Jennings v. Rodriguez

(Slip Opinion) OCTOBER TERM, 2017 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
JENNINGS ET AL. v. RODRIGUEZ ET AL., INDIVIDUALLY
AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 15–1204. Argued November 30, 2016—Reargued October 3,
2017—Decided February 27, 2018
Immigration officials are authorized to detain certain aliens in the
course of immigration proceedings while they determine whether
those aliens may be lawfully present in the country. For example,
§1225(b) of Title 8 of the U. S. Code authorizes the detention of cer-
tain aliens seeking to enter the country. Section 1225(b)(1) applies to
aliens initially determined to be inadmissible due to fraud, misrepre-
sentation, or lack of valid documentation, and to certain other aliens
designated by the Attorney General in his discretion. Section
1225(b)(2) is a catchall provision that applies to most other appli-
cants for admission not covered by §1225(b)(1). Under §1225(b)(1),
aliens are normally ordered removed “without further hearing or re-
view,” §1225(b)(1)(A)(i), but an alien indicating either an intention to
apply for asylum or a credible fear of persecution, §1225(b)(1)(A)(ii),
“shall be detained” while that alien’s asylum application is pending,
§1225(b)(1)(B)(ii). Aliens covered by §1225(b)(2) in turn “shall be de-
tained for a [removal] proceeding” if an immigration officer “deter-
mines that [they are] not clearly and beyond a doubt entitled” to ad-
mission. §1225(b)(2)(A).
The Government is also authorized to detain certain aliens already
in the country. Section 1226(a)’s default rule permits the Attorney
General to issue warrants for the arrest and detention of these aliens
pending the outcome of their removal proceedings. The Attorney
General “may release” these aliens on bond, “[e]xcept as provided in
subsection (c) of this section.” Section 1226(c) in turn states that the
Attorney General “shall take into custody any alien” who falls into
one of the enumerated categories involving criminal offenses and ter-
2 JENNINGS v. RODRIGUEZ
Syllabus
rorist activities, §1226(c)(1), and specifies that the Attorney General
“may release” one of those aliens “only if the Attorney General de-
cides” both that doing so is necessary for witness-protection purposes
and that the alien will not pose a danger or flight risk, §1226(c)(2).
After a 2004 conviction, respondent Alejandro Rodriguez, a Mexi-
can citizen and a lawful permanent resident of the United States,
was detained pursuant to §1226 while the Government sought to re-
move him. In May 2007, while still litigating his removal, Rodriguez
filed a habeas petition, claiming that he was entitled to a bond hear-
ing to determine whether his continued detention was justified. As
relevant here, he and the class of aliens he represents allege that
§§1225(b), 1226(a), and 1226(c) do not authorize “prolonged” deten-
tion in the absence of an individualized bond hearing at which the
Government proves by clear and convincing evidence that detention
remains justified. The District Court entered a permanent injunc-
tion, and the Ninth Circuit affirmed. Relying on the canon of consti-
tutional avoidance, the Ninth Circuit construed §§1225(b) and
1226(c) as imposing an implicit 6-month time limit on an alien’s de-
tention under those sections. After that point, the court held, the
Government may continue to detain the alien only under the authority
of §1226(a). The court then construed §1226(a) to mean that an alien
must be given a bond hearing every six months and that detention
beyond the initial 6-month period is permitted only if the Govern-
ment proves by clear and convincing evidence that further detention
is justified.
Held: The judgment is reversed, and the case is remanded.
804 F.3d 1060, reversed and remanded.
JUSTICE ALITO delivered the opinion of the Court, except as to Part
II, concluding that §§1225(b), 1226(a), and 1226(c) do not give de-
tained aliens the right to periodic bond hearings during the course of
their detention. The Ninth Circuit misapplied the canon of constitu-
tional avoidance in holding otherwise. Pp. 12–31.
(a) The canon of constitutional avoidance “comes into play only
when, after the application of ordinary textual analysis, the statute is
found to be susceptible of more than one [plausible] construction.”
Clark v. Martinez, 543 U.S. 371, 385. The Ninth Circuit’s interpre-
tations of the provisions at issue, however, are implausible. Pp. 12–
13.
(b) Read most naturally, §§1225(b)(1) and (b)(2) mandate detention
of applicants for admission until certain proceedings have concluded.
Until that point, nothing in the statutory text imposes a limit on the
length of detention, and neither provision says anything about bond
hearings. Pp. 13–19.
(1) Nothing in the text of §1225(b)(1) or §1225(b)(2) hints that
Cite as: 583 U. S. ____ (2018) 3
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those provisions have an implicit 6-month time limit on the length of
detention. Respondents must show that this is a plausible reading in
order to prevail under the canon of constitutional avoidance, but they
simply invoke the canon without making any attempt to defend their
reading.
The Ninth Circuit also all but ignored the statutory text, relying
instead on Zadvydas v. Davis, 533 U.S. 678, as authority for grafting
a time limit onto §1225(b)’s text. There, this Court invoked the
constitutional-avoidance canon, construing §1231(a)(6)—which pro-
vides than an alien subject to a removal order “may be detained” be-
yond the section’s 90-day removal period—to mean that the alien
may not be detained beyond “a period reasonably necessary to secure
removal,” id., at 699, presumptively six months, id., at 701. The
Court detected ambiguity in the statutory phrase “may be detained”
and noted the absence of any explicit statutory limit on the length of
permissible detention following the entry of an order of removal.
Several material differences distinguish the provisions at issue in
this case from Zadvydas’s interpretation of §1231(a)(6). To start, the
provisions here, unlike §1231(a)(6), mandate detention for a specified
period of time: until immigration officers have finished “consid-
er[ing]” the asylum application, §1225(b)(1)(B)(ii), or until removal
proceedings have concluded, §1225(b)(2)(A). Section 1231(a)(6) also
uses the ambiguous “may,” while §§1225(b)(1) and (b)(2) use the une-
quivocal mandate “shall be detained.” There is also a specific provi-
sion authorizing temporary parole from §1225(b) detention “for ur-
gent humanitarian reasons or significant public benefit,”
§1182(d)(5)(A), but no similar release provision applies to §1231(a)(6).
That express exception implies that there are no other circumstances
under which aliens detained under §1225(b) may be released.
Pp. 14–17.
(2) Respondents also claim that the term “for” in §§1225(b)(1)
and (b)(2) mandates detention only until the start of applicable pro-
ceedings. That is inconsistent with the meanings of “for”—“[d]uring
[or] throughout,” 6 Oxford English Dictionary 26, and “with the object
or purpose of,” id., at 23—that make sense in the context of the statu-
tory scheme as a whole. Nor does respondents’ reading align with the
historical use of “for” in §1225. Pp. 17–19.
(c) Section 1226(c)’s language is even clearer. By allowing aliens to
be released “only if ” the Attorney General decides that certain condi-
tions are met, that provision reinforces the conclusion that aliens de-
tained under its authority are not entitled to be released under any
circumstances other than those expressly recognized by the statute.
Together with §1226(a), §1226(c) makes clear that detention of aliens
within its scope must continue “pending a decision” on removal. Sec-
4 JENNINGS v. RODRIGUEZ
Syllabus
tion 1226(c) is thus not silent as to the length of detention. See
Demore v. Kim, 538 U.S. 510, 529. The provision, by expressly stat-
ing that covered aliens may be released “only if ” certain conditions
are met, also unequivocally imposes an affirmative prohibition on re-
leasing them under any other conditions. Finally, because §1226(c)
and the PATRIOT Act apply to different categories of aliens in differ-
ent ways, adopting §1226(c)’s plain meaning will not make any part
of the PATRIOT Act, see §1226a(a)(3), superfluous. Pp. 19–22.
(d) Nothing in §1226(a), which authorizes the Attorney General to
arrest and detain an alien “pending a decision” on removal and which
permits the Attorney General to release the alien on bond, supports
the imposition of periodic bond hearings every six months in which
the Attorney General must prove by clear and convincing evidence
that continued detention is necessary. Nor does it hint that the
length of detention prior to the bond hearing must be considered in
determining whether an alien should be released. Pp. 22–23.
(e) The Ninth Circuit should consider the merits of respondents’
constitutional arguments in the first instance. But before doing so, it
should also reexamine whether respondents can continue litigating
their claims as a class. Pp. 29–31.
ALITO, J., delivered the opinion of the Court, except as to Part II.
ROBERTS, C. J., and KENNEDY, J., joined that opinion in full; THOMAS
and GORSUCH, JJ., joined as to all but Part II; and SOTOMAYOR, J.,
joined as to Part III–C. THOMAS, J., filed an opinion concurring in part
and concurring in the judgment, in which GORSUCH, J., joined except for
footnote 6. BREYER, J., filed a dissenting opinion, in which GINSBURG
and SOTOMAYOR, JJ., joined. KAGAN, J., took no part in the decision of
the case.
Cite as: 583 U. S. ____ (2018) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 15–1204
_________________
DAVID JENNINGS, ET AL., PETITIONERS v.
ALEJANDRO RODRIGUEZ, ET AL., INDIVID-
UALLY AND ON BEHALF OF ALL OTHERS
SIMILARLY SITUATED
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[February 27, 2018]
JUSTICE ALITO delivered the opinion of the Court, except
as to Part II.*
Every day, immigration officials must determine whether
to admit or remove the many aliens who have arrived at
an official “port of entry” (e.g., an international airport or
border crossing) or who have been apprehended trying to
enter the country at an unauthorized location. Immigra-
tion officials must also determine on a daily basis whether
there are grounds for removing any of the aliens who are
already present inside the country. The vast majority of
these determinations are quickly made, but in some cases
deciding whether an alien should be admitted or removed
is not as easy. As a result, Congress has authorized immi-
gration officials to detain some classes of aliens during the
course of certain immigration proceedings. Detention
during those proceedings gives immigration officials time
to determine an alien’s status without running the risk of
the alien’s either absconding or engaging in criminal
——————
* JUSTICE SOTOMAYOR joins only Part III–C of this opinion.
2 JENNINGS v. RODRIGUEZ
Opinion of the Court
activity before a final decision can be made.
In this case we are asked to interpret three provisions of
U. S. immigration law that authorize the Government to
detain aliens in the course of immigration proceedings.
All parties appear to agree that the text of these provi-
sions, when read most naturally, does not give detained
aliens the right to periodic bond hearings during the course
of their detention. But by relying on the constitutional-
avoidance canon of statutory interpretation, the Court of
Appeals for the Ninth Circuit held that detained aliens
have a statutory right to periodic bond hearings under the
provisions at issue.
Under the constitutional-avoidance canon, when statu-
tory language is susceptible of multiple interpretations, a
court may shun an interpretation that raises serious
constitutional doubts and instead may adopt an alterna-
tive that avoids those problems. But a court relying on
that canon still must interpret the statute, not rewrite it.
Because the Court of Appeals in this case adopted implau-
sible constructions of the three immigration provisions at
issue, we reverse its judgment and remand for further
proceedings.
I
A
To implement its immigration policy, the Government
must be able to decide (1) who may enter the country and
(2) who may stay here after entering.
1
That process of decision generally begins at the Nation’s
borders and ports of entry, where the Government must
determine whether an alien seeking to enter the country is
admissible. Under 122 Stat. 867, 8 U.S. C. §1225, an
alien who “arrives in the United States,” or “is present” in
this country but “has not been admitted,” is treated as “an
Cite as: 583 U. S. ____ (2018) 3
Opinion of the Court
applicant for admission.” §1225(a)(1). Applicants for
admission must “be inspected by immigration officers” to
ensure that they may be admitted into the country con-
sistent with U. S. immigration law. §1225(a)(3).
As relevant here, applicants for admission fall into one
of two categories, those covered by §1225(b)(1) and those
covered by §1225(b)(2). Section 1225(b)(1) applies to
aliens initially determined to be inadmissible due to
fraud, misrepresentation, or lack of valid documentation.
See §1225(b)(1)(A)(i) (citing §§1182(a)(6)(C), (a)(7)). Sec-
tion 1225(b)(1) also applies to certain other aliens desig-
nated by the Attorney General in his discretion. See
§1225(b)(1)(A)(iii). Section 1225(b)(2) is broader. It serves
as a catchall provision that applies to all applicants for
admission not covered by §1225(b)(1) (with specific excep-
tions not relevant here). See §§1225(b)(2)(A), (B).
Both §1225(b)(1) and §1225(b)(2) authorize the deten-
tion of certain aliens. Aliens covered by §1225(b)(1) are
normally ordered removed “without further hearing or
review” pursuant to an expedited removal process.
§1225(b)(1)(A)(i). But if a §1225(b)(1) alien “indicates
either an intention to apply for asylum . . . or a fear of
persecution,” then that alien is referred for an asylum
interview. §1225(b)(1)(A)(ii). If an immigration officer
determines after that interview that the alien has a credi-
ble fear of persecution, “the alien shall be detained for
further consideration of the application for asylum.”
§1225(b)(1)(B)(ii). Aliens who are instead covered by
§1225(b)(2) are detained pursuant to a different process.
Those aliens “shall be detained for a [removal] proceeding”
if an immigration officer “determines that [they are] not
clearly and beyond a doubt entitled to be admitted” into
the country. §1225(b)(2)(A).
Regardless of which of those two sections authorizes
their detention, applicants for admission may be tempo-
rarily released on parole “for urgent humanitarian reasons
4 JENNINGS v. RODRIGUEZ
Opinion of the Court
or significant public benefit.” §1182(d)(5)(A); see also 8
CFR §§212.5(b), 235.3 (2017). Such parole, however,
“shall not be regarded as an admission of the alien.” 8
U.S. C. §1182(d)(5)(A). Instead, when the purpose of the
parole has been served, “the alien shall forthwith return
or be returned to the custody from which he was paroled
and thereafter his case shall continue to be dealt with in
the same manner as that of any other applicant for admis-
sion to the United States.” Ibid.
2
Even once inside the United States, aliens do not have
an absolute right to remain here. For example, an alien
present in the country may still be removed if he or she
falls “within one or more . . . classes of deportable aliens.”
§1227(a). That includes aliens who were inadmissible at
the time of entry or who have been convicted of certain
criminal offenses since admission. See §§1227(a)(1), (2).
Section 1226 generally governs the process of arresting
and detaining that group of aliens pending their removal.
As relevant here, §1226 distinguishes between two differ-
ent categories of aliens. Section 1226(a) sets out the de-
fault rule: The Attorney General may issue a warrant for
the arrest and detention of an alien “pending a decision on
whether the alien is to be removed from the United
States.” §1226(a). “Except as provided in subsection (c) of
this section,” the Attorney General “may release” an alien
detained under §1226(a) “on bond . . . or conditional pa-
role.” Ibid.
Section 1226(c), however, carves out a statutory category
of aliens who may not be released under §1226(a). Under
§1226(c), the “Attorney General shall take into custody
any alien” who falls into one of several enumerated cate-
gories involving criminal offenses and terrorist activities.
§1226(c)(1). The Attorney General may release aliens in
those categories “only if the Attorney General decides . . .
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that release of the alien from custody is necessary” for
witness-protection purposes and “the alien satisfies the
Attorney General that the alien will not pose a danger to
the safety of other persons or of property and is likely to
appear for any scheduled proceeding.” §1226(c)(2). Any
release under those narrow conditions “shall take place in
accordance with a procedure that considers the severity of
the offense committed by the alien.” Ibid.1
In sum, U. S. immigration law authorizes the Govern-
ment to detain certain aliens seeking admission into the
country under §§1225(b)(1) and (b)(2). It also authorizes
the Government to detain certain aliens already in the
country pending the outcome of removal proceedings
under §§1226(a) and (c). The primary issue is the proper
interpretation of §§1225(b), 1226(a), and 1226(c).
B
Respondent Alejandro Rodriguez is a Mexican citizen.
Since 1987, he has also been a lawful permanent resident
of the United States. In April 2004, after Rodriguez was
convicted of a drug offense and theft of a vehicle, the
Government detained him under §1226 and sought to
remove him from the country. At his removal hearing,
Rodriguez argued both that he was not removable and, in
the alternative, that he was eligible for relief from removal.
In July 2004, an Immigration Judge ordered Rodriguez
deported to Mexico. Rodriguez chose to appeal that deci-
sion to the Board of Immigration Appeals, but five months
——————
1 Anyone who believes that he is not covered by §1226(c) may also ask
for what is known as a “Joseph hearing.” See Matter of Joseph, 22
I. & N. Dec. 799 (BIA 1999). At a Joseph hearing, that person “may
avoid mandatory detention by demonstrating that he is not an alien,
was not convicted of the predicate crime, or that the [Government] is
otherwise substantially unlikely to establish that he is in fact subject to
mandatory detention.” Demore v. Kim, 538 U.S. 510, 514, n. 3 (2003).
Whether respondents are entitled to Joseph hearings is not before this
Court.
6 JENNINGS v. RODRIGUEZ
Opinion of the Court
later the Board agreed that Rodriguez was subject to
mandatory removal. Once again, Rodriguez chose to seek
further review, this time petitioning the Court of Appeals
for the Ninth Circuit for review of the Board’s decision.
In May 2007, while Rodriguez was still litigating his
removal in the Court of Appeals, he filed a habeas petition
in the District Court for the Central District of California,
alleging that he was entitled to a bond hearing to deter-
mine whether his continued detention was justified.
Rodriguez’s case was consolidated with another, similar
case brought by Alejandro Garcia, and together they
moved for class certification. The District Court denied
their motion, but the Court of Appeals for the Ninth Cir-
cuit reversed. See Rodriguez v. Hayes, 591 F.3d 1105,
1111 (2010). It concluded that the proposed class met the
certification requirements of Rule 23 of the Federal Rules
of Civil Procedure, and it remanded the case to the Dis-
trict Court. Id., at 1111, 1126.
On remand, the District Court certified the following
class:
“[A]ll non-citizens within the Central District of Cali-
fornia who: (1) are or were detained for longer than
six months pursuant to one of the general immigra-
tion detention statutes pending completion of removal
proceedings, including judicial review, (2) are not and
have not been detained pursuant to a national security
detention statute, and (3) have not been afforded a
hearing to determine whether their detention is justi-
fied.” Class Certification Order in Rodriguez v. Hayes,
CV 07–03239 (CD Cal., Apr. 5, 2010).
The District Court named Rodriguez as class representa-
tive of the newly certified class, ibid., and then organized
the class into four subclasses based on the four “general
immigration detention statutes” under which it under-
stood the class members to be detained: Sections 1225(b),
Cite as: 583 U. S. ____ (2018) 7
Opinion of the Court
1226(a), 1226(c), and 1231(a). See Order Granting Plain-
tiff ’s Motion for Class Certification in Rodriguez v. Holder,
CV 07–03239 (CD Cal., Mar. 8, 2011) (2011 Order); Rodri-
guez v. Robbins, 715 F.3d 1127, 1130–1131 (CA9 2013).
Each of the four subclasses was certified to pursue declar-
atory and injunctive relief. 2011 Order. On appeal, the
Court of Appeals held that the §1231(a) subclass had been
improperly certified, but it affirmed the certification of the
other three subclasses. See Rodriguez v. Robbins, 804
F.3d 1060, 1074, 1085–1086 (CA9 2015).
