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PROFESSOR CORI ALONSO-YODER ANALYZES SUPREME’S JENNINGS V. RODRIGUEZ

https://www.gwlr.org/jennings-v-rodriguez-against-the-backdrop-of-executive-enforcement-and-legislative-inaction-the-court-revisits-the-issue-of-prolonged-immigration-detention

Mar. 5, 2018

Jennings v. Rodriguez, 583 U.S. ___ (2018) (Alito, J.).
Response by Cori Alonso-Yoder
Geo. Wash. L. Rev. On the Docket (Oct. Term 2017)
Slip Opinion | New York Times | SCOTUSblog

Jennings v. Rodriguez: Against the Backdrop of Executive Enforcement and Legislative Inaction, the Court Revisits the Issue of Prolonged Immigration Detention

Today marks President Trump’s deadline to Congress for addressing the question of Deferred Action for Childhood Arrivals, known as DACA. In the months since the Administration announced the end of the DACA program, the debate on immigration reform has expanded from the initial ultimatum to create a legislative alternative to the program, to new issues of restriction on current legal immigration, including the elimination of certain family-based categories and the repeal of the visa lottery system. After months of opportunity to address these questions, congressional efforts to reform immigration appear stalled beyond salvation, in no small part due to a clear lack of direction from the President himself. As a result, DACA seems destined to expire today due to inaction from leaders at the legislative and executive levels.

Onto this backdrop, the Supreme Court handed down its decision in Jennings v. Rodriguez¹ on February 27th. Writing for a five-to-three majority on issues related to immigration detention, Justice Samuel Alito reversed the Ninth Circuit Court of Appeals’ decision granting semiannual bond hearings to certain categories of immigrant detainees. Only Chief Justice Roberts and Justice Kennedy joined the Alito opinion in full, with Justices Gorsuch and Thomas declining to endorse the plurality’s view of a jurisdictional question in the case (for which Justice Thomas authored a concurrence). In the dissent, Justices Sotomayor and Ginsburg signed onto Justice Breyer’s passionate and lengthy opinion arguing for bail provisions to be extended to these detainees.

At issue in Jennings are conditions of detention and related questions of bond eligibility for individuals falling within three statutory categories, all of whom have been detained longer than six months. Lead plaintiff, Alejandro Rodriguez, represents the class as a whole as well as the category of individuals detained under 8 U.S.C. § 1226(c) (individuals who have been convicted of certain crimes or engaged in terrorist activities). The class also includes individuals detained under § 1225(b)(1)(B)(ii) (asylum seekers), and under § 1225(b)(2)(A) (applicants for admission who are not clearly entitled to be admitted, otherwise known as “arriving aliens”).

In its opinion, the Court rejected the Ninth Circuit’s construction of §§ 1225(b), 1226(a), and 1226(c) as requiring a six-month periodic review to save the statutory framework from constitutional nullification. Relying on the Court’s decision in Zadvydas v. Davis² and the canon of constitutional avoidance, the lower court reasoned that a six-month bond review must be interpreted into the relevant provisions in order for the framework to survive constitutional scrutiny under the Fifth Amendment’s Due Process Clause. The Court found this interpretation “implausible,” holding that the clear language of those statutory provisions is susceptible to only one interpretation that does not contemplate a periodic custody review, and that the canon of constitutional avoidance only applies where more than one plausible interpretation of the statute is available.³ The Court also distinguished its decision in Zadvydas by underscoring the ambiguity of the potential length of detention in the statute at issue in that case. By contrast, in Jennings the Court reasons that Congress left no room for similar interpretation in this case, having explicitly provided for conclusion of detention of these individuals only in certain circumstances clearly expressed in the relevant statutes.

The majority proceeds to reverse the Ninth Circuit’s construction of the detention statutes, but declines to reach the Fifth Amendment and Due Process arguments raised by the respondents. Instead, the Court remands the case to the Court of Appeals for further proceedings to consider the constitutional merits of those claims, while simultaneously suggesting that a class action may not be the appropriate vehicle for those individualized claims.

The opinion of the Court is striking because the dissenting justices feel no such compunction to reserve the constitutional questions. In fact, Justice Breyer’s opinion rests almost exclusively on Due Process and, to a lesser extent, Eighth Amendment jurisprudence, spending little time relative to the majority in interpreting the relevant statutory provisions. Instead, Justice Breyer points to numerous factors to argue why the majority’s reading of the detention statutes cannot survive constitutional scrutiny and must be reconstructed to include a bond provision. Among these factors, he notes the sheer number of individuals detained under §§ 1225 and 1226, the increasingly lengthy terms of their detention, and the high likelihood of success on the merits for many within these categories in their claims for immigration relief.

