SCOTUS Returns Order to Bond Determinations for Aliens

By Andrew R. Arthur on March 1, 2018

In a 5-3 decision, the Supreme Court ruled that U.S. Immigration and Customs Enforcement (ICE) can detain certain aliens indefinitely. This decision was a victory for a plain reading of the Immigration and Nationality Act (INA) and common sense.

In my July 2017 Backgrounder on "The Massive Increase in the Immigration Court Backlog", I noted that a series of recent decisions has complicated the immigration-court process, adding to the backlog. In particular, I stated:

[T]he Ninth Circuit's decision in Rodriguez v. Robbins, 804 F.3d 1060 (9th Cir. 2015), cert. granted sub nom. Jennings v. Rodriguez, 136 S. Ct. 2489 (2016), both increased the number of cases on the immigration courts' dockets in the Ninth Circuit, and gave aliens in that circuit cause to continue to litigate otherwise meritless cases. In that decision, the Ninth Circuit held that aliens in detention for more than six months must receive individualized bond hearings before an IJ to justify their continued detention, and be provided bond hearings every six months thereafter.

Under Rodriguez, an alien is entitled to a bond hearing wherein the government bears the burden of showing by clear and convincing evidence that the alien poses a risk of flight or a danger to the community. This is a higher burden of proof than the "preponderance of the evidence" standard, "which only requires a showing that something is more likely than not to be true." Moreover, unlike an initial bond hearing, where the alien bears the burden of showing that he or she is not a danger or flight risk, as noted, under Rodriguez, the government now bears that burden for continued detention past six months. This decision will encourage aliens with questionable cases to continue to fight their cases, knowing that they have a greater chance to be released after six months.

The Court's decision alleviates these problems, at least for now.

At issue were three separate provisions in the INA. Section 235(b)(1)(B)(ii) of the INA mandates the detention of aliens who are found to have a credible fear of persecution after entering (were attempting to enter) the United States without inspection, through fraud, or without documents. It states, in pertinent part:

Referral of certain aliens.- If the officer determines at the time of the interview that an alien has a credible fear of persecution ... the alien shall be detained for further consideration of the application for asylum. [Emphasis added.]

Section 235(b)(2)(A) of the INA mandates the detention of all other aliens who are deemed to be inadmissible on the remaining grounds of inadmissibility. It states:

In general.-Subject to subparagraphs (B) and (C), in the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a [removal] proceeding under section 240. [Emphasis added.]

The exceptions referenced in that subparagraph (in addition to aliens who entered without inspection, and aliens seeking admission through fraud or without proper documents) are crewmen, stowaways, and aliens "arriving on land ... from a foreign territory contiguous the United States."

Finally, subsection 236(c) of the INA mandates the detention of aliens who are inadmissible and deportable on criminal and national security grounds, subject to a very limited exception, contained in paragraph 236(c)(2) of the INA. That exception states:

The Attorney General may release an alien described in paragraph (1) only if the Attorney General decides pursuant to section 3521 of title 18, United States Code, that release of the alien from custody is necessary to provide protection to a witness, a potential witness, a person cooperating with an investigation into major criminal activity, or an immediate family member or close associate of a witness, potential witness, or person cooperating with such an investigation, and the alien satisfies the Attorney General that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding. A decision relating to such release shall take place in accordance with a procedure that considers the severity of the offense committed by the alien. [Emphasis added.]

As explained by the Supreme Court, the Ninth Circuit had construed these provisions "to limit the permissible length of an alien's detention without a bond hearing," concluding that "without such a construction ... the 'prolonged detention without adequate procedural protections' authorized by the[se] provisions 'would raise serious constitutional concerns.'"

In a rather tersely worded finding, Justice Alito, speaking on behalf of the majority of the Court, rejected these concerns, concluding:

The canon of constitutional avoidance "comes into play only when, after the application of ordinary textual analysis, the statute is found to be susceptible of more than one construction." ... In the absence of more than one plausible construction, the canon simply "has no application."


The Court of Appeals misapplied the canon in this case because its interpretations of the three provisions at issue here are implausible. ... [W]e hold that, subject only to express exceptions, [sections 235(b) and 236(c) of the INA] authorize detention until the end of applicable proceedings. And ... we hold that there is no justification for any of the procedural requirements that the Court of Appeals layered onto [section 236(a) of the INA] without any arguable statutory foundation.

