Introduction

On February 27, 2017, the Supreme Court of the United States issued a decision in Jennings v. Rodriguez, 583 U.S. __ (2018) [PDF version], a highly consequential decision in the context of mandatory detention under the Immigration and Nationality Act (INA). In Rodriguez, a 5-justice majority reversed the decision of the United States Court of Appeals for the Ninth Circuit in Rodriguez v. Robbins, 803 F.3d 1060 (9th Cir. 2015) [PDF version], wherein the Ninth Circuit had held that aliens subject to mandatory detention under sections 235(b) and 236(c) of the INA were entitled to periodic individualized bond hearings every six months where the government would bear the burden of establishing by the proffering of clear and convincing evidence that continued detention was necessary, and that aliens detained under section 236(b) could not be detained in excess of six months. The Supreme Court majority faulted the Ninth Circuit for employing the doctrine of constitutional avoidance after concluding that the statutes in question unambiguously provided for mandatory detention. Accordingly, the Court remanded to the Ninth Circuit for consideration of the constitutional claims against mandatory detention under the provisions at issue.

In this article, we will examine the dissenting opinion authored by Justice Stephen Breyer, and joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor. The dissenters would have affirmed the decision of the Ninth Circuit as a reasonable construction of the mandatory detention statutes at issue in light of the constitutional questions raised when reading the statutes as the majority did. Justice Breyer, writing for the dissent, examined constitutional questions arising from the majority’s reading of the mandatory detention provisions and the Government’s position, and concluded that this construction of the statutes would likely render them unconstitutional. Justice Breyer encouraged the Ninth Circuit on remand to consider the constitutional implications of the majority’s reading of the mandatory detention provisions.

Although only the majority opinion of the court controls, Justice Breyer’s dissent may prove to be significant in ongoing litigation on the issues. The reason being is that the Court remanded the case to the Ninth Circuit specifically in order that the Ninth Circuit could consider the constitutionality of the majority’s reading of the mandatory detention provisions. Justice Breyer’s dissenting opinion discusses in detail some of the potential constitutional issues presented by the mandatory detention provisions, and it could well be cited by the Ninth Circuit if it ultimately concludes that the mandatory detention provisions are unconstitutional. Furthermore, several other Federal appellate courts have reached similar conclusions to the Ninth on these statutes, meaning that the issue of constitutionality will continue to be litigated in courts across the United States. It is quite possible that the issue will arrive before the Supreme Court again in the near future.

Please see our full articles on the opinion of the court authored by Justice Samuel Alito [see article] and a concurring opinion on jurisdictional issue authored by Justice Clarence Thomas s [see article]. Furthermore, please see our comprehensive index article on the issue for background on the case and articles on related issues and subsequent developments [see index].

Before Reading

Before reading this article, please make sure to familiarize yourself with the opinion of the court [see article]. Specifically, please see the factual and procedural history of the case [see section] and our discussion of the relevant statutes [see section] in our main article on the issue. These points will be incorporated into the instant article by reference.

The dissenting opinion only touches briefly on jurisdiction, but it agreed generally with three of the five justices in the majority that the Court has jurisdiction over the questions presented by the detainees. We cover the disagreement between the dissent and Justices Clarence Thomas and Neil Gorsuch on jurisdiction in our article on the concurring opinion [see section].

Part I: Pertinent Facts About Respondents

Justice Breyer began the dissent by listing facts about the respondents that were significant to his conclusions. For a full overview of the facts of the case, please make sure to see the relevant section in our article about the majority opinion [see section]. The dissent’s discussion of facts highlights key points for emphasis.

The dissent lists nine “key characteristics of the groups of noncitizens” involved in Jennings v. Rodriguez.

1. All of the respondents in the case were members of one of three distinct classes. First, some of the respondents had arrived at the border seeking asylum. Second, some of the respondents had committed crimes but had finished serving their sentences of imprisonment. Third, some of the respondents had arrived at the border without seeking asylum and otherwise lacked a clear entitlement to enter the United States.