Regarding the number of detainees affected by this decision, the dissent notes that nearly 20,000 individuals, 7500 asylum seekers, and 12,220 noncitizens who have completed terms of confinement for criminal convictions, fall within two of the three categories of detainee considered by the Court. The dissenting opinion also cites the length of detentions at issue, noting that they are now considerably longer than six months, and distinguishing this from the short-term detention of immigrant detainees addressed by the Court in Demore v. Kim.⁴ In concluding that the respondents should have access to a more flexible opportunity to apply for bond, the dissent is also persuaded by statistics showing that nearly two-thirds of the asylum seekers and 40% of those detained following criminal confinement ultimately prevail in applications to remain in the United States.

Also present in the dissent, but not in the opinion of the Court, is limited reference to increased immigration enforcement by the Trump Administration. While the politics of enforcement are not met head on, Justice Breyer’s dissent alludes to current events by citing President Trump’s Executive Order⁵ directing parole of detainees only under certain limited circumstances.⁶

As the lower court is left to address the constitutional questions, the Breyer dissent proves instructive by reaching elements of those arguments that the Court declines to take up in its majority opinion. Among the issues previewed in the dissent that are likely to arise on remand is the Government’s assertion that many of the respondents in Jennings cannot claim the protection of the Fifth Amendment because “the law treats arriving aliens as if they had never entered the United States; hence they are not held within its territory.”⁷ The dissent roundly dismisses this interpretation as “of course, false,”⁸ but the question will become an increasingly important one for the courts to address, especially as Jennings continues its trajectory through the federal appellate courts.

Indeed, the unsettled nature of the Jennings decision foreshadows a future in which the courts are likely to wrestle with increased calls to address these issues of detention and enforcement. For example, 8 U.S.C. § 1357(a)(3) gives Customs and Border Protection Agents broad powers of search and seizure without a warrant to enforce immigration laws within a broad reach of an international border,⁹ generally held to reach within 100 miles of the U.S. interior.

In addition, the Trump Administration has signaled an intent to aggressively enforce the nation’s existing immigration laws, while also expanding the reaches of the law to further restrict legal immigration. Along with Executive Order No. 13,767, cited in the Jennings dissent, the Trump Administration also published Executive Order No. 13,768, “Enhancing Public Safety in the Interior of the United States.”¹⁰ Taken together (and issued the same day within the first week of the new administration), these two Executive Orders enshrined the campaign promises of the new President to act aggressively and expansively to secure the border and enforce immigration law within the interior of the United States.

According to Immigration and Customs Enforcement data, these efforts have proven effective, with immigration officials charting an increase of 42% in administrative arrests.¹¹ Meanwhile, the immigration courts’ backlogs continue to grow, expanding from approximately 212,000 cases at the beginning of fiscal year 2006 with a median wait pending time of 198 days, to approximately 437,000 cases in fiscal year 2015 with a median pending time of 404 days.¹² These numbers reflect a judiciary crippled by backlog and increased enforcement even before the injection of the new administration’s revamped and expanded priorities for enforcement. In the current climate of legislative inaction, it is likely the courts will continue to be the explainers and problem solvers for a system desperately in need of reform. As with questions of immigration reform, the Jennings remand means that we are likely to be revisiting these issues again not long from now.

Ana Corina “Cori” Alonso-Yoder is the Practitioner-in-Residence and Clinical Professor of Law with the Immigrant Justice Clinic at the American University Washington College of Law. Professor Alonso-Yoder’s commentary on immigration law and immigrants’ rights has been featured by ABC News, The Atlantic, Washington Monthly, and The National Law Journal & Legal Times among others.

Jennings v. Rodriguez, No. 15–1204, slip op. (U.S. Feb. 27, 2018).

533 U.S. 678 (2001) (requiring a custody review hearing after six months of detention in order to avoid unconstitutional indefinite detention where an individual cannot be removed from the United States).

Jennings, slip op. at 12–13.

538 U.S. 510, 530 (2003) (noting that the detention at issue in that case “lasts roughly a month and a half”).

Exec. Order No. 13,767, 82 Fed. Reg. 8793 (Jan. 30, 2017).

