,768, 82 Fed. Reg. 8799 (Jan. 30, 2017).
Immigration & Customs Enf’t, ICE Impact in FY 2017 (2018), https://www.ice.gov/topics/fy2017.
U.S. Gov’t Accountability Off., GAO-17-438, Actions Needed to Reduce Case Backlog and Address Long-Standing Management and Operational Challenges (2017).

Recommended Citation Cori Alonso-Yoder, Response, Jennings v. Rodriguez: Against the Backdrop of Executive Enforcement and Legislative Inaction, the Court Revisits the Issue of Prolonged Immigration Detention, Geo. Wash. L. Rev. On the Docket (Mar. 5, 2018), https://www.gwlr.org/jennings-v-rodriguez-against-the-backdrop-of-executive-enforcement-and-legislative-inaction-the-court-revisits-the-issue-of-prolonged-immigration-detention.