DAVID JENNINGS, et al. Petitioners, v. ALEJANDRO RODRIGUEZ, et al., Individually and on Behalf of All Others Similarly Situated, Respondents
Interviewer(s): Anthony M. Kennedy, Samuel A. Alito, Jr., Stephen G. Breyer, Elena Kagan, John G. Roberts, Jr., Ruth Bader Ginsburg, Neil Gorsuch, Sonia Sotomayor
Interviewee(s): Ahilan T. Arulanantham

John G. Roberts, Jr.: We'll hear argument next in Case 15-1204, Jennings versus Rodriguez. Mr. Stewart.

Ruth Bader Ginsburg: There is -- there is a possibility of parole, is it?

Anthony M. Kennedy: Can you give me any idea of numbers? Do 10 percent meet that requirement, 20 percent, or do we know?

Sonia Sotomayor: I -- I thought that we had some.

And from what I understand, in 2012, ICE granted parole to 80 percent of arriving aliens.

In 2015, the number dropped to 47 percent.

And it may be lower now. So my question is it's obviously the executive alone making this determination; what other area of law have we permitted a government agent on his or her own, without a neutral party looking at that decision, to detain someone indefinitely?

Sonia Sotomayor: Well, but that -- that assumes that that determination is going to be done in some expeditious way, but we know as a matter of fact that these determinations can sometimes take years.

Sonia Sotomayor: Well, but the -- the problem with that is that that's lawlessness.

That's basically saying that we're not a country of law, that we're a country of arbitrariness in detaining people, locking them up. Perhaps let's -- let's -- answer this question: In which ways is immigration detention different than criminal detention? I mean, I -- I understand right now that when you detain aliens, you put them in orange suits, they are shackled during visitation and court visits, they are subject to surveillance and strip searches, they are referred to by number, not by name. So in which ways is immigration detention different than criminal detention?

Ruth Bader Ginsburg: Mr. Stewart, there are -- there is something in between.

It doesn't have to be release, you are fancy free. You can -- they can monitor.

They can use monitoring devices to check on the person who's been released.

Stephen G. Breyer: The statute doesn't say --

Elena Kagan: Mr. Stewart?

John G. Roberts, Jr.: Justice Breyer?

Stephen G. Breyer: The statute doesn't say about whether there'll be bail hearings or not.

It just says arrest and detain. We detain people whenever we stop them for Miranda briefly, whenever -- not for -- you know, stop and search, frisk and search, et cetera.

We detain them when we arrest them. Normally, if you were to say detain somebody, you would then possibly -- in most cases, you'd give them a bail hearing, all right? Now, why is the statute different here? In X-K-, I think, the agency said we'll give some of the people, those found within 100 miles of the border, we'll give some of them bail hearings.

And, of course, if they're found more than 100 miles from the border, they always get bail hearings.

Stephen G. Breyer: But the people who -- who are just arriving at LAX, you know, or LaGuardia or JFK or something like that, and who have a credible -- a credible claim of prosecution, they don't get bail hearings. Now, that to me is a little odd, particularly when, as Justice Sotomayor said is true, we give triple ax murderers, at least people who are accused of such, bail hearings. Are they dangerous? Are they risk of flight? Some of these people in the first category, you know, they might have relatives in Los Angeles. They might even have a green card which somebody decides is no longer valid. And so what's the basis for reading the word "detained" sometimes to allow bail hearings at the discretion of the agency; other times not to allow bail hearings and keeping the people possibly for a year, a year and a half, in a jail cell without -- sorry, I don't mean my voice to rise -- but -- but with -- without even a bail hearing? Where? Where -- I mean, the word "detain" doesn't say that.

It just doesn't say.

Stephen G. Breyer: They are just as much the people you mentioned at the beginning, those are just as much people who have no right to be in the country, just as much people who haven't been here for more than a few hours, just as much.

And yet the agency itself thinks there's no problem with giving them bail hearings.

Elena Kagan: But the BIA made that distinction because it thought that the regulation prevented other aliens coming to the border from receiving bail hearings.

But it read the statute as not imposing such an obstacle.

Elena Kagan: Yes, and what I'm saying is the BIA read the statute in exactly the way Justice Breyer indicated.

So are you saying that the BIA was simply wrong in X-K-? Because X-K- said the statute doesn't say, the statute is perfectly consistent with bond hearings being given; it's only this regulation, and the regulation only applies at the border.

Sonia Sotomayor: But what -- some process.

Here, what you're saying, at least with respect to this 1225(a), is no process.

Sonia Sotomayor: Because you have an executive, a parole IB -- INS member deciding whether someone should be paroled or not, and no neutral magistrate of any kind is looking at that executive decision to ensure it's not arbitrary.

