Jennings v. Rodriguez (updated)

CAN ALIENS DETAINED UNDER § 1225(b) BE RELEASED ON BOND BY AN IMMIGRATION JUDGE?

Petitioners David Jennings et al. maintain that unless the alien seeking admission into the United States is “clearly and beyond a doubt entitled to be admitted,” the alien is statutorily prohibited from entering into the United States under § 1225(b). Moreover, Jennings adds that § 1225(b) was clear in that, unless the detained alien meets the standard, the alien “shall be detained for a proceeding” to determine the removability of said alien. Jennings argues that 1225(b) is clear in that any alien who does not meet the standard shall be removed unless the alien establishes a credible claim for asylum, at which point the alien shall be detained until such claim is resolved. Jennings adds that Congress’ repeated use of the word “shall” in § 1225(b) was meant as a requirement, not as a discretionary measure. To further support his claim, Jennings argues that Congress replaced the word “shall” with the word “may” in the only exception to 1225(b). Moreover, Jennings cites to the Supreme Court case Shaughnessy v. Mezei for the proposition that “whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.” Jennings explains that in Mezei, the Court unanimously upheld the detention of an alien for 21 months without a hearing or bond.

[UPDATE] Jennings argues that 1225(b) applies to aliens seeking to enter the United States because such aliens request a privilege and have no constitutional rights. Jennings also argues that in the extraordinary circumstances where 1225(b) applies to lawful permanent residents returning from abroad, such case-specific issues can be appropriately addressed in an as-applied challenge. Jennings categorizes the § 1225(b) aliens into two subsections: b(1)(B)(ii) and b(2)(A), where the (b)(1)(B)(ii) category consists of aliens arriving at a port of entry without valid documentation or seeking to enter through fraud, but who passed the credible-fear screening process and are in removal proceedings, and the b(2)(A) category consists of aliens seeking admission to the United States who have not demonstrated upon their arrival that they are clearly and beyond a doubt entitled to be admitted.

Respondents Alejandro Rodriguez et al. argue that aliens detained under the 1225(b) provisions at stake are asylum seekers who were found, by an asylum officer, to present a credible claim for asylum. Neither of the 1225(b) provisions at stake, Rodriguez adds, authorize the detention of an individual in removal proceedings; once proceedings begin, 1225(b) yields to 1226(a). Rodriguez argues that 1226(a) permits an immigration judge to decide whether the alien should be released on bond. Additionally, Rodriguez argues that the Court should not defer to agencies that would engage in unconstitutional practices. As such, Rodriguez argues that even if 1225(b) would govern, 1225(b) should still not be read as authorizing the mandatory “prolonged detention without custody hearings.”

[UPDATE] Rodriguez argues that while returning aliens have due process rights even as to their admission, the category of aliens seeking to enter the United States under § 1225(b)(1)(B)(ii), who have been found to have “a credible fear of persecution,” also have a constitutionally protected interest in their physical liberty. He explains that the procedural requirements relating to detention are not the same as procedural requirements for admission and that even plenary powers of the political branches to expel or exclude non-citizens are subject to important constitutional limitations. Rodriguez adds that these plenary powers are only powers to exclude or remove and do not include the power to incarcerate or detain non-citizens for a prolonged period. Rodriguez argues that, because these subclass members have been screened and found to have a credible fear of persecution, they are different from the vast majority of other non-citizen aliens in that they have a Congressionally afforded right to be in the United States while their asylum claims are pending. Rodriguez also points out that these subclass members do not “hold the keys to their cell” in any meaningful sense because they cannot voluntarily end their detention by returning to the countries from which they fled. Rodriguez maintains that the nation’s legal tradition has long recognized six months as a substantial period of incarceration, and the federal courts cannot impose a sentence longer than six months without a jury trial in criminal cases as well as in civil contexts, including immigration. Lastly, Rodriguez notes that, contrary to Jennings’s arguments, the availability of individualized safeguards through habeas proceedings are insufficient to protect against widespread and unjustified prolonged detention because most detainees lack the legal and linguistic resources to pursue a habeas petition.