2. All members of the asylum seekers group were determined to have a “credible fear of persecution” in their home country under section 235(b)(1)(B)(ii) of the INA. All members of the second group, covered by section 236(c)(1), had finished serving their criminal sentences of confinement. All members of the third group had been unable to establish that they were “clearly and beyond a doubt entitled to be admitted,” but they were not conclusively determined to be inadmissible based on fraud or the lack of requisite documentation. Those in group three are described by sections 235(b)(2)(A), 235(b)(1)(A)(i), 212(a)(6)(C), and 212(a)(7).

3. The classes at issue in the instant case consisted of people in the above categories who had been detained in excess of six months. One organization that submitted an amicus (friend of the court) brief identified 7,500 individuals who, as of the date of filing, were detained asylum seekers, and 12,200 who had been detained after having completed their sentences of criminal confinement, as of 2015. A portion of these individuals had been in immigration detention in excess of six months, thus making those individuals class members under the lower court rulings on class membership that were being appealed in the instant case.

4. According to the aforementioned amicus brief, the average length of detention of class members was one year. Justice Breyer cited to examples of class members who had particularly long periods of detention before winning their cases for relief from removal, including some asylum seekers who were detained for over two years and some aliens who had been released from criminal confinement for over four years.

5. Justice Breyer noted that many individuals in the aforementioned categories eventually win relief from removal. Notably, the amicus brief indicated that “[t]wo-thirds of asylum seekers eventually receive asylum.” Approximately 40% of those who had served criminal sentences won relief from removal.

6. Those in the asylum seekers class would have received bail hearings had they been detained in the interior of the United States instead of on the border. To this effect, Justice Breyer sited to the published decision of the Board of Immigration Appeals (BIA) in Matter of X-K-, 23 I&N Dec. 731 (BIA 2005) [PDF version].

7. Of the class of aliens who had been released from criminal confinement, Justice Breyer explained that, paradoxically, “some of those who are less dangerous would (on the majority’s view [in the instant case]) be held without bail the longest…” The reason for this, Justice Breyer explained, was that their claims for relief from removal would take the longest to adjudicate. Furthermore, he noted that when an alien loses his or her case for relief from removal, the Government must usually release him or her within six months if the removal is not effectuated by that point. This is due to the Supreme Court’s decision in Zadvydas v. Davis, 533 U.S. 678 (2001) [PDF version], which limited the scope of mandatory detention in such cases. As we will discuss later in this article, the majority distinguished the statute at issue in Zadvydas from those at issue in the instant case.

8. The respondents in the case were all detained within the geographic boundaries of the United States, directly by the U.S. Immigration and Customs Enforcement (ICE), either in ICE facilities or in state or local jails on behalf of ICE.

9. Finally, Justice Breyer noted that the circumstances of detention for the respondents were similar “to those in many prisons and jails.” He added that the conditions of immigration detention are often poor, citing to a 2017 report by the Department of Homeland Security (DHS) Office of Inspector General. To learn about this report, please see our full article on the subject [see article].

Part II: Constitutional Questions

The dissent discussed constitutional questions arising from the majority’s interpretation of the pertinent mandatory detention statutes in three subsections. Here, we will discuss each subsection in brief. Justice Breyer would ultimately conclude that “an interpretation of the statute[s] before us that would deny bail proceedings where detention is prolonged would likely mean that the statute violates the Constitution.”

Part II-A: Due Process and Excessive Bail Clauses Cover Asylum Seekers and Arriving Aliens

Justice Breyer took the position that the majority’s decision negatively implicated two constitutional provisions: The “Due Process Clause” of the Fifth Amendment and the “Excessive Bail Clause” of the Eighth Amendment. The “Due Process Clause” states that “[n]o person shall be … deprived of life, liberty, or property without due process of law.” The “Excessive Bail Clause” prohibits the government from imposing “[e]xcessive bail,” which was designed “in order to prevent bail [from] being set so high that the level itself (rather than the reasons that might properly forbid release on bail) prevents conditional release.”