Jennings, slip op. at 25 (Breyer, J., dissenting).

Id. at 7.

Id.

8 U.S.C. § 1357(a)(3) (2012).

Exec. Order No. 13,768, 82 Fed. Reg. 8799 (Jan. 30, 2017).

Immigration & Customs Enf’t, ICE Impact in FY 2017 (2018), https://www.ice.gov/topics/fy2017.

U.S. Gov’t Accountability Off., GAO-17-438, Actions Needed to Reduce Case Backlog and Address Long-Standing Management and Operational Challenges (2017).

Recommended Citation Cori Alonso-Yoder, Response, Jennings v. Rodriguez:Against the Backdrop of Executive Enforcement and Legislative Inaction, the Court Revisits the Issue of Prolonged Immigration Detention, Geo. Wash. L. Rev. On the Docket (Mar. 5, 2018), https://www.gwlr.org/jennings-v-rodriguez-against-the-backdrop-of-executive-enforcement-and-legislative-inaction-the-court-revisits-the-issue-of-prolonged-immigration-detention.

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Thanks for a great article, Cori!

Here are links to previous posts on Jennings:

https://wp.me/p8eeJm-2e8

https://wp.me/p8eeJm-2cL

https://wp.me/p8eeJm-1wI

The third of these posts illustrates how Constitutionally required bond hearings change and save lives and how the majority’s short-shrifting of Constitutional Due Process could actually cost lives.

PWS

03-07-18

JUSTICE BREYER IS RIGHTFULLY CONCERNED ABOUT THE “DREDSCOTTIFICATION’” OF IMMIGRANTS AS SHOWN IN THE LEGALLY & MORALLY BANKRUPT VIEWS OF THE MAJORITY IN JENNINGS V. RODRIGUEZ!

https://slate.com/news-and-politics/2018/03/justice-alito-just-signaled-the-supreme-courts-conservatives-might-not-consider-immigrants-to-be-people.html

Mark Joseph Stern reports for Slate:

“Tuesday’s Supreme Court decision in Jennings v. Rodriguez was widely viewed as an anticlimax. The case involves a group of immigrants being held in custody without any hope of bail. They argue that their indefinite detention violates due process, but the majority declined to resolve the constitutional question, sending the case back down to the lower court. In a sense, the plaintiffs are back where they started.

Justice Stephen Breyer, however, saw something far more chilling in the majority’s opinion. Taking the rare and dramatic step of reading his dissent from the bench, Breyer cautioned that the court’s conservative majority may be willing to strip immigrants of personhood in a manner that harkens back to Dred Scott. The justice used his impassioned dissent to sound an alarm. We ignore him at our own peril.

Jennings involves three groups of noncitizen plaintiffs: asylum-seekers, immigrants who have committed crimes but finished serving their sentences, and immigrants who believe they’re entitled to enter the country for reasons unrelated to persecution. A high percentage of these types of immigrants ultimately win the right to enter the U.S. But federal law authorizes the government to detain them while it adjudicates their claims in case it secures the authority to deport them instead.

The detention of these immigrants—often in brutal facilities that impose inhuman punishments—has, in practice, dragged on for months, even years. There is no clear recourse for detained immigrants who remain locked up without a hearing. In 2001’s Zadvydas v. Davis, the court found that a similar scheme applied to “deportable aliens” would almost certainly violate the Fifth Amendment’s Due Process Clause. To avoid this constitutional problem, the court construed the law as limiting detention to six months.

But in Jennings, the court’s five-member conservative majority interpreted another federal law to permit indefinite detention of thousands of aliens, with no apparent concern for the constitutional problems that reading creates. Justice Samuel Alito, writing for the majority, revealed from the outset of his opinion that he dislikes Zadvydas, dismissing it as a “notably generous” holding that avoided the constitutional issue in order to secure due process for immigrants. Unlike the Zadvydas court, Alito has no interest in protecting the constitutional rights of noncitizens. Instead, he read the current statute as stingily as possible, concluding that it did, indeed, allow the government to detain all three groups of immigrants indefinitely.

