SCOTUS Evenly Split on Immigrant Detention?

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By Kimberly Strawbridge Robinson

Tens of thousands of immigrants awaiting a decision whether they can remain legally in the U.S. may not get an answer from the U.S. Supreme Court after oral argument Nov. 30 ( Jennings v. Rodriguez, U.S., No. 15-1204 , 11/30/16 ).

Certain individuals in immigration proceedings argue that they are entitled to bond hearings, rather than being forced to rely on the more difficult habeas procedure.

Four justices seemed inclined to agree that bond hearings are required at some point in the process, either as a constitutional due process matter or under the immigration statutes.

Three other justices, however, seemed content to rely on the habeas protection, or at least to send the case back to lower courts for more proceedings. Justice Clarence Thomas characteristically didn’t ask any questions during the argument, but has voted against detention protections for immigrants in the past.

Though the fifth vote for an outright victory might be out of reach, a four-four split would still be a win for the immigrants. That would affirm the decision below, which required bond hearings after six months.

Moreover, even though an evenly split Supreme Court result wouldn’t be binding on all courts across the country, all six federal circuit courts to have considered the issue have required bond hearings at some point, according to the immigrants’ brief .

Upended World

The argument was confused by the fact that there are several subclasses in this class action, all of which involve different kinds of immigrants seeking different kinds of relief in their immigration proceedings, under 8 U.S.C. §§1225(b), 1226(a) and 1226(c). For example, the class includes lawful permanent residents convicted of simple drug possession crimes seeking relief from removal, and foreign nationals seeking asylum in the U.S.

But none of these individuals is asking to be automatically let out of detention, the immigrants’ attorney Ahilan Arulanantham, of the ACLU of Southern California, Los Angeles, told the justices. They’re just asking for “the minimal requirement of a hearing in front of a neutral decisionmaker for people who have had very, very long periods of incarceration,” he said.

Arulanantham, who was making his Supreme Court debut, was up against veteran Supreme Court advocate Ian H. Gershengorn, the Acting U.S. Solicitor General at the Department of Justice, Washington.

Gershengorn told the justices that there are already several protections built into the immigration process, including appointed attorneys and numerous appeals.

“But with that process comes time,” he said. For example, it typically takes about 14 months to get though a proceeding with an immigration judge and 19 months to get through the appellate agency, the Board of Immigration Appeals, Gershengorn said.

The proceedings are expedited for immigrants in detention, he said, but thousands of immigrants are still detained for 233 days on average.

That’s not a “trivial amount of time,” Gershengorn acknowledged.

Justice Sonia Sotomayor agreed. “We are in an upended world when we think” that amount of time is “a reasonable time to detain a person” without a bond hearing, she said.

But it’s not like the government is dragging its feet, Gershengorn said. In fact, immigrants are regularly seeking continuances in order to build a sufficient record, he said.

Safety Valve?

Still, if immigrants want to challenge their detention, they can always file a habeas petition, Gershengorn said.

It’s like a “safety valve,” Chief Justice John G. Roberts Jr. said.

Immigration cases by definition include people who are unfamiliar with the American legal system, Arulanantham said.

As a practical matter, therefore, filing a habeas petition isn’t really an option for them, he said.

Moreover, habeas petitions themselves take a lot more time than bond hearings. Habeas proceedings can last anywhere from six months in the fastest circuit to 19 months in the slowest, Arulanantham said.

So it’s not a meaningful option for challenging prolonged detention either, he said.

Instead, immigrants should be given an opportunity to periodically prove that they aren’t a danger to society or a flight risk, Arulanantham said.

‘Odd Interpretation.’

On “the language of the statute, I think you have a pretty tough argument,” Justice Samuel A. Alito Jr. told Arulanantham.

That’s because the statute doesn’t say anything about bond hearings, and in fact limits the government’s ability to release an immigrant in certain situations.

Justice Anthony M. Kennedy agreed, calling the immigrants’ reading of the statute a “very odd interpretation.”

Every court to have considered the issue, however, has read the hearing requirement into the statute as a matter of statutory interpretation, Arulanantham said. The only disagreement among the courts is when and how often the bond hearing was required.

The “problem is that that looks an awful lot like drafting a statute or a regulation,” Roberts said.

But the court’s job is just to read the statute, he said. It “can’t just write a different statute because we think it would be” better.

“We’re not making up a statute; we’re devising a constitutional limit,” Justice Elena Kagan said.

Courage of Convictions

The constitutional issue—whether due process, apart from the statute, requires bond hearings—isn’t in front of the Supreme Court, Kennedy said. That’s because the Ninth Circuit decided the case as a matter of statutory interpretation.

The Ninth Circuit employed the doctrine of constitutional avoidance in order to side-step substantial constitutional questions. It therefore read into the statute a bond hearing requirement.

“The Ninth Circuit’s decision is a serious misuse of the constitutional avoidance canon,” Gershengorn said.

Alito and Roberts seemed to agree.

Constitutional avoidance is a way for judges to say “we don’t have the guts to say that” a statute is unconstitutional, Alito said.

Maybe the Ninth Circuit “didn’t have the courage of their convictions,” Roberts said. “I mean, if they do think it’s unconstitutional, they could have said so rather than stretching the principles of constitutional avoidance to the length they did.”

‘Run Into Due Process.’

Alito suggested vacating the Ninth Circuit’s statutory ruling and remanding for a ruling on the constitutional question.

It’s “pretty unusual” for the Supreme Court to decide the issue in the first instance, Roberts said.

It “seems to me that it’s quite obvious what the court below thinks as to the constitutional question,” Kagan said. “Where did they get this from, except as an understanding of what the Constitution required?”

“I think we would all look at our precedent and we would say you can’t just lock people up without any finding of dangerousness, without any finding of flight risk, for an indefinite period of time, and not run into due process,” Kagan said.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at

To contact the editor responsible for this story: Jessie Kokrda Kamens at

For More Information

The transcript is at:

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