Jennings v. Rodriguez in an Era of Mass Incarceration of Non-Citizens

Recent media attention to the detention of immigrant families and unaccompanied minors, together with the separation of children from their parents along the U.S. border has increased awareness around the world about U.S. immigration detention policies and practices. But hidden behind bars, and often left out of the news stories, are the thousands of other detained immigrants subject to the U.S. Supreme Court’s recent ruling in Jennings v. Rodriguez. Due to that ruling, immigrants may end up with even fewer opportunities to obtain judicial review of long-term detentions.

At present, the federal government detains almost 360,000 immigrants a year. The number of detained immigrants on any given day has increased from about 5,000 in 1994 to more than  39,000 in 2017. The financial and psychological cost of detention is significant. It hurts children, families, and even the single adults often left out of the story.

Several months ago, a prospective client refused pro bono legal assistance from the University of Pennsylvania Law School’s Transnational Legal Clinic. He had a viable path toward relief, but not toward release from detention until his ultimate relief was granted—a process that could take longer than a year. He had already been detained for more than six months. He was tired. He was depressed. He was frustrated. Detention robbed him of his will to fight.

The Supreme Court’s decision in Jennings finds our prospective client’s predicament—fight and face indefinite detention, or give up all claims for relief—to be acceptable under current immigration law.

The Jennings Court overturned the U.S. Court of Appeals for the Ninth Circuit’s requirement that individuals subject to mandatory detention provisions of the Immigration and Nationality Act be provided with initial and then periodic bond hearings ascertaining the appropriateness of continued detention with the possibility of release pending judicial proceedings. The Court’s decision in the case leaves open the question of whether the United States can subject the thousands of individuals awaiting a final judicial decision on their applications for immigration relief to prolonged civil detention.

As a matter of background, Congress passed in 1996 the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), introducing mandatory civil detention with extremely limited judicial review for the following three categories of immigrants: (1) immigrants with final orders of removal; (2) persons deemed “inadmissible” for failure to present proper documentation at the border, including asylum seekers and others expressing “credible fear” of persecution or torture in their country of origin; and (3) legal permanent residents and other immigrants subject to removal proceedings because of criminal convictions for a list of offenses expanded upon through the passage of the IIRIRA and the Anti-Terrorism and Effective Death Penalty Act (AEDPA), the latter also signed into law in 1996.

IIRIRA and AEDPA have together resulted in a dramatic increase in the number of immigrants held in detention. They have also caused the prolonged—and sometimes indefinite—detention of people fleeing persecution in their home countries and seeking asylum in the United States, as well as legal permanent residents with longstanding ties to their communities and U.S.-citizen family members, and persons with final orders of removal for whom deportation could not be carried out.

In 2001, the Supreme Court in Zadvydas v. Davis ruled that the opportunity for judicial relief must remain available to individuals falling within the last of these categories—that is, individuals with final orders of removal subject to detention where removal to the designated country cannot be carried out within a reasonable period of time, and setting six months as the presumptively reasonable time. According to the Zadvydas Court, the U.S. Constitution’s Fifth Amendment protects immigrants subject to removal orders.

Just two years later, the Supreme Court in Demore v. Kim upheld the constitutionality of mandatory detention of legal permanent residents subject to removal due to prior criminal convictions, without a judicial assessment as to whether the person was a flight risk or danger to the community. In Demore, Chief Justice William Rehnquist, writing for the majority, uncritically accepted that “Congress adopted this provision” in light of the Immigration and Naturalization Service’s “wholesale failure…to deal with increasing rates of criminal activity by aliens.” The Court also noted that it “has firmly and repeatedly endorsed the proposition that Congress may make rules as to aliens that would be unacceptable if applied to citizens.”

In reaching its decision, though, the Demore Court seemed to rely on the government’s representation that the average length of detention was less than 90 days, and that most removal proceedings were resolved in a couple of months, and found no constitutional violation given its “limited” duration. Justice Kennedy, in his concurring opinion, specifically noted that “an individualized determination” of a detainee’s dangerousness and flight risk would be warranted “if the continued detention became unreasonable or unjustified.” According to a mea culpa letter the acting Solicitor General submitted to the Court while the Jennings decision was pending, the average length of detention for persons subject to the Demore decision was at least twice as long, bringing it well outside the presumptively reasonable timeframe set out by the Court in Zadvydas.

In 2007, the American Civil Liberties Union, the Stanford Law School Immigrants’ Rights Clinic, and the law firm Sidley Austin challenged the practice of prolonged detention in two class action cases—Garcia v. Hayes and Rodriguez v. Robbins—that were eventually consolidated into the case that became Jennings.

The plaintiffs argued that mandatory detention without judicial review was impermissible if the statute is to be read in a manner consistent with the Constitution, and it is also a clear violation of international law’s prohibition of prolonged and arbitrary detention. After the government appealed the lower court’s decision, the Ninth Circuit agreed with the plaintiffs. The Ninth Circuit mandated the government to allow for a bond hearing at the initiation of detention and at periodic intervals throughout the period of detention, to assess the legitimacy and necessity of ongoing detention.

Following the Ninth Circuit’s decision, the government appealed again, and the Supreme Court took up the case in Jennings.

The Supreme Court ruled in Jennings that the Immigration and Nationality Act clearly mandates detention and that no other possible reading of the provisions at issue existed. The Court declined to rule on the constitutionality of the provisions, but instead sent the case back to the Ninth Circuit Court of Appeals for consideration of the applicability of the Fifth Amendment.

By eschewing the constitutional issues, the Court avoided—or at least deferred—a direct challenge to its original decision in Demore.

Immigration advocates and non-citizens subject to detention and their family members now must wait to know whether the Ninth Circuit will find that prolonged detention without an opportunity for a bond hearing before a judge violates the Fifth Amendment. Whatever the Ninth Circuit decides, the case will most likely return to the Supreme Court. In the meantime, how many more immigrants will be left hopeless after battling the immigration system from behind bars?

Sarah Paoletti is a practice professor of law at the University of Pennsylvania Law School.