Jennings v. Rodriguez

PETITIONER: David Jennings, et al.
RESPONDENT: Alejandro Rodriguez, et al.
LOCATION: U.S. District Court for the Central District of California, Western Division

DOCKET NO.: 15-1204
LOWER COURT: United States Court of Appeals for the Ninth Circuit

GRANTED: Jun 20, 2016
ARGUED: Nov 30, 2016

Ian H. Gershengorn - for petitioners
Ahilan T. Arulanatham - for respondents

Facts of the case

Sections of the Immigration and Nationality Act require that noncitizens who are determined to be inadmissible to the United States must be detained during removal proceedings, though some may be released on bond if they can demonstrate that they are not a flight risk or a danger to the community. Alejandro Rodriguez and other detained noncitizens sued and argued that their prolonged detention without hearings and determinations to justify the detentions violated their due process rights. After litigation regarding class certification, the district court granted a preliminary injunction that required the government to provide each detainee with a bond hearing and to release that detainee unless the government could show, by clear and convincing evidence, that continued detention was justified. The U.S. Court of Appeals for the Ninth Circuit held that prolonged detention without a hearing raised serious constitutional concerns, and therefore that the relevant mandatory statutory language should be interpreted as having a time limitation; at the six-month mark, detainees are entitled to bond hearings. Because the plaintiff class proved that it was likely to succeed on the merits, the appellate court affirmed the grant of the preliminary injunction. The plaintiff class then moved for a permanent injunction, which the district court granted and the appellate court affirmed. The appellate court also determined that the duration of future detention and likelihood of eventual removal should not be considered in the bond hearings, and the noncitizens are entitled to bond hearings at six-month intervals throughout their detentions.


  1. Are noncitizens who are subject to mandatory detention under the relevant text of the Immigration and Nationality Act entitled to bond hearings, with the possibility of release, if their detentions last six months?
  2. Are the noncitizens entitled to release unless the government proves by clear and convincing evidence that the noncitizens are dangers to their communities and flight risks?
  3. Should the length of the noncitizen’s detention be weighed in favor of release, and should new bond hearings be provided automatically every six months?

Media for Jennings v. Rodriguez

Audio Transcription for Oral Argument - November 30, 2016 in Jennings v. Rodriguez

John G. Roberts, Jr.:

We will hear argument this morning in Case No. 15-1204, Jennings v. Rodriguez. General Gershengorn.

Ian H. Gershengorn:

Mr. Chief Justice, and may it please the Court: Congress provided extensive substantive and procedural protections for aliens whom the government wishes to remove, but at the same time, addressed the real concerns about recidivism and flight risk by providing for mandatory detention during removal proceedings for certain categories of criminal aliens and aliens arriving at our shores. The Ninth Circuit undid that legislative balance, invoking principles of constitutional avoidance to require the government to release those aliens unless the government can prove by a preponderance of the evidence every six months that detention remains necessary. The Ninth Circuit's decision is a serious misuse of the constitutional avoidance canon.

With respect to arriving aliens, there is no constitutional problem to avoid.

As even the Ninth Circuit recognized, the statute is constitutional in the vast majority of applications, and any concerns about outlier cases involving lawful permanent residents can be dressed in as-applied challenges. And with respect to criminal aliens, the text of the statute forecloses the Ninth Circuit's approach, and in any event, the statute is constitutional as written under this Court's decision in Demore. The net result of the Ninth Circuit's one-size-fits-all rule is -- is a regime that's at odds with the text that Congress enacted.

It undermines DHS's enforcement priorities, and it creates incentives for individual aliens to delay their removal proceedings.

Ruth Bader Ginsburg:

What about 1225(a), that is, aliens who don't fit in either of the categories that you discussed? They are not entrants, and they are not people who have committed qualifying criminal offenses.

So they are the 1225(a) people.

Ian H. Gershengorn:

That's right, Your Honor.

So for those individuals, they have had bond hearings, or at least they often have had bond hearings. And -- and so we're talking about individuals who either had bond hearings and had them denied or have been unable to post bond. With respect to those --

Sonia Sotomayor:

What would be the constitutional entitlement to keeping those people, if they're not a flight risk or a -- a risk to the safety of the country?

Ian H. Gershengorn:

So --

Sonia Sotomayor:

Or to others? However you want to define that danger element. So what's the constitutional entitlement, just arbitrarily, to keep someone who's neither of those two things?

Ian H. Gershengorn:

So with respect to the 1225(a)(1) individuals that Justice Ginsburg was talking about, those are individuals who have had bond hearings and had them denied or have been unable to post bond. And the requirement that we are concerned about there is that the government bears the burden of proof to show by clear and convincing evidence every six months that they are not a flight risk or not a -- or not likely to -- to recidivate. And --

Ruth Bader Ginsburg:

Clarify two things.

One, what are the -- what have the people in that category done that would make them subject to removal; and two, does the government read the bond specification in 1225(a) as discretionary?

Ian H. Gershengorn:

So, Your Honor, the -- I think the government's practice with respect to the latter question is to provide bond hearings consistent with the -- consistent with the statute is my understanding, and that -- and so those are people who have had bond hearings and we do provide them there. And, I'm sorry, Your Honor, your first question?

Ruth Bader Ginsburg:

Who would --

Ian H. Gershengorn:

So they may be individuals who have -- who have entered illegally but have not committed the kinds of crimes that would make them inadmissible under 1182(a)(2) or -- or deportable under -- that would subject them -- the types of crimes that would subject you to 1226(c) for the mandatory detention there.

And so, again, for that class, we are objecting principally to the clear and convincing evidence standard which we think the Ninth Circuit really had no basis in the statute for adopting.

And there are --

Anthony M. Kennedy:

Am I right that in -- in bail hearings, it's clear and convincing to show that there is a public danger, but only by a preponderance of the evidence to show flight risk in regular bail hearings?

Ian H. Gershengorn:

So, Your Honor, it does vary by the type of crime.

In some cases it's the alien who has to -- I'm sorry.

In some cases it's the criminal who has to show by a preponderance that he is not likely to -- to recidivate or to be a flight risk. In some cases the government bears the burden by showing in clear and convincing evidence.

Sonia Sotomayor:

May I ask a --

Anthony M. Kennedy:

I think -- I'll check it. I think not for flight risk.

Ian H. Gershengorn:

That might be right, Your Honor. Yes.

I'm sorry, Justice --

Sonia Sotomayor:

Clarifying question. For an alien who is found in the United States illegally, has not been admitted, are they held under 1225(b) or are they held under 1226(a)?

Ian H. Gershengorn:

So they are held under -- if they are not -- if they are not detained within 100 miles of the border or within 14 days, so they've been there longer than those two things, then they are under 1220 -- 1226(a) and not 1226(c).