In their complaint, Rodriguez and the other respondents
argued that the relevant statutory provisions—§§1225(b),
1226(a), and 1226(c)—do not authorize “prolonged” deten-
tion in the absence of an individualized bond hearing at
which the Government proves by clear and convincing
evidence that the class member’s detention remains justi-
fied. Absent such a bond-hearing requirement, respond-
ents continued, those three provisions would violate the
Due Process Clause of the Fifth Amendment. In their
prayer for relief, respondents thus asked the District
Court to require the Government “to provide, after giving
notice, individual hearings before an immigration judge
for . . . each member of the class, at which [the Govern-
ment] will bear the burden to prove by clear and convinc-
ing evidence that no reasonable conditions will ensure the
detainee’s presence in the event of removal and protect the
community from serious danger, despite the prolonged
length of detention at issue.” Third Amended Complaint
in Rodriguez v. Holder, CV 07–03239, p. 31 (CD Cal., Oct.
20, 2010). Respondents also sought declaratory relief.
Ibid.
As relevant here, the District Court entered a perma-
nent injunction in line with the relief sought by respond-
ents, and the Court of Appeals affirmed. See 804 F.3d, at
1065. Relying heavily on the canon of constitutional
avoidance, the Court of Appeals construed §§1225(b) and
8 JENNINGS v. RODRIGUEZ
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Opinion of
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ALITO, J.
1226(c) as imposing an implicit 6-month time limit on an
alien’s detention under these sections. Id., at 1079, 1082.
After that point, the Court of Appeals held, the Govern-
ment may continue to detain the alien only under the
authority of §1226(a). Ibid. The Court of Appeals then
construed §1226(a) to mean that an alien must be given a
bond hearing every six months and that detention beyond
the initial 6-month period is permitted only if the Gov-
ernment proves by clear and convincing evidence that
further detention is justified. Id., at 1085, 1087.
The Government petitioned this Court for review of that
decision, and we granted certiorari. 579 U. S. ___ (2016).
II
Before reaching the merits of the lower court’s interpre-
tation, we briefly address whether we have jurisdiction to
entertain respondents’ claims. We discuss two potential
obstacles, 8 U.S. C. §§1252(b)(9) and 1226(e).
A
Under §1252(b)(9):
“Judicial review of all questions of law and fact, in-
cluding interpretation and application of constitutional
and statutory provisions, arising from any action
taken or proceeding brought to remove an alien from
the United States under this subchapter [including
§§1225 and 1226] shall be available only in judicial
review of a final order under this section.”
This provision does not deprive us of jurisdiction. We
are required in this case to decide “questions of law,”
specifically, whether, contrary to the decision of the Court
of Appeals, certain statutory provisions require detention
without a bond hearing. We assume for the sake of argu-
ment that the actions taken with respect to all the aliens
in the certified class constitute “action[s] taken . . . to
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ALITO, J.
remove [them] from the United States.”2 On that assump-
tion, the applicability of §1252(b)(9) turns on whether the
legal questions that we must decide “aris[e] from” the
actions taken to remove these aliens.
It may be argued that this is so in the sense that if those
actions had never been taken, the aliens would not be in
custody at all. But this expansive interpretation of
§1252(b)(9) would lead to staggering results. Suppose, for
example, that a detained alien wishes to assert a claim
under Bivens v. Six Unknown Fed. Narcotics Agents, 403
U.S. 388 (1971), based on allegedly inhumane conditions
of confinement. See, e.g., Ziglar v. Abbasi, 582 U. S. ___,
___–___ (2017) (slip op., at 23–29). Or suppose that a
detained alien brings a state-law claim for assault against
a guard or fellow detainee. Or suppose that an alien is
injured when a truck hits the bus transporting aliens to a
detention facility, and the alien sues the driver or owner of
the truck. The “questions of law and fact” in all those
cases could be said to “aris[e] from” actions taken to re-
move the aliens in the sense that the aliens’ injuries would
never have occurred if they had not been placed in deten-
tion. But cramming judicial review of those questions into
the review of final removal orders would be absurd.
Interpreting “arising from” in this extreme way would
also make claims of prolonged detention effectively unre-
viewable. By the time a final order of removal was even-
tually entered, the allegedly excessive detention would
have already taken place. And of course, it is possible that
no such order would ever be entered in a particular case,
depriving that detainee of any meaningful chance for
judicial review.
In past cases, when confronted with capacious phrases
——————
2 It is questionable whether this is true for aliens who are detained
under 8 U.S. C. §1225(b)(1)(B)(ii) for consideration of their asylum
applications.
10 JENNINGS v. RODRIGUEZ
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ALITO, J.
like “ ‘arising from,’ ” we have eschewed “ ‘uncritical literal-
ism’ ” leading to results that “ ‘no sensible person could
have intended.’ ” Gobeille v. Liberty Mut. Ins. Co., 577
U. S. ___, ___ (2016) (slip op., at 6) (interpreting phrase
“relate to” in the Employee Retirement Income Security
Act of 1974’s pre-emption provision). See also, e.g., FERC
v. Electric Power Supply Assn., 577 U. S. ___, ___–___
(2016) (slip op., at 15–16) (interpreting term “affecting” in
Federal Power Act); Maracich v. Spears, 570 U.S. 48, 59–
61 (2013) (interpreting phrase “in connection with” in
Driver’s Privacy Protection Act); Dan’s City Used Cars,
Inc. v. Pelkey, 569 U.S. 251, 260–261 (2013) (interpreting
phrase “related to” in Federal Aviation Administration
Authorization Act); Celotex Corp. v. Edwards, 514 U.S.
300, 308 (1995) (interpreting phrase “related to” in
Bankruptcy Act). In Reno v. American-Arab Anti-
Discrimination Comm., 525 U.S. 471, 482 (1999), we took
this approach in construing the very phrase that appears
in §1252(b)(9). A neighboring provision of the Immigra-
tion and Nationality Act refers to “any cause or claim by or
on behalf of any alien arising from the decision or action
by the Attorney General to commence proceedings, adjudi-
cate cases, or execute removal orders against any alien
under this chapter.” 8 U.S. C. §1252(g) (emphasis added).
We did not interpret this language to sweep in any claim
that can technically be said to “arise from” the three listed
actions of the Attorney General. Instead, we read the
language to refer to just those three specific actions them-
selves. American-Arab Anti-Discrimination Comm., su-
pra, at 482–483.
The parties in this case have not addressed the scope of
§1252(b)(9), and it is not necessary for us to attempt to
provide a comprehensive interpretation. For present
purposes, it is enough to note that respondents are not
asking for review of an order of removal; they are not
challenging the decision to detain them in the first place
Cite as: 583 U. S. ____ (2018) 11
Opinion
Opinion of
of the Court
ALITO, J.
or to seek removal; and they are not even challenging any
part of the process by which their removability will be
determined. Under these circumstances, §1252(b)(9) does
not present a jurisdictional bar.3
B
We likewise hold that §1226(e) does not bar us from
considering respondents’ claims.
That provision states:
“The Attorney General’s discretionary judgment re-
garding the application of [§1226] shall not be subject
to review. No court may set aside any action or deci-
sion by the Attorney General under this section re-
garding the detention or release of any alien or the
grant, revocation, or denial of bond or parole.”
§1226(e).
As we have previously explained, §1226(e) precludes an
alien from “challeng[ing] a ‘discretionary judgment’ by the
Attorney General or a ‘decision’ that the Attorney General
has made regarding his detention or release.” Demore v.
Kim, 538 U.S. 510, 516 (2003). But §1226(e) does not
preclude “challenges [to] the statutory framework that
permits [the alien’s] detention without bail.” Id., at 517.
Respondents mount that second type of challenge here.
——————
3 The concurrence contends that “detention is an ‘action taken . . . to
remove’ an alien” and that therefore “even the narrowest reading of
‘arising from’ must cover” the claims raised by respondents. Post, at 6.
We do not follow this logic. We will assume for the sake of argument
that detention is an action taken “to remove an alien,” i.e., for the
purpose of removing an alien, rather than simply an action aimed at
ensuring that the alien does not flee or commit a crime while his
proceedings are pending. But even if we proceed on the basis of that
assumption, we do not see what it proves. The question is not whether
detention is an action taken to remove an alien but whether the legal
questions in this case arise from such an action. And for the reasons
explained above, those legal questions are too remote from the actions
taken to fall within the scope of §1252(b)(9).
12 JENNINGS v. RODRIGUEZ
Opinion of the Court
First and foremost, they are challenging the extent of the
Government’s detention authority under the “statutory
framework” as a whole. If that challenge fails, they are
then contesting the constitutionality of the entire statutory
scheme under the Fifth Amendment. Because the extent
of the Government’s detention authority is not a matter of
“discretionary judgment,” “action,” or “decision,” respond-
ents’ challenge to “the statutory framework that permits
[their] detention without bail,” ibid., falls outside of the
scope of §1226(e). We may therefore consider the merits of
their claims.
III
When “a serious doubt” is raised about the constitution-
ality of an act of Congress, “it is a cardinal principle that
this Court will first ascertain whether a construction of
the statute is fairly possible by which the question may be
avoided.” Crowell v. Benson, 285 U.S. 22, 62 (1932).
Relying on this canon of constitutional avoidance, the
Court of Appeals construed §§1225(b), 1226(a), and 1226(c)
to limit the permissible length of an alien’s detention
without a bond hearing. Without such a construction, the
Court of Appeals believed, the “ ‘prolonged detention with-
out adequate procedural protections’ ” authorized by the
provisions “ ‘would raise serious constitutional concerns.’ ”
804 F.3d, at 1077 (quoting Casas-Castrillon v. DHS, 535
F.3d 942, 950 (CA9 2008)).
The canon of constitutional avoidance “comes into play
only when, after the application of ordinary textual analy-
sis, the statute is found to be susceptible of more than one
construction.” Clark v. Martinez, 543 U.S. 371, 385
(2005). In the absence of more than one plausible con-
struction, the canon simply “ ‘has no application.’ ” Warger
v. Shauers, 574 U. S. ___, ___ (2014) (slip op., at 10) (quot-
ing United States v. Oakland Cannabis Buyers’ Coopera-
tive, 532 U.S. 483, 494 (2001)).
Cite as: 583 U. S. ____ (2018) 13
Opinion of the Court
The Court of Appeals misapplied the canon in this case
because its interpretations of the three provisions at issue
here are implausible. In Parts III–A and III–B, we hold
that, subject only to express exceptions, §§1225(b) and
1226(c) authorize detention until the end of applicable
proceedings. And in Part III–C, we hold that there is no
justification for any of the procedural requirements that
the Court of Appeals layered onto §1226(a) without any
arguable statutory foundation.
A
As noted, §1225(b) applies primarily to aliens seeking
entry into the United States (“applicants for admission” in
the language of the statute). Section 1225(b) divides these
applicants into two categories. First, certain aliens claim-
ing a credible fear of persecution under §1225(b)(1) “shall
be detained for further consideration of the application for
asylum.” §1225(b)(1)(B)(ii). Second, aliens falling within
the scope of §1225(b)(2) “shall be detained for a [removal]
proceeding.” §1225(b)(2)(A).
Read most naturally, §§1225(b)(1) and (b)(2) thus man-
date detention of applicants for admission until certain
proceedings have concluded. Section 1225(b)(1) aliens are
detained for “further consideration of the application for
asylum,” and §1225(b)(2) aliens are in turn detained for
“[removal] proceeding[s].” Once those proceedings end,
detention under §1225(b) must end as well. Until that
point, however, nothing in the statutory text imposes any
limit on the length of detention. And neither §1225(b)(1)
nor §1225(b)(2) says anything whatsoever about bond
hearings.
Despite the clear language of §§1225(b)(1) and (b)(2),
respondents argue—and the Court of Appeals held—that
those provisions nevertheless can be construed to contain
implicit limitations on the length of detention. But nei-
ther of the two limiting interpretations offered by re-
14 JENNINGS v. RODRIGUEZ
Opinion of the Court
spondents is plausible.
1
First, respondents argue that §§1225(b)(1) and (b)(2)
contain an implicit 6-month limit on the length of deten-
tion. Once that 6-month period elapses, respondents
contend, aliens previously detained under those provisions
must instead be detained under the authority of §1226(a),
which allows for bond hearings in certain circumstances.
There are many problems with this interpretation.
Nothing in the text of §1225(b)(1) or §1225(b)(2) even hints
that those provisions restrict detention after six months,
but respondents do not engage in any analysis of the text.
Instead, they simply cite the canon of constitutional
avoidance and urge this Court to use that canon to read a
“six-month reasonableness limitation” into §1225(b). Brief
for Respondents 48.
That is not how the canon of constitutional avoidance
works. Spotting a constitutional issue does not give a
court the authority to rewrite a statute as it pleases.
Instead, the canon permits a court to “choos[e] between
competing plausible interpretations of a statutory text.”
Clark, supra, at 381 (emphasis added). To prevail, re-
spondents must thus show that §1225(b)’s detention provi-
sions may plausibly be read to contain an implicit 6-month
limit. And they do not even attempt to defend that read-
ing of the text.
In much the same manner, the Court of Appeals all but
ignored the statutory text. Instead, it read Zadvydas v.
Davis, 533 U.S. 678 (2001), as essentially granting a
license to graft a time limit onto the text of §1225(b).
Zadvydas, however, provides no such authority.
Zadvydas concerned §1231(a)(6), which authorizes the
detention of aliens who have already been ordered re-
moved from the country. Under this section, when an
alien is ordered removed, the Attorney General is directed
Cite as: 583 U. S. ____ (2018) 15
Opinion of the Court
to complete removal within a period of 90 days, 8 U.S. C.
§1231(a)(1)(A), and the alien must be detained during that
period, §1231(a)(2). After that time elapses, however,
§1231(a)(6) provides only that certain aliens “may be
detained” while efforts to complete removal continue.
(Emphasis added.)
In Zadvydas, the Court construed §1231(a)(6) to mean
that an alien who has been ordered removed may not be
detained beyond “a period reasonably necessary to secure
removal,” 533 U.S., at 699, and it further held that six
months is a presumptively reasonable period, id., at 701.
After that, the Court concluded, if the alien “provides good
reason to believe that there is no significant likelihood of
removal in the reasonably foreseeable future,” the Gov-
ernment must either rebut that showing or release the
alien. Ibid.
The Zadvydas Court justified this interpretation by
invoking the constitutional-avoidance canon, and the
Court defended its resort to that canon on the ground that
§1231(a)(6) is ambiguous. Specifically, the Court detected
ambiguity in the statutory phrase “may be detained.”
“ ‘[M]ay,’ ” the Court said, “suggests discretion” but not
necessarily “unlimited discretion. In that respect the word
‘may’ is ambiguous.” Id., at 697. The Court also pointed
to the absence of any explicit statutory limit on the length
of permissible detention following the entry of an order of
removal. Ibid.
Zadvydas represents a notably generous application of
the constitutional-avoidance canon, but the Court of Ap-
peals in this case went much further. It failed to address
whether Zadvydas’s reasoning may fairly be applied in
this case despite the many ways in which the provision in
question in Zadvydas, §1231(a)(6), differs materially from
those at issue here, §§1225(b)(1) and (b)(2). Those dif-
ferences preclude the reading adopted by the Court of
Appeals.
16 JENNINGS v. RODRIGUEZ
Opinion of the Court
To start, §§1225(b)(1) and (b)(2), unlike §1231(a)(6),
provide for detention for a specified period of time. Sec-
tion 1225(b)(1) mandates detention “for further considera-
tion of the application for asylum,” §1225(b)(1)(B)(ii), and
§1225(b)(2) requires detention “for a [removal] proceed-
ing,” §1225(b)(2)(A). The plain meaning of those phrases
is that detention must continue until immigration officers
have finished “consider[ing]” the application for asylum,
§1225(b)(1)(B)(ii), or until removal proceedings have con-
cluded, §1225(b)(2)(A). By contrast, Congress left the
permissible length of detention under §1231(a)(6) unclear.
Moreover, in Zadvydas, the Court saw ambiguity in
§1231(a)(6)’s use of the word “may.” Here, by contrast,
§§1225(b)(1) and (b)(2) do not use the word “may.” In-
stead, they unequivocally mandate that aliens falling
within their scope “shall” be detained. “Unlike the word
‘may,’ which implies discretion, the word ‘shall’ usually
connotes a requirement.” Kingdomware Technologies, Inc.
v. United States, 579 U. S. ___, ___ (2016) (slip op., at 9).
That requirement of detention precludes a court from
finding ambiguity here in the way that Zadvydas found
ambiguity in §1231(a)(6).
Zadvydas’s reasoning is particularly inapt here because
there is a specific provision authorizing release from
§1225(b) detention whereas no similar release provision
applies to §1231(a)(6). With a few exceptions not relevant
here, the Attorney General may “for urgent humanitarian
reasons or significant public benefit” temporarily parole
aliens detained under §§1225(b)(1) and (b)(2). 8 U.S. C.
§1182(d)(5)(A). That express exception to detention im-
plies that there are no other circumstances under which
aliens detained under §1225(b) may be released. See A.
Scalia & B. Garner, Reading Law 107 (2012) (“Negative-
Implication Canon[:] The expression of one thing implies
the exclusion of others (expressio unius est exclusio al-
terius)”). That negative implication precludes the sort of
Cite as: 583 U. S. ____ (2018) 17
Opinion of the Court
implicit time limit on detention that we found in
Zadvydas.4
In short, a series of textual signals distinguishes the
provisions at issue in this case from Zadvydas’s interpre-
tation of §1231(a)(6). While Zadvydas found §1231(a)(6) to
be ambiguous, the same cannot be said of §§1225(b)(1) and
(b)(2): Both provisions mandate detention until a certain
point and authorize release prior to that point only under
limited circumstances. As a result, neither provision can
reasonably be read to limit detention to six months.
2
In this Court, respondents advance an interpretation of
the language of §§1225(b)(1) and (b)(2) that was never
made below, namely, that the term “for,” which appears in
both provisions, mandates detention only until the start of
applicable proceedings rather than all the way through to
their conclusion. Respondents contrast the language of
§§1225(b)(1) and (b)(2) authorizing detention “for” further
proceedings with another provision’s authorization of
detention “pending” further proceedings. See 8 U.S. C.
§1225(b)(1)(B)(iii)(IV) (“Any alien . . . shall be detained
pending a final determination of credible fear of persecu-
tion and, if found not to have such a fear, until removed”).
According to respondents, that distinction between “for”
and “pending” makes an enormous difference. As they see
things, the word “pending” authorizes detention through-
out subsequent proceedings, but the term “for” means that
detention authority ends once subsequent proceedings
——————
4 According to the dissent, we could have applied the expressio unius
canon in Zadvydas as well because there was also an “alternative
avenue for relief, namely, bail,” available for aliens detained under
§1231(a)(6). Post, at 25 (opinion of BREYER, J.). But the dissent over-
looks the fact that the provision granting bail was precisely the same
provision that the Court purported to be interpreting, so the canon was
not applicable. See 533 U.S., at 683.
18 JENNINGS v. RODRIGUEZ
Opinion of the Court
begin. As a result, respondents argue, once the applicable
proceedings commence, §§1225(b)(1) and (b)(2) no longer
authorize detention, and the Government must instead
look to §1226(a) for continued detention authority.
That interpretation is inconsistent with ordinary Eng-
lish usage and is incompatible with the rest of the statute.
To be sure, “for” can sometimes mean “in preparation for
or anticipation of.” 6 Oxford English Dictionary 24 (2d ed.
