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The Implications of Jennings v. Rodriguez on Immigration Detention Policy

The Implications of Jennings v. Rodriguez on Immigration Detention Policy

By: Kelsey Lutz, Volume 103 Staff Member

Alejandro Rodriguez, a Mexican citizen, came to the United States with his family as an infant.[1] He had been a lawful permanent resident of the United States for nearly twenty years when he was detained by Immigration and Customs Enforcement (“ICE”) in 2004 after being convicted for possession of a controlled substance and “joyriding” in a stolen vehicle.[2]Rodriguez was subsequently detained for over three years without a hearing to determine if his detention was justified, if he was a flight risk, or if he was a danger to the community.[3]After a protracted legal battle, including several appeals in federal court, Rodriguez was finally released in 2007.[4]

Rodriguez, like thousands of others each year, was detained pursuant to a series of immigration statutes requiring mandatory detention for certain categories of noncitizens.[5]This includes, among others, noncitizens initially determined to be inadmissible due to fraud, misrepresentation, or lack of documentation; asylum seekers; noncitizens who have committed certain criminal offenses or terrorist activities; and others already in the country, pending the outcome of their removal proceedings.[6]

Rodriguez’s case is far from an isolated incident. In 2017, ICE’s total average daily detention population was over 39,000 people.[7] This number continues to rise due to increased enforcement efforts.[8] As a result, there are huge backlogs in the immigration court system, resulting in prolonged detention periods while cases are pending for months or even years.[9]The backlog of immigration cases more than doubled from 2006 to 2015,[10] reaching a record high in 2017 with over 500,000 cases from the previous year still awaiting adjudication.[11] In 2015, the median pending time for immigration cases was 404 days.[12] Detainees who contest their removability do so at a greatly increased risk of prolonged detention.[13]

Detention on this scale is problematic for a variety of reasons. Nearly three quarters of immigration detainees are held in private prisons, which are frequently plagued by complaints of medical neglect, abuse, and suicide.[14] Prolonged detention is also expensive, costing over a hundred dollars per detainee per day for a total of more than $2 billion a year.[15] Case backlogs are further exacerbated by a lack of adequate legal representation, which hinders detainees’ ability to seek relief. Only about twenty percent of detainees are represented by counsel in immigration proceedings.[16]

Not surprisingly, immigration detention has been the subject of frequent litigation in recent years. In the early 2000s, the Court clarified the scope of permissible immigration detention in two cases. In Zadvydas v. Davis, the Court held that prolonged detention is impermissible where removal cannot be completed within six months, which the Court held was a “presumptively reasonable” period of time.[17] That case, however, dealt with two noncitizens whose countries of birth would not accept them, making them effectively unremovable as a practical matter.[18] Shortly after, the Court held in Demore v. Kim that brief periods of detention without bond during removal proceedings is constitutional. In the years since these decisions, however, several circuits have held that prolonged mandatory detention during immigration proceedings poses serious constitutional due process concerns.[19]

This precedent factored heavily into the Court’s decision in Jennings v. Rodriguez, which came before the Supreme Court earlier this year after a lengthy series of appeals.[20]Rodriguez was first detained in 2004 pursuant to 8 U.S.C. § 1226(c) while the Government initiated removal proceedings against him.[21] In July 2004, an immigration judge ordered his deportation.[22] Rodriguez unsuccessfully appealed that decision to the Board of Immigration Appeals and subsequently petitioned the Ninth Circuit for review of the Board’s decision.[23]Rodriguez ultimately won his immigration case when his application for cancellation of removal was granted in 2008, but only after the Ninth Circuit found on appeal that driving a stolen vehicle did not qualify as an aggravated felony that would warrant deportation.[24]

While litigating his removability in the Ninth Circuit, Rodriguez also filed a habeas petition in the Central District of California, arguing that he was entitled to a bond hearing.[25] He subsequently moved for class certification on these claims.[26] The class action complaint alleged that prolonged detention under 8 U.S.C. §§ 1225(b), 1226(a), and 1226(c) is not authorized without an individualized bond hearing.[27] The District Court entered a permanent injunction requiring periodic bond hearings for noncitizens detained for six months or more.[28] The Ninth Circuit affirmed, relying on the canon of constitutional avoidance and construing the relevant statutory provisions as imposing an implicit six-month time limit on detention without a bond hearing.[29] The Ninth Circuit reasoned that construing the statute to allow prolonged detention without bond would raise serious constitutional concerns, and therefore adopted an interpretation which granted detainees a statutory right to bond hearings.[30] The Government appealed, and the Supreme Court granted certiorari to review the injunction and habeas claims in 2016.[31]

