Supreme Court to Hear Challenge to Aliens' Detention Pending Removal Proceeding

Supreme Court to Hear Challenge to Aliens' Detention Pending Removal Proceeding

CRS Reports & Analysis
Legal Sidebar
Supreme Court to Hear Challenge to Aliens’ Detention
Pending Removal Proceedings
11/28/2016
On November 30, 2016, the Supreme Court is scheduled to hear oral arguments in Jennings v. Rodriguez. One of four
immigration-related cases currently on the Court’s docket for its October 2016 Term, this case could have significant
implications for the executive branch’s practice of detaining certain aliens while simultaneously seeking removal orders
against them. It could also answer long-standing questions about how to reconcile High Court precedents regarding the
detention of aliens during and after removal proceedings, as well as the continuing validity of mid-Twentieth Century
decisions regarding Congress’s “plenary power” over aliens’ admission into the country.
This Sidebar briefly explains the legal issues in Jennings, and explores what the High Court’s decision could mean for
detention practices specifically and immigration law more generally.
The Legal Issues in Jennings
At its core, the litigation in Jennings centers upon three separate provisions of the Immigration and Nationality Act
(INA) that the executive branch has historically construed to require or authorize the detention of aliens throughout the
course of removal proceedings (i.e., from the time when DHS charges the alien with being inadmissible or deportable
until the alien is ordered to be removed; other provisions of the INA address aliens’ detention after the issuance of a
removal order). As Table 1 explains, two of these provisions—INA §§ 235(b) and 236(c)—have been construed by the
Executive Branch to require that “arriving aliens” who are subject to expedited removal and aliens inadmissible or
deportable on certain criminal and terrorism grounds be detained without bond hearings before an immigration judge
and released only in narrow circumstances. The third provision—INA § 236(a)—has been similarly construed to permit
the detention of other aliens who are not subject to detention under other provisions of the INA, although these aliens
may be released if they can demonstrate their suitability for release.
Table 1: INA Provisions at Issue in Jennings v. Rodriguez
Provision
Aliens Affected
Executive Branch Interpretation
INA
“Arriving aliens”
Detention is required until the alien is removed (in the case of
§ 235(b)
subject to expedited
aliens who are found not to have a credible fear of persecution),
removal
or pending consideration of the alien’s application for asylum (in
the case of aliens found to have a credible fear). No bond hearing
before an immigration judge is provided. Release is generally
possible only if immigration officials decide to “parole” the alien
into the United States.
INA
Aliens inadmissible
Detention pending removal proceedings is required. No bond

