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

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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 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

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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 . . .

Cite as: 583 U. S. ____ (2018) 5

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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),

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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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of the Court

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.

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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

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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

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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

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