(CN) — A divided Supreme Court on Tuesday ruled that immigrants the government has detained and is considering deporting aren’t entitled by law to a bond hearing to determine whether their incarceration is justified despite their sometimes lengthy detentions.
The case decided Tuesday, Jennings v. Rodriguez, challenged the constitutionality of lengthy immigration holds.
Both it and a related case, Sessions v. Dimaya, were originally argued before Justice Neil Gorsuch joined the court in April 2017, and new arguments were ordered shortly after his arrival — a move that suggested the other eight justices were evenly divided on how the cases should be decided.
The San Francisco-based Ninth Circuit had ruled for the immigrants, saying they generally should get bond hearings after six months in detention, and then every six months if they continue to be held.
The appeals court said the government must show why incarcerated immigrants, like respondent Alejandro Rodriguez, should remain locked up. said
But writing for the court majority on Tuesday, Justice Samuel Alito said the relevant portions of the federal regulations governing these detentions does not give detained immigrants the right to periodic bond hearings.
According to Justice Alito, the Ninth Circuit misapplied the canon of constitutional avoidance in holding otherwise, and therefore its decision must be reversed.
The majority remanded the case for further consideration, but divisions, even among the members of the majority are clear from the text of the opinion.
Only Chief Justice John Roberts and Justice Anthony Kennedy joined the full opinion, while Justices Clarence Thomas, Neil Gorsuch and Sonia Sotomayor joined the majority opinion only in part — and in Sotomayor’s case, it was only in small part.
Justice Thomas also wrote a concurring opinion, in which he was joined by Gorsuch.
Justice Stephen Breyer filed a dissenting opinion in which he was joined by Justices Ruth Bader Ginsburg and Sotomayor.
Justice Elena Kagan took no part in the decision because of work she had done as President Obama’s solicitor general.
Bearing down on the Ninth Circuit’s decision, Alito wrote that under the constitutional-avoidance canon, “when statutory language is susceptible of multiple interpretations, a court may shun an interpretation that raises serious constitutional doubts and instead may adopt an alternative that avoids these problems.
“But a court relying on the canon still must interpret the statute, not rewrite it,” the justice continued.
In this case, Alito said, the Ninth Circuit “adopted implausible constructions of the three immigrant provisions at issue,” making reversal of its decision inevitable.
In dissent, Justice Breyer noted that many detained immigrants ultimately prevail in their cases and are allowed to remain in the United States and that the issue before the court is whether they should be released on bail — provided they pose no flight risk or threat to the community.
“The Court reads the statute as forbidding bail, hence forbidding a bail hearing, for these individuals,” Breyer wrote. “In my view, the majority’s interpretation of the statute would likely render the statute unconstitutional.”
Therefore, Breyer said, he would follow “this Court’s longstanding practice of construing a statute ‘so as to avoid not only the conclusion that it is unconstitutional but also grave doubts upon that score’ … I would interpret the statute as requiring bail hearings, presumptively after six months of confinement.”
Alejandro Rodriguez, who came to the United States as a child and worked as a dental assistant. As a teenager, he was convicted of joyriding, and later, as an adult, he pleaded guilty to misdemeanor possession of a controlled substance.
Rodriguez was detained immigration officials for three years without a bond hearing, and his situation eventually came to the attention of the American Civil Liberties Union, which took up his case.
The ACLU filed a class action on his behalf and others in the same situation and eventually won his release.
No longer subject to a deportation order, Rodriguez continues to live in the United States.