Supreme Court

Supreme Court Sets the Stage for a More Important Immigrant Detention Fight

Indefinite detention carried the day in Jennings v. Rodriguez, but the ruling affirms an important principle that may eventually kill the practice.


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The Supreme Court ruled this week that current law does not entitle suspected illegal immigrants going through deportation proceedings to challenge their detention. The good news is that its ruling leaves the door open to finding the statute that created this situation unconstitutional.

The opinion in Jennings v. Rodriguez resolves a government challenge to a lower court ruling, which ordered immigration authorities to hold a bail hearing for such detainees every six months. For the moment that leaves the prisoners without a procedure to challenge their long-term detention.

The statute at issue in the case is a portion of federal immigration law that says aliens who are contesting a deportation order or a determination of inadmissibility "shall be detained" pending resolution of their status. The law says such detainees may be temporarily released into the United States while their cases are processed in the immigration courts, at the discretion of the attorney general.

The case was brought by Alejandro Rodriguez, a Mexican citizen who was ordered deported in 2004 following a drug conviction and was then detained for several years as his appeals proceded. He filed a suit for habeas corpus in federal court in California, arguing that the statute implicitly required the government to conduct detention hearings every six months, although the text itself says nothing about such hearings. District Judge Terry Hatter agreed, and the government appealed his injunction to the Ninth Circuit, which upheld Hatter's ruling as an appropriate application of the canon of constitutional avoidance—a legal doctrine which instructs courts not to interpret ambiguous statutes in ways which would make them unconstitutional.

The Supreme Court rejected this analysis. Writing for a 5–3 majority—Justice Elena Kagan recused herself from the case—Justice Samuel Alito cited a previous ruling that 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." Alito deemed the Court of Appeals' interpretations of the statute "implausible," and he concluded that the lower courts will have have to consider the constitutional question they tried so hard to avoid.

The ruling therefore tees up the question of the statute's constitutionality—the very issue the lower courts went to such pains to ignore. So while the short-term effect is bad for civil liberties, it's possible that the case will ultimately lead to a verdict that civil libertarians will like: that indefinite civil detention of suspected illegal immigrants violates constitutional rights.

It's conceivable a lower court, or even the Supremes themselves, could later rule that the statute is constitutional after all. But courts have been generally unfriendly to indefinite detentions in the past, even in the context of other areas that fall under executive discretion, such as national security. Furthermore, every lower court that considered the case agreed that reading the law to mean what it clearly says (that suspected illegal immigrants "shall be detained" during their appeals, regardless of how long those appeals take, and that parole is entirely at the discretion of the attorney general) would pose "serious constitutional concerns," which is why they didn't want to read it that way.

The crucial point is that so far, no court has actually ruled on the constitutionality of the indefinite, unreviewable detentions that the immigrations statutes authorize. All the Supreme Court really said on Tuesday was that the statute does, in fact, authorize them.

Despite this, several major media outlets portrayed the ruling as simply a blow against immigrants' rights. "Supreme Court Curbs Rights of Immigrants Awaiting Deportation," proclaimed a Reuters headline. "Supreme Court throws out ruling that said detained immigrants deserve bond hearings," said the Chicago Tribune.

But the case isn't really about what anyone "deserves," in any abstract sense. Litigation rarely is.

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  1. Now that the illegals can’t get out while dragging our their deportation proceedings, they will likely waive an extradition hearing.

    Bye bye illegals.

    1. The big question is how delicious will Shikha’s tears be?

  2. Are you a US Citizen?

    If not, have you gotten prior permission to enter the USA?

    If not, do you have current permission to stay in the USA?


    See ya wouldn’t want to be ya.

    1. In other words……… buh-bye!

      1. buybuy

    2. If not, have you gotten prior permission to enter the USA?

      If not, do you have current permission to stay in the USA?

      I give them permission. There, they have permission.

      1. Great. How many will you be housing and paying for?

        1. None. You implied that they could stay in the country if they had permission and they do.

          1. That’s how it works. YOU give permission and as many immigrants as you can house come knocking on your door.

            You implied they had permission to live with you.

  3. Thank you for explaining the legal maneuvering here and how the process works – you are exactly right that most of the reporting is just a poor (or intentional) misunderstanding of the actual meaning of the ruling.

