Over 350,000 individuals were placed into civil immigration detention in 2016.1 Held in prison-like detention centers or local jails, detainees wear “orange suits, . . . are shackled during visitation and court visits, . . . are subject to surveillance and strip searches, [and] are referred to by number, not by name.”2 Unlike individuals awaiting criminal trial in jail, seventy-one percent of immigration detainees are required by statute to be detained without any access to a bond hearing.3 Last Term, in Jennings v. Rodriguez,4 the Supreme Court held that the Ninth Circuit had incorrectly used the canon of constitutional avoidance to read a six-month limit into sections of the Immigration and Nationality Act5 (INA) that allowed for detention without the possibility of bond.6 The Court broke from its previous practice of broadly applying the canon to the INA, choosing instead to read the statute in a strictly textualist manner. By rejecting an interpretation of the statute that would allow for regular bond hearings, the Court pushes lower courts to either reject these cases on procedural grounds or grapple with the question of constitutionality directly, thus forcing a choice between the rights of detainees and the plenary power of the political branches. Unless the courts uphold detainees’ due process rights, detained immigrants will continue to endure months, or even years, of punishment while they fight to stay in the United States.
Rodriguez was a class action suit on behalf of individuals held pursuant to four statutory provisions. The first, 8 U.S.C. § 1225(b), applies to individuals arriving at the border who are seeking admission into the United States. Asylum seekers who establish a credible fear of persecution “shall be detained for further consideration of the application.”7 All others seeking admission who are “not clearly and beyond a doubt entitled to be admitted . . . shall be detained” for removal proceedings.8 Under the second provision, 8 U.S.C. § 1226(c), “[t]he Attorney General shall take into custody any [noncitizen]” present in the United States who has been convicted of certain enumerated crimes.9 These individuals may be released “only if the Attorney General decides” it is necessary for witness-protection purposes.10 Any other individual in removal proceedings “may be arrested and detained” under § 1226(a) — the third provision — and, pending removal, the Attorney General “may release the [noncitizen] on bond of at least $1,500.”11 Those denied bond may remain detained until their proceedings end. Finally, under 8 U.S.C. § 1231(a), individuals who have been ordered removed “shall” be detained for up to ninety days while the government effectuates their removal.12 All of the Rodriguez class members, regardless of the statute applicable to their circumstances, were required to wait in detention while they argued their cases to stay.
Alejandro Rodriguez was one of those class members. Rodriguez is a Mexican citizen who was brought to the United States as an infant.13 He became a lawful permanent resident in 1987.14 The government detained Rodriguez in April 200415 after he had been convicted for “joyriding” in 199816 and possession of a controlled substance in 2003.17 An immigration judge issued a final order of removal in July 2004.18 Rodriguez remained in detention for the next three years as he appealed the order, first to the Board of Immigration Appeals (BIA), and then to the Ninth Circuit.19 In May 2007, as his immigration appeals continued, Rodriguez filed a habeas petition in the District Court for the Central District of California, seeking a bond hearing on whether his continued detention was justified.20 The case was consolidated with another and, together, petitioners moved for class certification.21
The district court certified a class of noncitizens who had been detained for longer than six months pending removal proceedings, were not held under a national security statute, and had not been afforded a bond hearing in that time.22 The class was divided into four subclasses, one for each statutory provision under which class members were held.23 The district court then granted summary judgment in favor of the detained class members and entered a permanent injunction, ordering the government to provide bond hearings to detainees after six months of detention.24 Following Ninth Circuit precedent, the order also required that bond hearings occur automatically and that the burden of proving “by clear and convincing evidence that a detainee is a flight risk or a danger to the community” falls to the government.25
With respect to three out of the four classes, the Ninth Circuit affirmed.26 The court observed that indefinite civil detention without individualized hearings raised due process concerns outside of a few extreme circumstances, and it thus invoked the canon of constitutional avoidance.27 Relying on the six-month limitation that the Supreme Court read into the statute governing post-removal-period detention,28 as well as the Ninth Circuit’s own line of cases limiting excessively long immigration detention,29 the Ninth Circuit read the three sections governing the remaining subclasses to implicitly require a bond hearing after six months of detention, and then a new hearing every six months afterward.30
The Supreme Court granted certiorari.31 After two rounds of briefing32 and oral arguments,33 the Court reversed and remanded.34 Writing for the Court, Justice Alito35 held that the Ninth Circuit incorrectly applied the canon of constitutional avoidance.36 The Court emphasized that the canon may apply only if, “after the application of ordinary textual analysis, the statute is found to be susceptible of more than one construction.”37 The Ninth Circuit thus erred by adopting implausible interpretations of each of the three statutory provisions in order to avoid the constitutional question.38 As nothing in the text of any of the statutory provisions “even hint[ed]” that detention should be limited to six months,39 the Court admonished the Ninth Circuit for “rewrit[ing] a statute as it please[d].”40