Citing to numerous Supreme Court precedents, Justice Breyer explained that the concept of “due process” encompasses eligibility for bail. For example, see: United States v. Salerno, 481 U.S. 739, 748-51 (1987) [PDF version]; and Schilb v. Kuebel, 404 U.S. 357, 365 (1971) [PDF version].

Justice Breyer took the position that the aforementioned protections apply to aliens in the United States. Citing to Carlson v. Landon, 342 U.S. 524, 545 (1952) [PDF version], where the Supreme Court discussed the Excessive Bail Clause in the context of an immigration detention case, for the statement that the English law clause from which the Excessive Bail Clause derived was understood “to provide that bail should not be excessive in those cases where it is proper to grant bail.” Next, citing to Wong Wing v. United States, 163 U.S. 228, 238 (1896) [PDF version], Justice Breyer explained that all persons within the territory of the United States are covered by the Fifth Amendment.

On the basis of both the language of the relevant constitutional provisions and the Court’s precedent in Wong Wing, Justice Breyer, rejected the Government position that asylum seekers and other arriving aliens were not covered by these protections because the law treated them as never having arrived in the United States. Regardless of the status of the aliens under the immigration laws, Justice Breyer noted that the asylum seekers and arriving aliens are detained at facilities within the United States. He described claims that they were “constructively” held outside of the United States as constituting a “legal fiction” that the dissenters in the instant case “could not endorse.” He cited to the dissent of Justice Kennedy from Zavydas, at 720-71 (Kenned, J. dissenting), where Justice Kennedy stated that “’inadmissible aliens’ who are ‘stopped at the border’ are ‘entitled to be free from detention that is arbitrary or capricious.’” Here, it is worth noting that Justice Breyer was part of the majority in Zavydas (restricting the length of detention for aliens ordered removed), and that Justice Kennedy is in the majority in the instant case.

Part II-B: Due Process Clause Applies in Civil Cases

Next, Justice Breyer examined the history of the Due Process Clause, including its derivation from English Law, to argue that it extends to civil confinement cases. Here, it is important to reiterate that immigration detention provisions at issue in Rodriguez are civil detention statutes rather than criminal detention statutes.

First, Justice Breyer engaged in an extensive historical examination of the right of bail in criminal cases as contained in both Blackstone’s Commentaries on the Laws of England (1769) and early U.S. State and Federal law. He observed, additionally, that “in Blackstone’s time some private civil cases might have begun with arrest,” citing to the Commentaries. With this in mind, Justice Breyer noted that “Blackstone says that the King’s Bench or its judges ‘may bail in any case whatsoever.’” In Beers v. Haughton, 9 Pet. 329, 356 (1835) [PDF version], the Supreme Court recognized that under Ohio law, in civil debtor cases, “if a defendant, upon a [writ of] capias , does not give sufficient appearance of bail, he shall be committed to prison…”

Justice Breyer explained that early American law reflected English laws on bail for criminal cases, citing here to the Judiciary Act of 1789, which afforded the right to bail proceedings in all Federal criminal cases, and that subsequent laws such as the Bail Reform Act of 1984 (18 U.S.C. sec. 3141 et seq) and the Bail Reform Act of 1966 (18 U.S.C. 3146 et seq) evinced that “[s]imilar laws have consistently remained part of our legal tradition.” He further discussed how the considerations weighed in determining whether to grant bail in Federal criminal cases have expanded over time, with additional factors to be weighed against those seeking bail being included in 1966 and 1984.

