JENNINGS ET AL. v. RODRIGUEZ ET AL., INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED
No. 15-1204
SUPREME COURT OF THE UNITED STATES
February 27, 2018
Argued November 30, 2016—Reargued October 3, 2017
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,
The Government is also authorized to detain certain aliens already in the country.
After a 2004 conviction, respondent Alejandro Rodriguez, a Mexican citizen and a lawful permanent resident of the United States, was detained pursuant to
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
(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 interpretations of the provisions at issue, however, are implausible. Pp. 12–13.
(b) Read most naturally,
(1) Nothing in the text of
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
Several material differences distinguish the provisions at issue in this case from Zadvydas‘s interpretation of
(2) Respondents also claim that the term “for” in
(c) Section 1226(c)‘s language is even clearer. By allowing aliens to be released “only if” the Attorney General decides that certain conditions are met, that provision 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. Together with
(d) Nothing in
(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.
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, Washington, 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., INDIVIDUALLY 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. Immigration 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 immigration 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
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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 provisions, 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 statutory language is susceptible of multiple interpretations, a court may shun an interpretation that raises serious constitutional doubts and instead may adopt an alternative 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 implausible 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
applicant for admission.”
As relevant here, applicants for admission fall into one of two categories, those covered by
Both
Regardless of which of those two sections authorizes their detention, applicants for admission may be temporarily released on parole “for urgent humanitarian reasons
or significant public benefit.”
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.”
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.”
In sum, U. S. immigration law authorizes the Government to detain certain aliens seeking admission into the country under
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
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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 determine 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 Circuit 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 District Court. Id., at 1111, 1126.
On remand, the District Court certified the following class:
“[A]ll non-citizens within the Central District of California who: (1) are or were detained for longer than six months pursuant to one of the general immigration 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 justified.” Class Certification Order in Rodriguez v. Hayes, CV 07–03239 (CD Cal., Apr. 5, 2010).
The District Court named Rodriguez as class representative 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 understood the class members to be detained: Sections 1225(b),
In their complaint, Rodriguez and the other respondents argued that the relevant statutory provisions—
As relevant here, the District Court entered a permanent injunction in line with the relief sought by respondents, 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
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 interpretation, we briefly address whether we have jurisdiction to entertain respondents’ claims. We discuss two potential obstacles,
A
Under
“Judicial review of all questions of law and fact, including 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 and1226 ] 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 argument that the actions taken with respect to all the aliens in the certified class constitute “action[s] taken . . . to
remove [them] from the United States.”2 On that assumption, the applicability of
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
Interpreting “arising from” in this extreme way would also make claims of prolonged detention effectively unreviewable. By the time a final order of removal was eventually 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
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like “‘arising from,‘” we have eschewed “‘uncritical literalism‘” 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
The parties in this case have not addressed the scope of
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,
B
We likewise hold that
That provision states:
“The Attorney General‘s discretionary judgment regarding the application of [
§1226 ] shall not be subject to review. No court may set aside any action or decision by the Attorney General under this section regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole.”§1226(e) .
As we have previously explained,
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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,” respondents’ challenge to “the statutory framework that permits [their] detention without bail,” ibid., falls outside of the scope of
III
When “a serious doubt” is raised about the constitutionality 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
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 construction.” Clark v. Martinez, 543 U. S. 371, 385 (2005). In the absence of more than one plausible construction, the canon simply “‘has no application.‘” Warger v. Shauers, 574 U. S. ___, ___ (2014) (slip op., at 10) (quoting United States v. Oakland Cannabis Buyers’ Cooperative, 532 U. S. 483, 494 (2001)).
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,
A
As noted,
Read most naturally,
Despite the clear language of
1
First, respondents argue that
There are many problems with this interpretation. Nothing in the text of
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, respondents must thus show that
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
Zadvydas concerned
to complete removal within a period of 90 days,
In Zadvydas, the Court construed
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
Zadvydas represents a notably generous application of the constitutional-avoidance canon, but the Court of Appeals 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,
To start,
Moreover, in Zadvydas, the Court saw ambiguity in
Zadvydas‘s reasoning is particularly inapt here because there is a specific provision authorizing release from
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 interpretation of
2
In this Court, respondents advance an interpretation of the language of
That interpretation is inconsistent with ordinary English 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 Language 747 (2d ed. 1987) (with the object or purpose of; during the continuance of); Webster’s Third New International 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 statutory scheme as a whole.
For example, respondents argue that, once detention authority ends under
Nor does respondents’ interpretation of the word for align with the way Congress has historically used that word in
In sum,
B
While the language of
Like
In a reprise of their interpretation of
In defense of their statutory reading, respondents first argue that
Indeed, we have held as much in connection with
Respondents next contend that
Finally, respondents point to a provision enacted as part of the PATRIOT Act5 and contend that their reading of
Two differences stand out. First,
Far from being redundant, then,
We hold that
C
Finally, as noted,
The Court of Appeals ordered the Government to pro-
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 statutory provisions.
