Can Aliens in Immigration Proceedings Be Detained Indefinitely? High Court Rules on Statutory, but not Constitutional Authority
Legal Sidebari
Can Aliens in Immigration Proceedings Be
Detained Indefinitely? High Court Rules on
Statutory, but not Constitutional Authority
Updated April 3, 2018
Recently, the Supreme Court in Jennings v. Rodriguez interpreted provisions of the Immigration and
Nationality Act (INA) as authorizing the potentially indefinite detention of certain categories of aliens,
without bond, who are awaiting removal proceedings. The Court reversed a decision by the U.S. Court of
Appeals for the Ninth Circuit (Ninth Circuit), which upheld a federal district court’s injunction requiring
aliens detained under one of three statutes to be afforded a bond hearing, and potentially be released from
custody, if held longer than six months. Because the indefinite detention of at least some categories of
aliens covered by the challenged statutes would arguably raise constitutional concerns, the Ninth Circuit
had construed the statutes so that the period in which they authorized detention without bail was limited
to six months. But the Supreme Court ruled that this interpretation was implausible given the statutes’
text, and the Court held that the statutes provided no limit to the length of an alien’s detention pending
removal proceedings. Upon remand, the lower courts may confront the constitutional question their
earlier interpretation of the challenged statutes was intended to avoid: Is it constitutionally permissible for
the government to indefinitely detain aliens during immigration proceedings?
Background
As a general matter, aliens in proceedings which may lead to removal from the United States are
potentially subject to detention to ensure their presence at those proceedings and, in some cases, to
alleviate any threat that those aliens would pose to the community if released. The immigration detention
scheme is multifaceted, with different rules depending upon whether the alien is arriving or apprehended
in the United States and whether the alien has engaged in certain proscribed conduct. In some cases,
detention is discretionary, and an alien may be released on parole or bond pending the outcome of
proceedings. In other instances, detention is required, with the relevant statute making no mention of the
possibility of release from custody. The Jennings case focused on three statutes governing the detention
of aliens during removal proceedings, none of which expressly require detained aliens to be given bond
hearings:
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(1) INA § 235(b), which generally requires the detention of “arriving aliens,” as well as certain other
aliens who have not been admitted or paroled into the United States and are subject to removal;
(2) INA § 236(c), which generally requires the detention of aliens who are removable because of
specified criminal activity or security grounds upon their release from criminal incarceration; and
(3) INA § 236(a), which generally authorizes the detention of aliens arrested pending removal
proceedings, and permits (but does not require) aliens not subject to mandatory detention to be
released on parole or bail.
Jennings involved a class action by aliens within the Central District of California who had been detained
under one of the three detention statutes, in many cases for more than a year. The plaintiffs claimed that
their prolonged detention without a bond hearing violated their due process rights. This claim was
premised primarily upon the plaintiffs’ reading of two Supreme Court cases, Zadvydas v. Davis and
Demore v. Kim. In Zadvydas, the Court concluded that “serious constitutional concerns” would be raised
if lawfully admitted aliens were indefinitely detained after removal proceedings against them had been
completed. Accordingly, the Zadvydas Court construed the challenged statute, which provides that certain
aliens ordered removed “may” be detained following a statutorily prescribed 90-day mandatory detention
period, to have an implicit temporal limitation of six months. If that six-month period elapses and the
alien’s removal had not been effectuated, the Zadvydas Court held, the alien generally would need to be
released from custody. On the other hand, two years later, in Demore v. Kim, the Court held that the
mandatory detention of certain aliens pending removal proceedings—including lawfully admitted
aliens—was constitutionally permissible. The relationship between the Zadvydas and Demore rulings has
been open to debate. Some have construed the rulings to mean that the standards for mandatory, indefinite
detention prior to a final order of removal differ from those governing detention after a final order is
issued. However, several lower courts have suggested that mandatory detention pending a final order of
removal may, if “prolonged,” raise similar constitutional issues as those raised after a final order.
