U.S. Supreme Court

Chemerinsky: Decision in SCOTUS immigration case could hinge on government's admission of error

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Erwin Chemerinsky

Erwin Chemerinsky.

What is the effect of the solicitor general telling the Supreme Court that in a prior related case, the government provided false, crucial information? That is an underlying question in Jennings v. Rodriguez, which will be heard by the court on Wednesday. The issue in Jennings is whether due process requires that a person held in prolonged custody awaiting removal from the country be provided an individualized custody hearing where the government has to demonstrate that the individual poses a threat to safety or is a flight risk.

The case is a class action suit brought by individuals who were incarcerated for a prolonged period of time—at least for six months and in many cases for years—while they defended against removal charges. For example, the named plaintiff, Alejandro Rodriguez, was a long-time lawful permanent resident who came to the United States as an infant. He was employed as a dental assistant when the Department of Homeland Security placed him in a removal proceeding based on prior convictions for joyriding and for possessing a controlled substance. Rodriguez was detained for three years while contesting his removal. He was suddenly released when he moved for class certification in this case.

The lower courts found that hundreds of class members were detained every day within the Central District of California. Their average detention was over 13 months. More than 20 percent were incarcerated for more than 18 months, and nearly 10 percent for more than two years. The San Francisco-based 9th U.S. Circuit Court of Appeals, affirming the district court, held that immigration judges must provide a bond hearing to a class member at least every six months, and that a noncitizen must be released from detention unless the government can establish by clear and convincing evidence that the individual is a flight risk or a danger to public safety.

The Supreme Court last addressed the issue of due process for those facing removal in Demore v. Kim (2003). The court held that brief detention of individuals facing deportation did not require an individualized determination of dangerousness or of being a flight risk. Chief Justice William Rehnquist wrote the opinion for the court in a 5-4 decision and held “that Congress, justifiably concerned that deportable criminal aliens who are not detained continue to engage in crime and fail to appear for their removal hearings in large numbers, may require that persons such as respondent be detained for the brief period necessary for their removal proceedings.”

The court stressed that such detentions are “brief” and that “the detention at stake … lasts roughly a month and a half in the vast majority of cases in which it is invoked, and about five months in the minority of cases in which the alien chooses to appeal.”

The court based this conclusion on statistics provided by the federal government. But in August 2016, Acting Solicitor General Ian Heath Gershengorn filed a letter (PDF) with the court admitting that the statistics it provided in Demore v. Kim were seriously inaccurate. The letter began by declaring that it was “submitted in order to correct and clarify statements the government made in its submissions in Demore v. Kim.” The new data provided by the government put the average detention period at more than a year, or more than three times the four-month estimate that the Supreme Court relied on in its decision. The acting solicitor general’s letter said that “Demore is relevant to Jennings v. Rodriguez.”

Demore v. Kim upheld only brief detentions without due process and thus does not resolve the issue of whether prolonged detentions require due process. Also, the government’s admission that it provided inaccurate information to the court may further undermine that precedent.

The plaintiffs rely heavily on the Supreme Court’s decision in Zadvydas v. Davis (2001), which interpreted federal statutes to limit detention pending removal to a reasonable period of time. The high court said that the detention statute, read in light of the Constitution’s requirements, implicitly limits an alien’s detention to a period reasonably necessary to bring about that alien’s removal from the United States, and does not permit indefinite detention. The court explained that a “statute permitting indefinite detention of an alien would raise a serious constitutional problem” and that laws must be interpreted, where possible, to avoid constitutional doubts.

Justice Stephen G. Breyer, writing for the court in a 5-4 decision, declared in Zadvydas that “[f]reedom from imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty that clause protects.”

Thus the plaintiffs in Jennings v. Rodriguez argue that federal immigration statutes should be interpreted to require due process—and an individualized determination of danger or of a flight risk—before a person is subjected to prolonged detention pending removal.

The United States, by contrast, urges the court to defer to the government in a matter related to immigration. The government, in its brief, stated: “Some may believe that the 9th Circuit’s vision of immigration detention is wiser or more humane, while others would disagree. But Congress weighed the interests in controlling the border, protecting the public from criminal aliens, affording individual aliens adequate protections and opportunities for relief and review, and minimizing the adverse foreign-relations impact of U.S. immigration law. The canon of constitutional avoidance is not a tool for courts to comprehensively rewrite those laws and strike a different balance.”

The government also argued that habeas corpus review in individual cases satisfies any constitutional concerns stemming from prolonged detention.

Of the nine justices on the court that decided Demore v. Kim, only four remain: Justices Anthony Kennedy and Clarence Thomas, who ruled with the majority, and Justices Ruth Bader Ginsburg and Breyer, who were part of the dissent. Because the latter felt that even brief detention required due process, it seems very likely that they would conclude that prolonged detention also demands this. It is easy to imagine the court splitting 4-4, which would affirm the 9th Circuit. Or if this happens, the court might have the case reargued when there is a ninth justice. Perhaps, though, one or more of the four more conservative justices might conclude that prolonged detention pending removal requires some form of due process.

The case comes before the court at a time of even greater focus on immigration issues, and with a president-elect who has promised to increase deportations. That makes the issues presented in Jennings v. Rodriguez all the more important.

Erwin Chemerinsky is Dean and Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law at the University of California, Irvine School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s the author of seven books, including The Case Against the Supreme Court (Viking, 2014).

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