There's something fundamental about that in due process, which is someone should be looking at whether this is neutral or not.

Sonia Sotomayor: Some neutral party.

Elena Kagan: Mr. Stewart, is -- is your argument about the new admits, the people who are coming to the border, premised on the idea that they simply have no constitutional rights at all?

Elena Kagan: Okay.

If it is premised on that, I mean, Justice Scalia in one of his opinions talked about, surely, that -- that can't be right; could we torture those people, could we put those people into forced labor? Surely, the answer to that is no.

Is that right?

Stephen G. Breyer: That's an interesting --

Elena Kagan: Okay.

So -- but they do have some constitutional rights, not to be tortured, not to be placed in hard labor.

Why isn't it -- it pretty close to that, not to be placed in arbitrary confinement, arbitrary detention?

Elena Kagan: "Arbitrary" means that nobody gave them an individualized hearing, and so we don't know whether they're being held for any good reason.

Nobody's made that decision. So, usually, in our -- you know, usually, in our constitutional law, we think that that's a problem.

Stephen G. Breyer: Visitors too? I mean, you know, people overstay their visitors' visas.

And we find a businessperson who, in fact, has overstayed his visa.

Oh, you're here too long; we'll put you in a cell and we'll keep you there for 13 months.

Could they do that?

Stephen G. Breyer: Constitutionally?

Stephen G. Breyer: No, I mean, the only answer has to be no, doesn't it?

Samuel A. Alito, Jr.: But doesn't he have --

Stephen G. Breyer: No, wait, what I'm thinking of is this.

You've got me thinking at the beginning of somebody standing at the airport outside the gate or standing at -- outside the gate down at, say, in Mexico, or Canada, possibly.

That isn't what happens. What happens is they're told to that person: You want to go home? Go.

And he says: But I have a legal right, I think, to be in the United States.

Very well, come in. Now he's physically in the United States.

And what we do to the person physically in the United States, because he has shown that he has a credible fear of persecution, is we put him in a little reception area which looks an awful lot like a cell.

And we keep him there for 13 months, possibly, or a year without a bail hearing, and maybe without anything. Now, that's the problem.

And it seems to me if I'm right -- and you'll correct me if I'm wrong -- but if I'm right, it's not quite -- I mean, it has a lot of implications because there are a lot of people in that category, and -- and to say they have no rights at all or even no rights, not to be confined arbitrarily, dah-dah-dah, I'm pretty nervous about that.

Stephen G. Breyer: Wait, but I thought 40 percent eventually win, something like that.

Stephen G. Breyer: Mr. Stewart --

Anthony M. Kennedy: Do you agree that detention violates due process, if there's an unreasonable delay in that detention?

Anthony M. Kennedy: And how should the Court assess that reasonableness when delays result from backlogs? Let's -- let's suppose that Congress has provided only one-tenth of the necessary immigration judges to avoid unreasonable delays.

Is that attributable to the government?

Anthony M. Kennedy: So, if immigration judges were not available for a year and a half, that's not an unreasonable delay because we just can't count that?

Anthony M. Kennedy: But we -- we -- we started from the premise that you say that there can -- due process is violated when there's an unreasonable delay attributable to the government. And my question is going to be how -- how can we measure that?

Anthony M. Kennedy: Isn't -- isn't a bright line rule, six months, nine months, whatever it is, an easier way than to say, well, are there enough immigration judges -- which there aren't -- how -- how can we -- how can we measure this?

Elena Kagan: But if I could just push on Justice Kennedy's question a bit, I mean, for those -- that class of aliens, we are talking about people who have been in this country, who clearly do have various constitutional rights. And are you suggesting that if the backlog is five years, it's okay to keep them there for five years without a determination of whether they pose any risk of flight or whether they're dangerous?

Anthony M. Kennedy: But you have to also say under your premise that it's not unreasonable, because I thought you agreed that detention violates due process when there's an unreasonable delay.

Anthony M. Kennedy: Now you're saying, oh, well, there's no constitutional right. This doesn't -- this doesn't match.

Elena Kagan: So five years of backlog or suppose that the government decided to appeal from an adverse decision and that that created a -- a further delay of two or three years.

Elena Kagan: I take it that that's your most extreme answer because it doesn't sound all that good. (Laughter.)

Samuel A. Alito, Jr.: What if we --

Samuel A. Alito, Jr.: Go ahead.

Samuel A. Alito, Jr.: You --

John G. Roberts, Jr.: It seems to me I'm just -- just looking at your supplemental reply brief.

And you say that if the process lasts longer than 14 months, it could fairly prompt an occasion for review.

John G. Roberts, Jr.: -- it sounds close to a concession.

