Jenkings v Rodriguez

The government sought review of the 9th Circuit decision that periodic bond hearings are required for immigration detainees detained under 8 USC 1225(b), 1226(a) or 1226(c). The Court, 5-3 with Kagan recused, reversed and remanded. A plurality of three justices argued that 8 USC 1252 and 1226(e) do not affect jurisdiction here because review here is not of an order of removal and discretionary power to make bond and related decisions is not implicated in Rodriguez’s challenge to the statutory framework at issue here. Five justices held that constitutional avoidance is not applicable here as none of the three provisions have more than one plausible reading as 1225(b) is silent as to bond hearings, does not contain the 6 months limit impose by the 9th Circuit and does have a limit on detention namely the period of time for certain procedures to take place not until the proceedings start; 1226(c) explicitly bars bond or parole for certain aliens involved in crime or terrorism absent specific findings by the Attorney general; and 1226(a) sates the Attorney General may release certain aliens on bond by has no requirement for periodic review (Sotomayor joined the opinion holding as to 1226(a). the majority rejected the dissent’s arguments holding detention means imprison and release on bail is not detention, the strongest case relied upon by the dissent did not authorize bond hearings despite a request to do so and held the dissent  did tnoa offer a plausible contrary reading of the provisions. In its remand order, the majority instructed the 9th Circuit to revisit class certification before considering Rodriguez’s constitutional arguments. Thomas, joined by Gorsuch argued there was no jurisdiction over the case as Rodriguez’s challenge does not fit into any exception to 1252(b)(9)’s jurisdictional bar, detention is an action taken to remove aliens, (b)(9) applies beyond the final order of removal to all factual and legal questions about removal and Rodriguez’s  lack of meaningful review argument has been rejected in Court precedent in the immigration arena and habeas protections do not apply here as Rodriguez did not seek habeas relief. He agreed with the plurality’s merits decisions and joined them. Breyer, joined by Ginsberg and Sotomayor, dissented arguing that due process protections including bail apply to all within the physical boundaries of the United States including the alien detainees here, the right to seek bail was well established in common law and has been applied in numerous settings since the Constitution was adopted, the Court has supported bail hearings in relevant cases for more than a century and reading the provisions as the majority does creates a grave doubt as to the constitutionality of eth provisions. He argued 1225(b) can be read to include bail and bail hearings as detain does not exclude detention without imprisonment such as bail or curfews. He argued 1226(c) can be read to include bail and bail hearings because taking a person “into custody” does not require the person be imprisoned and there is no reason to treat custody different than detain. He emphasized Congress did not contemplate the lengthy detentions which now occur in the immigration setting and argued this also provides support for his reading. He argued there is no need to revisit certification as nothing in the majority opinion has changes the basis for certification.