Jennings v. Rodriguez: Supreme Court Holds That INA §§235(b), 236(a), and 236(c) Do Not Entitle Noncitizens in Prolonged Immigration Detention to Bond Hearings

In a stunning decision, the Supreme Court held yesterday in Jennings v. Rodriguez that non-citizens are not entitled to periodic bail hearings while being detained under the Immigration and Nationality Act.  The Ninth Circuit had previously ruled that the government must provide individualized bond hearings to assess danger and flight risk when detention exceeds six months, and every six months thereafter.

The high court remanded the case to the Ninth Circuit to determine whether the Constitution requires such hearings, as the statues do not in their opinion, squarely teeing up the issue the Ninth Circuit took great lengths to avoid deciding initially.  The decision is remarkable for its rebuke of the Ninth Circuit’s reasoning, as well as the vociferous nature of the dissent, penned by Breyer, and joined by Sotomayor and Ginsburg.  Alito wrote the majority opinion, essentially arguing that the INA allows indefinite detention of non citizens with no judicial review.  There are thousands of people who have been detained for years, in private for profit prisons, following being ordered removed, while they pursue appellate relief in the federal courts.  Many of these individuals are green card holders or asylum seekers.

There is little doubt in my mind the Ninth Circuit will hold that due process precludes indefinite detention of non-citizens.  Whether the Supreme Court will  eventually hold the same is an entirely different question.

You can read the decision in full here: https://www.supremecourt.gov/opinions/17pdf/15-1204_f29g.pdf