Litigation in Jennings lasted several years and involved repeated decisions and orders by the district court
and the Ninth Circuit. In 2015, the Ninth Circuit upheld a permanent injunction requiring the Department
of Homeland Security (DHS) to provide aliens in the Central District of California who have been
detained longer than six months under INA §§ 235(b), 236(a), and 236(c) with individualized bond
hearings. In its opinion, the Ninth Circuit expressed concern that the detention statutes, if construed to
permit the indefinite detention of aliens pending removal proceedings, would raise “serious constitutional
concerns” given the reasoning of the Supreme Court in Zadvydas. Although the Supreme Court in
Demore had upheld DHS’s authority to detain aliens without bond under one of these statutes, the Ninth
Circuit construed Demore’s holding as being limited to the constitutionality of “brief periods” of
detention, and not to situations where detention of an alien lasted an extended period. The Ninth Circuit
noted that the constitutional concerns identified in Zadvydas involved aliens within the United States, and
reviewing courts had typically considered aliens seeking initial admission into the country as having less
due process protection. Nonetheless, the Ninth Circuit believed that the constitutional concerns raised by
Zadvydas were pertinent to INA § 235(b), notwithstanding that this provision primarily addresses aliens
seeking initial entry to the United States. The Ninth Circuit reasoned that the statute still raised
constitutional issues, because it could in some circumstances apply to returning lawful permanent
residents (LPRs) who are entitled to more robust protections than aliens seeking initial entry into the
United States.
Recognizing the constitutional limits placed on the federal government’s authority to detain individuals,
the Ninth Circuit ruled that the INA’s detention statutes “should be construed through the prism of
constitutional avoidance” as containing implicit time limitations. Applying this standard, the appellate
court interpreted the mandatory detention provisions of INA §§ 235(b) and 236(c) to expire after six
months’ detention. After that point, the government could only detain an alien under INA § 236(a), at
which point the alien would be eligible for bond and possible release. The Ninth Circuit further affirmed
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the lower court’s injunction requiring periodic bond hearings every six months, and requiring aliens to be
granted bond and released from custody unless the government proved by clear and convincing evidence
that further detention was warranted.
The Supreme Court’s Decision
The Supreme Court granted certiorari to the government’s appeal of Jennings, and after holding the case
over from the October 2016 term, issued its decision in February 2018. In a 5-3 decision, the Supreme
Court reversed the Ninth Circuit’s decision. In the plurality opinion written by Justice Alito (joined in full
by Chief Justice Roberts and Justice Kennedy, and joined in part by Justices Thomas, Gorsuch, and
Sotomayor), the Court first addressed whether it had jurisdiction to review the plaintiffs’ claims in light of
an INA provision generally limiting judicial review of actions to remove an alien except as part of the
review of a final order of removal or other specified circumstances. The Court determined that this
provision did not foreclose the plaintiffs’ challenge, as the question of whether certain INA provisions
permit indefinite detention did not relate either to an order of removal, the government’s decision to seek
removal, or the process by which an alien’s removability would be determined. The Court also ruled that
INA § 236(e), which bars judicial review of the government’s “discretionary judgment” or “decision”
regarding an alien’s detention or release, did not preclude the plaintiffs’ claims regarding their detention
under § 236(a) and (c) because plaintiffs challenged the “statutory framework” allowing their detention
rather than discretionary action taken against them.
On the merits of the case, the Court rejected as “implausible” the lower courts’ construction of the
challenged detention statutes. Here, the Court cautioned that the Ninth Circuit’s reliance on the
constitutional avoidance doctrine was misplaced. The Court distinguished Zadvydas because the statute at
issue in that case did not clearly provide that an alien’s detention after an initial 90-day period was
required. Accordingly, in Zadvydas, the Court could appropriately construe that statute as containing an
implicit time limitation to avoid the constitutional issue raised if the statute was read to permit the
indefinite detention of an alien who, though ordered removed, could not foreseeably be transferred to
another country. On the other hand, the Jennings Court reasoned, both INA §§ 235(b) and 236(c) were
textually clear in generally requiring the detention of covered aliens during removal proceedings, and
nothing in INA § 236(a) required bond hearings after an alien was detained under that authority.
According to the Court, the Ninth Circuit could not construe the statutes to require bond hearings simply
to avoid ruling on whether they passed constitutional muster: “Spotting a constitutional issue does not
give a court the authority to rewrite a statute as it pleases.”
