U.S. Supreme Court Says INA Does Not Grant Right to a Bond Hearing for Immigration Detainees

The U.S. Supreme Court recently ruled in Jennings v. Rodriguez that noncitizens, including lawful permanent residents (i.e. “green card” holders), who are detained by immigration officials while their immigration removal proceedings are pending do not have a right to be released on bond.

Summary of the Decision

The question presented in the case was whether the Immigration and Nationality Act (INA), specifically sections 235(b), 236(a), and 236(c) of the INA, require the government to provide individuals in immigration detention with periodic bond hearings to establish that their ongoing detention is still necessary. The Supreme Court held that these sections of the INA do not require the government to grant bond or offer periodic bond hearings to individuals in immigration detention.

The Court did not, however, determine whether the sections of the INA violate the U.S. Constitution. Instead, the Supreme Court sent the case back to the Ninth Circuit Court of Appeals to consider whether these sections of the INA violate the U.S. Constitution, and whether foreign nationals who are detained under these sections of the INA can bring a lawsuit as a class rather than as individuals.

Background on Relevant Sections of the INA

The sections at issue in this case, as stated above, are sections 235(b), 236(a), and 236(c). INA 235(a) allows immigration officials to detain individuals who have arrived in the United States and are applying for asylum.

Under INA 235(b), if an individual demonstrates a credible fear of persecution, the government can detain that individual while the asylum application is being adjudicated. If, however, the person cannot show that there is a credible fear of persecution, the government can then detain that individual while removal proceedings are pending. Section 235(b) states that the individual may be released on bond.

Likewise, INA 236(a) authorizes the government to detain a foreign national in removal proceedings while the proceedings are pending. Again, this section of the statute says that the individual may be released on bond or detained until a decision is reached in the removal proceedings.

Finally, INA § 236(c) mandates the detention of certain foreign nationals who have committed crimes. Under INA § 236(c), the government can only release an individual detained under this section in certain circumstances.

Background of Case

The named plaintiff in the case, Alejandro Rodriguez, is a Mexican national who was granted lawful permanent resident status. In 2004, Mr. Rodriguez was convicted of a drug offense and vehicle theft. Immigration officials detained Mr. Rodriguez while the government initiated removal proceedings against him, finding that Mr. Rodriguez’s criminal convictions made him removable from the U.S.

After an immigration judge ordered Mr. Rodriguez removed, Mr. Rodriguez appealed the decision to the Board of Immigration Appeals (BIA). The BIA affirmed the judge’s decision, and Mr. Rodriguez appealed to a federal district court. By the time Mr. Rodriguez’s removal order was appealed to federal court, Mr. Rodriguez had been detained for more than 3 years, fighting his removal from the U.S., and he never had received a bond hearing.

In 2007, Mr. Rodriguez filed a habeas corpus petition, arguing that his prolonged detention violated the U.S. Constitution and that he was entitled to a bond hearing to determine whether his detention was lawful. Mr. Rodriguez was being detained pursuant to INA 236(b), which authorizes immigration officials to detain individuals with criminal convictions while they are awaiting the completion of their removal proceedings.

Class Action Certified by District Court

Mr. Rodriguez’s case was joined with other immigration detainees who had been detained for more than six months. The district court eventually certified a class action for individuals who were: (1) detained for longer than six months; (2) not being detained for national security reasons; and (3) had not received a bond hearing to determine if their detention was necessary.

Ninth Circuit Ruled INA does not Allow for Detention Without Bond

When the case reached the Ninth Circuit, the lower district court in California had already ruled that, under its interpretation of INA 235(b) and 236(c), the government may only detain a foreign national for a period up to six months. After six months, the government could only continue to detain foreign nationals under INA 236(a), and must allow for periodic bond hearings every six months, during which the government would have to show that its continued detention of the individual was justified. The Ninth Circuit reached this interpretation relying on what is known as the canon of constitutional avoidance. In other words, the Ninth Circuit interpreted the sections of the INA as implicitly placing a six-month limit on the detention of foreign nationals to avoid invoking a constitutional challenge.

Supreme Court Finds Ninth Circuit Reading of the Statutory Language is “Implausible”

On review, the Supreme Court found that the Ninth Circuit’s interpretation of the sections 235(b) and 235(c) INA implicitly placing six-month limits on the detention of foreign nationals was an implausible construction of the statutory language. Instead the Court read the statutory language as allowing for continued detention while a foreign national’s asylum proceeding or removal proceeding is pending. The Court also found that no plausible reading of the statutory language contained an implicit right to periodic bond hearings.

The majority decision determined as well that, because the Ninth Circuit did not address the constitutionality of the sections as written, the Court could not rule on whether the sections of the INA that allow for prolonged detention without the right to a bond hearing violate the U.S. Constitution. As such, the Court sent the case back to the Ninth Circuit to analyze and address this question.


The Supreme Court’s decision in Jennings v. Rodriguez did not determine whether the prolonged detention of foreign nationals in immigration proceedings is constitutional. Therefore, the fight against prolonged detention for certain foreign nationals will continue.


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