The Court supported its rejection of the Ninth Circuit’s reading with textualist analysis. First, the Court stated that the plain meaning of § 1225(b) “mandate[s] detention” for the duration of relevant proceedings.41 In so holding, the Court had to distinguish the case at hand from Zadvydas v. Davis,42 “a notably generous application of the constitutional-avoidance canon.”43 In Zadvydas, the Court relied heavily on Congress’s inclusion of the word “may” — a term too ambiguous to mandate long-term detention — in the statute to impose a presumptive six-month limit on post-removal-order detention.44 Such ambiguous language was missing from § 1225(b).45
The Court found § 1226(c) to employ “even clearer” language, as it included a provision that allowed the Attorney General to release individuals “‘only if’ . . . doing so is necessary for witness-protection purposes,” thus foreclosing release in any other circumstances.46 Here, the Court relied on Demore v. Kim,47 which distinguished Zadvydas and refused to extend a six-month presumption of reasonable detention to § 1226(c) detention during removal proceedings.48 The Demore Court had emphasized that, unlike the provision at issue in Zadvydas, which left the possible period of detention completely open ended, § 1226(c) provided a clear end to detention: when the removal proceeding at hand was complete.49 The Court in Rodriguez reiterated this reasoning, refusing to impose a limit on § 1226(c) detention in the present case.50
Finally, the Court quickly dismissed the Ninth Circuit’s reading of § 1226(a). The Court found that “[n]othing in § 1226(a)’s text — which says only that the Attorney General ‘may release’ the alien ‘on . . . bond’ — even remotely supports the imposition” of bond hearings every six months, consideration of length of detention in bond determinations, or the establishment of a clear and convincing standard of proof.51
Because the courts below had decided the case on statutory grounds, the Court remanded the case to the Ninth Circuit so that it could consider the petitioners’ constitutional arguments in the first instance.52 The Court also noted that the Ninth Circuit should reexamine whether a class action would still be appropriate.53 Specifically, the Court presented three issues that the Ninth Circuit should consider on remand: whether it still has jurisdiction over the case, despite 8 U.S.C. § 1252(f)(1), which prohibits lower courts from granting class action injunctive relief from §§ 1221–1232; whether Rule 23(b)(2) of the Federal Rules of Civil Procedure is still satisfied in light of Wal-Mart Stores, Inc. v. Dukes,54 which held that the rule applies only when a single judgment would provide relief to every member of the class; and whether a class action is the best way to resolve Due Process Clause claims, as the process required may vary depending on individual circumstances.55
Justice Thomas concurred in part and concurred in the judgment,56 arguing that § 1252(b)(9) — which bars judicial review of nonfinal, discretionary decisions made under §§ 1225 and 1226 — only allows for judicial review of final orders of removal.57 Because Rodriguez was not appealing a final order of removal, no Article III court had jurisdiction over the case.58 While Justice Thomas would have dismissed for lack of jurisdiction, he concurred with the majority on the merits.59
Justice Breyer dissented.60 In his opinion, Justice Breyer asserted that the majority’s reading of the statute would “at the very least . . . raise ‘grave doubts’ about the statute’s constitutionality.”61 To Justice Breyer, it was clear that individuals held on American soil would receive Fifth Amendment due process protections, including the prohibition on arbitrary detention.62 Justice Breyer then reviewed the Court’s detention jurisprudence63 and concluded that it “generally has not held that bail proceedings are unnecessary.”64 Having established that reading the statute to allow indefinite periods of detention with no access to bond hearings would raise a constitutional question, the dissent found reason enough to invoke the avoidance canon.65 The dissent proceeded to read each of the three statutory provisions to authorize periodic bond hearings.66 Finally, the dissent addressed the majority’s questions regarding class certification and jurisdiction, arguing that, even if the case were decided on constitutional grounds, the lower courts would still be able to grant relief to the entire class.67 “It is neither technical nor unusually difficult to read the words of these statutes as consistent with this basic right [to be free from arbitrary detention],” Justice Breyer concluded.68 “I would find it far more difficult, indeed, I would find it alarming, to believe that Congress wrote these statutory words in order to put thousands of individuals at risk of lengthy confinement . . . all without hope of bail.”69
The canon of constitutional avoidance calls on the Court to avoid deciding constitutional questions if the statute could be interpreted to foreclose those questions.70 The Court has regularly applied a looser understanding of the canon when it confronts questions that invoke separation of powers concerns. Accordingly, the Court has consistently applied the canon broadly in its immigration cases, which often require the Court to balance its own power to protect individual liberties against the plenary power of the political branches. Jennings v. Rodriguez breaks from this pattern. By deviating from precedent, the Court stifled the clearest route to due process protections for noncitizens who have been detained for excessively long periods of time. Whether lower courts decide to dismiss these cases on class action procedural grounds or address the constitutional question directly, the end result will likely be minimal protections against indefinite detention for noncitizens.