Having rejected the Ninth Circuit’s interpretation of INA §§ 235(b), 236(a), and 236(c) as erroneous, the
Court remanded the case to the lower court to address, in the first instance, the plaintiffs’ constitutional
claim that their indefinite detention under these provisions violated their due process rights. In addition,
having resolved the statutory interpretation question, the Court directed the Ninth Circuit to reexamine
whether the plaintiffs could continue litigating their claims as a class action in light of, among other
things, an INA provision that prohibits federal courts from enjoining the operation of the INA’s detention
statutes unless the court is reviewing a challenge by an individual alien in removal proceedings (the Ninth
Circuit had determined that this provision did not bar jurisdiction to review the plaintiffs’ statutory
challenge to their indefinite detention because they were not seeking to enjoin the operation of the
detention statutes, but to enjoin conduct they alleged was not authorized by those statutes).
In a concurring opinion, Justice Thomas (joined in part by Justice Gorsuch) agreed that the Ninth Circuit
had erroneously interpreted the challenged detention statutes. But he argued that, contrary to the opinion
reached by the plurality, claims challenging detention during removal proceedings “fall within the
heartland” of the INA’s jurisdiction-stripping provision.
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In a dissenting opinion, Justice Breyer (joined by Justices Ginsburg and Sotomayor) argued that INA §§
235(b), 236(a), and 236(c) should be interpreted as requiring bond hearings after six months’ detention.
Recognizing that “the Constitution does not authorize arbitrary detention” and that aliens have the right to
due process (including, in Justice Breyer’s view, not only aliens within the United States but also those
aliens seeking initial entry), Justice Breyer argued that interpreting these INA provisions as permitting
indefinite detention would likely render the challenged statutes unconstitutional. Given this concern,
Judge Breyer contended that INA §§ 235(b), 236(a), and 236(c) should be interpreted as authorizing bail
hearings when detention is prolonged because the statutes’ language, purpose, context, and history were
consistent with the underlying notion that individuals subject to detention have “the basic right to seek
bail.”
Implications of the Court’s Decision
The INA establishes a detention framework that authorizes, and in some instances, requires, the detention
of aliens in removal proceedings without stating whether detention cannot last longer than a specified
period. The Jennings Court read this framework as plainly providing for the detention of certain aliens for
an indefinite period without bond, and in doing so, characterized the Ninth Circuit as having
inappropriately used the constitutional avoidance doctrine to construe the challenged statutes in a manner
that conflicted with their plain text.
But while the Supreme Court affirmed the government’s statutory authority to detain aliens for an
indefinite period under the challenged statutes, the Court did not reach a fundamental question raised in
the Jennings litigation—is the indefinite detention of aliens pending removal proceedings constitutional?
On the one hand, the Court previously held in Zadvydas that the indefinite detention of aliens after a final
order of removal with no clear termination point likely raises a constitutional problem as applied to many
aliens. Yet the Court in Demore subsequently upheld the mandatory detention of an alien pending removal
proceedings because there was a “definite termination point”—the end of proceedings. But the facts of
Demore, which involved an alien detained for roughly six months, may be distinguishable from Jennings,
which concerned some aliens who had been detained for years. Whether this distinction is significant will
be a question that the Ninth Circuit may need to confront on remand.
Moreover, even if reviewing courts post-Jennings were to conclude that the challenged statutes pose
constitutional concerns, those courts may need to consider whether such constitutional infirmities exist
whenever the government seeks to indefinitely detain an alien for immigration purposes, or only when the
alien is found in the country or otherwise has notable ties to the country (e.g., LPRs returning from
abroad, but not necessarily other aliens seeking to enter the United States).
Given its previous rulings, the Ninth Circuit may upon remand hold the challenged detention statutes as
constitutionally impermissible, potentially triggering a future showdown in the Supreme Court over this
significant question. And recently, the Supreme Court granted certiorari in another detention case from
the Ninth Circuit involving the question of whether an alien who is detained under INA § 236(c) is
entitled to a bond hearing if DHS does not take him into custody immediately following his release from
criminal incarceration. The Court’s resolution of that question may shed further light on its view on the
federal government’s detention authority. Furthermore, as the Jennings litigation resumes in the Ninth
Circuit, Congress may consider reexamining the INA’s mandatory detention provisions to determine
whether amending the relevant statutes, either to provide greater clarity or to modify their scope, is
appropriate.
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Author Information
Hillel R. Smith
Legislative Attorney
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