Justice Breyer then moved to address the applicability of these points about bail to civil cases, noting that “[t]he problem is that there are not many instances of civil confinement.” He cited to several examples involving involuntary confinement to a mental hospital, where “[t]hose persons normally do not have what we would call ‘a right to a bail hearing.’ But they do possess equivalent rights: They have the right to a hearing prior to confinement and the right to review of the circumstances at least annually.” To this effect, he cited to United States v. Comstock, 560 U.S. 126 (2010) [PDF version], and Kansas v. Hendricks, 521 U.S. 346 (1997) [PDF version]. However, regarding the asylum seekers and other arriving aliens at issue in Rodriguez, Justice Breyer stated that “there is every reason for providing a bail proceeding to the noncitizens at issue here, because they have received no individualized determination that they pose a risk of flight or present a danger to others, nor is there any evidence that most or all of them do so.”

Justice Breyer noted that in a slightly different context that the Supreme Court held in Wright v. Henkel, 190 U.S. 40 (1903) [PDF version], that the right of bail is protected in extradition proceedings. Notably, he found that the statute at issue in Wright regarding detention was “stronger than the language at issue here…” However, the Government did prevail in Wright to the extent that the Court held that, while the litigant should be permitted to request bail, his request should be denied under the laws in effect at the time.

Justice Breyer began his conclusion of this section by stating that “[t]he strongest basis for reading the Constitution’s bail requirements as extending to these civil, as well as criminal, cases, however, lies in the simple fact that the law treats like cases alike.” He found nothing distinguishing the immigration cases at issue in Rodriguez from other cases “in respect to bail-related purposes,” such as determining whether an individual is a flight risk or a danger to the community. Accordingly, he concluded that “the constitutional language, purposes, and tradition that require bail in instances of criminal confinement also very likely require bail in these cases of civil confinement.”

Part II-C: Suggestions in Past Cases That Bail for Noncitizens Not Considered Unnecessary

Justice Breyer then listed several Supreme Court decisions wherein he found that the Court had never suggested that bail for noncitizens was “unnecessary,” but had instead “almost always [] suggested the contrary.” We will briefly list each of the cases Justice Breyer cited with a brief description of why he considered it relevant. Those who are looking for more detail should consult his dissent.

1. In re Ah Moy, 21 F. 808 (C.C.D. Cal. 1884) — Although this case was heard by the then-Circuit Court for the District of California, the decision was issued by Supreme Court Associate Justice Stephen Johnson Field, who was sitting in that case as a circuit judge. Justice Field held that the court could not order bail for an excluded Chinese woman who was detained in San Francisco pending her deportation because the court lacked authority to grant bail, specifically, because the Chinese Exclusion Act prevented her from entering the United States. Interestingly, in the opinion of three circuit judges, refusing her bail 15 days before her ship departed “would be a great hardship, not to say a gross violation of her personal rights.” However, because only one circuit judge had actually participated in the case, Justice Field’s opinion to the contrary prevailed in the 1 to 1 split. The alien was deported before the Supreme Court could consider her appeal.

2. Wong Wing v. United States, 163 U.S. 228 (1896) — Here, the Court struck down a statute that required Chinese laborers to be “imprisoned at hard labor” for a year before being deported. The Court held, however, that “detention, or temporary confinement” would be constitutional. Justice Breyer found it significant that the Court made an analogy to criminal detention.

3. Tod v. Waldman, 266 U.S. 113 (1924) [PDF version] — The case concerned respondents who were subject to mandatory detention for not being “clearly and beyond a doubt entitled” to land in the United States pending “examination … by a board of special inquiry.” The family had already been released on bail by the time the Court took the case. The Court ordered the Department of Labor to provide the family with an administrative appeal. In a rehearing order, Tod v. Waldman, 266 U.S. 547, 548 (1925) [PDF version], the Court held that “[n]othing in the order of this Court shall prejudice an application for release on bail of the respondents pending compliance with the mandate of this Court.” Justice Breyer noted that the latter sentiment was inconsistent with Justice Field’s position from four decades earlier in In re Ah Moy, 21 F. 808.