The dissent frames the question of interpretation as follows: Can
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 Dictionary (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 definitions. See, e.g., Webster’s Third New International Dictionary 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., Ballentine’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).
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.
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 detained pending the outcome of an inspection process.
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
Neither does Zadvydas. It is true, as the dissent points out, that Zadvydas found that the words ‘may be detained’ [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 provision 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
The dissent offers no plausible interpretation of
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 immigration 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
The Court of Appeals should also consider whether a
Similarly, the Court of Appeals should also consider on
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.
SUPREME COURT OF THE UNITED STATES
No. 15–1204
DAVID JENNINGS, ET AL., PETITIONERS v. ALEJANDRO RODRIGUEZ, ET AL., INDIVIDUALLY 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
I
Respondents are a class of aliens whose removal proceedings are ongoing. Respondents allege that the statutes that authorize their detention during removal proceedings do not authorize prolonged detention unless they are given an individualized bond hearing at which
II
A
Although neither party raises
Consolidation of questions for judicial review
Judicial review of all questions of law and fact, including 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 [
8 U. S. C. §§1151 –1382 ] shall be available only in judicial review of a final order under this section. Except as otherwise provided in this section, no court shall have jurisdiction, by habeas 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 constitutional 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 proceeding, courts cannot review it unless they are reviewing a final order under
Respondents do not argue that any specific grant of jurisdiction applies here, and they do not seek review of a final removal order under
Respondents cannot make that showing.
B
The plurality, the dissent, and respondents each offer reasons why
1
The plurality asserts that
The main precedent that the plurality cites to support its narrow reading of “arising from” demonstrates that
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 proceedings, those actions are neither congressionally authorized nor meant to ensure that an alien can be removed. Thus, my conclusion that
2
The dissent takes a different approach. Relying on the prefatory clause to
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
The prefatory clause of
3
At oral argument, respondents asserted that, if
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 judicial 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 repeatedly 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
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 repeatedly recognized the constitutionality of that practice. See Demore v. Kim, 538 U. S. 510, 523 (2003) (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
III
Because I conclude that
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 detained. Ibid. Indeed, respondents obtained class certification under
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 proceedings. Id., at 230, 237. We reaffirmed this distinction in St. Cyr, where we noted that the 1961 Immigration and
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
* * *
Because
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 provisions of the Immigration and Nationality Act,
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 entitlement to enter the United States, claim to meet the criteria for admission, see infra, at 20, 25–26, 29–30. The Government 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?
I
The Respondents
Because of their importance to my conclusion, I shall repeat, with references to record support, the key characteristics 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 asylum or (2) have committed crimes but have finished serving 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 country should the United States deny them admittance.
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 noncitizen 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
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);
Seventh, as for those who have finished serving their sentences (for crimes), some of those who are less dangerous would (on the majority’s view) be held without bail the longest, because their claims will take longer to adjudicate. Moreover, those noncitizens would have no opportunity 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, Detention 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 Inspection Cites Concerns With Detainee Treatment and Care at ICE Detention Facilities (2017) (reporting instances 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).
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, tradition, and case law all make clear that the majority’s interpretation 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
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 unhampered 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
It is clear that the
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 detention 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 detention. And the reason that is so is simple: Freedom from arbitrary detention is as ancient and important a right as any found within the Constitution’s boundaries. See
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 emigration of our ancestors,” and which were brought by them to this country. Murray’s Lessee v. Hoboken Land & Improvement 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 magistrate; 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 Blackstone says that the King’s Bench or its judges “may bail in
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 noncapital 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 subsequently 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,
Congress gradually added community safety as a bail factor. In 1966, Congress provided that for capital defendants 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 community.” Bail Reform Act of 1966 §3148. In 1984, Congress modified the bail standard for noncapital defendants by adding concern for community safety.
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. Individuals 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
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 extradition for a crime that Wright was accused of having committed 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 unanimously 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,
The strongest basis for reading the Constitution’s bail requirements as extending to these civil, as well as criminal, 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 confinement 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?
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 confined noncitizens worse than ordinary defendants charged with crimes,
C
My examination of the cases from this Court that considered detention of noncitizens and bail suggests that this Court, while sometimes denying bail to individuals, generally has not held that bail proceedings are unnecessary. Indeed, it almost always has suggested the contrary.
- 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 herself without becoming a public charge.” Act of Aug. 3, 1882, 22 Stat. 214. Neither said a word about bail. But in
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. - 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 confinement,” 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.