Oddly, Alito then chose not to address whether this interpretation of the statute rendered it unconstitutional. Instead, he sent the case back down to the lower courts to re-examine the due process question. But in the process, the justice telegraphed where he stands on the issue by attempting to sabotage the plaintiffs on their way out the door. In the lower courts, this case proceeded as a class action, allowing the plaintiffs to fight for the rights of every other similarly situated immigrant. The government didn’t ask the Supreme Court to review whether it was proper for it to litigate the plaintiffs’ claims as a class. But Alito did it anyway, strongly suggesting that the lower court should dissolve the class and force every plaintiff to litigate his case by himself.

Alito’s antics infuriated Breyer, who dissented along with Justices Ruth Bader Ginsburg and Sonia Sotomayor. (Justice Elena Kagan recused, presumably because she worked on the case as solicitor general.) Using Zadvydas as a jumping-off point, he interpreted the statute to require a bail hearing for immigrants after six months’ confinement—provided they pose no risk of flight or danger to the community. “The Due Process Clause foresees eligibility for bail as part of ‘due process,’ ” Breyer explained. By its own terms, that clause applies to every “person” in the country. Thus, the Constitution only permits the government to detain these immigrants without bail if they are not considered “persons” within the United States.

That is essentially what the government argued, asserting that immigrants detained at the border have no rights. This theory justifiably fills Breyer with righteous disgust. “We cannot here engage in this legal fiction,” he wrote. “No one can claim, nor since the time of slavery has anyone to my knowledge successfully claimed, that persons held within the United States are totally without constitutional protection.” Breyer continued:

Whatever the fiction, would the Constitution leave the government free to starve, beat, or lash those held within our boundaries? If not, then, whatever the fiction, how can the Constitution authorize the government to imprison arbitrarily those who, whatever we might pretend, are in reality right here in the United States? The answer is that the Constitution does not authorize arbitrary detention. And the reason that is so is simple: Freedom from arbitrary detention is as ancient and important a right as any found within the Constitution’s boundaries.

Unfortunately, Breyer is not quite right that “no one” could claim, at least since “the time of slavery,” that noncitizens held in the U.S. “are totally without constitutional protection.” Just last October, Judge Karen L. Henderson of the U.S. Court of Appeals for the District of Columbia Circuit argued exactly that. In a stunning dissent, Henderson wrote that a pregnant, undocumented minor held in custody was “not entitled to the due process protections of the Fifth Amendment” because “[she] has never entered the United States as a matter of law … ” (The Due Process Clause protects women’s rights to abortion access.) In fact, the minor had entered the country and lived here for several months. But because she entered illegally, Henderson asserted that she had no constitutional rights. That’s precisely the “legal fiction” that Breyer rejected. It’s shockingly similar to the theory used to justify slavery and Dred Scott.

Do the Supreme Court’s conservatives agree with Henderson that undocumented immigrants detained in the U.S. have no constitutional protections? Breyer seems to fear that they do. In a striking peroration, Breyer reminded his colleagues that “at heart,” the issues before them “are simple”:

We need only recall the words of the Declaration of Independence, in particular its insistence that all men and women have “certain unalienable Rights,” and that among them is the right to “Liberty.” We need merely remember that the Constitution’s Due Process Clause protects each person’s liberty from arbitrary deprivation. And we need just keep in mind the fact that … liberty has included the right of a confined person to seek release on bail. It is neither technical nor unusually difficult to read the words of these statutes as consistent with this basic right.

We should all be concerned that Breyer found it necessary to explain these first principles to the court. So many rights flow from the Due Process Clause’s liberty component: not just the right to be free from arbitrary detention and degrading treatment, but also the right to bodily integrity and to equal dignity. Should the court rule that undocumented immigrants lack these basic liberties, what’s to stop the government from torturing them, executing them, or keeping them imprisoned forever?

If that sounds dramatic, consider Breyer’s somber warning about possible starvation, beatings, and lashings. The justice plainly recognizes that, with Jennings, the court may have already taken a step down this dark and dangerous path.”

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As an appellate judge, I remember being infuriated by the callous attitude of some of my “Ivory Tower” colleagues and some trial judges who tended to minimize and sometimes trivialize human pain and suffering to arrive at nonsensical legalistic definitions of what constituted “persecution” or “torture.”

They simply didn’t want to recognize truth, because it would have resulted in more people being granted relief. In frustration, I occasionally privately suggested to staff that perhaps we needed an “interactive session” at the Annual Immigration Judges Conference (back in the days when we used to have such things) where those jurists who were immune to others’ pain and suffering would be locked in a room and subjected to some of the same treatment themselves. I imagine they would have been less stoic if it were happening to them rather than to someone else.