The Court distinguished the provisions at issue from those under consideration in section 241(a)(6) of the INA, which governs the continued detention of certain inadmissible and criminal aliens after they have been ordered removed.

The Court in Zadvydas concluded that an alien under a final order of removal could be detained for six months, pending removal from the United States. It continued:

After this 6[-]month period, once the alien provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the Government must respond with evidence sufficient to rebut that showing. And for detention to remain reasonable, as the period of prior postremoval confinement grows, what counts as the "reasonably foreseeable future" conversely would have to shrink. This 6-month presumption, of course, does not mean that every alien not removed must be released after six months. To the contrary, an alien may be held in confinement until it has been determined that there is no significant likelihood of removal in the reasonably foreseeable future.

Justice Alito, in an apparent swipe at that decision, asserted that Zadvydas "represents a notably generous application of the constitutional-avoidance canon." He then distinguished the provision at issue there (section 241(a)(6) of the INA) from sections 235(b)(1) and (b)(2) of the INA. Specifically, he noted that these latter provisions "provide for detention for a specified period of time."

Second, he stated that the word "may" ("which implies discretion"), which appears in section 241(a)(6) of the INA, is absent from sections 235(b)(1) and (b)(2) of the INA, each of which uses the word "shall" in referring to detention.

Third, he held that: "Zadvydas's reasoning is particularly inapt here because there is a specific provision authorizing release from [section 235(b) of the INA] detention whereas no similar release provision applies to" section 241(a)(6) of the INA. Specifically, section 212(d)(5)(A) of the INA provides for parole, in limited circumstances, of aliens seeking admission to the United States.

The Court concluded that the mandatory detention provisions in section 236(c) of the INA were "even clearer". It held:

In defense of their statutory reading, respondents ... argue that [section 236(c)'s] "silence" as to the length of detention "cannot be construed to authorize prolonged mandatory detention, because Congress must use 'clearer terms' to authorize 'long-term detention.'" But [section 236(c)] is not "silent" as to the length of detention. It mandates detention "pending a decision on whether the alien is to be removed from the United States," ... and it expressly prohibits release from that detention except for narrow, witness-protection purposes. Even if courts were permitted to fashion 6-month time limits out of statutory silence, they certainly may not transmute existing statutory language into its polar opposite. The constitutional-avoidance canon does not countenance such textual alchemy. [Emphasis added.]

The Court noted that, as opposed to section 236(c) of the INA, section 236(a) of the INA expressly authorizes release from detention. It rejected, however, the Ninth Circuit's order that the government "provide procedural protections that go well beyond the initial bond hearing established by existing regulations," in particular "periodic bond hearings every six months in which the Attorney General must prove by clear and convincing evidence that the alien's continued detention is necessary."

It concluded: "For these reasons, the meaning of the relevant statutory provisions is clear — and clearly contrary to the decision of the Court of Appeals."

The Court did not consider the constitutional arguments made by the respondents in that case, because the Ninth Circuit had rested its decision on its conclusion "that periodic bond hearings are required under the immigration provisions" at issue. For that reason, it remanded the matter to the court of appeals for consideration of those claims.

Not only does this decision clarify the law relating to detention under the three provisions addressed, but it will also likely lead to a significant increase in the number of aliens who are detained following a "credible fear" determination following apprehension after illegal entry along the border or at the ports of entry.

In Executive Order 13767, President Trump stated that it was the policy of the Executive Branch to "detain individuals apprehended on suspicion of violating Federal or State law, including Federal immigration law, pending further proceedings regarding those violations." Accordingly, he directed the secretary of Homeland Security to "immediately take all appropriate actions to ensure the detention of aliens apprehended for violations of immigration law pending the outcome of their removal proceedings or their removal from the country to the extent permitted by law."

This decision significantly expands those authorities, as Politico reported. It continued:

Leon Fresco, a former official in Obama's Justice Department, anticipates that the Trump administration will ramp up detention to deter would-be asylum seekers and undocumented immigrants. In particular, he foresees more immigration enforcement operations in New York and California, where agents can target immigrants who previously couldn't be held in prolonged detention. "This is basically a sea change," he said.

Given the remand, however, it remains to be seen how long that "sea change" will remain.