1989). But “for” can also mean “[d]uring [or] throughout,”
id., at 26, as well as “with the object or purpose of,” id., at
23; see also American Heritage Dictionary 709 (3d ed.
1992) (“Used to indicate the object, aim, or purpose of an
action or activity”; “Used to indicate amount, extent, or
duration”); Random House Dictionary of the English Lan-
guage 747 (2d ed. 1987) (“with the object or purpose of ”;
“during the continuance of ”); Webster’s Third New Inter-
national Dictionary 886 (1993) (“with the purpose or object
of ”; “to the . . . duration of ”). And here, only that second
set of definitions makes sense in the context of the statu-
tory scheme as a whole.
For example, respondents argue that, once detention
authority ends under §§1225(b)(1) and (b)(2), aliens can be
detained only under §1226(a). But that section authorizes
detention only “[o]n a warrant issued” by the Attorney
General leading to the alien’s arrest. §1226(a). If re-
spondents’ interpretation of §1225(b) were correct, then
the Government could detain an alien without a warrant
at the border, but once removal proceedings began, the
Attorney General would have to issue an arrest warrant in
order to continue detaining the alien. To put it lightly,
that makes little sense.
Nor does respondents’ interpretation of the word “for”
align with the way Congress has historically used that
word in §1225. Consider that section’s text prior to the
enactment of the Illegal Immigration Reform and Immi-
grant Responsibility Act of 1996, 110 Stat. 3009–546.
Cite as: 583 U. S. ____ (2018) 19
Opinion of the Court
Under the older version of §1225(b), “[e]very alien” within
its scope “who may not appear . . . to be clearly and beyond
a doubt entitled to [entry] shall be detained for further
inquiry to be conducted by a special inquiry officer.” 8
U.S. C. §1225(b) (1994 ed.). It would make no sense to
read “for further inquiry” as authorizing detention of the
alien only until the start of the inquiry; Congress obviously
did not mean to allow aliens to feel free to leave once
immigration officers asked their first question.
In sum, §§1225(b)(1) and (b)(2) mandate detention of
aliens throughout the completion of applicable proceedings
and not just until the moment those proceedings begin. Of
course, other provisions of the immigration statutes do
authorize detention “pending” other proceedings or “until”
a certain point. See post, at 22–23 (BREYER, J., dissenting)
(quoting §1225(b)(1)(B)(iii)(IV)). But there is no “canon of
interpretation that forbids interpreting different words
used in different parts of the same statute to mean roughly
the same thing.” Kirtsaeng v. John Wiley & Sons, Inc.,
568 U.S. 519, 540 (2013). We decline to invent and apply
such a canon here.
B
While the language of §§1225(b)(1) and (b)(2) is quite
clear, §1226(c) is even clearer. As noted, §1226 applies to
aliens already present in the United States. Section
1226(a) creates a default rule for those aliens by permit-
ting—but not requiring—the Attorney General to issue
warrants for their arrest and detention pending removal
proceedings. Section 1226(a) also permits the Attorney
General to release those aliens on bond, “[e]xcept as pro-
vided in subsection (c) of this section.” Section 1226(c) in
turn states that the Attorney General “shall take into
custody any alien” who falls into one of the enumerated
categories involving criminal offenses and terrorist activi-
ties. 8 U.S. C. §1226(c)(1). Section 1226(c) then goes on
20 JENNINGS v. RODRIGUEZ
Opinion of the Court
to specify that the Attorney General “may release” one of
those aliens “only if the Attorney General decides” both
that doing so is necessary for witness-protection purposes
and that the alien will not pose a danger or flight risk.
§1226(c)(2) (emphasis added).
Like §1225(b), §1226(c) does not on its face limit the
length of the detention it authorizes. In fact, by allowing
aliens to be released “only if ” the Attorney General de-
cides that certain conditions are met, §1226(c) reinforces
the conclusion that aliens detained under its authority are
not entitled to be released under any circumstances other
than those expressly recognized by the statute. And to-
gether with §1226(a), §1226(c) makes clear that detention
of aliens within its scope must continue “pending a deci-
sion on whether the alien is to be removed from the United
States.” §1226(a).
In a reprise of their interpretation of §1225(b), respond-
ents argue, and the Court of Appeals held, that §1226(c)
should be interpreted to include an implicit 6-month time
limit on the length of mandatory detention. Once again,
that interpretation falls far short of a “plausible statutory
construction.”
In defense of their statutory reading, respondents first
argue that §1226(c)’s “silence” as to the length of detention
“cannot be construed to authorize prolonged mandatory
detention, because Congress must use ‘clearer terms’ to
authorize ‘long-term detention.’ ” Brief for Respondents 34
(quoting Zadvydas, 533 U.S., at 697). But §1226(c) is not
“silent” as to the length of detention. It mandates deten-
tion “pending a decision on whether the alien is to be
removed from the United States,” §1226(a), and it expressly
prohibits release from that detention except for narrow,
witness-protection purposes. Even if courts were permit-
ted to fashion 6-month time limits out of statutory silence,
they certainly may not transmute existing statutory
language into its polar opposite. The constitutional-
Cite as: 583 U. S. ____ (2018) 21
Opinion of the Court
avoidance canon does not countenance such textual
alchemy.
Indeed, we have held as much in connection with
§1226(c) itself. In Demore v. Kim, 538 U.S., at 529, we
distinguished §1226(c) from the statutory provision in
Zadvydas by pointing out that detention under §1226(c)
has “a definite termination point”: the conclusion of re-
moval proceedings. As we made clear there, that “definite
termination point”—and not some arbitrary time limit
devised by courts—marks the end of the Government’s
detention authority under §1226(c).
Respondents next contend that §1226(c)’s limited au-
thorization for release for witness-protection purposes
does not imply that other forms of release are forbidden,
but this argument defies the statutory text. By expressly
stating that the covered aliens may be released “only if ”
certain conditions are met, 8 U.S. C. §1226(c)(2), the
statute expressly and unequivocally imposes an affirma-
tive prohibition on releasing detained aliens under any
other conditions.
Finally, respondents point to a provision enacted as part
of the PATRIOT Act5 and contend that their reading of
§1226(c) is needed to prevent that provision from being
superfluous. That argument, however, misreads both
statutory provisions. Although the two provisions overlap
in part, they are by no means congruent.
Two differences stand out. First, §1226(c) and the
PATRIOT Act cover different categories of aliens. Both
apply to certain terrorist suspects, but only §1226(c)
reaches aliens convicted of other more common criminal
offenses. See §§1226(c)(1)(A)–(C) (aliens inadmissible or
deportable under §1182(a)(2); §§1227(a)(2)(A)(ii), (A)(iii),
——————
5 See Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of 2001
(PATRIOT Act), 115 Stat. 272.
22 JENNINGS v. RODRIGUEZ
Opinion of the Court
(B), (C), and (D); and §1227(a)(2)(A)(i) under certain condi-
tions). For its part, the PATRIOT Act casts a wider net
than §1226(c) insofar as it encompasses certain threats
to national security not covered by §1226(c). See
§1226a(a)(3) (aliens described in §§1182(a)(3)(A)(i), (iii),
and 1227(a)(4)(A)(i), (iii), as well as aliens “engaged in any
other activity that endangers the national security of the
United States”). In addition, the Government’s detention
authority under §1226(c) and the PATRIOT Act is not the
same. Under §1226(c), the Government must detain an
alien until “a decision on whether the alien is to be re-
moved” is made. §1226(a) (emphasis added). But, subject
to exceptions not relevant here, the PATRIOT Act author-
izes the Government to detain an alien “until the alien is
removed.” §1226a(a)(2) (emphasis added).
Far from being redundant, then, §1226(c) and the
PATRIOT Act apply to different categories of aliens in
different ways. There is thus no reason to depart from the
plain meaning of §1226(c) in order to avoid making the
provision superfluous.
We hold that §1226(c) mandates detention of any alien
falling within its scope and that detention may end prior
to the conclusion of removal proceedings “only if ” the alien
is released for witness-protection purposes.
C
Finally, as noted, §1226(a) authorizes the Attorney
General to arrest and detain an alien “pending a decision
on whether the alien is to be removed from the United
States.” §1226(a). As long as the detained alien is not
covered by §1226(c), the Attorney General “may release”
the alien on “bond . . . or conditional parole.” §1226(a).
Federal regulations provide that aliens detained under
§1226(a) receive bond hearings at the outset of detention.
See 8 CFR §§236.1(d)(1), 1236.1(d)(1).
The Court of Appeals ordered the Government to pro-
Cite as: 583 U. S. ____ (2018) 23
Opinion of the Court
vide procedural protections that go well beyond the initial
bond hearing established by existing regulations—namely,
periodic bond hearings every six months in which the
Attorney General must prove by clear and convincing
evidence that the alien’s continued detention is necessary.
Nothing in §1226(a)’s text—which says only that the
Attorney General “may release” the alien “on . . . bond”—
even remotely supports the imposition of either of those
requirements. Nor does §1226(a)’s text even hint that the
length of detention prior to a bond hearing must specifically
be considered in determining whether the alien should be
released.
IV
For these reasons, the meaning of the relevant statutory
provisions is clear—and clearly contrary to the decision of
the Court of Appeals. But the dissent is undeterred. It
begins by ignoring the statutory language for as long as
possible, devoting the first two-thirds of its opinion to a
disquisition on the Constitution. Only after a 19-page
prologue does the dissent acknowledge the relevant statu-
tory provisions.
The dissent frames the question of interpretation as
follows: Can §§1225(b), 1226(c), and 1226(a) be read to
require bond hearings every six months “without doing
violence to the statutory language,” post, at 20 (opinion of
BREYER, J.)? According to the dissent, the answer is “yes,”
but the dissent evidently has a strong stomach when it
comes to inflicting linguistic trauma. Thus, when Con-
gress mandated that an “alien shall be detained,”
§1225(b)(1)(B)(ii), what Congress really meant, the dissent
insists, is that the alien may be released from custody
provided only that his freedom of movement is restricted
in some way, such as by “the imposition of a curfew,” post,
at 21. And when Congress stressed that “[t]he Attorney
General may release an alien . . . only if . . . release . . .
24 JENNINGS v. RODRIGUEZ
Opinion of the Court
from custody is necessary” to protect the safety of a wit-
ness, §1226(c)(2) (emphasis added), what Congress meant,
the dissent tells us, is that the Attorney General must
release an alien even when no witness is in need of protec-
tion—so long as the alien is neither a flight risk nor a
danger to the community, see post, at 25–27. The contor-
tions needed to reach these remarkable conclusions are a
sight to behold.
Let us start with the simple term “detain.” According to
the dissent, “detain” means the absence of “unrestrained
freedom.” Post, at 21. An alien who is subject to any one
of “numerous restraints”—including “a requirement to
obtain medical treatment,” “to report at regular intervals,”
or even simply to comply with “a curfew”—is “detained” in
the dissent’s eyes, even if that alien is otherwise free to
roam the streets. Ibid.
This interpretation defies ordinary English usage. The
dictionary cited by the dissent, the Oxford English Dic-
tionary (OED), defines “detain” as follows: “[t]o keep in
confinement or under restraint; to keep prisoner.” 4 OED
543 (2d ed. 1989) (emphasis added); see also OED (3d
ed. 2012), http://www.oed.com/view/Entry/51176 (same).
Other general-purpose dictionaries provide similar defini-
tions. See, e.g., Webster’s Third New International Dic-
tionary 616 (1961) (“to hold or keep in or as if in custody
<~ed by the police for questioning>”); Webster’s New
International Dictionary 710 (2d ed. 1934) (“[t]o hold or
keep as in custody”); American Heritage Dictionary 508
(def. 2) (3d ed. 1992) (“To keep in custody or temporary
confinement”); Webster’s New World College Dictionary
375 (3d ed. 1997) (“to keep in custody; confine”). And legal
dictionaries define “detain” the same way. See, e.g., Bal-
lentine’s Law Dictionary 343 (3d ed. 1969) (“To hold; to
keep in custody; to keep”); Black’s Law Dictionary 459 (7th ed.
1999) (“The act or fact of holding a person in custody;
confinement or compulsory delay”).
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Opinion of the Court
How does the dissent attempt to evade the clear mean-
ing of “detain”? It resorts to the legal equivalent of a
sleight-of-hand trick. First, the dissent cites a passage in
Blackstone stating that arrestees could always seek re-
lease on bail. Post, at 8–9. Then, having established the
obvious point that a person who is initially detained may
later be released from detention, the dissent reasons that
this means that a person may still be regarded as detained
even after he is released from custody. Post, at 21. That,
of course, is a nonsequitur. Just because a person who is
initially detained may later be released, it does not follow
that the person is still “detained” after his period of deten-
tion comes to an end.
If there were any doubt about the meaning of the term
“detain” in the relevant statutory provisions, the context
in which they appear would put that doubt to rest. Title 8
of the United States Code, the title dealing with immigra-
tion, is replete with references that distinguish between
“detained” aliens and aliens who are free to walk the
streets in the way the dissent imagines. Section 1226(a),
for instance, distinguishes between the power to “continue
to detain the arrested alien” and the power to “release the
alien on . . . bond.” But if the dissent were right, that
distinction would make no sense: An “alien released on
bond” would also be a “detained alien.” Here is another
example: In §1226(b), Congress gave the Attorney General
the power to “revoke” at any time “a bond or parole au-
thorized under subsection (a) of this section, rearrest the
alien under the original warrant, and detain the alien.” It
beggars belief that Congress would have given the Attor-
ney General the power to detain a class of aliens who,
under the dissent’s reading, are already “detained” be-
cause they are free on bond. But that is what the dissent
would have us believe. Consider, finally, the example of
§1226(c). As noted, that provision obligates the Attorney
General to “take into custody” certain aliens whenever
26 JENNINGS v. RODRIGUEZ
Opinion of the Court
they are “released, without regard to whether the alien is
released on parole, supervised release, or probation.” On
the dissent’s view, however, even aliens “released on
parole, supervised release, or probation” are “in custody”—
and so there would be no need for the Attorney General to
take them into custody again.6
Struggling to prop up its implausible interpretation, the
dissent looks to our prior decisions for aid, but that too
fails. The best case it can find is Tod v. Waldman, 266
U.S. 547 (1925), a grant of a petition for rehearing in
which the Court clarified that “[n]othing in [its original]
order . . . shall prejudice an application for release on bail
of the respondents pending compliance with the mandate
of this Court.” Id., at 548. According to the dissent, that
two-page decision from almost a century ago supports its
reading because the underlying immigration statute in
that case—like some of the provisions at issue here—
mandated that the relevant class of aliens “ ‘shall be de-
tained’ ” pending the outcome of an inspection process.
——————
6 As the dissent notes, §1158(d)(2) regulates employment authoriza-
tion for certain “applicant[s] for asylum.” Were all asylum applicants
detained, the dissent says, that provision would make no sense, because
detained aliens do not need work authorizations. Post, at 23–24. But
§1158(d)(2) applies not only to aliens seeking asylum status “in accord-
ance with . . . section 1225(b)” (and thus aliens who are detained), but
also to all aliens already “physically present in the United States.”
§1158(a)(1). Many of those aliens will be in the country lawfully, and
thus they will not be detained and will be able to work pending the
outcome of their asylum application. For example, an alien may apply
for asylum after being admitted into the country on a short-term visa.
While the application is pending, §1158 may offer a way for that alien
to find employment.
In response, the dissent accuses us of “apply[ing] this provision to
some asylum applicants but not the ones before us.” Post, at 23–24.
That is not remotely what we are doing. We do not doubt that
§1158(d)(2) “applies” to all “applicant[s] for asylum” as it says, even if
some of those applicants are not as likely to receive an employment
authorization (for instance, because they are detained) as others.
Cite as: 583 U. S. ____ (2018) 27
Opinion of the Court
See post, at 21–22 (quoting Act of Feb. 5, 1917, §16, 39
Stat. 886).
That reads far too much into Waldman. To start, the
Court did not state that the aliens at issue were entitled to
bail or even that bail was available to them. Instead, the
Court merely noted that its decision should not “prejudice”
any application the aliens might choose to file. That is
notable, for in their petition for rehearing the aliens had
asked the Court to affirmatively “authorize [them] to give
bail.” Petition for Rehearing in Tod v. Waldman, O. T.
1924, No. 95, p. 17 (emphasis added). By refusing to do so,
the Court may have been signaling its skepticism about
their request. But it is impossible to tell. That is precisely
why we, unlike the dissent, choose not to go beyond what
the sentence actually says. And Waldman says nothing
about how the word “detain” should be read in the context
of §§1225(b), 1226(c), and 1226(a).7
Neither does Zadvydas. It is true, as the dissent points
out, that Zadvydas found “that the words ‘ “may be de-
tained” ’ [are] consistent with requiring release from long-
term detention,” post, at 23 (quoting 533 U.S., at 682), but
that is not because there is any ambiguity in the term
“detain.” As we have explained, the key statutory provi-
sion in Zadvydas said that the aliens in question “may,”
not “shall,” be detained, and that provision also failed to
specify how long detention was to last. Here, the statutory
provisions at issue state either that the covered aliens
“shall” be detained until specified events take place, see 8
U.S. C. §1225(b)(1)(B)(ii) (“further consideration of the
——————
7 It should not be surprising by this point that even the aliens in
Waldman understood “detention” in contradistinction to “bail.” See
Petition for Rehearing in Tod v. Waldman, O. T. 1924, No. 95, pp. 17–18
(“[T]he Court’s mandate should authorize relators to give bail, instead
of having [them] go to Ellis Island and remain there in custody pending
an appeal . . . which may involve very long detention pending hearing of
the appeal . . .” (capitalization omitted and emphasis added)).
28 JENNINGS v. RODRIGUEZ
Opinion of the Court
application for asylum”); §1225(b)(2)(A) (“a [removal]
proceeding”), or provide that the covered aliens may be
released “only if ” specified conditions are met, §1226(c)(2).
The term that the Zadvydas Court found to be ambiguous
was “may,” not “detain.” See 533 U.S., at 697. And the
opinion in that case consistently used the words “detain”
and “custody” to refer exclusively to physical confinement
and restraint. See id., at 690 (referring to “[f]reedom from
imprisonment—from government custody, detention, or
other forms of physical restraint” (emphasis added)); id., at
683 (contrasting aliens “released on bond” with those “held
in custody”).8
The dissent offers no plausible interpretation of
§§1225(b), 1226(c), and 1226(a). But even if we were to
accept the dissent’s interpretation and hold that “de-
tained” aliens in the “custody” of the Government include
aliens released on bond, that would still not justify the
dissent’s proposed resolution of this case. The Court of
Appeals held that aliens detained under the provisions at
issue must be given periodic bond hearings, and the dis-
sent agrees. See post, at 2 (“I would interpret the statute
as requiring bail hearings, presumptively after six months
of confinement”). But the dissent draws that 6-month
limitation out of thin air. However broad its interpreta-
tion of the words “detain” and “custody,” nothing in any of
the relevant provisions imposes a 6-month time limit on
detention without the possibility of bail. So if the dissent’s
interpretation is right, then aliens detained under
§§1225(b), 1226(c), and 1226(a) are entitled to bail hear-
ings as soon as their detention begins rather than six
——————
8 The dissent argues that because “the question at issue [in Zadvydas]
was release from detention,” “the key word was consequently ‘may.’ ”
Post, at 23. We agree but fail to see the point. If, as the dissent admits,
Zadvydas was about “release from detention” and not about what
qualifies as “detention,” then it is unclear why the dissent thinks that
decision supports its unorthodox interpretation of the word “detention.”
