Jennings v. Rodriguez (15-1204)

argument 15-1204

Jennings v. Rodriguez

Supreme Court of the United States 1h 5m 5 speakers 8 chapters transcribed 5 days ago official recording ↗

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What is the central legal dispute in Jennings v. Rodriguez?

John G. Roberts 0:00

We'll hear argument this morning in case

Jeffrey B. Gerrish 0:01

15-1204,

John G. Roberts 0:03

Jennings v. Rodriguez. Mr. Gershengorn.

Jeffrey B. Gerrish 0:06

Mr. Chief Justice, and may it please the Court. Congress provided extensive substantive and procedural protections for aliens whom the government wishes to remove, but at the same time addressed the real concerns about recidivism and flight risk by providing for mandatory detention during removal proceedings for certain categories of criminal aliens and aliens arriving at our shores. The Ninth Circuit undid that legislative balance, invoking principles of constitutional avoidance to require the government to release those aliens and unless the government can prove by a preponderance of the evidence every six months that detention remains necessary. The Ninth Circuit's decision is a serious misuse of the constitutional avoidance canon.

Jeffrey B. Gerrish 0:45

With respect to arriving aliens, there is no constitutional problem to avoid. As even the Ninth Circuit recognized, the statute is constitutional in the vast majority of applications, and any concerns about outlier cases involving lawful permanent residents can be addressed in as-applied challenges. And with respect to criminal aliens, The text of the statute forecloses the Ninth Circuit's approach, and in any event, the statute is constitutional as written under this Court's decision in Damore. The net result of the Ninth Circuit's rigid one-size-fits-all rule is a regime that's at odds with the text that Congress enacted. It undermines DHS's enforcement priorities, and it creates incentives for individual aliens to delay their removal proceedings.

Unknown 1:28

What about 125A, that is, aliens who don't fit in either of the categories that you discussed. They are not entrants and they are not people who have committed qualifying criminal offenses. So they are the 1225A people.

Jeffrey B. Gerrish 1:52

That's right, Your Honor. So for those individuals, they have had bond hearings, or at least they often have had bond hearings. And so we're talking about individuals who either had bond hearings and had them denied or have been unable to post bond. What

Elena Kagan 2:05

would be the constitutional entitlement to keeping those people if they're not a flight risk or a risk to the safety of the country? Or to others, however you want to define that danger element. So what's the constitutional entitlement just arbitrarily to keep someone who's neither of those two things?

Jeffrey B. Gerrish 2:29

So with respect to the 1225A1 individuals that Justice Ginsburg was talking about, Those are individuals who have had bond hearings and had them denied or have been unable to post bond. And the requirement that we are concerned about there is that the government bears the burden of proof to show by clear and convincing evidence every six months that they're not a flight risk or not likely to recidivate.

Unknown 2:55

Can you clarify two things? One, what have the people in that done that would make them subject to removal? And two, does the government read the bond specification in 1225A as discretionary?

Jeffrey B. Gerrish 3:19

So, Your Honor, I think the government's practice with respect to the latter question is to provide bond hearings consistent with the statute, is my understanding, and that the And so those are people who have had bond hearings, and we do provide them there. And I'm sorry, Your Honor, your first question... Who would... Oh, so they may be individuals who have entered illegally but have not committed the kinds of crimes that would make them inadmissible under 1182A2 or deportable under... that would subject them... the types of crimes that would subject you to 1226C for the mandatory detention there. And so, again, for that class, we are objecting principally to the clear and convincing evidence standard, which we think the Ninth Circuit really had no basis in the statute for adopting.

Jeffrey B. Gerrish 4:09

Am I

Unknown 4:10

right that in bail hearings, it's clear and convincing to show that there is a public danger, but only by a preponderance of the evidence to show flight risk in regular flights? Vail hearings.

Jeffrey B. Gerrish 4:24

So, Your Honor, it does vary by the type of crime. In some cases, it's the alien who has to – I'm sorry.