Next Steps for Immigrant Detainees After High Court Remand

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By Jordan S. Rubin

The U.S. Supreme Court’s divided ruling against immigrants fighting for bond hearings may have triggered dismay among civil libertarians, but it didn’t end the case.

The split decision in Jennings v. Rodriguez on Feb. 27 only addressed a statutory question, not the one asking whether holding immigrants without bond hearings is constitutional.

Justice Samuel A. Alito Jr.'s majority opinion kicked the case back to the U.S. Court of Appeals for the Ninth Circuit, which ordered the parties April 12 to submit filings on constitutional and procedural questions.

That leaves different options for where the case could go. But at least one immigration law scholar has an idea of what will happen next.

“I would predict that the Ninth Circuit will hold that the statutory framework that doesn’t require bond hearings is unconstitutional,” Kevin Johnson told Bloomberg Law.

Johnson, who’s Dean and Mabie-Apallas Professor of Public Interest Law and Chicana/o Studies at University of California Davis School of Law, “wouldn’t be surprised if the Ninth Circuit cites a fair amount” of the reasoning from Justice Stephen G. Breyer’s dissent on the constitutional question.

Breyer’s dissent was joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor.

Justice Elena Kagan recused herself after oral argument because she had participated in an earlier phase of the case when she was U.S. solicitor general.

Back to SCOTUS?

If the Ninth Circuit finds for the immigrants on constitutional grounds, “it’s hard to predict” exactly what the Supreme Court would do if the case were to reach the high court again, Johnson said.

It was reheard last October due to an apparent deadlock when the court first considered the case in 2016 with only eight members.

The justices are under no obligation to agree to another hearing, but a third round would be greeted by “a very divided court,” he said.

“Justice Breyer devotes a good deal of his dissent to say this would be unconstitutional. So you know where him and three total justices would come down,” he said, referring to Ginsburg and Sotomayor.

It’s harder to say, for example, where Chief Justice John G. Roberts and Justice Anthony M. Kennedy would come out on the constitutional question, he said.

Unlikely to Bite

“It will take about a year for the Ninth Circuit to decide it,” Johnson said. Then it could take six months to a year for the Supreme Court to potentially decide whether to take it again, he said.

But the case has to clear some procedural hurdles before it can get that far. One of them is whether the immigrants can proceed as a class at all.

It may not be much of a hurdle for the Ninth Circuit.

That court “isn’t likely to bite on those suggestions” in Alito’s opinion that the class issue could act as a barrier to review, Johnson said.

“Class actions have long been used to challenge immigration policies that affect wide groups of people,” he said.

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bloomberglaw.com

For More Information

April 12 briefing order available at src.bna.com/xTK.

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