4. Carlson v. Landon, 342 U.S. 524 (1952) — Here, although the Court upheld the denial of bail to noncitizen communists under a statute that permitted bail, it did not hold or imply that bail proceedings were unnecessary.

5. Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953) [PDF version] — In this case, the Court upheld the denial of bail to an individual who was excluded on the ground that his “entry would be prejudicial to the public interest for security reasons” after he had already been confined on Ellis Island for 21 months. The Court concluded that he was detained upon being determined to be a danger to national security, and that “neither the rationale nor the statutory authority” for his release on bail existed. However, Justice Breyer found it significant that the Attorney General had made an individualized determination that Mezei was a security risk, whereas the respondents in the instant case were not the subjects of any similar individualized findings.

6. Zavydas v. Davis, 533 U.S. 678 (2001) — Here, the Court concluded that the detention statute in section 231(a)(6) of the INA, which applied to aliens who had been ordered deported/removed, generally required release on bond after a period of confinement of six months. The Court reasoned that “indefinite detention of an alien would raise a serious constitutional problem.” The majority in Rodriguez found Zavydas distinguishable due to differences between the permissive “may be detained” language of section 231(a)(6) and the language of the statutes at issue in the instant case, while also expressing certain qualms about its reasoning (note: Justices Kennedy and Thomas were two of the four dissenters in Zavydas). However, Justice Breyer and the dissenters in Rodriguez took the position that the constitutional issues in the instant case were not distinguishable.

7. Demore v. Kim, 538 U.S. 510 (2003) [PDF version] — In this decision, the Court held, with Justice Breyer dissenting, that under section 236(c) the Government could hold noncitizens without bail who had committed certain crimes, pending completion of their removal proceedings. Justice Breyer noted that the Court’s decision cited the significance of “the limited period” necessary to arrange for removal, and the Government’s statistics that the average length of detention was 47 days. Justice Breyer noted that, in a concurring opinion, Justice Kennedy stated that the Due Process Clause may require bail hearings in cases where “continued detention became unreasonable or unjustified.” Justice Breyer added that the Government acknowledged in briefing in Rodriguez that detention pending completion of removal proceedings lasts longer than it had represented in Demore.

Part III: Can the Statute be Read to Avoid Constitutional Problems?

Having concluded that the majority’s reading of the mandatory detention statutes would, at the very least, “likely” render the statutes unconstitutional, Justice Breyer moved to assess whether the statutes could be construed in a way as to avoid rendering them unconstitutional. This is, in fact, just what the Ninth Circuit had endeavored to do below, concluding that the statutes could be read in such a manner. For the forthcoming reasons, we will find that Justice Breyer and the other three dissenters concluded that the statute could be read to require bail proceedings “without doing violence to the statutory language or to the provisions’ basic purposes.”

Please note that we quote the pertinent provisions of the relevant statutes in our article on the opinion of the court in the following section [see section].

Part III-A: Asylum Seekers – 235(b)(1)(B)(ii)

Under section 235(b)(1)(B)(ii), an alien who establishes a credible fear of persecution “shall be detained for further consideration of the application for asylum.” The majority concluded that the statute mandated that such an alien must be detained without bail. However, Justice Breyer would disagree.

Citing to several definitions of the terms “detain” and “bail,” Justice Breyer concluded that the concept of “bail” is not inconsistent with the concept of “detention,” and that the release of an alien on bail would not mean that he or she was not subject to detention. He noted that the Oxford English Dictionary defines detain as not only encompassing “confinement,” but also “restraint.” You may read Justice Breyer’s historical analysis below:

Justice Breyer stated that “[a]t the very least, because the word ‘detain’ in this context refers to a comparatively long period of time, it can readily coexist with a word such as ‘bail’ that refers to a shorter period of conditional release.”

Justice Breyer again referenced several Supreme Court cases that he believed construed similar language as not excluding bail. Specifically, he referenced Waldman and Henkel, which we discussed in the previous section.