§ 236(c)
or deportable on
hearing before an immigration judge is provided. Release is
certain criminal and
generally possible only if immigration officials decide the alien’s
terrorism grounds
release is “necessary” for witness-protection purposes and certain
other conditions are met.
INA
Aliens not subject to
Detention pending removal proceedings is authorized. Those
§ 236(a)
detention under other
detained may seek bond hearings before immigration judges.
provisions of the INA Release is authorized if the alien can demonstrate his or her
suitability for release.
In 2007, a group of aliens in California brought suit, alleging that their prolonged detention pursuant to these three
provisions of the INA runs afoul of the Due Process Clause of the U.S. Constitution, which has been seen to protect
“unlawfully present” and other aliens. The U.S. District Court for the Central District of California and the U.S. Court
of Appeals for the Ninth Circuit (“Ninth Circuit”) generally agreed, rejecting the federal government’s argument that
INA §§ 235(b), 236(a), and 236(c) require or authorize that certain aliens be detained throughout the entire course of
removal proceedings. In so doing, the Ninth Circuit, in particular, noted the “serious constitutional problem[s]” that
would be raised by a “statute permitting indefinite detention of an alien,” given that “[c]ivil detention,” such as that in
immigration proceedings, affects a “protected interest in avoiding physical restraint.” Accordingly, the Ninth Circuit
relied on the doctrine of constitutional avoidance—which calls for courts to avoid reaching constitutional issues if
possible—to construe the three provisions as requiring or authorizing that aliens be detained for only a relatively brief
period for purposes of removal proceedings. Once this “presumptively reasonable” period of six months has passed, in
the Ninth Circuit’s view, the aliens’ liberty interest is such that there must be “special justification” for any further
detention.
To ensure that such “justification” is present, the lower courts in Jennings required that aliens within the Ninth Circuit’s
jurisdiction be afforded bond hearings before immigration judges at periodical intervals, with the possibility of release
into the United States. In addition, the lower courts prescribed that, in these hearings, the federal government must
demonstrate, by clear and convincing evidence, that the alien is a flight risk or a danger to the community in order to
justify the alien’s continued detention, and that the length of the alien’s prior detention must be weighed in favor of
release.
Potential Implications of the Supreme Court’s Decision in Jennings
Having granted the federal government’s petition for review of the Ninth Circuit’s decision, the Supreme Court may
now weigh in on how INA §§ 235(b), 236(a), and 236(c) are to be construed and what, if any, limitations the Due
Process Clause imposes upon the government’s ability to detain aliens pending removal proceedings. Depending upon
how the High Court rules, its decision could have significant practical and legal implications.
On a practical level, hundreds of thousands of aliens are detained pending removal proceedings each year, some for
periods sufficiently long to require “special justification” and procedural protections in the Ninth Circuit’s view. If the
High Court were to hold that such protections are constitutionally required, the process of removing aliens from the
United States would likely be affected, with more aliens being afforded bond hearings and, potentially, released into the
United States pending removal. In some cases, these would be aliens who historically were released in only narrow
circumstances. For example, “arriving aliens” have heretofore not been granted bond hearings before immigration
judges, but rather released from detention only in immigration officials’ discretion. However, if the Supreme Court were
to adopt the same reasoning as the Ninth Circuit in Jennings, “arriving aliens” would be entitled to bond hearings before
immigration judges and released if the government could not show that their continued detention is warranted.
In terms of immigration law, the Supreme Court’s decision in Jennings could also help resolve long-standing questions
about how to reconcile the Court’s earlier decisions in Demore v. Kim and Zadvydas v. Davis, as well as whether the
Court’s 1953 decision in Shaughnessy v. United States ex rel. Mezei and related decisions remain good law. In its 2003
decision in Demore, the High Court rejected a due process challenge to an alien’s detention pending removal

proceedings under INA § 236(c), one of the three provisions at issue in Jennings, on the grounds that such detention
“serves [an]immigration purpose” and is generally of a relatively short duration. However, two years earlier, in its 2001
decision in Zadvydas, the Court had held that due process concerns required construing INA § 241—a provision not at
issue in Jennings—as permitting the detention of aliens who have been ordered removed “only for [the] period
reasonably necessary to secure the alien’s removal.” Commentators have attempted to reconcile these decisions in
various ways. For example, in Jennings, the federal government argues that Zadvydas was an exceptional case, limited
to detention after the issuance of a removal order, and Demore should be seen to govern as to detention pending
removal proceedings. The petitioner aliens in Jennings, in contrast, assert that “Demore carved out a narrow exception
to the general rule” as to due process set forth in Zadvydas, and should not be construed to mean that any and all
detention pending removal proceedings is necessarily permissible. The High Court’s decision in Jennings could resolve
this debate.
The Supreme Court’s decision in Jennings could also clarify whether and to what degree Shaughnessy and related
decisions from the mid-Twentieth Century remain good law. These cases are often cited in support of Congress’s
“plenary power” over the admission of aliens into the United States and, more specifically, for the proposition that
“[w]hatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.”
However, the lower courts’ order that “arriving aliens” be afforded bond hearings and, potentially, released into the
United States in Jennings is arguably inconsistent with these cases, and the Ninth Circuit, in particular, suggested that
Mezei and associated decisions are “inapposite” in light of subsequent legal developments. It remains to be seen whether
the High Court takes a similar view and what, if any, limits the Court might be willing to afford aliens who are detained
for removal when seeking admission to the United States.
Posted at 11/28/2016 10:09 AM