The Supreme Court held that §§ 1225(b), 1226(a), and 1226(c) do not confer an automatic statutory right to periodic bond hearings, and that the Ninth Circuit misapplied the constitutional avoidance canon in finding otherwise.[32] The canon, the Court held, only applies when a statute has more than one plausible construction, and the Ninth Circuit’s interpretation of the statute was not plausible because the statutory text makes no reference to bond hearings.[33] Because the Ninth Circuit concluded that the statute itself conferred a right to periodic bond hearings, it did not consider the parties’ constitutional arguments.[34]The Supreme Court remanded the case back down to the Ninth Circuit, directing the lower court to directly address the parties’ constitutional arguments.[35]

The Supreme Court’s decision in Jennings is problematic for three reasons. First, it fails to protect the fundamental due process rights afforded to citizens and noncitizens alike. Under the Fifth and Eighth Amendments, noncitizens enjoy the same basic due process rights and protection against excessive bail as United States citizens.[36] The Fifth Amendment’s language does not limit its protections only to citizens,[37] and courts have construed it as extending to “all persons within the United States, whether their presence is lawful, unlawful, temporary, or permanent.” [38] The Eighth Amendment forbids “[e]xcessive bail,”[39] which, as the dissent in Jennings noted, logically applies to situations where bail is denied entirely without a hearing.[40]

Second, there is no legitimate reason to deny a simple bail hearing to noncitizens. While it is true, as the Jennings Court noted, that the statutory text does not explicitly mention bail hearings, the lack of an explicit reference to bond hearings is not necessarily an indication that Congress intended to authorize prolonged detention.[41] The section governing detention of asylum seekers, for instance, provides that noncitizens “shall be detained,” but does not explicitly require that they be detained without bail.[42] This reasoning is consistent with the fact that persons detained under both criminal law and other forms of civil commitment have the right to periodic hearings to justify their continued detention. Immigration detention is not substantively different than these other forms of detention.[43] And while the justification for pretrial detention in criminal law is typically that the defendant poses a flight risk or a danger to the community, many immigrants detained under the provisions at issue in Jennings have committed no crimes. For those who have, there is no evidence that they present more of a flight risk or a danger than those who are granted bail through the criminal justice system.[44]

Third, explicitly authorizing indefinite detention will almost certainly worsen the problems already existing in the immigration detention system. Where courts may have had some discretion to grant bail hearings before, Jennings now explicitly calls for mandatory detention without the opportunity for bail under these statutory provisions. Before Jennings, the circuit courts were split on whether the Constitution requires a bond hearing after six months,[45] or whether the reasonableness of detention should be decided on a case-by-case basis.[46]After Jennings, the immigration court backlog will undoubtedly continue to increase beyond what the Court appears to have anticipated in its existing decisions. The Supreme Court based its decision in Demore, for instance, on the government’s representation that in the vast majority of cases, removal proceedings are completed in an average of forty-seven days.[47] This estimate was later revealed to be inaccurate[48] and, as discussed above, today’s detainees are likely to be detained far longer.[49]

The Court’s decision in Jennings v. Rodriguez raises serious concerns with respect to immigration detention policy. By holding that there is no statutory right to periodic bond hearings, the Jennings decision sets the precedent that courts should uphold mandatory detention without bail in many immigration cases. The Ninth Circuit should, on remand, find that the relevant statutory provisions do in fact provide noncitizens with a constitutional right to periodic bail hearings. Such a decision would be consistent with the basic procedural rights afforded to all persons within the United States, regardless of their citizenship status. It would also have the potential to remedy the substantial and growing problems posed by prolonged immigration detention.