  4. I’m no fan of ‘indefinite detention’ for sure, and the cost of these hearings is paid by the taxpayer, so I’m not convinced it’s a terribly valuable service while it’s also not terribly humane. It IS also true that most of those who appeal these decisions never show up to the court case and the backlog is years long.

    If you’re going to deport people, make it speedy. Not only is it cheaper, it’s better in terms of humane treatment. That said, ‘speedy’ should not equal ‘deport citizens on accident’ but we should expect that will be an inevitable result from incompetent government.

    1. The system should be quick in deporting people the illegals used out own system against us by costing taxpayers more money and staying the USA hoping for some miracle citizen amnesty.

      The illegals will be deported faster and that will free up the immigration judges for people with complex cases of refugee status or whatever under US immigration law.

      Illegals could have waived extradition hearings and been across the borders in days/weeks before this ruling. They chose not to.

      1. The illegals

        Is this a term that refers to anyone who has broken a law?

        1. Anyone who has broken the law are called “criminals”. Sometimes white collar criminals. Sometimes sex criminals.

          “Illegals” are immigrants that have broken immigration law. Still criminals but once they leave the USA, they are not longer breaking US immigration law.

          1. Anyone who has broken the law are called “criminals”.

            Criminals commit crimes. Breaking the law is not necessarily committing a crime.

            “Illegals” are immigrants that have broken immigration law.

            Why do you single out this illegal activity over all others to use this particular label?

            1. Entering the USA is committing a crime.

              This is an immigration article. I commented about illegal immigrants.

            2. “Why do you single out this illegal activity over all others to use this particular label?”

              The legal term is illegal alien. Progressives have continually attempted to redefine the term using euphemisms like illegal immigrant in an attempt to bestow immigration status then do even further with undocumented immigrant in an attempt to ignore the illegal entry/overstay and the non-existent immigration status.

              IAW immigration law, a foreign national (alien) is either in the country legally (i.e. visa) or illegally (aka no visa, no legal authorization). Hence the use of the term legal or illegal alien. The only authorized immigrant to the USA is a foreign national with an immigration visa.

        2. Illegal aliens is the proper legal term

          Illegals for short

          1. So a guy running an unlicensed (illegal) hot dog stand isn’t an illegal salesman, ie an illegal for short?

            1. Not all hot dog stands need to be licensed.

              They guys with hot dogs, hot dog men.

              1. By the same logic, not all immigrants need to be licensed.

                Among lefties.

                1. “By the same logic, not all immigrants need to be licensed”

                  That’s not the same logic.

                  “So a guy running an unlicensed (illegal) hot dog stand isn’t an illegal salesman, ie an illegal for short?”

                  It’s called a colloquialism, please stop pretending you’re an idiot.

                  1. Red Tony is an idiot. He’s pretending to be discussing this issue in good faith.

                2. Some countries allow visa-less entry for up to 90 days of tourism. These courtesies tend to be a result of reciprocal arrangements. Perhaps a reciprocal immigration policy would be more fair. Both China and India would probably grant Americans 100,000 immigration visas a year in exchange for reciprocity. Mexico was historically uneasy about Americans who immigrated there. That is why Texas seceded from Mexico.

                3. Immigrants are not licensed.

                  Among illegals.

            2. Yes, if the law requires a license to run a hot dog stand, then the guy running it is an illegal hot dog vendor. New York City has a large contingent of illegal food cart vendors, but their numbers are shrinking. Turns out that many of these illegal food cart vendors are undocumented immigrants who started to lay low when Trump entered the White House.

              On a related topic, how do you feel about an undocumented psychiatrist giving Haldol injections to people on the street or an undocumented driver going through Manhattan in a long-haul truck?

    2. Yes, indefinite detention is bullshit. However, do they have the opportunity to go back to their home country? If so, it is their choice to be “detained”, which they are really not, they’re just being lying dick-bags because the truth is that they’re just not allowed into the US.

      If they do not have the option of going to their home country, then it is bullshit and it needs to be changed.

      1. Its that the illegals dont want to go home. The system allowed them bail, so they did that.

        Not anymore.

      2. Closing time
        You don’t have to go home but you can’t stay here.

        The indefinite detention is the legal no man’s land for a government without the will to deport illegals. The guy is an illegal alien. He should be out.

