supreme courtThe US Supreme Court on October 3, 2017 will hear oral arguments for the second time in an important immigration case, Jennings v. Rodriguez.  The Court was unable to reach a decision the first time around, apparently because it divided 4-4 on how to resolve the case.  A key issue in the case is which constitutional body—Congress or the federal courts—gets to make policy governing the treatment of aliens convicted of serious crimes.

An unbroken line of Supreme Court precedent (including 1976’s Mathews v. Diaz) provides a ready answer to that question: immigration policy is “so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference.”  Congress determined that aliens convicted of serious crimes should be deported and should be detained pending final removal; courts should not be second-guessing that determination.

Stalled Efforts to Remove Criminal Aliens

For most of our Nation’s history, federal law has provided for the removal of aliens convicted of serious crimes, but it granted the Executive Branch discretion to waive deportation in exceptional cases.  Congress eventually concluded that the system was ineffective in ensuring removal of criminal aliens.  Large numbers of convicted criminals claimed that theirs were exceptional cases.  Moreover, when they were released from detention while their appeals were pending, more often than not they absconded rather than report for deportation following rejection of their appeals.

To ensure that criminal aliens were in fact removed from the country, Congress tightened the law in 1996.  First, it mandated that no exceptions from deportation were permitted for those convicted of particularly serious felonies.  More significantly, it adopted a statute (8 U.S.C. § 1226(c)) that requires an alien convicted of virtually any felony to be detained pending completion of removal proceedings, even if he is entitled to apply for a waiver of removal.  Several alien felons challenged the new law, but the Supreme Court upheld its constitutionality in 2003 by a 5-4 vote in Demore v. Kim.

Ninth Circuit Intransigence

Some lower federal courts—particularly the U.S. Court of Appeals for the Ninth Circuit—have never fully accepted the Demore decision and have repeatedly sought ways to avoid application of  § 1226(c)’s mandatory detention provision.  In Jennings, the Ninth Circuit held: (1) Demore only applies to detention lasting six months or less; (2) § 1226(c) would violate aliens’ rights under the Due Process Clause if it were interpreted as prohibiting any possibility of release throughout the sometimes-lengthy appeal process; and (3) applying the “constitutional avoidance” doctrine to the statutory interpretation question, § 1226(c) should be interpreted as containing exceptions.

That is, it should be understood to mandate release of an alien whose removal proceedings have lasted more than six months, unless immigration officials can demonstrate by “clear and convincing evidence” that the detainee is either a flight risk or a danger to the community.

The Ninth Circuit’s decision can reasonably be viewed as an act of open defiance of both Congress and the Supreme Court.  Nothing in Demore suggests that the Court upheld § 1226(c)’s constitutionality only in the context of detentions lasting six months or less.  Indeed, the criminal alien whose detention Demore upheld had already been detained more than six months by the time his case reached the Supreme Court, and the Court said nothing to suggest that it based its due-process analysis on the length of his detention.

Moreover, the Ninth Circuit conjured its bond-hearing requirement out of whole cloth; it did not even pretend that the requirement could be derived from any language appearing in the immigration laws.  The constitutional-avoidance doctrine can sometimes be applied when construing the meaning of an ambiguous statute, for the purpose of avoiding a difficult constitutional issue.  But the doctrine is inapplicable when, as here, there is nothing ambiguous about Congress’s intent.

Supreme Court—Take One

In the spring of 2016, the Supreme Court granted the Obama Administration’s request that it review the Ninth Circuit’s decision.  At the November 2016 oral argument, it quickly became apparent that many of the justices were skeptical of the Ninth Circuit’s interpretation of § 1226(c).  Soon thereafter, the Court ordered the parties to file a new round of briefing directed solely at whether § 1226(c) would violate due process of law if it were interpreted as prohibiting all release of alien felons while they appealed removal orders.

The second round of briefing occurred in February 2016.  Washington Legal Foundation filed a brief during the second round, on behalf of 31 Members of Congress, urging the Court to reject the plaintiffs’ constitutional challenge.  The Court was unable to reach a decision by the end of its term in June, so it set the case down for re-argument in October.  Newly appointed Justice Neil Gorsuch will be able to participate in the case this time around, thereby substantially reducing the possibility of another tie vote.

The Court Is Likely to Reverse the Ninth Circuit

Unless the Court is willing to reconsider its 2003 Demore decision, there is little likelihood that it will uphold the Ninth Circuit’s decision.  The Ninth Circuit’s idiosyncratic interpretation of the immigration laws (which read a bond-hearing requirement into § 1226(c)) lacks any support in the statutory language.  Moreover, Demore rejected a constitutional challenge to the statute under circumstances substantially similar to those in Jennings.

Those challenging mandatory detention argue that they ought to be granted a hearing to determine whether they would pose a flight risk or threaten public safety if released on bond while they appeal their removal orders.  But Congress examined that issue and determined that the former system of bond hearings was not working.  Evidence before Congress indicated that when alien felons were released on bond: (1) 77% of them were arrested at least once more, and 45% were arrested multiple times; and (2) a significant percentage of released aliens never appeared at their deportation hearings and remained at large illegally.

Congress determined that it simply was not possible at a bond hearing to predict accurately which alien felons, if released on bond, would not abscond and would not repeat their criminal behavior.  Congress reasonably determined that the only way of ensuring that alien felons will be deported is to keep them in custody until completion of the appeals process.

The challengers are correct that the appeals process can sometimes last for several years.  That delay, however, is almost entirely due to appeals by aliens from adverse decisions by Immigration Judges (IJ).  The initial phase of proceedings (from the commencement of removal proceedings until an IJ determines whether the criminal alien should be deported) usually lasts only a matter of weeks, and never more than six months.

Immigration proceedings will continue past the date of the IJ’s decision only if the alien loses and decides to appeal from that decision.  The choice to pursue an appeal may result in continued detention, but the Constitution has never been understood to protect individuals from having to make such choices.

Criminal Aliens Hold the Keys to Their Cells

Moreover, in a very significant sense, criminal aliens detained under § 1226(c) hold the keys to unlock their own jail cells.  The federal government has no desire to retain custody of removable aliens; its only purposes in taking custody are to promote public safety within the country and to ensure a means of effecting removal.  A criminal alien can regain his liberty instantly by agreeing to return to his native country.

Further, choosing that liberty option does not require the alien to abandon hope of living in the United States; immigration law permits an alien to continue to litigate his immigration appeal from abroad—and then return to the United States if he ultimately prevails in court.

Finally, everyone in immigration detention is entitled to a bond hearing at which he can contest the legal basis of his detention.  For example, detainees can assert at the bond hearing that they were never convicted of a felony, or that they are actually U.S. citizens.  All they are denied is the right to insist that they do not represent a flight risk or a threat to public safety, but Congress has determined that those individualized factors are not relevant to whether a criminal alien should be detained pending completion of appeals.

The plaintiffs ask the Court to overrule that determination on the basis of constitutional rights supposedly possessed by criminal aliens.  But, as an unbroken line of Supreme Court cases has determined, that determination is for Congress to make, not the courts.

Also published by at WLF’s contributor page.