Cite as: 583 U. S. ____ (2018) 29
Opinion of the Court
months later. “Detained” does not mean “released
on bond,” and it certainly does not mean “released on
bond but only after six months of mandatory physical
confinement.”
The dissent’s utterly implausible interpretation of the
statutory language cannot support the decision of the
court below.
V
Because the Court of Appeals erroneously concluded
that periodic bond hearings are required under the immi-
gration provisions at issue here, it had no occasion to
consider respondents’ constitutional arguments on their
merits. Consistent with our role as “a court of review, not
of first view,” Cutter v. Wilkinson, 544 U.S. 709, 718, n. 7
(2005), we do not reach those arguments. Instead, we
remand the case to the Court of Appeals to consider them
in the first instance.
Before the Court of Appeals addresses those claims,
however, it should reexamine whether respondents can
continue litigating their claims as a class. When the
District Court certified the class under Rule 23(b)(2) of the
Federal Rules of Civil Procedure, it had their statutory
challenge primarily in mind. Now that we have resolved
that challenge, however, new questions emerge.
Specifically, the Court of Appeals should first decide
whether it continues to have jurisdiction despite 8 U.S. C.
§1252(f )(1). Under that provision, “no court (other than
the Supreme Court) shall have jurisdiction or authority to
enjoin or restrain the operation of [§§1221–1232] other
than with respect to the application of such provisions to
an individual alien against whom proceedings under such
part have been initiated.” Section 1252(f )(1) thus “prohib-
its federal courts from granting classwide injunctive relief
against the operation of §§1221–123[2].” American-Arab
Anti-Discrimination Comm., 525 U.S., at 481. The Court
30 JENNINGS v. RODRIGUEZ
Opinion of the Court
of Appeals held that this provision did not affect its juris-
diction over respondents’ statutory claims because those
claims did not “seek to enjoin the operation of the immi-
gration detention statutes, but to enjoin conduct . . . not
authorized by the statutes.” 591 F.3d, at 1120. This
reasoning does not seem to apply to an order granting
relief on constitutional grounds, and therefore the Court of
Appeals should consider on remand whether it may issue
classwide injunctive relief based on respondents’ constitu-
tional claims. If not, and if the Court of Appeals concludes
that it may issue only declaratory relief, then the Court of
Appeals should decide whether that remedy can sustain
the class on its own. See, e. g., Rule 23(b)(2) (requiring
“that final injunctive relief or corresponding declaratory
relief [be] appropriate respecting the class as a whole”
(emphasis added)).
The Court of Appeals should also consider whether a
Rule 23(b)(2) class action continues to be the appropriate
vehicle for respondents’ claims in light of Wal-Mart Stores,
Inc. v. Dukes, 564 U.S. 338 (2011). We held in Dukes that
“Rule 23(b)(2) applies only when a single injunction or
declaratory judgment would provide relief to each member
of the class.” Id., at 360. That holding may be relevant on
remand because the Court of Appeals has already
acknowledged that some members of the certified class
may not be entitled to bond hearings as a constitutional
matter. See, e. g., 804 F.3d, at 1082; 715 F. 3d, at 1139–
1141 (citing, e. g., Shaughnessy v. United States ex rel.
Mezei, 345 U.S. 206 (1953)). Assuming that is correct,
then it may no longer be true that the complained-of
“ ‘conduct is such that it can be enjoined or declared un-
lawful only as to all of the class members or as to none of
them.’ ” Dukes, supra, at 360 (quoting Nagareda, Class
Certification in the Age of Aggregate Proof, 84
N. Y. U. L. Rev. 97, 132 (2009)).
Similarly, the Court of Appeals should also consider on
Cite as: 583 U. S. ____ (2018) 31
Opinion of the Court
remand whether a Rule 23(b)(2) class action litigated on
common facts is an appropriate way to resolve respond-
ents’ Due Process Clause claims. “[D]ue process is flexi-
ble,” we have stressed repeatedly, and it “calls for such
procedural protections as the particular situation de-
mands.” Morrissey v. Brewer, 408 U.S. 471, 481 (1972);
see also Landon v. Plasencia, 459 U.S. 21, 34 (1982).
VI
We reverse the judgment of the United States Court of
Appeals for the Ninth Circuit and remand the case for
further proceedings.
It is so ordered.
JUSTICE KAGAN took no part in the decision of this case.
Cite as: 583 U. S. ____ (2018) 1
HOMAS, of
TOpinion J.,Tconcurring
HOMAS, J.
SUPREME COURT OF THE UNITED STATES
_________________
No. 15–1204
_________________
DAVID JENNINGS, ET AL., PETITIONERS v.
ALEJANDRO RODRIGUEZ, ET AL., INDIVID-
UALLY AND ON BEHALF OF ALL OTHERS
SIMILARLY SITUATED
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[February 27, 2018]
JUSTICE THOMAS, with whom JUSTICE GORSUCH joins
except for footnote 6, concurring in Part I and Parts III–VI
and concurring in the judgment.
In my view, no court has jurisdiction over this case.
Congress has prohibited courts from reviewing aliens’
claims related to their removal, except in a petition for
review from a final removal order or in other circumstances
not present here. See 8 U.S. C. §1252(b)(9). Respond-
ents have not brought their claims in that posture, so
§1252(b)(9) removes jurisdiction over their challenge to
their detention. I would therefore vacate the judgment
below with instructions to dismiss for lack of jurisdiction.
But because a majority of the Court believes we have
jurisdiction, and I agree with the Court’s resolution of
the merits, I join Part I and Parts III–VI of the Court’s
opinion.
I
Respondents are a class of aliens whose removal pro-
ceedings are ongoing. Respondents allege that the stat-
utes that authorize their detention during removal pro-
ceedings do not authorize “prolonged” detention unless
they are given an individualized bond hearing at which
2 JENNINGS v. RODRIGUEZ
HOMAS, of
TOpinion J.,Tconcurring
HOMAS, J.
the Government “prove[s] by clear and convincing evi-
dence” that their detention remains justified. Third
Amended Complaint in Rodriguez v. Holder, No. CV 07–
03239 (CD Cal., Oct. 22, 2010), pp. 30–31 (Third Amended
Complaint). If the statutes do authorize “prolonged”
detention, respondents claim that the statutes violate the
Due Process Clause of the Fifth Amendment. Ibid. In
their complaint, respondents sought declaratory and
injunctive relief from detention during their removal
proceedings. Id., at 31–32. The District Court certified a
class of aliens under Federal Rule of Civil Procedure
23(b)(2) who, among other things, “are or were detained
for longer than six months pursuant to one of the general
immigration detention statutes.” Class Certification
Order in Rodriguez v. Holder, No. CV 07–03239 (CD Cal.,
Apr. 5, 2010), p. 2; Rodriguez v. Hayes, 591 F.3d 1105,
1122–1126 (CA9 2010). After the parties moved for sum-
mary judgment, the District Court entered a permanent
injunction in favor of the class, which requires the named
Government officials1 to take steps to “timely identify all
current and future class members,” to update class mem-
ber lists with the District Court every 90 days, and to
provide class members with bond hearings that comply
with particular substantive and procedural requirements.
Order, Judgment, and Permanent Injunction in Rodriguez
v. Holder, No. CV 07–03239 (CD Cal., Aug. 6, 2013), pp. 5–
6 (Order, Judgment, and Permanent Injunction).
——————
1 The named Government officials are the Attorney General of the
United States, the Secretary of the Department of Homeland Security,
the Director of the Executive Office for Immigration Review, the Direc-
tor and Assistant Director of the Los Angeles District of Immigration
and Customs Enforcement, and several directors of jails and detention
facilities.
Cite as: 583 U. S. ____ (2018) 3
HOMAS, of
TOpinion J.,Tconcurring
HOMAS, J.
II
A
Although neither party raises §1252(b)(9), this Court
has an “independent obligation” to assess whether it de-
prives us and the lower courts of jurisdiction. Arbaugh v.
Y & H Corp., 546 U.S. 500, 514 (2006). This Court has
described §1252(b)(9) as a “ ‘zipper’ clause.” See Reno v.
American-Arab Anti-Discrimination Comm., 525 U.S. 471,
483 (1999) (AADC); INS v. St. Cyr, 533 U.S. 289, 313
(2001). That description is apt because, when an alien
raises a claim related to his removal, §1252(b)(9) closes all
but two avenues for judicial review:
“Consolidation of questions for judicial review
“Judicial review of all questions of law and fact, in-
cluding interpretation and application of constitu-
tional and statutory provisions, arising from any action
taken or proceeding brought to remove an alien from
the United States under [8 U.S. C. §§1151–1382]
shall be available only in judicial review of a final or-
der under this section. Except as otherwise provided
in this section, no court shall have jurisdiction, by ha-
beas corpus under section 2241 of title 28 or any other
habeas corpus provision, by section 1361 or 1651 of
such title, or by any other provision of law (statutory
or nonstatutory), to review such an order or such
questions of law or fact.” (Emphasis added.)
The text of this provision is clear. Courts generally lack
jurisdiction over “all questions of law and fact,” both “con-
stitutional” and “statutory,” that “aris[e] from” an “action
taken or proceeding brought to remove an alien.” If an
alien raises a claim arising from such an action or proceed-
ing, courts cannot review it unless they are reviewing “a
final order” under §1252(a)(1) or exercising jurisdiction
4 JENNINGS v. RODRIGUEZ
HOMAS, of
TOpinion J.,Tconcurring
HOMAS, J.
“otherwise provided” in §1252.2 Neither “habeas corpus”
nor “any other provision of law” can be used to avoid
§1252(b)(9)’s jurisdictional bar. In short, if a claim arises
from an action taken to remove an alien, §1252(b)(9) per-
mits judicial review in only two circumstances: in connec-
tion with review of a final removal order and via a specific
grant of jurisdiction in §1252.
Respondents do not argue that any specific grant of
jurisdiction applies here, and they do not seek review of a
final removal order under §1252(a)(1). Thus, a court may
review respondents’ claims only if they can show that
§1252(b)(9)’s jurisdictional bar does not apply in the first
place because their claims do not “aris[e] from any action
taken or proceeding brought to remove an alien.”
Respondents cannot make that showing. Section
1252(b)(9) is a “general jurisdictional limitation” that
applies to “all claims arising from deportation proceed-
ings” and the “many . . . decisions or actions that may be
part of the deportation process.” AADC, supra, at 482–
483. Detaining an alien falls within this definition—
indeed, this Court has described detention during removal
proceedings as an “aspect of the deportation process.”
Demore v. Kim, 538 U.S. 510, 523 (2003); see also Carlson
v. Landon, 342 U.S. 524, 538 (1952) (“Detention is neces-
sarily a part of [the] deportation procedure”). As the Court
explains today, Congress either mandates or permits the
detention of aliens for the entire duration of their removal
proceedings. See ante, at 12–23. This detention, the
——————
2 Section
1252 provides a few specific grants of jurisdiction beyond
§1252(a)(1)'s general grant of jurisdiction over final removal orders and
all other related questions of law and fact. Section 1252(b)(7), for
example, allows an alien to challenge the validity of his removal order
during criminal proceedings if he is charged with willfully failing to
depart the United States. And §1252(e)(2) allows an alien who is
denied admission to the United States and ordered removed to raise
certain claims in habeas corpus proceedings.
Cite as: 583 U. S. ____ (2018) 5
HOMAS, of
TOpinion J.,Tconcurring
HOMAS, J.
Court further explains, is meant to ensure that the Gov-
ernment can ultimately remove them. See ante, at 1;
accord, Demore, supra, at 528 (explaining that detention
during removal proceedings “necessarily serves the pur-
pose of preventing deportable criminal aliens from fleeing
prior to or during their removal proceedings, thus increas-
ing the chance that, if ordered removed, the aliens will be
successfully removed”). The phrase “any action taken . . .
to remove an alien from the United States” must at least
cover congressionally authorized portions of the deporta-
tion process that necessarily serve the purpose of ensuring
an alien’s removal. Claims challenging detention during
removal proceedings thus fall within the heartland of
§1252(b)(9).
B
The plurality, the dissent, and respondents each offer
reasons why §1252(b)(9) does not apply to this case. The
plurality reasons that applying §1252(b)(9) to detention
claims requires an overly expansive reading of “arising
from.” See ante, at 9–10. The dissent contends that
§1252(b)(9) applies only to challenges to the removal order
itself. Post, at 31. And respondents argue that, if
§1252(b)(9) applies to their claims, they will have no
meaningful way to challenge their detention during their
removal proceedings.3 Tr. of Oral Arg. 36. None of these
arguments persuades me.
1
The plurality asserts that §1252(b)(9) covers respond-
——————
3 Respondents also asserted at oral argument that the Government
“has said repeatedly” that §1252(b)(9) does not apply to detention
claims. Tr. of Oral Arg. 36. But our “independent obligation” to evalu-
ate jurisdiction, Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006),
means that we cannot accept the Government’s concessions on this
point. See King Bridge Co. v. Otoe County, 120 U.S. 225, 226 (1887).
6 JENNINGS v. RODRIGUEZ
THOMAS, J., concurring
ents’ claims only if the words “arising from” are given an
“expansive interpretation.” Ante, at 9. I am of a different
view. Even if “arising from” is read narrowly, §1252(b)(9)
still covers the claims at issue in this case. That is be-
cause detention is an “action taken . . . to remove” an
alien. And even the narrowest reading of “arising from”
must cover claims that directly challenge such actions.
See AADC, 525 U.S., at 482–483.
The main precedent that the plurality cites to support
its narrow reading of “arising from” demonstrates that
§1252(b)(9) applies here. See ante, at 10 (citing AADC,
525 U.S., at 482–483). In AADC, the Court explained
that §1252(b)(9) covers “all claims arising from deporta-
tion proceedings” and the “many . . . decisions or actions
that may be part of the deportation process.” Ibid. The
Court even listed examples of the type of claims that
would be covered, including challenges to the decision “to
open an investigation” and the decision “to surveil the
suspected [immigration-law] violator.” Id., at 482. If
surveilling a suspected violator falls under the statute,
then the detention of a known violator certainly does as
well.
The plurality dismisses my “expansive interpretation”
because it would lead to “staggering results,” supposedly
barring claims that are far afield from removal. See ante,
at 9 (describing lawsuits challenging inhumane conditions
of confinement, assaults, and negligent driving). But that
is not the case. Unlike detention during removal proceed-
ings, those actions are neither congressionally authorized
nor meant to ensure that an alien can be removed. Thus,
my conclusion that §1252(b)(9) covers an alien’s challenge
to the fact of his detention (an action taken in pursuit of
the lawful objective of removal) says nothing about whether
it also covers claims about inhumane treatment, as-
saults, or negligently inflicted injuries suffered during
detention (actions that go beyond the Government’s lawful
Cite as: 583 U. S. ____ (2018) 7
HOMAS, of
TOpinion J.,Tconcurring
HOMAS, J.
pursuit of its removal objective). Cf. Bell v. Wolfish, 441
U.S. 520, 536–539 (1979) (drawing a similar distinction).
2
The dissent takes a different approach. Relying on the
prefatory clause to §1252(b), it asserts that §1252(b)(9) “by
its terms applies only ‘[w]ith respect to review of an order
of removal under [§1252(a)(1)].’ ” Post, at 31 (quoting 8
U.S. C. §1252(b)). The dissent reads the prefatory clause
to mean that §1252(b)(9) applies only to a “challenge
[to] an order of removal.” Post, at 31. That reading is
incorrect.
Section 1252(b)(9) is not restricted to challenges to
removal orders. The text refers to review of “all questions
of law and fact” arising from removal, not just removal
orders. (Emphasis added.) And it specifies that
§1252(a)(1) provides the only means for reviewing “such
an order or such questions of law or fact.” Ibid. (emphasis
added). The term “or” is “ ‘almost always disjunctive, that
is, the words it connects are to be given separate mean-
ings.’ ” Loughrin v. United States, 573 U. S. ___, ___ (2014)
(slip op., at 6) (quoting United States v. Woods, 571 U.S.
31, 45–46 (2013)). By interpreting §1252(b)(9) as govern-
ing only removal orders, the dissent reads “or such ques-
tions of law or fact” out of the statute. It also renders
superfluous §1252(a)(5), which already specifies that the
review made available under §1252(a)(1) “shall be the sole
and exclusive means for judicial review of an order of
removal.” This Court typically disfavors such interpreta-
tions. See AADC, supra, at 483.
The prefatory clause of §1252(b) does not change the
meaning of §1252(b)(9). The prefatory clause states that
the subparagraphs of §1252(b), including §1252(b)(9),
impose requirements “[w]ith respect to review of an order
of removal under subsection (a)(1).” The phrase “with
respect to” means “referring to,” “concerning,” or “relating
8 JENNINGS v. RODRIGUEZ
HOMAS, of
TOpinion J.,Tconcurring
HOMAS, J.
to.” Oxford American Dictionary and Language Guide 853
(1999 ed.); accord, Webster’s New Universal Unabridged
Dictionary 1640 (2003 ed.); American Heritage Dictionary
1485 (4th ed. 2000). Read together, the prefatory clause
and §1252(b)(9) mean that review of all questions arising
from removal must occur in connection with review of a
final removal order under §1252(a)(1), which makes sense
given that §1252(b)(9) is meant to “[c]onsolidat[e] . . .
questions for judicial review.” Tellingly, on the two previ-
ous occasions when this Court interpreted §1252(b)(9), it
did not understand §1252(b)(9) as limited to challenges to
removal orders. See AADC, supra, at 482–483 (stating
that §1252(b)(9) is a “general jurisdictional limitation”
that applies to “all claims arising from deportation pro-
ceedings” and “the many . . . decisions or actions that may
be part of the deportation process”); St. Cyr, 533 U.S., at
313, n. 37 (clarifying that §1252(b)(9) requires “claims that
were viewed as being outside of a ‘final order’ ” to be “con-
solidated in a petition for review and considered by the
courts of appeals” in their review of the final removal
order under §1252(a)(1)). Thus, despite the dissent’s
assertion to the contrary, the prefatory clause plainly does
not change the scope of §1252(b)(9), which covers “all
questions of law or fact” arising from the removal process.
3
At oral argument, respondents asserted that, if
§1252(b)(9) bars their lawsuit, then the only review avail-
able would be “a petition for review of [a] final removal
order” under §1252(a)(1), which takes place “after all the
detention has already happened.”4 Tr. of Oral Arg. 36. I
——————
4 Contrary to respondents’ argument, some of the respondents will get
review before “all the detention has already happened.” Respondents
who successfully petition for review to the Court of Appeals from a final
removal order and obtain a remand to the immigration court, like class
representative Alejandro Rodriguez did here, will have an opportunity
Cite as: 583 U. S. ____ (2018) 9
HOMAS, of
TOpinion J.,Tconcurring
HOMAS, J.
interpret respondents’ argument as a claim that
§1252(b)(9) would be unconstitutional if it precluded
meaningful review of their detention. This argument is
unpersuasive and foreclosed by precedent.