I doubt that any of the five Justices who joined the tone-deaf majority in Jennings would last more than a few days, not to mention years, in the kind of intentionally cruel, substandard, and deplorable conditions in which individuals, the majority of whom have valid claims to remain here under U.S. and international law, are detained in the “New American Gulag.” So, why is there no obvious Constitutional Due Process problem with subjecting individuals to so-called “civil” immigration detention, without recourse, under conditions that no human being, judge or not, should be forced to endure?

No, “Tone-Deaf Five,” folks fighting for their lives in immigration detention, many of whom lack basic legal representation that others take for granted, don’t have time to bring so-called “Bivens actions” (which the Court has pretty much judicially eliminated anyway) for “so-called “Constitutional torts!” Come on man, get serious!

Privileged jurists like Alito and Thomas speak in undecipherable legal trivialities and “pretzel themselves up” to help out corporate entities and other members of the privileged classes, yet have no time for clear violations of the Constitutional rights of the most vulnerable among us.

A much wiser, more humble, and less arrogant “judge” than Justice Alito and friends once said “Most certainly I tell you, inasmuch as you did it to one of the least of these my brothers, you did it to me.” When will the arrogant ever learn, when will they ever learn? Maybe not until it happens to them! Harm to the most vulnerable among us is harm to all of us! We should all be concerned that Justice Alito and his fellow judicial “corporate elitists” have “dissed” the Due Process Clause of our Constitution which protects everyone in America, not just corporations, gun owners, and over-privileged, under-humanized jurists!

Based upon recent statistics, approximately one person per month will die in the “DHS New American Gulag” while this case is “on remand” to the lower courts. How would Alito, Roberts, Thomas, Kennedy, and Gorsuch feel if it were their loved ones who perished, rather than some faceless (to them) “alien” (who also happens to be a human being)? Dehumanizing the least among us, like the Dred Scott decision did, de-humanizes all of us! For that, there is no defense at the bar of history and humanity.

PWS

03-01-18

SPLINTERED SUPREMES PROVISIONALLY OK “NEW AMERICAN GULAG” — Trump/Sessions Successfully Fight To Preserve Obama Legacy Of Never-Ending “Civil” Immigration Detention — Case Remanded To Lower Court, But Alito & Fellow GOP Justices Show Scant Concern For Human (Non-Economic) Rights & Freedom Under Constitution!

Jennings v. Rodriguez, O2-27-18

MAJORITY: Chief Justice Roberts, Justices Kennedy, Thomas, Alito, Gorsuch

CONCURRING OPINION: Justice Thomas, joined by Justice Gorsuch

DISSENTING OPINION: Justice Breyer, joined by Justices Ginsburg, Sotomayor

NOT PARTICIPATING: Justice Kagan

HERE’S A COPY OF THE COURT’S FULL DECISION:

15-1204_f29g

ANALYSIS BY ERIC LEVITZ @ NEW YORK MAGAZINE:

“For much of his presidency, Donald Trump has appeared more committed to nullifying his predecessor’s legacy than to any affirmative political principle. The president campaigned on a promise to repeal Obamacare and expand access to affordable health insurance — but when these goals came into conflict, he opted for the former. Trump argued vociferously that rogue regimes must be blocked from acquiring nuclear weapons — then “decertified” an Obama-era nuclear agreement that did just that. He claimed to believe in regulatory policies that protect “clean air and clean water,” then rolled back Obama-era rules aimed at that objective. Trump praised Janet Yellen’s economic management — but still took the precedent-defying step of refusing to grant the Obama-appointed Federal Reserve chair a second term.

Nevertheless, for all his policy nihilism, the president can still occasionally put substance over spite, and admit that on this or that specific issue, Barack Obama actually had a point. Thus, on Tuesday the Trump administration celebrated the preservation of one piece of Obama’s legacy.

In 2014, a federal district court ruled that immigrants detained while awaiting deportation proceedings were entitled to periodic bond hearings. The lead plaintiff in the case was a legal permanent resident of the United States, Alejandro Rodriguez, who was arrested as a teenager for joyriding and misdemeanor drug possession – and then jailed for three years, without ever receiving a bond hearing, as his lawyers (successfully) contested his deportation. The federal judge ruled that Rodriguez had a legal right to request to await trial outside of a detention facility. The Obama administration disagreed, arguing that the federal government has the authority to decide whether any individual immigrant should be afforded that right – or whether he or she is simply too dangerous for such due process – even if the person in question is a legal permanent resident or asylum-seeker.

