Articles on SCOTUS Mandatory Detention Decision in Jennings v. Rodriguez and Related Issues

On February 27, 2018, the Supreme Court of the United States issued an important immigration detention decision in Jennings v. Rodriguez, 583 U.S. ___ (2018) [PDF version].

The Court vacated the decision of the United States Court of Appeals for the Ninth Circuit in Rodriguez v. Robbins, 804 F.3d 1060 (9th Cir. 2015) [PDF version], which had held that aliens subject to mandatory detention under sections 235(b), 236(a), and 236(c) of the Immigration and Nationality Act (INA) are entitled to bond hearings. Specifically, the Ninth Circuit held that aliens subject to detention under sections 235(b) and (c) generally cannot be detained for longer than six months, and that aliens detained under section 236(a) were entitled to periodic individualized bond hearings every six months. The Supreme Court faulted the Ninth Circuit for employing the doctrine of constitutional avoidance to construe the mandatory detention provisions as requiring bond hearings in order to avoid what it considered to be serious constitutional questions inherent in indefinite detention. The Supreme Court's majority concluded to the contrary that the language of the statutes unambiguously mandated detention and did not provide for bail hearings. However, the Court remanded the record to the Ninth Circuit for consideration of whether the statutes nevertheless violated the Due Process Clause of the Fifth Amendment to the U.S. Constitution and whether the alien respondents could continue pursuing their claims as a class action.

Rodriguez contained three opinions. First, the opinion of the Court was authored by Justice Samuel Alito and joined in full by Chief Justice John Roberts and Justice Anthony Kennedy and, in part and in judgment, by Justices Clarence Thomas and Neil Gorsuch. Justice Sonia Sotomayor joined one sub-section of the majority opinion. Justice Clarence Thomas, joined for all but one footnote by Justice Neil Gorsuch, authored an opinion concurring in part and concurring in judgment, where they would have concluded that the Court lacked jurisdiction to consider the claims of the respondents. Justice Stephen Breyer, joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor, authored a dissenting opinion wherein they would have affirmed the judgment of the Ninth Circuit. Justice Elena Kagan took no part in the decision of the case due to her work on the issue as Solicitor General in the Obama Administration.

Below, you will find our growing collection of articles both on the decision in Jennings v. Rodriguez, subsequent litigation, and the effects of the decision nationwide for the mandatory detention statutes. Please check back periodically for further updates on the issues.

Articles on the Jennings v. Rodriguez Decision

Opinion of the Court (Justice Alito) [see article]
See above.

Concurring Opinion (Justice Thomas) [see article]
Would have concluded that Court lacked jurisdiction to hear respondents' claims, but agreed with reasoning of the majority absent jurisdictional questions.

Dissenting Opinion (Justice Breyer) [see article]
In light of statutory language and serious constitutional questions inherent in majority's reading, would have affirmed the decision of the court below.

Subsequent Litigation

Supreme Court Vacates Second Circuit Decision in Lora v. Shanahan [see article]
Second Circuit had issued a decision in 2015 that generally mirrored the Ninth Circuit's decision with respect to section 236(c). The Supreme Court granted certiorari off the Government's petition for review, vacated the Second Circuit decision below, and remanded for consideration in light of Rodriguez.