DOES § 1226(c) PERMIT CRIMINAL ALIENS TO BE RELEASED ON BOND?

Jennings argues that the Ninth Circuit, by relying on the doctrine of constitutional avoidance, erroneously interpreted 1226(c) to entitle criminal aliens to be released on bond after half a year in detention. Jennings maintains that 1226(c) was unambiguous in its prohibition on the release of criminal aliens on bond. Jennings adds that § 1226(c) authorizes a release of a criminal alien only if it is necessary for “certain witness protection purposes” and that alien will not become a danger to others. The release of such aliens, as Jennings argues, would undermine congressional intent as to § 1226(c). Jennings explains that Congress enacted § 1226(c) because of the Immigration and Naturalization Service’s (INS) failure of controlling an ever-growing immigration crisis: an increased alien criminal activity and recidivism. Jennings maintains that § 1226(c) codifies Congress’s categorical judgment that the aliens who have committed the offenses underlined in 1226(c) pose an “undue flight risk and danger to the community.” Allowing the release of criminal aliens on bond, according to Jennings, would undermine Congress’s categorical judgment. Jennings adds that by permitting only the Secretary to release alien criminals under § 1226(c), Congress made its intent clear as to the detention without bond of alien criminals.Jennings also adds that, even if 1226(c) may not have been clear as to its purpose, there is no basis to establish that § 1226(c) requires an alien criminal to be released after six months. Jennings relies on Demore v. Kim, a case decided by the Supreme Court, to assert that it is constitutional for an alien criminal to be detained under § 1226(c) without a bond, for more than six months. Jennings adds that a criminal alien’s prolonged detention time may be necessary for the removal of the alien, regardless of that alien’s detention time. A fixed time-cap, as Jennings explains it, would be at odds with the complex litigation process, as a litigant’s own strategies, Jennings adds, could easily delay a detention by a period above a six-month cap.

[UPDATE] Jennings argues that in extraordinary cases where individual bond-release after six months of detention may be required as a matter of constitutional protection, other case-by-case proceedings in which the individual facts of a case can be considered in full detail—such as an individual habeas petition—can function as appropriate safety measures. Jennings also notes that the Second and Ninth Circuits required bond-hearings at the six-month mark as a matter of statutory interpretation, partially because there would be many cases and because case-by-case adjudications could lead to different results in similar cases. Jennings, however, maintains that most circuits have instead adopted a “flexible reasonableness” test as a matter of statutory interpretation and that no court has held that due process itself requires a rule of bond-hearings after six months.

Rodriguez argues that § 1226(c) is silent as to the length of a criminal alien’s detention and that it is also unclear whether the Section’s exceptions were otherwise meant to authorize prolonged mandatory detentions. Rodriguez, by relying on Congress’s response to Zadvydas v. Davis in the Patriot Act, maintains that if Congress had intended to authorize the prolonged detention of an individual, it would have explicitly stated it. Consequently, Rodriguez adds that Jennings’s reading of 1226(c) would render the Patriot Act superfluous, as the Patriot Act explicitly authorizes such prolonged detention. Additionally, Rodriguez argues that the legislative history does not support Jennings’s Congressional intent argument; at no point did Congress intend to authorize prolonged mandatory detention under 1226(c). Rodriguez argues that the Supreme Court’s precedent emphasizes the application of bright-line rules, which, in this case, would be the use of a six-month detention cap. More importantly, Rodriguez argues that Zadvydas’s six-month cap has been applied in other contexts as a “useful benchmark.” Rodriguez maintains that the Ninth Circuit merely required a hearing for a criminal alien after six months, and not release itself. Rodriguez criticizes Jennings’s data on recidivism and risk to society for being severely outdated.