    3. I suggest turning them over directly to their country’s embassy/consulate where they cannot leave until the case is adjudicated or they decide to self deport. If they leave the embassy/consulate then immediate deportation and case closed. Since the embassy/consulate is technically sovereign territory then they are technically deported and the responsibility of the home country at that point.

  5. Under Obama, the resolution would be to release them in California. Under Trump, the solution will be to release them in Baja California?

    Do I assume correctly that these detentions are not of people claiming to be citizens or lawful permanent residents?

    1. The story says he is a Mexican citizen.

  6. Does that cop’s jacket have a stutter?

    1. Police ICE is what you put in LEOmonade.

    2. Mr. Cool Police Ice

      1. He’s one of the few government employees doing their job.

        Buh bye illegal aliens.

  7. A lengthy detention is a violation of someone’s rights. Sending someone back to the nation he came from is one thing, but locking him up for a long time merely for being here is unjust.

    1. Hes locked up because he keeps filing appeals, not because they want him locked up. He can go home any time he wants

      1. I think this is the out for the courts. The detainees are essentially volunteering to stay in prison as part of the appeals process.

        1. Hmm…have to think about this one…habeas corpus has traditionally been a way to demand bail, in cases where bail is allowed…and this law allows bail at the discretion of the AG…I suppose an argument could be made that the constitution demands that this discretion be given to the courts not the AG…denying bail in all cases would also be a possibility…

        2. Why not? Three hots and a cot as opposed to being shipped off to some shithole with tequila, cocaine, pot, and Latinas.

        3. Then they’re really not detained. Claiming that they are should put them in contempt of court along with being deported.

  8. The Supreme Court ruled this week that current law does not entitle suspected illegal immigrants going through deportation proceedings to challenge their detention.

    Huh? How?

    The good news is that its ruling leaves the door open to finding the statute that created this situation unconstitutional.

    Gee, ya think? Why didn’t they rule that the law and therefore the practice is unconstitutional?

    1. Because SCOTUS is cowardly. They kicked it back to the 9th Circuit instead. It’s pretty predictable what will happen. The 9th will come up with some answer, which will apply in the 9th. Then some other case will come up to the 2nd or 5th or wherever, which will come up with a different answer. You’ll have a circuit split. Since there can’t be different constitutional law in different jurisdictions over something so tied to national policy as immigration, SCOTUS will have to rule on the actual constitutional merits of the law. In the meantime, years and millions of dollars will have been wasted in lower courts arguing about something SCOTUS should have known they’d have to decide anyway. It’s ridiculous.

      1. Yep. It is almost like SCOTUS doesn’t care about the integrity of the courts. They should have reprimanded the 9th a long time ago. Instead they cover for each other worse than any police union. Founders didn’t put enough thought into the Judicial, IMO.

        1. See the recent failure to take up the lower court ruling that demanded that Trump extend Obama’s illegal DACA executive order.

          It certainly seems like the Supremes are inviting the Executive to the tell the courts to pound sand.

          Today is better than tomorrow to confront Judicial Authoritarianism.

        2. Congress should have impeached 9th Circuit judges a long time go.

          Impeach lefty judges not doing their jobs and watch the lefty’s heads explode.

        3. Don’t blame the founders, blame Congress. They write the law(s) for all federal courts except SCOTUS.

  9. They are ILLEGALS. It says right there in their name – il-legal. Not LEGAL. They have BROKEN THE LAW.

    Throw ’em out and build the wall!

    1. This guy gets it with implied Crusty sarcasm.

  10. We should send them a bill demanding all the money we spent on their prison and other expenses.

    1. I’ve been saying that for a long time.

      We should bill the home countries of illegals for the public services consumed by them. Then use that money to pay for the Wall.

      1. We should force them to build the wall !!! After Mexico wont pay for it, and we will be billing Mexico for these guys, so just have them do the work.

        1. Yup. Give citizenship to any Mexican who build the US border wall.

          Then use that information to say that Mexico built that wall.

          1. Then laugh and laugh and laugh.

  11. “The case was brought by Alejandro Rodriguez, a Mexican citizen who was ordered deported in 2004 following a drug conviction and was then detained for several years as his appeals proceeded. ”

    If he doesn’t want to be detained in the US, he should go back to his own country.

    Foreign nationals have no right to stroll about the US. Americans get to decide who comes here.