When confronted with a constitutionally suspect statute, a court has three options: it can strike down the statute, thus creating a counter-majoritarian problem; it can uphold the statute, and appear to endorse it, despite its questionable constitutionality; or it can avert the question altogether by reading the provision in a way that avoids the constitutional violation.71 The Court has often cited a texualist formation of the canon: it may be used only “after the application of ordinary textual analysis . . . as a means of choosing between” plausible interpretations.72 However, avoiding the question may be particularly appealing in cases where the Court is asked to strike down legislative or executive acts in areas where the political branches exercise broad discretion, as the countermajoritarian problem in these cases is more acute. It makes sense, then, that the Court has applied the avoidance canon more broadly in the immigration context than a purely textualist application of the canon would suggest.73 Beginning in United States v. Witkovich,74 the Court rejected “the tyranny of literalness” by limiting a statute’s delegation of “unbounded authority” to the Attorney General to question deportable noncitizens.75 In Zadvydas, the Court read a six-month reasonableness limitation into post-removal-period detention76 and demanded a clear statement from Congress before authorizing long-term detention of unremovable noncitizens.77 In Clark v. Martinez,78 the Court refused to uphold indefinite detention of those found inadmissible at the border without clear congressional action.79 Even in Demore v. Kim, which the Rodriguez Court cited as support for rejecting an implied limit to detention,80 the Court did not rely on textual analysis. Instead, the Court looked to legislative history, which showed congressional intent to combat the risk of flight among immigrants released on bond.81 Thus, even in cases in which the Court refused to apply the avoidance canon, it did not make that decision based on textualist analysis.
In comparison with the Court’s past treatment of constitutional avoidance in the immigration context, Jennings v. Rodriguez breaks new ground by requiring multiple plausible interpretations under a strict textualist reading before the canon may be applied. The majority insisted that the statute could not plausibly be read differently than the majority’s textualist interpretation. This assertion, however, was in the face of three dissenters82 and five circuit courts in addition to the Ninth83 holding that an alternative reading of the statute was plausible enough to invoke the canon. Now that the Court has rejected a statutory construction that avoids the due process question at issue, it appears the Ninth Circuit will have to confront the question directly, leaving it to choose between striking down a broad statutory delegation or upholding a statute that allows for noncitizens to be held indefinitely without an individualized hearing.
The Court did leave the Ninth Circuit with a third option, one that it strongly hinted should be the solution: resolve the case on procedural grounds. Rescinding class certification or dismissing for lack of jurisdiction would be simpler than delving into the questions of due process and the scope of plenary power. Upholding the current permanent injunction under a due process violation would require the Ninth Circuit to distinguish Demore, in which the Court held that at least some cases of indefinite detention without bond are constitutional.84 The court would also need to reject sweeping language in previous cases that describes the political branches’ plenary power over immigration issues85 and limits protections for noncitizens.86 Finally, the Ninth Circuit would need to find that a bright-line presumption of six months is what the Constitution calls for, a conclusion that may not convince the more conservative members of the Supreme Court.87 The Ninth Circuit has thoroughly engaged with the case law on due process and detention,88 but holding an entire statutory scheme to be unconstitutional is a large step for any court to take.
For those who are or will be detained under the present statutes, however, it is due process or nothing. Noncitizens have due process rights,89 and those rights should extend to protect against arbitrary, indefinite detention. In its brief, the government conceded that, at a certain point, lengthy detention without an individualized hearing could violate the Due Process Clause;90 however, it argued that those cases should be brought as individual as-applied constitutional challenges in habeas proceedings.91 Unfortunately, for most detained individuals, “who are often pro se, indigent, and not proficient in English,” habeas is not a realistic route to judicial review.92 Without access to automatic bond hearings, detainees likely will continue to be held for extended and indeterminate periods of time,93 without an avenue for review.
Detention, even if not formally punishment, is a “high price to pay for contesting deportation.”94 As the abuses that immigrants have suffered while in detention continue to come to light,95 lower courts have stepped in to protect individual rights.96 Unfortunately, in Jennings v. Rodriguez, the Court foreclosed the simplest way for those courts to protect noncitizens from being held without reason. Even if the Ninth Circuit gets past the Court’s procedural questions and finds a constitutional violation, it seems unlikely that an increasingly conservative Supreme Court would support a holding that required periodic, automatic bond hearings for noncitizens. Without such a holding, however, noncitizens will remain subject to arbitrary detention. That a group of individuals held within our borders may be detained indefinitely, without an individualized finding of necessity, cannot be reconciled with the concept of due process. To attempt to do so would diminish the meaning of due process for us all.