  1. Jennings v. Rodriguez, 138 S. Ct. 830, 838 (2018). 
  2. Id. 
  3. Rodriguez v. Robbins, 804 F.3d 1060, 1073 (9th Cir. 2015). 
  4. Id. 
  5. See 8 U.S.C. §§ 1226(a), 1226(c), and 1225(b) (2012). 
  6. Id. 
  7. Tara Tidwell Cullen, ICE Released Its Most Comprehensive Immigration Detention Data Yet. It’s Alarming., Nat’l Immigrant Just. Ctr. (Mar. 13, 2018), 
  8. Laurence Benenson, The Math of Immigration Detention, 2018 Update: Costs Continue to Multiply, Nat’l Immigr. F. (May 9, 2018), 
  9. Aaron Reichlin-Melnick, Supreme Court Likely to Decide Constitutionality of Immigration Detention Without Bond, Am. Immigr. Council (Oct. 3, 2017),; see also Julia Preston, Deluged Immigration Courts, Where Cases Stall for Years, Begin to Buckle, N.Y. Times (Dec. 1, 2016), 
  10. U.S. Gov’t Accountability Off., GAO-17-438, Immigration Courts: Actions Needed to Reduce Case Backlog and Address Long-Standing Management and Operational Challenges 22 (2017), 
  11. Id. at 20. 
  12. Id. at 22; see also Rodriguez v. Robbins, 804 F.3d 1060, 1072 (9th Cir. 2015). 
  13. Rodriguez, 804 F.3d at 1072. 
  14. Michael Tan, In America, No One—Including Immigrants—Should Be Locked Up Without Due Process of Law, ACLU (Nov. 28, 2016), 
  15. Am. Civ. Liberties Union, Jennings v. Rodriguez (Feb. 27, 2018), 
  16. See Reichlin-Melnick, supra note 9. 
  17. Zadvydas v. Davis, 533 U.S. 678, 701 (2001). 
  18. Id. at 684–85. 
  19. See Diop v. ICE/Homeland Sec., 656 F.3d 221, 232–33 (3d Cir. 2011); see also Reid v. Donelan, 819 F.3d 486 (1st Cir. 2016); Lora v. Shanahan, 804 F.3d 601 (2d Cir. 2015); Ly v. Hansen, 351 F.3d 263 (6th Cir. 2003). 
  20. See Jennings v. Rodriguez, 138 S. Ct. 830 (2018). 
  21. Id. at 838. 
  22. Id. 
  23. Id. 
  24. Rodriguez v. Robbins, 804 F.3d 1060, 1073 (9th Cir. 2015). 
  25. Id. 
  26. Id. at 838–39. 
  27. Id. 
  28. See Rodriguez v. Holder, No. CV 07-3239, 2013 WL 5229795, at *1 (C.D. Cal. Aug. 6, 2013) (granting a permanent injunction). 
  29. Rodriguez, 804 F.3d at 1074. 
  30. Jennings v. Rodriguez, 138 S. Ct. 830, 842 (2018). 
  31. Jennings v. Rodriguez, 136 S. Ct. 2489 (2016). 
  32. Jennings, 138 S. Ct. at 834. 
  33. Id. at 842–43. 
  34. Id. at 851. 
  35. Id. 
  36. Id. at 862. 
  37. See U.S. Const. amend. V (“No person shall be . . . deprived of life, liberty or property, without due process of law.”). 
  38. Zadvydas v. Davis, 533 U.S. 678, 679 (2001). 
  39. See U.S. Const. amend. VIII. 
  40. Jennings v. Rodriguez, 138 S. Ct. 830, 862 (2018) (Breyer, J., dissenting). 
  41. Id. at 876 (“It is neither technical nor unusually difficult to read the words of these statutes as consistent with this basic right. I would find it far more difficult, indeed, I would find it alarming, to believe that Congress wrote these statutory words in order to put thousands of individuals at risk of lengthy confinement all within the United States but all without hope of bail. I would read the statutory words as consistent with, indeed as requiring protection of, the basic right to seek bail.”). 
  42. Id. at 870. 
  43. Id. at 865 (“[T]he law treats like cases alike. And reason tells us that the civil confinement at issue here and the pretrial criminal confinement that calls for bail are in every relevant sense identical.”). 
  44. Id. at 864. 
  45. See Rodriguez v. Robbins, 804 F.3d 1060, 1090 (9th Cir. 2015); see also Lora v. Shanahan, 804 F.3d 601, 614–15 (2d Cir. 2015). 
  46. See Reid v. Donelan, 819 F.3d 486, 498 (1st Cir. 2016); see also Sopo v. U.S. Att’y Gen., 825 F.3d 1199, 1223 (11th Cir. 2016); Diop v. ICE/Homeland Sec., 656 F.3d 221, 234 (3d Cir. 2015); Ly v. Hansen, 351 F.3d 263, 271 (6th Cir. 2004). 
  47. Demore v. Kim, 538 U.S. 510, 529 (2003). 
  48. Id. at 529-30; Allison M. Cunneen, Demanding Due Process: Time to Amend 8 U.S.C. § 1226(c) and Limit Indefinite Detention of Criminal Immigrants, 83 Brook. L. Rev. 1497, 1514 (2018). 
  49. See U.S Gov’t Accountability Off., supra note 10.