The Constitution does not guarantee litigants the most
effective means of judicial review for every type of claim
they want to raise. See AADC, 525 U.S., at 487–492
(rejecting a similar argument); Heikkila v. Barber, 345
U.S. 229, 237 (1953) (explaining that limitations on judi-
cial review of deportation must be followed “despite [their]
apparent inconvenience to the alien”). This is especially
true in the context of deportation, where limits on the
courts’ jurisdiction have existed for almost as long as
federal immigration laws, and where this Court has re-
peatedly affirmed the constitutionality of those limits.5
Indeed, this Court has already rejected essentially the
same argument that respondents raise here. In AADC,
the Court held that §1252(g), a provision similar to
§1252(b)(9), barred the aliens’ claim that the Government
was violating the First Amendment by selectively enforc-
——————
to obtain review of their detention before it is complete. See Third
Amended Complaint, at 9–12.
5 See, e.g., Act of Aug. 18, 1884, 28 Stat. 390 (“In every case where an
alien is excluded from admission into the United States under any law
or treaty now existing or hereinafter made, the decision of the appro-
priate immigration or customs officers, if adverse to the admission of
such alien, shall be final, unless reversed on appeal to the Secretary of
Treasury”), upheld in Lem Moon Sing v. United States, 158 U.S. 538,
547–550 (1895); Immigration Act of 1891, §8, 26 Stat. 1085 (“All deci-
sions made by the inspection officers or their assistants touching the
right of any alien to land, when adverse to such right, shall be final
unless appeal be taken to the superintendent of immigration, whose
action shall be subject to review by the Secretary of Treasury”), upheld
in Ekiu v. United States, 142 U.S. 651, 660 (1892); 1917 Immigration
Act, §19, 39 Stat. 890 (“In every case where any person is ordered
deported from the United States under the provisions of this Act, or of
any law or treaty, the decision of the Secretary of Labor shall be final”),
upheld in Heikkila, 345 U.S., at 233–235, 237.
10 JENNINGS v. RODRIGUEZ
THOMAS, J., concurring
ing the immigration laws against them. 525 U.S., at 487–
492. The aliens argued that constitutional avoidance
required the Court to interpret §1252(g) as not applying to
their claims because the only remaining avenue for re-
view—a petition for review of a final removal order under
§1252(a)(1)—would be “unavailing” and would “come too
late to prevent the ‘chilling effect’ upon their First
Amendment rights.” Id., at 487–488. The Court rejected
this argument because “an alien unlawfully in this coun-
try has no constitutional right to assert selective enforce-
ment as a defense against his deportation.” Id., at 488.
The Court further explained that it had a duty to enforce
Congress’ limitations on judicial review, except perhaps in
“a rare case in which the alleged basis of discrimination is
so outrageous that the foregoing considerations [ justifying
limited review could] be overcome.” Id., at 491.
Like in AADC, respondents’ lack-of-meaningful-review
argument does not allow us to ignore the jurisdictional
limitations that Congress has imposed. This Court has
never held that detention during removal proceedings is
unconstitutional. To the contrary, this Court has repeat-
edly recognized the constitutionality of that practice. See
Demore, 538 U.S., at 523 (explaining that detention is “a
constitutionally valid aspect of the deportation process”);
accord, Reno v. Flores, 507 U.S. 292, 305–306 (1993);
Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206,
215 (1953); Carlson, 342 U.S., at 538, 542. Nor does this
lawsuit qualify as the “rare case in which the alleged
[executive action] is so outrageous” that it could thwart
the jurisdictional limitations in §1252(b)(9). AADC, supra,
at 491. The Government’s detention of respondents is
entirely routine and indistinguishable from the detention
that we have repeatedly upheld in the past. Thus, regard-
less of the inconvenience that §1252(b)(9) might pose for
respondents, this Court must enforce it as written. Re-
spondents must raise their claims in petitions for review of
Cite as: 583 U. S. ____ (2018) 11
HOMAS, of
TOpinion J.,Tconcurring
HOMAS, J.
their final removal orders.6
III
Because I conclude that §1252(b)(9) bars jurisdiction to
hear respondents’ claims, I will also address whether its
application to this case violates the Suspension Clause,
see Art. I, §9, cl. 2 (“The Privilege of the Writ of Habeas
Corpus shall not be suspended, unless when in Cases of
Rebellion or Invasion the public Safety may require it”). It
does not. Even assuming the Suspension Clause bars
Congress from stripping habeas jurisdiction over respond-
ents’ claims, but see St. Cyr, 533 U.S., at 337–346 (Sca-
lia, J., dissenting), this case does not involve a habeas
petition.
Respondents do not seek habeas relief, as understood by
our precedents. Although their complaint references the
general habeas statute, see Third Amended Complaint, at
1, it is not a habeas petition. The complaint does not
request that the District Court issue any writ. See id., at
31–32. Rather, it seeks a declaration and an injunction
that would provide relief for both present and future class
members, including future class members not yet de-
tained. Ibid. Indeed, respondents obtained class certifica-
tion under Federal Rule of Civil Procedure 23(b)(2), which
applies only when the class seeks “final injunctive relief or
corresponding declaratory relief.”7
——————
6I take no position on whether some of the respondents will face other
jurisdictional hurdles, even on review of their final removal orders.
See, e.g., §§1252(a)(2)(A), (B). I also continue to agree with Justice
O’Connor’s concurring opinion in Demore v. Kim, 538 U.S. 510 (2003),
which explained that §1226(e) “unequivocally deprives federal courts of
jurisdiction to set aside ‘any action or decision’ by the Attorney Gen-
eral” regarding detention. Id., at 533 (opinion concurring in part and
concurring in judgment).
7 This Court has never addressed whether habeas relief can be pur-
sued in a class action. See Schall v. Martin, 467 U.S. 253, 261, n. 10
(1984) (reserving this question). I take no position on that issue here,
12 JENNINGS v. RODRIGUEZ
HOMAS, of
TOpinion J.,Tconcurring
HOMAS, J.
Nor did respondents obtain habeas relief. When their
case concluded, respondents obtained a classwide perma-
nent injunction. See Order, Judgment, and Permanent
Injunction, at 5–6. That classwide injunction looks noth-
ing like a typical writ. It is not styled in the form of a
conditional or unconditional release order. Cf. United
States v. Jung Ah Lung, 124 U.S. 621, 622 (1888) (de-
scribing habeas relief as “order[ing] the discharge from
custody of the person in whose behalf the writ was sued
out”); Chin Yow v. United States, 208 U.S. 8, 13 (1908)
(awarding habeas relief by ordering the release of the
alien if certain conditions were not satisfied). It applies to
future class members, including individuals who were not
in custody when the injunction was issued. Cf. 28 U.S. C.
§2241(c) (generally precluding issuance of the writ unless
the petitioner is “in custody”). And it is directed to at least
one individual, the Director for the Executive Office for
Immigration Review, who is not a custodian. Cf. Rumsfeld
v. Padilla, 542 U.S. 426, 434 (2004) (explaining that “the
proper respondent to a habeas petition is ‘the person who
has custody over [the petitioner]’ ” (quoting 28 U.S. C.
§2242)).
Immigration law has long drawn a distinction between
the declaratory and injunctive relief that respondents
sought here and habeas relief. In Heikkila, for instance,
this Court distinguished habeas relief from “injunctions,
declaratory judgments and other types of relief ” that
“courts ha[d] consistently rejected” in immigration cases.
345 U.S., at 230. The Court rejected the alien’s request
for “injunctive and declaratory relief ” because Congress
had authorized courts to grant relief only in habeas pro-
ceedings. Id., at 230, 237. We reaffirmed this distinction
in St. Cyr, where we noted that the 1961 Immigration and
——————
since I conclude that respondents are not seeking habeas relief in the
first place.
Cite as: 583 U. S. ____ (2018) 13
HOMAS, of
TOpinion J.,Tconcurring
HOMAS, J.
Nationality Act, 75 Stat. 650, withdrew the district courts’
“authority to grant declaratory and injunctive relief,” but
not habeas relief. 533 U.S., at 309–310; see also Shaugh-
nessy v. Pedreiro, 349 U.S. 48, 49, 52–53 (1955) (holding
that the Administrative Procedure Act, which authorizes
courts to grant declaratory and injunctive relief, author-
ized “judicial review of deportation orders other than by
habeas corpus” (emphasis added)). And Congress has
confirmed this distinction in its immigration statutes by
allowing one form of relief, but not the other, in particular
circumstances. Compare, e.g., §1252(e)(1) (prohibiting
courts from granting “declaratory, injunctive, or other
equitable relief in any action pertaining to an order to
exclude an alien in accordance with section 1225(b)(1)”)
with §1252(e)(2) (allowing “judicial review . . . in habeas
corpus proceedings” of particular “determination[s] made
under section 1225(b)(1)”).
Respondents’ suit for declaratory and injunctive relief,
in sum, is not a habeas petition. The Suspension Clause
protects “[t]he Privilege of the Writ of Habeas Corpus,” not
requests for injunctive relief. Because respondents have
not sought a writ of habeas corpus, applying §1252(b)(9) to
bar their suit does not implicate the Suspension Clause.
* * *
Because §1252(b)(9) deprives courts of jurisdiction over
respondents’ claims, we should have vacated the judgment
below and remanded with instructions to dismiss this case
for lack of jurisdiction. But a majority of the Court has
decided to exercise jurisdiction. Because I agree with the
Court’s disposition of the merits, I concur in Part I and
Parts III–VI of its opinion.
Cite as: 583 U. S. ____ (2018) 1
BREYER, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 15–1204
_________________
DAVID JENNINGS, ET AL., PETITIONERS v.
ALEJANDRO RODRIGUEZ, ET AL., INDIVID-
UALLY AND ON BEHALF OF ALL OTHERS
SIMILARLY SITUATED
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[February 27, 2018]
JUSTICE BREYER, with whom JUSTICE GINSBURG and
JUSTICE SOTOMAYOR join, dissenting.
This case focuses upon three groups of noncitizens held
in confinement. Each of these individuals believes he or
she has the right to enter or to remain within the United
States. The question is whether several statutory provi­
sions of the Immigration and Nationality Act, 8 U.S. C.
§1101 et seq., forbid granting them bail.
The noncitizens at issue are asylum seekers, persons
who have finished serving a sentence of confinement (for a
crime), or individuals who, while lacking a clear entitle­
ment to enter the United States, claim to meet the criteria
for admission, see infra, at 20, 25–26, 29–30. The Gov­
ernment has held all the members of the groups before us
in confinement for many months, sometimes for years,
while it looks into or contests their claims. But ultimately
many members of these groups win their claims and the
Government allows them to enter or to remain in the
United States. Does the statute require members of these
groups to receive a bail hearing, after, say, six months of
confinement, with the possibility of release on bail into the
community provided that they do not pose a risk of flight
or a threat to the community’s safety?
2 JENNINGS v. RODRIGUEZ
BREYER, J., dissenting
The Court reads the statute as forbidding bail, hence
forbidding a bail hearing, for these individuals. In my
view, the majority’s interpretation of the statute would
likely render the statute unconstitutional. Thus, I would
follow this Court’s longstanding practice of construing a
statute “so as to avoid not only the conclusion that it is
unconstitutional but also grave doubts upon that score.”
United States v. Jin Fuey Moy, 241 U.S. 394, 401 (1916).
And I would interpret the statute as requiring bail hear­
ings, presumptively after six months of confinement. Cf.
Zadvydas v. Davis, 533 U.S. 678, 701 (2001).
I
The Respondents
Because of their importance to my conclusion, I shall
repeat, with references to record support, the key charac­
teristics of the groups of noncitizens who appear before us.
First, as I have said, the respondents in this case are
members of three special classes of noncitizens, the most
important of whom (1) arrive at our borders seeking asy­
lum or (2) have committed crimes but have finished serv­
ing their sentences of imprisonment. We also consider
those who (3) arrive at our borders believing they are
entitled to enter the United States for reasons other than
asylum seeking, but lack a clear entitlement to enter.
Second, all members of the first group, the asylum
seekers, have been found (by an immigration official)
to have a “credible fear of persecution” in their home coun­
try should the United States deny them admittance. 8
U.S. C. §1225(b)(1)(B)(ii). All members of the second
group have, as I have said, finished serving their criminal
sentences of confinement. §1226(c)(1). All members of the
third group may have (or may simply believe they have) a
strong claim for admittance, but they are neither “clearly
and beyond a doubt entitled to be admitted” nor conclu­
sively determined to be inadmissible by an immigration
Cite as: 583 U. S. ____ (2018) 3
BREYER, J., dissenting
officer on grounds of fraud or lack of required documenta­
tion. §1225(b)(2)(A); see §§1225(b)(1)(A)(i), 1182(a)(6)(C),
(a)(7).
Third, members of the first two classes number in the
thousands. See Brief for 46 Social Science Researchers
and Professors as Amici Curiae 6, 8 (identifying, in 2015,
7,500 asylum seekers and 12,220 noncitizens who have
finished serving sentences of criminal confinement, a
portion of whom are class members detained for more than
six months).
Fourth, detention is often lengthy. The classes before us
consist of people who were detained for at least six months
and on average one year. App. 92, 97. The record shows
that the Government detained some asylum seekers for
831 days (nearly 2½ years), 512 days, 456 days, 421 days,
354 days, 319 days, 318 days, and 274 days—before they
won their cases and received asylum. Id., at 97, 228–236.
It also shows that the Government detained one nonciti­
zen for nearly four years after he had finished serving a
criminal sentence, and the Government detained other
members of this class for 608 days, 561 days, 446 days,
438 days, 387 days, and 305 days—all before they won
their cases and received relief from removal. Id., at 92,
213–220.
Fifth, many of those whom the Government detains
eventually obtain the relief they seek. Two-thirds of the
asylum seekers eventually receive asylum. Id., at 98
(Table 28); id., at 135 (Table 38); App. to Pet. for Cert. 40a.
Nearly 40% of those who have served criminal sentences
receive relief from removal, because, for example, their
earlier conviction involved only a short sentence. See App.
95 (Table 23); id., at 135 (Table 38). See also App. to Pet.
for Cert. 34a; App. 210, 216–217, 312–313 (between one-
half and two-thirds of the class served sentences less than
six months, e.g., a 2-month sentence for being under the
influence of a controlled substance, or an 8-day jail term
4 JENNINGS v. RODRIGUEZ
BREYER, J., dissenting
for a minor firearms offense).
Sixth, these very asylum seekers would have received
bail hearings had they first been taken into custody within
the United States rather than at the border. See In re
X-K-, 23 I. & N. Dec. 731, 734–735 (BIA 2005); 8 U.S. C.
§1226(a).
Seventh, as for those who have finished serving their
sentences (for crimes), some of those who are less danger­
ous would (on the majority’s view) be held without bail the
longest, because their claims will take longer to adjudi­
cate. Moreover, those noncitizens would have no oppor­
tunity to obtain bail while they pursue their claims, but if
they lose their claims, the Government must release them,
typically within six months, if the Government can find no
other country willing to take them. See Zadvydas, supra,
at 701.
Eighth, all the respondents are held in detention within
the geographical boundaries of the United States, either in
facilities controlled by United States Immigration and
Customs Enforcement (ICE) or in state or local jails that
hold them on ICE’s behalf. App. 302–304; see ICE, Deten­
tion Facility Locator, online at http://www.ice.gov/
detention-facilities (all Internet materials as last visited
Feb. 21, 2018).
Ninth, the circumstances of their detention are similar,
so far as we can tell, to those in many prisons and jails.
And in some cases the conditions of their confinement are
inappropriately poor. See Dept. of Homeland Security
(DHS), Office of Inspector General (OIG), DHS OIG In­
spection Cites Concerns With Detainee Treatment and
Care at ICE Detention Facilities (2017) (reporting in­
stances of invasive procedures, substandard care, and
mistreatment, e.g., indiscriminate strip searches, long
waits for medical care and hygiene products, and, in the
case of one detainee, a multiday lock down for sharing a
cup of coffee with another detainee).
Cite as: 583 U. S. ____ (2018) 5
BREYER, J., dissenting
These record-based facts make evident what I said at
the outset: The case concerns persons whom immigration
authorities believe are not citizens and may not have a
right to enter into, or remain within, the United States.
Nonetheless they likely have a reasonable claim that they
do have such a right. The Government detains them,
often for many months while it determines the merits of,
or contests, their claims. To repeat the question before us:
Does the statute entitle an individual member of one of
these classes to obtain, say, after six months of detention,
a bail hearing to decide whether he or she poses a risk of
flight or danger to the community and, if not, to receive
bail?
II
The Constitutional Question
The majority reads the relevant statute as prohibiting
bail and hence prohibiting a bail hearing. In my view, the
relevant constitutional language, purposes, history, tradi­
tion, and case law all make clear that the majority’s inter­
pretation at the very least would raise “grave doubts”
about the statute’s constitutionality. See Jin Fuey Moy,
241 U.S., at 401.
A
Consider the relevant constitutional language and the
values that language protects. The Fifth Amendment says
that “[n]o person shall be . . . deprived of life, liberty, or
property without due process of law.” An alien is a “per­
son.” See Wong Wing v. United States, 163 U.S. 228, 237–
238 (1896). To hold him without bail is to deprive him of
bodily “liberty.” See United States v. Salerno, 481 U.S.
739, 748–751 (1987). And, where there is no bail proceed­
ing, there has been no bail-related “process” at all. The
Due Process Clause—itself reflecting the language of the
Magna Carta—prevents arbitrary detention. Indeed,
6 JENNINGS v. RODRIGUEZ
BREYER, J., dissenting
“[f]reedom from bodily restraint has always been at the
core of the liberty protected by the Due Process Clause
from arbitrary governmental action.” Foucha v. Louisi-
ana, 504 U.S. 71, 80 (1992); see also Demore v. Kim, 538
U.S. 510, 532 (2003) (KENNEDY, J., concurring);
Zadvydas, 533 U.S., at 718 (KENNEDY, J., dissenting).
The Due Process Clause foresees eligibility for bail as
part of “due process.” See Salerno, supra, at 748–751;
Schilb v. Kuebel, 404 U.S. 357, 365 (1971); Stack v. Boyle,
342 U.S. 1, 4 (1951). Bail is “basic to our system of law.”
Schilb, supra, at 365. It not only “permits the unham­
pered preparation of a defense,” but also “prevent[s] the
infliction of punishment prior to conviction.” Stack, supra,
at 4. It consequently limits the Government’s ability to
deprive a person of his physical liberty where doing so is
not needed to protect the public, see Salerno, supra, at
750–751, or to assure his appearance at, say, a trial or the
equivalent, see Stack, supra, at 4–5. Why would this
constitutional language and its bail-related purposes not
apply to members of the classes of detained persons at
issue here?
The Eighth Amendment reinforces the view that the
Fifth Amendment’s Due Process Clause does apply. The
Eighth Amendment forbids “[e]xcessive bail.” It does so in
order to prevent bail being set so high that the level itself
(rather than the reasons that might properly forbid re­
lease on bail) prevents provisional release. See Carlson v.
Landon, 342 U.S. 524, 545 (1952) (explaining that the
English clause from which the Eighth Amendment was
copied was understood “to provide that bail shall not be
excessive in those cases where it is proper to grant bail”).
That rationale applies a fortiori to a refusal to hold any
bail hearing at all. Thus, it is not surprising that this
Court has held that both the Fifth Amendment’s Due
Process Clause and the Eighth Amendment’s Excessive
Bail Clause apply in cases challenging bail procedures.
Cite as: 583 U. S. ____ (2018) 7
BREYER, J., dissenting
See, e.g., Salerno, supra, at 746–755; Carlson, supra, at
537–546.