- In Tod v. Waldman, 266 U. S. 113 (1924), the Waldman family, like many of the respondents here, challenged their exclusion. They had arrived at Ellis Island fleeing
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 inquiry.” 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 prejudice 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.
- 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
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. - 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 Subversive 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 proceeding grounded on danger to the national security . . . neither 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 individualized 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 because 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 requesting 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
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). - Zadvydas v. Davis, 533 U. S. 678 (2001), concerned a noncitizen who had lawfully resided in this country, committed 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 requiring 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.
- 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-
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 proceedings. See id., at 529–530. The Court wrote that the “detention at stake . . . lasts roughly a month and a half in the vast majority of cases in which it is invoked, and about five months in the minority of cases in which the alien chooses to appeal.” Id., at 530. We added:
“[I]n 85% of the cases in which aliens are detained [pursuant to the relevant statute], removal proceedings 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 immigration 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
The upshot is the following: The Constitution‘s language, its basic purposes, the relevant history, our tradition, 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 principle that flows from this conclusion is clear and longstanding: “‘[A]s between two possible interpretations of a statute, 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 interpretation that may render a statute an unconstitutional nullity. And that is so even where the constitutional interpretation 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)
III
The Statutory Provisions
The question remains whether it is possible to read the statute as authorizing bail. As desirable as a constitutional 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 consider 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 without 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
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-
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
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 detained 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 following 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 interpretation 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 apprehended inside the United States within 100 miles of the border, rather than at a border crossing. See In re X-K-,
Fourth, in Zadvydas we found (to avoid similar constitutional questions) that the words “‘may be detained‘” were consistent with requiring release from long-term detention. 533 U. S., at 682 (quoting
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 argument 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 recognized in Zadvydas, Congress anticipated long-term detention elsewhere in the Act, providing for review every six months of terrorist aliens detained under
Sixth, the Act provides that an asylum applicant whose proceedings last longer than six months may be given work authorization.
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.”
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 absence is that Congress, like the Government when it appeared 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
The majority apparently finds a contrary purpose in the fact that other provisions of the statute permit the Attorney 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
B
Criminals Who Have Served Their Sentences
The relevant statutory provision,
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 recognizance” 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 generally.‘” Hensley, supra, at 351 (quoting Jones v. Cunningham, 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 confinement . . . 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
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
This understanding of “release” in
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 accompany bail) unless the alien is placed in the Witness Protection 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.
C
Other Applicants for Admission
The statutory provision that governs the third category of noncitizens seeking admission at the border is
The Government tells us that this miscellaneous category 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 admitted. A clearly ineligible person—someone who lacks the required documents, or provides fraudulent ones—is “removed . . . without further hearing or review.”
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 considerations, 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-
Were the majority‘s suggestion correct as to this jurisdictional 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.”
Jurisdiction also is unaffected by
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 situation among members of the class are not relevant to their entitlement to a bail hearing.
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 Circuit 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 arbitrary 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
Because the majority does not do so, with respect, I dissent.
A
1
Statute Applicable to Asylum Seekers
. . . . .
“(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
“(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
. . . . .
“(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.” (Emphasis added.)
Statute Applicable to Criminal 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
“(B) is deportable by reason of having committed any offense covered in
“(C) is deportable under
“(D) is inadmissible under
“when the alien is released, without regard to whether the alien is released on parole, supervised release, or pro-
“(2) Release
“The Attorney General may release an alien described in paragraph (1) only if the Attorney General decides pursuant to
Statute Applicable to Miscellaneous Applicants for Admission
. . . . .
“(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
“(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
State Bail Law
| State | Key Bail Provisions |
|---|---|
| Alabama | |
| Alaska | |
| Arizona | |
| Arkansas | |
| California | |
| Colorado | |
| Connecticut | |
| Delaware | |
| Florida | |
| Georgia |
| State | Key Bail Provisions |
|---|---|
| Hawaii | |
| Idaho | |
| Illinois | |
| Indiana | |
| Iowa | |
| Kansas | |
| Kentucky | |
| Louisiana | |
| Maine | |
| Maryland | |
| Massachusetts |
| State | Key Bail Provisions |
|---|---|
| Michigan | |
| Minnesota | |
| Mississippi | |
| Missouri | |
| Montana | |
| Nebraska | |
| Nevada | |
| New Hampshire | |
| New Jersey | |
| New Mexico |
| State | Key Bail Provisions |
|---|---|
| New York | |
| North Carolina | |
| North Dakota | |
| Ohio | |
| Oklahoma | |
| Oregon | |
| Pennsylvania | |
| Rhode Island | |
| South Carolina | |
| South Dakota | |
| Tennessee |
| State | Key Bail Provisions |
|---|---|
| Texas | |
| Utah | |
| Vermont | |
| Virginia | |
| Washington | |
| West Virginia | |
| Wisconsin | |
| Wyoming |