Justice Breyer then noted that in Matter of X-K-, 23 I&N Dec. at 734-35, the Board, discussing 8 C.F.R. 1003.19(h)(2)(i), held that asylum seekers apprehended within 100 miles of the border rather than at a border crossing were entitled to bail hearings. Justice Breyer noted that, although this was a different circumstance than the asylum seekers at issue in Rodriguez, “[t]he same statute, same language applies to the detention of those asylum seekers and the ones before us…”

Justice Breyer then noted that in Zavydas, the Court interpreted “may be detained’ as requiring bail in cases of otherwise long-term detention. The majority in the instant case distinguished the statute at issue in Zavydas from the instant case on the basis of the difference based on the use of “may” versus “shall” language. While Justice Breyer acknowledged the difference, he took the position that the majority erred in deeming it dispositive. The reason being, he stated, was that “the key linguistic ambiguity concerns the word ‘detention.’”

Justice Breyer noted that under statute, asylum applicants whose proceedings extend beyond six months become eligible for employment authorization. He suggested that this provision implies that Congress did not intend to require that asylum seekers be detained in excess of six months.

Finally, he noted that section 235(b)(1)(B)(iii)(IV) employs the language “shall be detained … until removed” for certain aliens. He distinguished that statute from section 235(b)(1)(B)(ii), which lacks the “until removed” language.

Having found nothing in the statutory language or legislative history requiring indefinite detention of the asylum seekers covered by the proceedings in Rodriguez, Justice Breyer disagreed with the conclusion of the majority that detention was required in these cases.

Part III-B: Criminals Who Have Served Their Sentences – 236(c)

Section 236(c)(2) states that the “Attorney General shall take into custody any alien who … is deportable [or inadmissible] by reason of having committed [certain crimes] when the alien is released…” (Excerpted by Justice Breyer.) The statute permits the release of such an alien “only if” the release is deemed necessary to provide protection to a witness or certain other individuals.

Referring to the previous section and citing to extensive case-law, Justice Breyer took the position that an alien who is released on bail remains “in custody.” Here, his logic followed from his interpretation of the word “detain,” stating that “there is no reason to interpret ‘custody’ differently than ‘detain.’” In support of this conclusion, Justice Breyer cited again to the Oxford English Dictionary, which defines ‘custody’ as ‘[t]he state of being detained.’

Justice Breyer then moved to examine the limited circumstances under which the Attorney General is explicitly permitted to release the alien, specifically the “only if” language. The majority saw the “only if” language as supporting the position that the statute did not contemplate release from custody on any other grounds. Justice Breyer disagreed, stating that the “only if” provision referred not to bail, but instead to the Witness Protection Program, codified at 18 U.S.C. 3521. Justice Breyer added that an alien released under section 236(c)(2) is not released on bail and could be released from “many obligations and restraints that accompany bail.”

Finally, Justice Breyer took the position, citing to legislative history, that Congress did not contemplate the issue of prolonged detention when crafting the provision.

Part III-C: Other Applicants for Admission – 235(b)(2)(A)

Section 235(b)(2)(A) states that aliens who are not “clearly and beyond a doubt entitled to admission” “shall be detained” pending removal proceedings. Justice Breyer noted the breadth of individuals who may be covered here, from those who show up with no documents at all to those who have certain documents but cannot meet the requisite standard of establishing eligibility for admission.

Justice Breyer stated, based on the reasoning of the previous two sections, that “[t]here is no more plausible reason here than there was” in the prior cases to believe that the “shall be detained” language foreclosed bail.