It is clear that the Fifth Amendment’s protections ex­
tend to “all persons within the territory of the United
States.” Wong Wing, supra, at 238. But the Government
suggests that those protections do not apply to asylum
seekers or other arriving aliens because the law treats
arriving aliens as if they had never entered the United
States; hence they are not held within its territory.
This last-mentioned statement is, of course, false. All of
these noncitizens are held within the territory of the
United States at an immigration detention facility. Those
who enter at JFK airport are held in immigration deten­
tion facilities in, e.g., New York; those who arrive in El
Paso are held in, e.g., Texas. At most one might say that
they are “constructively” held outside the United States:
the word “constructive” signaling that we indulge in a
“legal fiction,” shutting our eyes to the truth. But once we
admit to uttering a legal fiction, we highlight, we do not
answer, the relevant question: Why should we engage in
this legal fiction here?
The legal answer to this question is clear. We cannot
here engage in this legal fiction. 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.
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 deten­
tion. 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. See
8 JENNINGS v. RODRIGUEZ
BREYER, J., dissenting
Zadvydas, supra, at 720–721 (KENNEDY, J., dissenting)
(“inadmissible aliens” who are “stopped at the border” are
“entitled to be free from detention that is arbitrary or
capricious”).
B
The Due Process Clause, among other things, protects
“those settled usages and modes of proceeding existing in
the common and statute law of England, before the emi­
gration of our ancestors,” and which were brought by them
to this country. Murray’s Lessee v. Hoboken Land & Im-
provement Co., 18 How. 272, 277 (1856). A brief look at
Blackstone makes clear that at the time of the American
Revolution the right to bail was “settled”—in both civil
and criminal cases.
Blackstone tells us that every prisoner (except for a
convict serving his sentence) was entitled to seek release
on bail. 4 Commentaries on the Laws of England 296–297
(1769). This right applied in every criminal case. Ibid. A
noncapital defendant could seek bail from a local magis­
trate; a capital defendant could seek bail at a hearing
before the Court of King’s Bench. See ibid. Although a
capital defendant had no right to obtain bail, he could
always seek it, because “the court of king’s bench . . . may
bail for any crime whatsoever, be it treason, murder, or
any other offense, according to the circumstances of the
case.” Id., at 296. And although King Charles I initially
claimed the right to hold a prisoner without bail on secret
national security grounds, see Darnel’s Case, 3 How. St.
Tr. 1 (K. B. 1627), Parliament responded by extracting
from the King (via the 1628 Petition of Right) a promise to
cease such detention. See 2 W. Hawkins, A Treatise of the
Pleas of the Crown 107–110 (4th ed. 1771). From then on,
bail was available even when a prisoner was held on the
personal command of the King. Ibid. That is why Black­
stone says that the King’s Bench or its judges “may bail in
Cite as: 583 U. S. ____ (2018) 9
BREYER, J., dissenting
any Case whatsoever,” 4 Analysis of the Laws of England
148 (6th ed. 1771), indeed, in civil cases too, for in Black­
stone’s time some private civil cases might have begun
with an arrest. See 3 Blackstone, Commentaries 290
(1768). And bail was likewise an alternative to detention
where a judgment debtor was unable to pay a civil judg­
ment in the era of debtor’s prison. See, e.g., Beers v.
Haughton, 9 Pet. 329, 356 (1835) (explaining that under
Ohio law, “if a defendant, upon a [writ of] capias, does not
give sufficient appearance bail, he shall be committed to
prison”); Hamilton v. Dunklee, 1 N. H. 172 (1818).
American history makes clear that the settlers brought
this practice with them to America. The Judiciary Act of
1789 conferred rights to bail proceedings in all federal
criminal cases. §33, 1 Stat. 91. It said that for a noncapi­
tal defendant “bail shall be admitted” and for a capital
defendant bail may be admitted in the discretion of a
district judge, a circuit judge, or a Justice of the Supreme
Court, taking account of “the offence, and of the evidence,
and the usages of law.” Ibid. Congress enacted this law
during its debate over the Bill of Rights, which it subse­
quently sent to the States for ratification. See 1 Annals of
Cong. 90 (1789); see also Martin v. Hunter’s Lessee, 1
Wheat. 304, 351 (1816) (Members of the First Congress
were “men of great learning and ability, . . . who had acted
a principal part in framing, supporting, or opposing” the
Constitution itself). Colonial law had been similarly, or in
some instances even more, protective. See Foote, The
Coming Constitutional Crisis in Bail: I, 113 U. Pa. L. Rev.
959, 974–977 (1965).
Similar laws have consistently remained part of our
legal tradition. In all federal criminal cases federal Acts
have provided for bail proceedings. Bail Reform Act of
1984, 18 U.S. C. §3141 et seq.; Bail Reform Act of 1966, 18
U.S. C. §3146 et seq. (1964 ed., Supp. II). Every State has
similar or more generous laws. See Appendix B, infra.
10 JENNINGS v. RODRIGUEZ
BREYER, J., dissenting
Standards for granting bail have changed somewhat
over time. Initially the sole factor determining the out­
come of a bail proceeding was risk of flight. See Stack, 342
U.S., at 4–5 (interpreting the 1789 bail law, applied to a
noncapital defendant and in light of the Eighth Amend­
ment, to require bail no higher than required to provide
“adequate assurance” that the defendant “will stand trial
and submit to sentence if found guilty,” “based upon
standards relevant to the purpose of assuring the presence
of that defendant”).
Congress gradually added community safety as a bail
factor. In 1966, Congress provided that for capital de­
fendants and convicted defendants pursuing appeals, bail
would be granted unless the appeal was frivolous or a
court had “reason to believe that no one or more conditions
of release will reasonably assure that the person will not
flee or pose a danger to any other person or to the commu­
nity.” Bail Reform Act of 1966 §3148. In 1984, Congress
modified the bail standard for noncapital defendants by
adding concern for community safety. §3142(e)(1). This
Court, applying the Due Process Clause and the Excessive
Bail Clause to these changes, found that the 1984 Act
passed constitutional muster. See Salerno, 481 U.S., at
746–755. Again, the States typically apply roughly simi­
lar or more generous standards. See Appendix B, infra.
The cases before us, however, are not criminal cases.
Does that fact make a difference? The problem is that
there are not many instances of civil confinement (aside
from immigration detention, which I address below).
Mental illness does sometimes provide an example. Indi­
viduals dangerous to themselves or to others may be
confined involuntarily to a mental hospital. See, e.g.,
United States v. Comstock, 560 U.S. 126 (2010); Kansas v.
Hendricks, 521 U.S. 346 (1997). Those persons normally
do not have what we would call “a right to a bail hearing.”
But they do possess equivalent rights: They have the right
Cite as: 583 U. S. ____ (2018) 11
BREYER, J., dissenting
to a hearing prior to confinement and the right to review
of the circumstances at least annually. See Comstock,
supra, at 130–131 (initial hearing followed by review every
six months); Hendricks, supra, at 353 (initial hearing
followed by yearly review). And the mentally ill persons
detained under these schemes are being detained because
they are dangerous. That being so, there would be no
point in providing a bail hearing as well. See Salerno,
supra, at 748–749 (analogizing denial of bail to dangerous
individuals to the civil commitment of the mentally ill).
But there is every reason for providing a bail proceeding to
the noncitizens at issue here, because they have received
no individualized determination that they pose a risk of
flight or present a danger to others, nor is there any evi­
dence that most or all of them do.
This Court has also protected the right to a bail hearing
during extradition proceedings. Wright v. Henkel, 190
U.S. 40 (1903), concerned the arrest and confinement of
Whitaker Wright, an American citizen, pending extradi­
tion for a crime that Wright was accused of having com­
mitted in Great Britain. Wright sought bail. Id., at 43.
Since the federal bail laws applied only to those charged
with committing crimes against the United States, they
did not cover Wright’s confinement. Id., at 61–62. The
relevant extradition statute said nothing about bail. Id.,
at 62. Its language (stronger than the language at issue
here) said that the individual was “to remain” in “the
proper jail” until the “surrender shall be made” to the
nation seeking extradition; and it added that he was “to
remain” in custody “until delivered up”—though after two
months he could seek release. Rev. Stat. §§5270, 5273.
In an opinion by Chief Justice Fuller, this Court unani­
mously wrote that, despite the lack of express statutory
authorization and the risk of “embarrassment” to the
United States if Wright fled, Wright could seek release on
bail prior to the expiration of the 2-month period. Wright,
12 JENNINGS v. RODRIGUEZ
BREYER, J., dissenting
190 U.S., at 62–63. Given the universal entitlement to
bail under English law, the Court was “unwilling to hold
that . . . courts may not in any case, and whatever the
special circumstances, extend that relief ” to prisoners
awaiting extradition. Id., at 63. It consequently read a
silent statute as authorizing bail proceedings (though the
Court went on to hold that, under applicable standards,
Wright’s request for bail should be denied). Ibid.
The strongest basis for reading the Constitution’s bail
requirements as extending to these civil, as well as crimi­
nal, cases, however, lies in the simple fact that the law
treats like cases alike. And reason tells us that the civil
confinement at issue here and the pretrial criminal con­
finement that calls for bail are in every relevant sense
identical. There is no difference in respect to the fact of
confinement itself. And I can find no relevant difference
in respect to bail-related purposes.
Which class of persons—criminal defendants or asylum
seekers—seems more likely to have acted in a manner
that typically warrants confinement? A person charged
with a crime cannot be confined at all without a finding of
probable cause that he or she committed the crime. And
the majority of criminal defendants lose their cases. See
Dept. of Justice, Bureau of Justice Statistics, B. Reaves,
Felony Defendants in Large Urban Counties, 2009–
Statistical Tables, p. 24 (Dec. 2013) (reporting that 66% of
felony defendants were convicted). A high percentage of
the noncitizens before us, however, ultimately win the
right they seek, the right to be in the United States.
Nor am I aware of any evidence indicating that the
noncitizens seeking to enter, or to remain within, the
United States are more likely than criminal defendants to
threaten the safety of the community if released. In any
event, this is a matter to be determined, case by case, at
bail hearings.
Which group is more likely to present a risk of flight?
Cite as: 583 U. S. ____ (2018) 13
BREYER, J., dissenting
Again, I can find no evidence suggesting that asylum
seekers or other noncitizens generally present a greater
risk of flight than persons imprisoned for trial where there
is probable cause to believe that the confined person has
committed a crime. In any event, this matter too is to be
determined, case by case, at bail hearings.
If there is no reasonable basis for treating these con­
fined noncitizens worse than ordinary defendants charged
with crimes, 18 U.S. C. §3142; worse than convicted crim­
inals appealing their convictions, §3143(b); worse than
civilly committed citizens, supra, at 10–11; worse than
identical noncitizens found elsewhere within the United
States, supra, at 4; and worse than noncitizens who have
committed crimes, served their sentences, and been defini­
tively ordered removed (but lack a country willing to take
them), supra, at 4, their detention without bail is arbi­
trary. Thus, the constitutional language, purposes, and
tradition that require bail in instances of criminal con­
finement also very likely require bail in these instances of
civil confinement. That perhaps is why Blackstone wrote
that the law provides for the possibility of “bail in any case
whatsoever.” 4 Analysis of the Laws of England, at 148.
C
My examination of the cases from this Court that con­
sidered detention of noncitizens and bail suggests that this
Court, while sometimes denying bail to individuals, gen­
erally has not held that bail proceedings are unnecessary.
Indeed, it almost always has suggested the contrary.
1. In 1882 Congress enacted two laws that restricted
immigration: The first prohibited the entry of “Chinese
laborers.” The Chinese Exclusion Act, ch. 126, 22 Stat. 58.
The second prohibited the entry of “any convict, lunatic,
idiot, or any person unable to take care of himself or her­
self without becoming a public charge.” Act of Aug. 3,
1882, 22 Stat. 214. Neither said a word about bail. But in
14 JENNINGS v. RODRIGUEZ
BREYER, J., dissenting
one instance, an excluded Chinese woman was detained in
jail in San Francisco pending her return to China. She
sought bail. In re Ah Moy, 21 F. 808 (CC Cal. 1884).
Justice Field, sitting as a Circuit Judge, wrote that the
court lacked the authority to order bail because doing so
would allow her to enter the United States—just what the
statute forbade. Id., at 809. The other sitting Circuit
Judge (Judge Sawyer) disagreed. Id., at 810 (dissenting
opinion). He pointed out that the alien would remain “in
the custody and control of the law while lawfully on bail.”
Ibid. He added that it “would be a great hardship, not to
say a gross violation of her personal rights,” to refuse bail
for 15 days before her ship arrived as long as she could
provide “security satisfactory to the court” that she would
indeed depart when it did. Id., at 809–810. Two other
Circuit Judges noted their agreement with Judge Sawyer.
Id., at 809, n. 1. But they did not participate in the case,
ibid., the two participating judges split 1 to 1, and so the
views of presiding Justice Field prevailed. The alien
appealed to this Court, Cheong Ah Moy v. United States,
113 U.S. 216 (1885), but before this Court could decide,
the ship departed with Cheong Ah Moy aboard.
2. In Wong Wing v. United States, 163 U.S. 228 (1896),
the Court struck down as unconstitutional a statute that
said alien Chinese laborers should be “imprisoned at hard
labor” for up to a year before being deported. Id., at 235.
In doing so, the Court wrote that although a sentence to
hard labor was unlawful, “detention, or temporary con­
finement,” was constitutional, because “[d]etention is a
usual feature of every case of arrest on a criminal charge,
even when an innocent person is wrongfully accused.”
Ibid. But an analogy to criminal detention is an analogy
to instances in which bail hearings are required.
3. In Tod v. Waldman, 266 U.S. 113 (1924), the Wald-
man family, like many of the respondents here, challenged
their exclusion. They had arrived at Ellis Island fleeing
Cite as: 583 U. S. ____ (2018) 15
BREYER, J., dissenting
religious persecution in Ukraine. They were detained
because the immigration inspector believed the mother
illiterate, one of the daughters disabled, and the whole
family likely to become public charges. They appealed to
the Labor Department, which ordered Mrs. Waldman
retested for literacy, requiring her to read both Yiddish
and Hebrew. She could not. She then petitioned for a writ
of habeas corpus on the grounds that (1) as a religious
refugee she was exempt from the literacy requirement; (2)
in any event, she need read only one language, not two; (3)
her daughter was not disabled; and (4) the Department of
Labor should have allowed her to appeal administratively.
Id., at 114–115.
The relevant statutory provisions, just like the present
statute, see infra, at 20, 29, said that an arriving person,
unless “clearly and beyond a doubt entitled” to land, “shall
be detained for examination . . . by a board of special in­
quiry.” Act of Feb. 5, 1917, §16, 39 Stat. 886 (emphasis
added). By the time the case reached this Court, however,
the family had been allowed bail. See Waldman, 266
U.S., at 117. This Court ordered the Department of Labor
to provide the family with an administrative appeal.
Then, after initially “remand[ing] the petitioners to the
custody of immigration authorities” pending the outcome
of the appeal, id., at 120, the Court clarified in a rehearing
order that “[n]othing in the order of this Court shall prej­
udice an application for release on bail of the respondents
pending compliance with the mandate of this Court.” Tod
v. Waldman, 266 U.S. 547, 548 (1925). This statement is
inconsistent with the earlier opinion of Justice Field,
sitting as a Circuit Judge, because it shows that even an
alien challenging her exclusion could be released on bail.
Supra, at 14.
4. In Carlson v. Landon, 342 U.S. 524 (1952), this Court
upheld the denial of bail to noncitizen Communists being
held pending deportation, despite a statute that permitted
16 JENNINGS v. RODRIGUEZ
BREYER, J., dissenting
bail proceedings. Id., at 541–546. It did so because
it considered the individuals to be a risk to security. It
said nothing to suggest that bail proceedings were
unnecessary.
5. In Shaughnessy v. United States ex rel. Mezei, 345
U.S. 206 (1953), the Attorney General had ordered a
noncitizen permanently excluded from the United States
on the ground that his “entry would be prejudicial to the
public interest for security reasons.” Id., at 208; see Sub­
versive Activities Control Act of 1950, §§22–23, 64 Stat.
1006–1012. He “sat on Ellis Island because this country
shut him out and others were unwilling to take him in.”
345 U.S., at 209. After 21 months in confinement he filed
a petition for a writ of habeas corpus seeking judicial
review of the exclusion decision or release on bail until he
could be removed to another country. Id., at 207, 209.
This Court refused to review the exclusion decision on the
ground that the security matter fell totally within the
President’s authority, pursuant to an express congressional
delegation of power. Id., at 210. The Court also denied
Mezei a bail proceeding because in an “exclusion proceed­
ing grounded on danger to the national security . . . nei­
ther the rationale nor the statutory authority for” release
on bail exists. Id., at 216. It denied bail, however, after
the Attorney General had already found, on an individual­
ized basis, not only that Mezei was a security risk and
consequently not entitled to either admission or bail, but
also that he could be denied a hearing on the matter be­
cause the basis for that decision could not be disclosed
without harm to national security. Id., at 208–209. The
respondents in this case have been the subject of no such
individualized findings. And unlike Mezei, who was re­
questing bail after his exclusion proceedings had ended
(while the Attorney General searched for a country that
would take him—a matter that we again confronted in
Zadvydas), the respondents here continue to litigate the
Cite as: 583 U. S. ____ (2018) 17
BREYER, J., dissenting
lawfulness of their exclusion itself. Thus, Mezei, but not
the respondents here, was in a sense in the position of a
convicted criminal who had lost his appeal, not a criminal
awaiting trial (or the results of an appeal).
6. Zadvydas v. Davis, 533 U.S. 678 (2001), concerned a
noncitizen who had lawfully resided in this country, com­
mitted a serious crime, completed his prison sentence, and
was then ordered deported. Id., at 684. Zadvydas sought
release on bail during the time the Government searched
for a country that would take him. Id., at 684–685. The
governing statute said an alien such as Zadvydas “may be
detained” pending his removal to another country. 8
U.S. C. §1231(a)(6). We interpreted those words as re­
quiring release from detention once it became clear that
there was “no significant likelihood of removal in the
reasonably foreseeable future”—presumptively after a
period of confinement of six months. 533 U.S., at 701.
We read the statute as requiring this release because a
“statute permitting indefinite detention of an alien would
raise a serious constitutional problem.” Id., at 690.
From a constitutional perspective, this case follows a
fortiori from Zadvydas. Here only a bail hearing is at
issue, not release on bail, much less permanent release.
And here there has been no final determination that any
of the respondents lacks a legal right to stay in the United
States—the bail hearing at issue concerns conditional
release pending that final determination. It is immaterial
that detention here is not literally indefinite, because
while the respondents’ removal proceedings must end
eventually, they last an indeterminate period of at least
six months and a year on average, thereby implicating the
same constitutional right against prolonged arbitrary
detention that we recognized in Zadvydas.
7. In Demore v. Kim, 538 U.S. 510 (2003), we held that
the Government could constitutionally hold without bail
noncitizens who had committed certain crimes, had com­
18 JENNINGS v. RODRIGUEZ
BREYER, J., dissenting
pleted their sentences, and were in removal proceedings.