    1. I’m an American and I decided that he can stay if he likes.

      1. You should see someone about that delusion that you’re Judge Dredd.

        You are *not* the Law.

      2. I’m an American and I decided that he has to go. Me and my millions of fellow Americans has representatives and Senators that created laws that are opposite of what you want.

        Under that constitutional government power to regulate migration and naturalization, we now have immigration law that says goodbye to illegal immigrants.

      3. The courts affirmed about a century ago that the government can mandate vaccinations, because defense against a common enemy supersedes individual autonomy. The court said that a mandatory vaccinations is similar to forbidding a homeowner from keeping enemy invaders in his home.

        Decades later, the court expanded this state power to say that a government can force a psych patient to take psychiatric medications. The Constitutional argument for letting psych patients live in the community unmedicated is stronger than the argument for letting undocumented immigrants live in homes in the USA.

  12. Detention first.

    Due process later.

    1. Actually they have had Due Process and were ordered deported. It is their choice to either accept the deportation or detainment as they are certainly a flight risk hence the choice being with the AG once a deportation order is in place.

  13. Seems most people here believe freedom means asking permission and obeying orders.

    1. My patience for sobs stories like this dude has ceased. This is not even a sob story, this guy is a convicted felon. I had to look at the SCOTUS In Opposition Brief 15-1204 for Jennings v. Rodriguez to even find out the dude was a felon.


      Why do I have a feeling I am being intentionally manipulated when every news source plays up the fact he is a father, a dental assistant, had a misdemeanor drug charge, but refuses to say he had a felony conviction for what is essentially auto theft?

      If the law enables a convicted non-citizen felon with multiple convictions to stay here no problem I take issue. This guy sounds like a worthless piece of trash, we have enough of those people already in America without needing to take in more from other countries.

      If the law allows him to goof around for more than a decade fighting deportation then our law is broken. It is a joke. Why even have it.

      1. So indefinite detention is OK if you don’t like the person?

        1. The guy got our of prison, he was in prison for like three years. He has been out of prison nearly the entire time this trial farce has been going on as far as I understand. He even went back to work as a dental assistant.

          I reiterate, the law is a joke. Why even have it.

    2. The USA is not a place of anarchy. We live under a rule of law.

      The law that our representatives came up with is the current immigration laws. Illegals are ignoring our laws as if they are in charge of the USA. They are not and its good to see that change.

      Try not to equate living in the USA with whatever you think a region of anarchy would be.

      1. Your appeal to authority doesn’t suddenly turn unjust laws into just laws.

  14. “The case was brought by Alejandro Rodriguez, a Mexican citizen who was ordered deported in 2004 following a drug conviction and was then detained for several years as his appeals proceeded.”

    It was difficult finding any background information on this guy, I have a feeling people covering this are being intentionally obtuse to sell up the fact he is a father and dental assistant (found that stuff too). About all I can find is he was brought here illegally when he was 1, became a lawful permanent resident when he was 9 (I would like to know how this happens), was convicted of joyridding and served two years in prison when he was 19 (all news outlets called it joyriding and not theft), then was convicted of a misdemeanor drug charge when he was 24. He actually already got out of prison, I am not sure how he has not been deported yet, probably because this trial continues. The ACLU also pointed out that his pregnant citizen wife had to go on welfare when he was in prison.

    I have a hard time giving a single crap about this guy.

    1. He is a human being who made lots of poor choices. But he’s still a human being that has rights. Just because you don’t like the guy, that means he should stay in a cage indefinitely?

      1. He can leave the cage anytime HE wants to. Accept deportation.

        Otherwise, stay in a cage and waste US taxpayer money just to be deported years from now.

      2. What rights does he possess? A right to a trial? Check, he had one. A right to an appeal? Check he had that too, it has been ongoing for over a decade. A right to not sit in prison forever? Sure, I agree with that too, he probably should win this particular case.

        A right to not get deported after multiple convictions? No, not check.

  15. No court has ruled on detention of immigrants who have run afoul of our immigration laws? I suggest the author review Clark v Martinez (Scotus 2005)

  16. I have a simple solution. Turn the illegal alien aka deportee over to home country embassy/consulate with express knowledge that the individual is not allowed to leave the embassy/consulate grounds and the embassy/consulate is responsible for the individual showing up for court hearings. If such an individual is found outside the embassy/consulate then immediate deportation with no further proceedings.

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