Upon his election, Trump set aside his differences with Obama, and continued his predecessor’s appeal. Even when the Ninth Circuit upheld the lower court’s ruling, Jeff Sessions & Co. persisted in their defense of the Obama Justice Department’s position.

And on Tuesday, the Supreme Court’s conservative majority sided with the government in a narrow ruling: The justices did not rule that detained immigrants have no right to bond hearings under the Constitution; rather, they merely ruled that immigrants had no such rights under federal immigration law. As the New York Times explains:

The Ninth Circuit had ruled that bond hearings are required after six months to determine whether detainees who do not pose flight risks or a danger to public safety may be released while their cases proceed. The court based its ruling on an interpretation of the federal immigration laws, not the Constitution, though it said its reading was required to avoid constitutional difficulties.

Justice Samuel A. Alito Jr., writing for the majority on Tuesday, said that this interpretive approach, called “constitutional avoidance,” was unavailable here, as the words of the immigration laws were plain. “The meaning of the relevant statutory provisions is clear — and clearly contrary to the decision of the court of appeals,” Justice Alito wrote.
This ruling will send the case back to the Ninth Circuit, which will have the opportunity to assess whether the Constitution requires bond hearings for detained immigrants.

Three of the court’s liberals opposed the decision, while Elena Kagan recused herself (due to relevant work she had performed as Obama’s solicitor general). In an impassioned dissent, Justice Stephen Breyer insisted that the court should have reached a determination on the underlying Constitutional question – and ruled that all human beings in the United States are entitled to our founding document’s basic protections.

“[W]ould the Constitution leave the Government free to starve, beat, or lash those held within our boundaries?” the Justice asked. “If not, then, whatever the [legal] fiction, how can the Constitution authorize the Government to imprison arbitrarily those who, whatever we might pretend, are in reality right here in the United States?”

“We need only recall the words of the Declaration of Independence, in particular its insistence that all men and women have ‘certain unalienable Rights,’ and that among them is the right to ‘Liberty,’” Breyer wrote.

But thanks to the bipartisan efforts of the patriots in our Justice Department, the Trump administration will remain free, for the moment, to indefinitely imprison any legal immigrants and asylum-seekers it wishes to deport.

And Trump wishes to deport quite a few — although he’ll need to get much more aggressive on that front, if he wishes to preserve the pace of deportations set by his predecessor.

But, as Tuesday’s ruling demonstrated, with enough will and bipartisan cooperation, there’s little the American government cannot do.”

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HERE’S WHAT JUSTICE ALITO, JUSTICE THOMAS & THEIR BUDDIES REALLY ARE SAYING BEYOND THE LEGAL GOBBLEDYGOOK:

The plaintiffs are neither corporations nor guns. They are mere human beings. Therefore, they are entitled to no Constitutional protections that we care to enforce.

FROM JUSTICE BREYER’S DISSENT:

The relevant constitutional language, purposes, history, traditions, context, and case law, taken together, make it likely that, where confinement of the noncitizens before us is prolonged (presumptively longer than six months), bail proceedings are constitutionally required. Given this serious constitutional problem, I would interpret the statutory provisions before us as authorizing bail. Their language permits that reading, it furthers their basic purposes, and it is consistent with the history, tradition, and constitutional values associated with bail proceedings. I believe that those bail proceedings should take place in accordance with customary rules of procedure and burdens of proof rather than the special rules that the Ninth Cir cuit imposed.

The bail questions before us are technical but at heart they are simple. We need only recall the words of the Declaration of Independence, in particular its insistence that all men and women have “certain unalienable Rights,” and that among them is the right to “Liberty.” We need merely remember that the Constitution’s Due Process Clause protects each person’s liberty from arbi trary deprivation. And we need just keep in mind the fact that, since Blackstone’s time and long before, liberty has included the right of a confined person to seek release on bail. 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.
Because the majority does not do so, with respect, I dissent.

ONE POINT THAT ALL EIGHT JUSTICES AGREED ON:

The 9th Circuit was without authority to rewrite the statute to require bond hearings at 6 month intervals with the DHS bearing the burden of proof on continuing detention.

PWS

02-27-18

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