See §1226(c). But we based our holding on the short-term
nature of the confinement necessary to complete proceed­
ings. See id., at 529–530. The Court wrote that the “de­
tention 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.” Id., at 530. We added:
“[I]n 85% of the cases in which aliens are detained
[pursuant to the relevant statute], removal proceed­
ings are completed in an average time of 47 days and
a median of 30 days. In the remaining 15% of cases,
in which the alien appeals the decision of the immi­
gration judge to the Board of Immigration Appeals,
appeal takes an average of four months, with a median
time that is slightly shorter.” Id., at 529 (citation
omitted).
Demore himself, an outlier, was detained for six months.
Id., at 530–531.
The Court then found detention constitutional “during
the limited period” necessary to arrange for removal, and
we contrasted that period of detention with the detention
at issue in Zadvydas, referring to the detention in Demore
as being “of a much shorter duration.” 538 U.S., at 526,
528. JUSTICE KENNEDY stated in a concurrence that the
Due Process Clause might require bail hearings “if the
continued detention became unreasonable or unjustified.”
Id., at 532. Dissenting, I wrote that, had I believed that
Demore “had conceded that he [was] deportable,” then,
despite Zadvydas, “I would conclude that the Government
could detain him without bail for the few weeks ordinarily
necessary for formal entry of a removal order.” 538 U.S.,
at 576 (opinion concurring in part and dissenting in part).
The Government now tells us that the statistics it gave
to the Court in Demore were wrong. Detention normally
Cite as: 583 U. S. ____ (2018) 19
BREYER, J., dissenting
lasts twice as long as the Government then said it did.
And, as I have pointed out, thousands of people here are
held for considerably longer than six months without an
opportunity to seek bail. See supra, at 3. We deal here
with prolonged detention, not the short-term detention at
issue in Demore. Hence Demore, itself a deviation from
the history and tradition of bail and alien detention, can­
not help the Government.
The upshot is the following: The Constitution’s lan­
guage, its basic purposes, the relevant history, our tradi­
tion, and many of the relevant cases point in the same
interpretive direction. They tell us that an interpretation
of the statute before us that would deny bail proceedings
where detention is prolonged would likely mean that the
statute violates the Constitution. The interpretive princi­
ple that flows from this conclusion is clear and longstand­
ing: “ ‘[A]s between two possible interpretations of a stat­
ute, by one of which it would be unconstitutional and by
the other valid, our plain duty is to adopt that which will
save the Act.’ ” Rust v. Sullivan, 500 U.S. 173, 190 (1991)
(quoting Blodgett v. Holden, 275 U.S. 142, 148 (1927)
(opinion of Holmes, J.)). Moreover, a “statute must be
construed, if fairly possible, so as to avoid not only the
conclusion that it is unconstitutional, but also grave
doubts upon that score.” Jin Fuey Moy, 241 U.S., at 401.
These legal principles reflect a realistic assumption,
namely, that Congress—particularly a Congress that did not
consider a constitutional matter—would normally have
preferred a constitutional interpretation to an interpreta­
tion that may render a statute an unconstitutional nullity.
And that is so even where the constitutional interpreta­
tion departs from the most natural reading of the statute’s
language. See Edward J. DeBartolo Corp. v. Florida Gulf
Coast Building & Constr. Trades Council, 485 U.S. 568,
575 (1988); see also National Federation of Independent
Business v. Sebelius, 567 U.S. 519, 563, 574–576 (2012)
20 JENNINGS v. RODRIGUEZ
BREYER, J., dissenting
(majority opinion and opinion of ROBERTS, C. J.).
III
The Statutory Provisions
The question remains whether it is possible to read the
statute as authorizing bail. As desirable as a constitu­
tional interpretation of a statute may be, we cannot read it
to say the opposite of what its language states. The word
“animal” does not include minerals, no matter how strongly
one might wish that it did. Indeed, where “ ‘Congress
has made its intent in the statute clear, we must give
effect to that intent,’ ” even if doing so requires us to con­
sider the constitutional question, and even if doing so
means that we hold the statute unconstitutional.
Zadvydas, 533 U.S., at 696 (quoting Miller v. French, 530
U.S. 327, 336 (2000)). In my view, however, we can, and
should, read the relevant statutory provisions to require
bail proceedings in instances of prolonged detention with­
out doing violence to the statutory language or to the
provisions’ basic purposes.
A
Asylum Seekers
The relevant provision governing the first class of
noncitizens, the asylum seekers, is §1225(b)(1)(B)(ii). It
says that, if an immigration “officer determines at the
time” of an initial interview with an alien seeking to enter
the United States “that [the] alien has a credible fear of
persecution . . . , the alien shall be detained for further
consideration of the application for asylum.” See Appen­
dix A–1, infra. I have emphasized the three key words,
namely, “shall be detained.” Do those words mean that
the asylum seeker must be detained without bail?
They do not. First, in ordinary English and in light of
the history of bail, the word “detain” is ambiguous in
respect to the relevant point. The Oxford English Diction­
Cite as: 583 U. S. ____ (2018) 21
BREYER, J., dissenting
ary (OED), surveying the history of the word, notes that
Edward Hall, a famous 16th-century legal scholar and
author of Hall’s Chronicle, wrote: “A traytor . . . is appre­
hended and deteigned in prisone for his offence,” a use of
the word, as we know from Blackstone, that is consistent
with bail. See supra, at 8–9; OED (3d ed., Dec. 2012),
http://www.oed.com/view/Entry/51176 (annot. to def. 1).
David Hume, the famous 18th-century historian and
philosopher, writes of being “detained in strict confine­
ment,” thereby implying the existence of detention without
strict confinement. Ibid. A 19th-century novelist writes,
“ ‘Beg your pardon, sir,’ said the constable, . . . ‘I shall be
obliged to detain you till this business is settled’ ”—again a
use of “detain” that we know (from Blackstone) is con­
sistent with bail. Ibid. And the OED concludes that the
primary meaning of “detain” is “[t]o keep in confinement
or under restraint; to keep prisoner.” Ibid. (emphasis
added). To grant bail, we know, is not to grant unre­
strained freedom. Rather, where the Act elsewhere ex­
pressly permits bail, it requires “bond of at least $1,500
with security approved by, and containing conditions
prescribed by, the Attorney General.” 8 U.S. C.
§1226(a)(2)(A). Similarly in the criminal context, bail
imposes numerous restraints, ranging from the provision
of a bond, to restrictions on residences and travel, to the
imposition of a curfew, to a requirement to obtain medical
treatment, to report at regular intervals, or even to return
to custody at specified hours. See 18 U.S. C.
§3142(c)(1)(B) (listing possible conditions for the pretrial
release of federal criminal defendants).
At the very least, because the word “detain” in this
context refers to a comparatively long period of time, it can
readily coexist with a word such as “bail” that refers to a
shorter period of conditional release. For instance, there
is nothing inconsistent in saying: During his exile, he was
permitted to pay short visits to his home country; during
22 JENNINGS v. RODRIGUEZ
BREYER, J., dissenting
the period of active hostilities, the soldiers would lay down
their arms and fraternize on Christmas Day; during his
overseas detention, he was allowed home to see his sick
mother; or during his detention pending proceedings, he
was permitted bail.
Second, our precedent treats the statutory word “detain”
as consistent with bail. In Waldman, 266 U.S. 547, we
considered an immigration statute that stated (in respect
to arriving aliens) that “[e]very alien who may not appear
to the examining inspector at the port of arrival to be
clearly and beyond a doubt entitled to land shall be de-
tained for examination in relation thereto by a board of
special inquiry.” Act of Feb. 5, 1917, §16, 39 Stat. 886
(emphasis added). The Court indicated that bail was
available, stating that “[n]othing in the order of this court
shall prejudice an application for release on bail.” 266
U.S., at 548. In so stating, the Court was simply follow­
ing precedent, such as Wright v. Henkel, where the Court
wrote that bail is available even where not “specifically
vested by statute.” 190 U.S., at 63; see supra, at 11–12.
When Congress passed the relevant provisions of the Act
in 1996, it legislated against this historical backdrop, at a
time when the precise language that it adopted had been
interpreted by this Court to permit bail. See Monessen
Southwestern R. Co. v. Morgan, 486 U.S. 330, 338 (1988)
(“Congress’ failure to disturb a consistent judicial inter­
pretation of a statute may provide some indication that
‘Congress at least acquiesces in, and apparently affirms,
that [interpretation]’ ” (quoting Cannon v. University of
Chicago, 441 U.S. 677, 703 (1979))).
Third, the Board of Immigration Appeals reads the word
“detain” as consistent with bail, for it has held that its
regulations, implementing the same statutory provision as
is before us, allow bail for asylum seekers who are appre­
hended inside the United States within 100 miles of the
border, rather than at a border crossing. See In re X-K-,
Cite as: 583 U. S. ____ (2018) 23
BREYER, J., dissenting
23 I. & N. Dec., at 732, 734–735 (discussing 8 CFR
§1003.19(h)(2)(i) (2004)). The same statute, same lan­
guage applies to the detention of those asylum seekers and
the ones before us, so the statute must be consistent with
bail in the Board of Immigration Appeals’ view.
Fourth, in Zadvydas we found (to avoid similar constitu­
tional questions) that the words “ ‘may be detained’ ” were
consistent with requiring release from long-term deten­
tion. 533 U.S., at 682 (quoting 8 U.S. C. §1231(a)(6)).
The majority correctly notes that here the language sub­
stitutes the word “shall” for the word “may.” Ante, at 14–
16. But the majority is wrong to distinguish Zadvydas on
this basis. There the Court did not emphasize the word
“detain,” for the question at issue was release from deten­
tion. And the key word was consequently “may,” suggest­
ing discretion. Here the question concerns the right to a
bail hearing during detention. And the key linguistic
ambiguity concerns the word “detention.” Is that word
consistent with bail proceedings? The answer, for the
reasons I have stated, is “yes.”
Fifth, the statute does not even mention long-term
detention without bail. Whether the statute speaks in
terms of discretion (“may,” as in Zadvydas) or mandatory
action (“shall,” as in this case), the Government’s argu­
ment is wrong for the same reason: Congress does not
unambiguously authorize long-term detention without bail
by failing to say when detention must end. As we recog­
nized in Zadvydas, Congress anticipated long-term deten­
tion elsewhere in the Act, providing for review every six
months of terrorist aliens detained under 8 U.S. C.
§1537(b)(2)(C), but it did not do so here. See 533 U.S., at
697.
Sixth, the Act provides that an asylum applicant whose
proceedings last longer than six months may be given
work authorization. §1158(d)(2). The majority would
apply this provision to some asylum applicants but not the
24 JENNINGS v. RODRIGUEZ
BREYER, J., dissenting
ones before us. Ante, at 26, n. 6. Of course, the statute
does not contain that limitation. Read most naturally, the
provision offers some indication that Congress, in the
same statute, did not require asylum seekers to remain
confined without bail at the 6-month mark.
Seventh, there is a separate statutory provision that
purports to do precisely what the majority says this one
does, providing that certain aliens “shall be detained . . .
until removed.” §1225(b)(1)(B)(iii)(IV) (emphasis added);
ante, at 16 (detention must continue until proceedings
“have finished”). The problem for the majority is that this
other provision applies only to those who, unlike the re­
spondents, have no credible fear of persecution. The pro­
vision that applies here lacks similar language.
Linguistic ambiguity, while necessary, is not sufficient.
I would also ask whether the statute’s purposes suggest a
congressional refusal to permit bail where confinement is
prolonged. The answer is “no.” There is nothing in the
statute or in the legislative history that reveals any such
congressional intent. The most likely reason for its ab­
sence is that Congress, like the Government when it ap­
peared before us in Demore, believed there were no such
instances, or at least that there were very few. Indeed,
the Act suggests that asylum proceedings ordinarily finish
quickly. See §1158(d)(5)(A) (providing that absent “excep­
tional circumstances,” final administrative adjudication
(not including appeal) must be completed “within 180
days,” and any appeal must be filed “within 30 days” of the
decision). And for those proceedings that last longer than
six months, we know that two-thirds of asylum seekers
win their cases. Thus, legislative silence suggests not
disapproval of bail, but a lack of consideration of the mat­
ter. For present purposes that is sufficient. It means that
Congress did not intend to forbid bail. An interpretation
that permits bail—based upon history, tradition, statutory
context, and precedent—is consistent, not inconsistent,
Cite as: 583 U. S. ____ (2018) 25
BREYER, J., dissenting
with what Congress intended the statutory provision to
do.
The majority apparently finds a contrary purpose in the
fact that other provisions of the statute permit the Attor­
ney General to release an alien on parole “ ‘for urgent
humanitarian reasons or significant public benefit’ ” and
impose bail-like conditions. Ante, at 16–17 (discussing 8
U.S. C. §1182(d)(5)(A)). Yet under the majority’s inter­
pretation of “detain,” the same argument could have been
made in Zadvydas. We held that noncitizens presump­
tively are entitled to release after six months of detention,
notwithstanding an available alternative avenue for relief,
namely, bail. 533 U.S., at 683. There is no reason to
reach a different result here. While the Government
historically used this provision to take account of tradi­
tional bail factors (flight risk, safety risk), the President
since issued an Executive Order directing parole to be
granted “in all circumstances only when an individual
demonstrates urgent humanitarian reasons or a signifi­
cant public benefit.” Exec. Order. No. 13767, 82 Fed. Reg.
8793 (2017). And besides, Congress’ provision of parole to
permit, for example, release for the purpose of medical
care or to testify in a court proceeding—which adds to the
circumstances under which a noncitizen can be released
from confinement—says nothing about whether Congress
intended to cut back on those circumstances in respect to
the meaning of “detain” and the historical understanding
that detention permits bail.
B
Criminals Who Have Served Their Sentences
The relevant statutory provision, §1226(c), says in para­
graph (1) that the “Attorney General shall take into cus-
tody any alien who . . . is deportable [or inadmissible] by
reason of having committed [certain crimes] when the
alien is released,” presumably (or ordinarily) after having
26 JENNINGS v. RODRIGUEZ
BREYER, J., dissenting
served his sentence. It then goes on to say, in paragraph
(2), that the “Attorney General may release [that] alien . . .
only if the Attorney General decides pursuant to section
3521 of title 18 that release of the alien from custody is
necessary to provide protection to a witness [or to certain
related others].” See Appendix A–2, infra.
I have emphasized the relevant phrases: “take into
custody” in the first paragraph, and “may release [that]
alien . . . only if ” in the second paragraph. We have long
interpreted “in custody” as “not requir[ing] that a prisoner
be physically confined.” Maleng v. Cook, 490 U.S. 488,
491 (1989) (per curiam). In the habeas context, we have
held that “a person released on bail or on his own recogni­
zance” is “ ‘in custody’ within the meaning of the statute.”
Hensley v. Municipal Court, San Jose-Milpitas Judicial
Dist., Santa Clara Cty., 411 U.S. 345, 349 (1973); Justices
of Boston Municipal Court v. Lydon, 466 U.S. 294, 300–
301 (1984) (same). The reason is simple, as I already have
explained, supra, at 21: A person who is released on bail
“is subject to restraints ‘not shared by the public gener­
ally.’ ” Hensley, supra, at 351 (quoting Jones v. Cunning-
ham, 371 U.S. 236, 240 (1963)); see also Maleng, supra, at
491 (“[A] prisoner who had been placed on parole was still
‘in custody’ ” because his “release from physical confine­
ment . . . was not unconditional; instead, it was explicitly
conditioned on his reporting regularly to his parole officer,
remaining in a particular community, residence, and job,
and refraining from certain activities” (citing Jones, supra,
at 242)).
Moreover, there is no reason to interpret “custody”
differently than “detain.” The OED defines “custody” as
“[t]he state of being detained,” http://www.oed.com/view/
Entry/46305 (def. 5). “Detained,” as I have previously
pointed out, can be read consistently with bail. See supra,
at 20–23. The OED also defines the statutory phrase,
“take (a person) into custody,” as “to arrest and imprison
Cite as: 583 U. S. ____ (2018) 27
BREYER, J., dissenting
(a person),” http://www.oed.com/view/Entry/46305 (def. 5).
And we know from the history, tradition, case law, and
other sources earlier discussed, including Blackstone, that
arresting and imprisoning a person is consistent with a
bail hearing and a subsequent grant of bail, even where a
statute contains words such as “commitment” or “detain.”
See supra, at 5–19 (citing, e.g., Wright, 190 U.S., at 62
(reading as consistent with a bail proceeding the statutory
language “ ‘shall issue [a] warrant for the commitment . . .
to the proper jail, there to remain’ ” until “ ‘surrender’ ” for
extradition)).
But what about the second phrase, stating that the
Attorney General “may release [that] alien . . . only if the
Attorney General decides pursuant to section 3521 of title
18 that release of the alien from custody is necessary to
provide protection to a witness”? Does the presence of the
words “only if ” show that the statute automatically denies
bail for any other reason?
It does not. That is because the phrase has nothing to
do with bail. It has to do with a special program, the
Witness Protection Program, set forth in 18 U.S. C.
§3521. That program allows the Attorney General to
relocate the witness, to give him an entirely new identity,
to help his family similarly, and to pay him a stipend,
among other things. §§3521(a)(1), (b)(1). The Attorney
General may “take such action as [he] determines to be
necessary to protect the person,” presumably even free the
witness from whatever obligations might require him to
report to an immigration or judicial authority.
§3521(b)(1). Accordingly, when the Attorney General
“release[s]” an alien under 8 U.S. C. §1226(c)(2), he does
not grant bail; he may well do far more, freeing the wit­
ness from a host of obligations and restraints, including
those many obligations and restraints that accompany
bail. See supra, at 21.
This understanding of “release” in §1226(c) is consistent
28 JENNINGS v. RODRIGUEZ
BREYER, J., dissenting
with the OED’s definition of “release” as “to free from
restraint” or even “to liberate from . . . an obligation” (not
simply “to free from . . . captivity”), http://www.oed.com/
view/Entry/161859 (def. 6(a)). And it is consistent with
our earlier reading of the word “detain.” Supra, at 20–24.
Following the OED’s definition of “detain” as “under re-
straint,” we have understood the word “detention” to in­
clude the state of being “under” those “restraints” that
typically accompany bail. Supra, at 20–24. That is to say,
both the individual on bail and the individual not on bail
are “detained”; and the Attorney General, through his
Witness Protection Program powers can free the individual
from both. To repeat: The provision at issue means that
the Attorney General “may release” the detained person
from the restraints that accompany detainment—whether
that individual has been detained with, or without, bail.
So understood the phrase has nothing to do with the
issue before us: whether a confined individual is, or is not,
entitled to bail or a bail hearing. It simply means that the
Attorney General cannot free that person from all, or
most, restraining conditions (including those that accom­
pany bail) unless the alien is placed in the Witness Protec­
tion Program. So read, the words “only if ” neither favor
nor disfavor a reading of the statute consistent with the
right to a bail proceeding.
The purpose-related reasons that argue for a bail-
favorable reading are also applicable here. Congress did
not consider the problem of long-term detention. It wrote
the statute with brief detention in mind. See H. R. Rep.
No. 104–469, pt. 1, p. 123, and n. 25 (1996) (stating that
the “average stay [was] 28 days”). Congress did not know
(for apparently the Government did not know in Demore)
that the average length of detention for this class would
turn out to be about a year. Nor did Congress necessarily
know that about 40% of class members eventually obtain
the right to remain in the United States.
Cite as: 583 U. S. ____ (2018) 29
BREYER, J., dissenting
I should add that reading the statute as denying bail to
those whose detention is prolonged is anomalous. Those
whose removal is legally or factually questionable could be
imprisoned indefinitely while the matter is being decided.
