The Immigration and Nationality Act’s statutory provisions do not require that persons held under the Act be granted bail, the Supreme Court held February 27 in Jennings v. Rodriguez.
But the Court did not decide whether such persons might be entitled to bail under any constitutional provisions.
Various provisions of the Immigration and Nationality Act authorize detention of noncitizens who are seeking admission to the U.S., or whom the U.S. is seeking to deport — such as noncitizens who have been convicted of crimes – pending a final resolution of their immigration cases.  These people can sometimes be held for years before their immigration cases are finally resolved.
Alejandro Rodriguez was a Mexican citizen, but a lawful permanent resident of the U.S.  In 2004, he was detained by immigration authorities, who sought to deport him after he was convicted of drug and theft offenses. 
In 2007, he filed a habeas petition in U.S. District Court, alleging he was entitled to a bond hearing.  He claimed that the Act did not authorize “prolonged” detention in the absence of an individualized bond hearing at which the Government would be required to prove that continued detention is justified.  Absent a bond hearing, he claimed that his continued detention violated the Fifth Amendment’s Due Process Clause.
Rodriguez was granted class action status to raise his claims on behalf of all similarly-detained persons.
The District Court granted relief by interpreting the Act as implicitly requiring a bond hearing after someone is detained for six months. 
The Ninth Circuit affirmed.  It held that that Act requires a detainee be given a bond hearing every six months, and that detention beyond six months is permitted only if the Government proves by clear and convincing evidence that further detention is justified.
The Supreme Court reversed, in a 5-3 opinion.
 “Nothing in the text of [the Act] even hints that those provision restrict detention after six months,” the Court said.  The Ninth Circuit had “layered onto” the Act bond requirements “without any arguable statutory foundation.”
The Court noted that the Act or its implementing regulations already allow at least some detainees to have bond hearings at the outset of their detention, but the Ninth Circuit “ordered the Government to provide procedural protections that go well beyond the initial bond hearing established by existing regulations.”
But the Court did not reach the constitutional questions in the case.
 “Because the Court of Appeals erroneously concluded that periodic bond hearings are required under the immigration provisions at issue here, it had no occasion to consider [Rodriguez’s] constitutional arguments on their merits,” the Court said.
The Court remanded the case to the Ninth Circuit to consider the constitutional arguments in the first instance.
Justice Breyer, joined by Justices Ginsburg and Sotomayor, dissented.
He said the Act can be construed to require periodic bail hearings during prolonged detentions, and that in the absence of such a construction, the statute is likely unconstitutional.
 “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,’” Breyer said. 
 “The relevant constitutional language, purposes, history, traditions, context, and case law, taken together, make it likely that, where confinement of noncitizens before us is prolonged (presumptively longer than six months), bail proceedings are constitutionally required,” he said.
Justice Kagan did not participate in the case.