On February 27, 2018, in Jennings v. Rodriguez, the US Supreme Court ruled that certain immigrants detained for deportation do not have a statutory right to periodic bond hearings. This is a setback for immigrants’ rights advocates, but they are positioned to attack detention on constitutional grounds instead.
The Supreme Court reversed the judgment of the Ninth Circuit Court of Appeals, holding that INA §§235(b), 236(a), and 236(c) do not give detained immigrants the right to a bond hearing after six months and periodic bond hearings after that. The Court remanded the case to the Ninth Circuit and instructed it to consider the respondents’ constitutional arguments, which the Ninth Circuit did not previously consider.
The Court’s ruling is narrow in scope, since it only found that under the INA statute detained aliens do not have the right to a bond hearing after six months and then periodic bond hearings after that. The Court did not hold that immigrants may be detained indefinitely or that protracted detention is constitutional. Detained immigrants still have the right to a review of their detention. Also, there are other appellate decisions that still hold sway, including Reid v. Donelan, Sopo v. AG, and Chavez-Alvarez v. Warden York County Prison, where detention was found to be constitutionally suspect in individual cases.
Three of the Justices dissented and one recused herself. Justice Stephen Breyer wrote an impassioned dissent Tuesday invoking the Declaration of Independence and the storied practice of English common law.