Those whose removal is not questionable (for they are
under a final removal order) could be further imprisoned
for no more than six months. See supra, at 4, 17. In fact,
even before our decision in Zadvydas, the Government
gave bail hearings to noncitizens under a final order of
removal after six months of detention. See 533 U.S., at
683.
C
Other Applicants for Admission
The statutory provision that governs the third category
of noncitizens seeking admission at the border is
§1225(b)(2)(A). It says that “if the examining immigration
officer determines that an alien seeking admission is not
clearly and beyond a doubt entitled to be admitted, the
alien shall be detained for a proceeding under section
1229a of this title.” See Appendix A–3, infra.
The Government tells us that this miscellaneous cate-
gory consists of persons who are neither (1) clearly eligible
for admission, nor (2) clearly ineligible. Pet. for Cert. 3–4.
A clearly eligible person is, of course, immediately admit­
ted. A clearly ineligible person—someone who lacks the
required documents, or provides fraudulent ones—is
“removed . . . without further hearing or review.”
§1225(b)(1)(A)(i); see §§1182(a)(6)(C), (a)(7). But where
the matter is not clear, i.e., where the immigration officer
determines that an alien “is not clearly and beyond a
doubt entitled to be admitted,” he is detained for a re­
moval proceeding. §1225(b)(2)(A). Like all respondents, this
class has been detained for at least six months. It may
include persons returning to the United States who have
work permits or other documents seemingly entitling
30 JENNINGS v. RODRIGUEZ
BREYER, J., dissenting
them to entry, but whom an immigration officer suspects
are inadmissible for some other reason, such as because
they may have incomplete vaccinations or have committed
student visa abuse or a crime of “moral turpitude.” See
§1182(a) (delineating classes of aliens ineligible for admis­
sion). For instance, the Federal Register is replete with
examples of offenses that immigration authorities have
thought are crimes of moral turpitude but that the courts
of appeals later determine are not. See, e.g., Goldeshtein
v. INS, 8 F.3d 645, 648 (CA9 1993) (structuring financial
transactions to avoid currency reports); Nunez v. Holder,
594 F.3d 1124, 1138 (CA9 2010) (indecent exposure). It
also may include individuals who claim citizenship by
virtue of birth or parentage but who lack documents
clearly proving their claim.
The critical statutory words are the same as those I
have just discussed in the context of the asylum seekers—
“shall be detained.” There is no more plausible reason
here than there was there to believe those words foreclose
bail. See supra, at 20–24. The constitutional considera­
tions, the statutory language, and the purposes underlying
the statute are virtually the same. Thus, the result should
be the same: Given the constitutional considerations, we
should interpret the statute as permitting bail.
IV
The majority concludes in Part V, ante, at 29–31, by
saying that, before considering bail-related constitutional
arguments, the lower courts “should reexamine whether
respondents can continue litigating their claims as a
class.” Ante, at 29. Relying on dicta in Reno v. American-
Arab Anti-Discrimination Comm., 525 U.S. 471 (1999)
(AADC), it then suggests that the respondents may not be
able to continue litigating because the Act says that
“no court (other than the Supreme Court) shall have
jurisdiction or authority to enjoin or restrain the oper­
Cite as: 583 U. S. ____ (2018) 31
BREYER, J., dissenting
ation [of the statutory provisions here at issue] other
than with respect to the application of such provi-
sions to an individual alien against whom proceedings
under such part have been initiated.” 8 U.S. C.
§1252(f )(1).
Were the majority’s suggestion correct as to this juris­
dictional question, it would have shown, at most, that we
should decide the constitutional question here and now.
We have already asked for and received briefs on that
question. But I do not believe the majority is correct.
Every member of the classes before us falls within the
provision’s exception. Every one of them is an “individual
alien against whom proceedings under such part have
been initiated.” Ibid. The Court in AADC did not con­
sider, and had no reason to consider, the application of
§1252(f)(1) to such a class. Regardless, a court could order
declaratory relief. Federal Rule of Civil Procedure 23(b)(2)
permits a class action where “final injunctive relief or
corresponding declaratory relief is appropriate respecting
the class as a whole.” (Emphasis added.) And the Advisory
Committee says that declaratory relief can fall within
the Rule’s term “corresponding” if it “serves as a basis for
later injunctive relief.” Notes on Rule 23(b)(2)–1966
Amendment, 28 U.S. C. App., p. 812.
Jurisdiction also is unaffected by 8 U.S. C. §1252(b)(9),
which by its terms applies only “[w]ith respect to review of
an order of removal under [§1252(a)(1)].” §1252(b). Re­
spondents challenge their detention without bail, not an
order of removal.
Neither does Wal-Mart Stores, Inc. v. Dukes, 564 U.S.
338 (2011), bar these class actions. Every member of each
class seeks the same relief (a bail hearing), every member
has been denied that relief, and the differences in situa­
tion among members of the class are not relevant to their
entitlement to a bail hearing.
32 JENNINGS v. RODRIGUEZ
BREYER, J., dissenting
At a minimum I can find nothing in the statute or in the
cases to which the majority refers that would prevent the
respondents from pursuing their action, obtaining a de­
claratory judgment, and then using that judgment to
obtain relief, namely, a bail hearing, in an individual case.
Thus, I believe the lower courts are free to consider the
constitutionality of the relevant statutory provisions as
the majority now interprets them.
V
Conclusion
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
Cite as: 583 U. S. ____ (2018) 33
BREYER, J., dissenting
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.
34 JENNINGS v. RODRIGUEZ
Appendix A to ,opinion
BREYER J., dissenting
of BREYER, J.
APPENDIXES
A
1
Statute Applicable to Asylum Seekers
8 U.S. C. §1225. “Inspection by immigration officers;
expedited removal of inadmissible arriving aliens; referral
for hearing
. . . . .
“(b) Inspection of applicants for admission
“(1) Inspection of aliens arriving in the United States
and certain other aliens who have not been admitted or
paroled
“(A) Screening
“(i) In general
“If an immigration officer determines that an alien
(other than an alien described in subparagraph (F)) who is
arriving in the United States or is described in clause (iii)
is inadmissible under section 1182(a)(6)(C) or 1182(a)(7)
of this title, the officer shall order the alien removed
from the United States without further hearing or review
unless the alien indicates either an intention to apply
for asylum under section 1158 of this title or a fear of
persecution.
“(ii) Claims for asylum
“If an immigration officer determines that an alien
(other than an alien described in subparagraph (F)) who is
arriving in the United States or is described in clause (iii)
is inadmissible under section 1182(a)(6)(C) or 1182(a)(7) of
this title and the alien indicates either an intention to
apply for asylum under section 1158 of this title or a fear
of persecution, the officer shall refer the alien for an inter­
view by an asylum officer under subparagraph (B).
. . . . .
Cite as: 583 U. S. ____ (2018) 35
Appendix A to ,opinion
BREYER J., dissenting
of BREYER, J.
“(B) Asylum interviews
“(i) Conduct by asylum officers
“An asylum officer shall conduct interviews of aliens
referred under subparagraph (A)(ii), either at a port of
entry or at such other place designated by the Attorney
General.
“(ii) Referral of certain aliens
“If the officer determines at the time of the interview
that an alien has a credible fear of persecution (within the
meaning of clause (v)), the alien shall be detained for
further consideration of the application for asylum.” (Em­
phasis added.)
36 JENNINGS v. RODRIGUEZ
Appendix A to ,opinion
BREYER J., dissenting
of BREYER, J.
2
Statute Applicable to Criminal Aliens
8 U.S. C. §1226. “Apprehension and detention of aliens
“(a) Arrest, detention, and release
“On a warrant issued by the Attorney General, an alien
may be arrested and detained pending a decision on
whether the alien is to be removed from the United States.
Except as provided in subsection (c) of this section and
pending such decision, the Attorney General—
“(1) may continue to detain the arrested alien; and
“(2) may release the alien on—
“(A) bond of at least $1,500 with security approved by,
and containing conditions prescribed by, the Attorney
General; or
“(B) conditional parole;
. . . . .
“(c) Detention of criminal aliens
“(1) Custody
“The Attorney General shall take into custody any alien
who—
“(A) is inadmissible by reason of having committed any
offense covered in section 1182(a)(2) of this title,
“(B) is deportable by reason of having committed any
offense covered in section 1227(a)(2)(A)(ii), (A)(iii), (B), (C),
or (D) of this title,
“(C) is deportable under section 1227(a)(2)(A)(i) of this
title on the basis of an offense for which the alien has been
sentence[d] to a term of imprisonment of at least 1 year, or
“(D) is inadmissible under section 1182(a)(3)(B) of this
title or deportable under section 1227(a)(4)(B) of this title,
“when the alien is released, without regard to whether the
alien is released on parole, supervised release, or pro­
Cite as: 583 U. S. ____ (2018) 37
Appendix A to ,opinion
BREYER J., dissenting
of BREYER, J.
bation, and without regard to whether the alien may be
arrested or imprisoned again for the same offense.
“(2) Release
“The Attorney General may release an alien described in
paragraph (1) only if the Attorney General decides pursu-
ant to section 3521 of title 18 that release of the alien from
custody is necessary to provide protection to a witness, a
potential witness, a person cooperating with an investiga­
tion into major criminal activity, or an immediate family
member or close associate of a witness, potential witness,
or person cooperating with such an investigation, and the
alien satisfies the Attorney General that the alien will not
pose a danger to the safety of other persons or of property
and is likely to appear for any scheduled proceeding. A
decision relating to such release shall take place in ac­
cordance with a procedure that considers the severity of
the offense committed by the alien.” (Emphasis added.)
38 JENNINGS v. RODRIGUEZ
Appendix A to ,opinion
BREYER J., dissenting
of BREYER, J.
3
Statute Applicable to Miscellaneous Applicants for
Admission
8 U.S. C. §1225. “Inspection by immigration officers;
expedited removal of inadmissible arriving aliens; referral
for hearing
. . . . .
“(b) Inspection of applicants for admission
. . . . .
“(2) Inspection of other aliens
“(A) In general
“Subject to subparagraphs (B) and (C), in the case of an
alien who is an applicant for admission, if the examining
immigration officer determines that an alien seeking
admission is not clearly and beyond a doubt entitled to be
admitted, the alien shall be detained for a proceeding
under section 1229a of this title.
“(B) Exception
“Subparagraph (A) shall not apply to an alien—
“(i) who is a crewman,
“(ii) to whom paragraph (1) applies, or
“(iii) who is a stowaway.
“(C) Treatment of aliens arriving from contiguous territory
“In the case of an alien described in subparagraph (A)
who is arriving on land (whether or not at a designated
port of arrival) from a foreign territory contiguous to the
United States, the Attorney General may return the alien
to that territory pending a proceeding under section 1229a
of this title.” (Emphasis added.)
Cite as: 583 U. S. ____ (2018)
39
Appendix B to ,opinion
BREYER J., dissenting
of BREYER, J.
B
State Bail Law
State Key Bail Provisions
Alabama Ala. Const., Art. 1, §16; Ala. Code
§§15–13–3, 15–13–108, 15–13–190
(2011); Ala. Rule Crim. Proc. 7.2
(Cum. Supp. 2017)
Alaska Alaska Const., Art. 1, §11; Alaska
Stat. §§12.30.011, 12.30.040 (2016)
Arizona Ariz. Const., Art. 2, §22; Ariz. Rev.
Stat. Ann. §§13–3961 (Cum. Supp.
2017), 13–3961.01 (2010), 13–3962;
Ariz. Rule Crim. Proc. 7.2 (Cum.
Supp. 2017)
Arkansas Ark. Const., Art. 2, §8; Ark. Code
§§16–84–110 (2005), 16–91–110
(Supp. 2017); Ark. Rule App. Crim.
Proc. 6 (2017)
California Cal. Const., Art. 1, §12; Cal. Penal
Code Ann. §1271 (West 2004)
Colorado Colo. Const., Art. 2, §19; Colo. Rev.
Stat. §§16–4–101, 16–4–102, 16–4–
201, 16–4–201.5 (2017)
Connecticut Conn. Const., Art. 1, §8; Conn. Gen.
Stat. §§54–63f, 54–64a (2017)
Delaware Del. Const., Art. 1, §12; Del. Code
Ann., Tit. 11, §§2103, 2104, 2112
(2015)
Florida Fla. Const., Art. 1, §14; Fla. Stat.
§§903.046, 903.132, 903.133 (2017)
Georgia Ga. Code Ann. §§17–6–1, 17–6–15
(Supp. 2017)
40 JENNINGS v. RODRIGUEZ
Appendix B to ,opinion
BREYER J., dissenting
of BREYER, J.
State Key Bail Provisions
Hawaii Haw. Rev. Stat. §§804–3, 804–4
(2014)
Idaho Idaho Const., Art. 1, §6; Idaho Code
Ann. §19–2903 (2017)
Illinois Ill. Const., Art. 1, §9; Ill. Comp.
Stat., ch. 725, §§5110–4, 5110–6.2
(West 2016)
Indiana Ind. Const., Art. 1, §17; Ann. Ind.
Code §§35–33–8.5–6 (West 2012),
35–33–9–1 (West Cum. Supp. 2017)
Iowa Iowa Const., Art. 1, §12; Iowa Code
Ann. §§811.1, 811.5 (West 2015)
Kansas Kan. Const., Bill of Rights §9; Kan.
Stat. Ann. §§22–2801, 22–2804
(2007), 22–2802 (2016 Cum. Supp.)
Kentucky Ky. Const., §16; Ky. Rev. Stat. Ann.
§431.066 (West Cum. Supp. 2017);
Ky. Rules Crim. Proc. 4.02, 4.54,
12.78 (West Cum. Supp. 2017)
Louisiana La. Const., Art. 1, §18; La. Code
Crim. Proc. Ann., Art. 312, 316
(West 2017)
Maine Me. Const., Art. 1, §10; Me. Rev.
Stat. Ann., Tit. 15, §§1003, 1051
(Cum. Supp. 2017), 1026, 1027
(2016)
Maryland Md. Crim. Proc. Code Ann. §§5–101,
5–102 (Supp. 2017), 5–207 (2008);
Md. Rules 4–216.1, 4–349 (2018)
Massachusetts Mass. Gen. Laws, ch. 276, §§20D,
42, 42A (2016); Mass. Rule Crim.
Proc. 31 (West 2017)
Cite as: 583 U. S. ____ (2018) 41
Appendix B to ,opinion
BREYER J., dissenting
of BREYER, J.
State Key Bail Provisions
Michigan Mich. Comp. Laws Ann. §§765.6
(West Supp. 2017), 770.9 (West
2006)
Minnesota Minn. Const., Art. 1, §7; Minn. Stat.
§629.16 (2016); Minn. Rules Crim.
Proc. 6, 28.02 (2016)
Mississippi Miss. Const., Art. 32, §29; Miss.
Code Ann. §§99–5–11, 99–35–3.
(2015)
Missouri Mo. Const., Art. 1, §§20, 34; Mo.
Ann. Rev. Stat. §§544.455, 544. 671
(Vernon Cum. Supp. 2017), 544.457,
547.170 (Vernon 2002)
Montana Mont. Const., Art. 2, §21; Mont.
Code Ann. §§46–9–102, 46–9–107
(2017)
Nebraska Neb. Const., Art. 1, §9; Neb. Rev.
Stat. §§29–901 (2017 Supp.), 29–
2301 (2016)
Nevada Nev. Const., Art. 1, §7; Nev. Rev.
Stat. §§178.484, 178.488 (2015)
New Hampshire N. H. Rev. Stat. Ann. §§597:1
(2001), 597:1–a (Cum. Supp. 2017),
597:1–c, 597:2
New Jersey N. J. Const., Art. 1, §11; N. J. Stat.
Ann. §§2A:162–11 (West 2011),
162–18 (West Cum. Supp. 2017),
2A:162–20; N. J. Rule App.
Proc. 2:9–4 (West 2018)
New Mexico N. M. Const., Art. 2, §13; N. M.
Dist. Ct. Rules Crim. Proc. 5–401,
5–402 (1992)
42 JENNINGS v. RODRIGUEZ
Appendix B to ,opinion
BREYER J., dissenting
of BREYER, J.
State Key Bail Provisions
New York N. Y. Crim. Proc. Law Ann.
§§510.20, 530.10 (West 2009),
510.30 (West Cum. Supp. 2018)
North Carolina N. C. Gen. Stat. Ann. §§15A–533,
15A–534 (2017)
North Dakota N. D. Const., Art. 1, §11; N. D. Rule
Crim. Proc. 46 (2016–2017)
Ohio Ohio Const., Art. I, §9; Ohio Rev.
Code Ann. §§2937.222, 2949.02
(Lexis 2014); Ohio Rule Crim. Proc.
46 (Lexis 2017–2018)
Oklahoma Okla. Const., Art. 2, §8; Okla. Stat.,
Tit. 22, §§1077, 1101, 1102 (2011)
Oregon Ore. Const., Art. 1, §§14, 43; Ore.
Rev. Stat. §§135.240, 138.650
(2015)
Pennsylvania Pa. Const., Art. 1, §14; 42 Pa. Cons.
Stat. §5701 (2015); Pa. Rule Crim.
Proc. 521 (West 2017)
Rhode Island R. I. Const., Art. 1, §9; R. I. Gen.
Laws §§12–13–1, 12–22–12 (2002);
R. I. Super. Ct. Rule Crim. Proc. 46
(Supp. 2017)
South Carolina S. C. Const., Art. 1, §15; S. C. Code
Ann. §§17–15–10, 22–5–510 (Cum.
Supp. 2017), 18–1–90 (2014)
South Dakota S. D. Const., Art. 6, §8; S. D. Codi­
fied Laws §§23A–43–2, 23A–43–2.1,
23A–43–16 (2016), 23A–43–3, 23A–
43–4 (Cum. Supp. 2017)
Tennessee Tenn. Const., Art. 1, §15; Tenn.
Code Ann. §§40–11–102, 40–11–
105, 40–11–113 (2012)
Cite as: 583 U. S. ____ (2018) 43
Appendix B to ,opinion
BREYER J., dissenting
of BREYER, J.
State Key Bail Provisions
Texas Tex. Const., Art. 1, §§11, 11a, 11b,
11c; Tex. Code Crim. Proc. Ann.,
Art. 17.15, 17.40 (Vernon 2015),
44.04 (Vernon Cum. Supp. 2017)
Utah Utah Const., Art. 1, §8; Utah Code
§§77–20–1, 77–20–10 (2017)
Vermont Vt. Const., ch. 2, §40; Vt. Stat.
Ann., Tit. 13, §§7553, 7574 (2009),
7553a, 7554 (2017 Cum. Supp.)
Virginia Va. Code Ann. §§19.2–120, 19.2–
120.1, 19.2–121, 19.2–319 (2015)
Washington Wash. Const., Art. 1, §20; Wash.
Rev. Code §§10.21.020, 10.21.030,
10.21.040, 10.73.040 (2016)
West Virginia W. Va. Code Ann. 62–1C–1 (Lexis
2014)
Wisconsin Wis. Const., Art. 1, §8, cl. 2; Wis.
Stat. §§969.01, 969.03, 969.035
(2011–2012)
Wyoming Wyo. Const., Art. 1, §14; Wyo. Stat.
Ann. §7–10–101 (2015)