Part IV: Ability to Bring Claims as a Class and Jurisdictional Issues

The majority opinion instructed the lower courts to consider whether the respondents could continue bringing their claims as a class [see section] in light of Reno v. American-Arab Anti-Discrimination Comm, 525 U.S. 471 (1999) [PDF version]; and Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011) [PDF version]. The first of these two cases addressed section 242(f)(1) of the INA, which vests only in the Supreme Court the authority to enjoin certain provisions of the INA other than with respect to an individual alien against whom removal proceedings were initiated. Justice Breyer saw neither of these cases nor section 242(f)(1) as an impediment to the class action claims, noting that every alien in the three classes had removal proceedings initiated against them. He stated that “[a]t a minimum I can find nothing in the statute or in the cases to which the majority refers that would prevent the respondents from pursuing their action, obtaining a declaratory judgment, and then using that judgment to obtain relief, namely, a bail hearing, in an individual case.”

Furthermore, Justice Breyer found no jurisdictional issue inherent in the language of section 242(b)(9). Only Justices Clarence Thomas and Neil Gorsuch, in a concurring opinion, would have concluded that the Court had no jurisdiction under section 242(b)(9), which we discuss in a separate article [see article].

Response of the Majority to the Dissent

In Part IV of the majority opinion, Justice Alito, joined by four colleagues, addressed the dissenting opinion. We examined this in brief in our main article on the majority opinion [see article]. Here, we will briefly examine some of the majority’s responses to Justice Breyer’s dissent.

Justice Alito began by criticizing the dissenting opinion for “ignoring the statutory language for as long as possible, devoting the first two-thirds of its opinion to a disquisition on the Constitution.” As we noted, the majority opinion did not delve into constitutional questions due to its concluding that the statutory language clearly and unambiguously mandated detention in sections 235(b), 236(c), and 236(a).

The dissent posed the question of whether sections 235(b), 236(c), and 236(a) could be read as mandating bond hearings every six months “without doing violence to the statutory language.” While Justice Breyer concluded it could, Justice Alito concluded that “the dissent evidently has a strong stomach when it comes to linguistic trauma.”

First, Justice Alito rejected Justice Breyer’s broad conception of the term “detain” as found in the INA. Citing to both the Oxford English Dictionary and numerous other dictionaries, Justice Alito took the position that the “clear meaning of detain” involves confinement. He described the dissent as “resort[ing] to the legal equivalent of a sleight-of-hand trick” in conflating the possibility that an alien may be released from detention on bail with the idea that release from detention on bail is still detention. Furthermore, appealing to the language of section 235(b), which authorizes detention of an alien released on bond or parole, and section 235(c), which requires the Attorney General to take into custody an alien who is “released, without regard to whether the alien is released on parole, supervised release, or probation,” Justice Alito took the position that under Justice Breyer’s reading, Congress authorized the detention of aliens who were already “detained.”

Justice Alito also rejected the dissent’s reliance on Waldman. In that case, he noted, the Court never held that the aliens were entitled to bail or that bail was available. Instead, the Court only held that its decision should not be construed as prejudicing any application that the aliens filed. Justice Alito found this to be significant in light of the fact that the aliens in Waldman asked the Court to affirmatively “authorize [them] to give bail,” but the Court nevertheless did not do so. At the very least, Justice Alito took the position that the dissent read far too much into Waldman.

Justice Alito also discussed further points concerning Zavydas and his preferred definition of “detained.” We discuss the majority’s opinion on these issues in detail in our main article.

Conclusion

Although the Supreme Court has rendered its decision, the litigation is far from over. For example, not only was the instant case remanded to the Ninth Circuit for further proceedings, but the Supreme Court also vacated and remanded a similar decision of the United States Court of Appeals for the Second Circuit for further proceedings consistent with Rodriguez [see article]. The Court’s decisions do not preclude the lower courts from ruling on the constitutional questions. Accordingly, the litigation on the three mandatory detention provisions will continue, with the Court only having concluded that the doctrine of constitutional avoidance is inapplicable. It is possible, if not likely, that the issues will be before the Supreme Court again in the near future.

An individual in immigration detention should always consult with an experienced immigration attorney immediately. An experienced attorney will be able to examine whether the individual has a case for being released on bond and also assist the alien in his or her removal proceedings and with his or her application(s) for relief and/or protection.