[UPDATE] Citing Morrissey v. Brewer, Rodriguez argues that the Supreme Court has often required hearings as a matter of due process protection for interests far less weighty than a prolonged physical confinement, requiring due process even for mere property deprivations. . Rodriguez asserts that this common-sense principle also applies to immigration detention, per Zadvydas. Rodriguez also argues against Jennings’s characterization and interpretation of Demore. Rodriguez maintains that Demore is not applicable to the vast majority of the mandatory subclass members in this case because most of them are litigating substantive defenses, whereas the individuals with qualifying convictions whose brief mandatory detentions were upheld in Demore had conceded their deportability, making entry of a removal order virtually inevitable. Further, Rodriguez notes that Demore was only distinguished from Zadvydas based on the fact that the detention at issue was “brief.”

DID THE COURT OF APPEALS ERR IN REWRITING THE PROCEDURES THAT GOVERN BOND HEARINGS?

Jennings argues that the Ninth Circuit erred in requiring that aliens receive a bond hearing by (1) putting the burden of proof on the government while requiring a “clear and convincing evidence” that the alien is a danger; (2) requiring automatic bond hearings every six months, even if the alien’s case has not materially changed; and (3) requiring judges to consider the alien’s length of detention time as a factor. On the first point, Jennings maintains that in § 1226(c) Congress clearly indicated, in the only instance where the criminal alien could be released on bond, under a witness protection program, “the alien must demonstrate that he will not pose a danger or flight risk.” Such shift of burden, according to Jennings, would also contravene § 1225(b)’s “clearly and beyond a reasonable doubt” standard. Jennings also adds that such shift would allow a criminal alien to profit from information asymmetry by withholding critical information from immigration. Additionally, Jennings adds that the Board of Immigration Appeals’ decisions and regulations go against the Ninth Circuit’s shift of burden. On the second point, Jennings maintains that an alien can appeal a bond decision to the BIA, and if that fails, obtain a rehearing by demonstrating that there has been a material change of circumstances regarding her case; there is no basis for a different procedure. On the third and last point, Jennings argues that bond determinations are made on the alien’s likelihood of causing harm to society, not on the length of his detention. Jennings argues that considering the alien’s length of detention encourages aliens to pursue time-consuming litigation strategies.

Rodriguez argues that the Ninth Circuit correctly applied its bond-hearing standard. First, Rodriguez maintains that, because of the significance of detaining an individual, the government must demonstrate why such detention was justified. Whenever the Supreme Court has permitted detention, Rodriguez maintains, the Court has required the government to bear the burden of proof. Rodriguez further argues that unlike the detained aliens, the government has in its service experienced attorneys who are familiar with the procedures. Placing a blanket ban on all detained aliens, Rodriguez adds, is especially unjustified where the government has many effective alternatives to detention. Such reading, Rodriguez argues, is supported by Zadvydas. Second, Rodriguez argues that the Supreme Court’s focus of detention length in both Zadvydas and Demore supports a judge’s reliance on the alien’s length of detention as a basis for a bond hearing. Rodriguez maintains that absent periodic hearings, detainees face a “substantial risk” of being erroneously deprived of their liberty. Furthermore, Rodriguez adds that such periodic hearing impose a minimal cost on the government.

[UPDATE] Finally, Rodriguez points out that flight risk or danger to the community are the only two bases of detention and that an individual who does not pose a sufficient flight risk or danger to the community does not warrant detention.Thus, Rodriguez argues that all prolonged detentions must be reviewed with individualized bond hearings to assess the alien’s flight risk and danger to the community. Rodriguez cites Mathews v. Eldridge to argue that given the unconstitutionality of a prolonged civil (immigration) detention, the stake of private interest in avoiding prolonged detention, and the risk of erroneous deprivation of liberty, due process requires that the government bear the burden of proof to prove by clear and convincing evidence that a prolonged detention is necessary.