Samuel A. Alito, Jr.: That --

John G. Roberts, Jr.: Yes, I think -- I think I interrupted Justice Alito.

Samuel A. Alito, Jr.: Well, I was just going to say if -- let's assume that there is a -- that it would be a constitutional violation if there is unreasonable delay.

What is the best way to deal with it? Is it for us to impose some sort of a time limit, a hard time limit, or would it be better to deal with it the way we deal with Speedy Trial Act -- speedy trial -- not Speedy Trial Act -- constitutional speedy trial claims where you look at -- at all of the factors of a particular case?

Sonia Sotomayor: Mr. Stewart, individual consideration, like a habeas, if we granted a habeas -- if we say habeas will take care of this, the courts can look at it.

What are they going to look at? I think they're going to look at whether or not you've unreasonably delayed and decide, well, there's a possibility, so let's give this person a bond hearing. The issue here is whether the Constitution sensibly would say give people a bond hearing after a certain amount of time, because then that independent neutral adjudicator can decide whether the reason the alien is being held is that he's a national security risk, he's committed a crime that's so heinous that he shouldn't be let out because he's a danger to the community, or if it's a 1226(a) class member who was picked up merely because they were in a sweep, but there's no criminal record, they have strong ties to the community, they own property, they should be let out. Why would it be sensible to put that person in an individual situation as opposed to creating a rule that says after a certain amount of time, government, explain why this person is dangerous?

John G. Roberts, Jr.: Thank you, Counsel. Mr. Arulanantham.

Ahilan T. Arulanantham: Thank you, Mr. Chief Justice, and may it please the Court: I think my friend's presentation clarifies the basic difference between the parties in this case. In their view, as he says, removal and a detention are just two sides of the same coin.

And we fundamentally disagree with that provision -- position for both doctrinal and practical reasons. For doctrinal reasons, it goes far beyond anything this Court has ever said with respect to the power to detain non-citizens. All the way back in Wong Wing, when the Court in 1896 first said that there is a power to detain, they did so in the next sentence by analogizing to the pretrial criminal process. You have the power to detain, but only if the detention is necessary to ensure that the person appears or to prevent, you know, a danger to the community.

Similarly, in Carlson v. Landon, the height, arguably, of the government's detention power, the Court said we won't impute dangerousness to everybody who's facing deportation proceedings.

Instead --

Ruth Bader Ginsburg: You -- you mentioned -- you mentioned the pretrial detainee, but there is nothing like a six-month requirement.

If somebody is being detained, the remedy that the Ninth Circuit provided a hearing every six months, that is -- is not provided to pretrial detainees.

Ahilan T. Arulanantham: Your Honor, let's leave the periodic part of that aside for just a moment. As for the initial six-month hearing, the analogy there is to the -- the bond hearing that you get within days promptly, as the Court said in Salerno, after your arrest in the pretrial detention context.

And if instead my friend's position is correct, Your Honor, that just the fact that you're in deportation proceedings itself is sufficient to justify your detention, then Congress could pass a law that mandated the detention of every person in removal proceedings. And, in fact, my friend said that with respect to, you know, people arriving at the border.

Elena Kagan: Well, we -- we know that Demore said that this was permissible as long as it was for a matter of months.

Isn't that true?

Ahilan T. Arulanantham: Yes, two things, Your Honor, that it was a brief, and also that the-- the detainee had conceded their deportability. And I think both are extremely important here.

Obviously the detention times here are something like either eight or 10 times, depending on who you talk to, more than those in Demore, but, in addition, our class members are detained for a long time because they are pursuing defenses to their cases. And many of them, 40 percent for the -- almost 40 percent for the Mandatory Subclass, two-thirds for the Arrivings, won their cases even when they were detained, you know, and I expect that number to go up.

Elena Kagan: So I agree that there's a significant difference about the time.

I guess I'm less sure whether there's a difference as to that second factor because it's -- I think many of your clients are pursuing cancellation of removal, which I believe was the same as in Demore; is that not correct?

Ahilan T. Arulanantham: No, it is not, Your Honor.

This is an important point.

So the only relief, as the Court understood the claim in Demore, which was not actually what was true of Mr. Kim, but as the Court decided the case, the only claim he was -- relief he was seeking was withholding of removal. And withholding of removal does not give you a right to remain in the United States.

You lose your green card and can be deported to any country, except for one, you know, unless conditions change in that country. It's a form of weaker kind of asylum protection. In contrast, cancellation of removal, which is half the Mandatory Subclass is eligible for that, if you win that, you keep your green card.

You're never ordered removed. And the same is true for adjustment of status, is also true for asylum, for the Arriving Subclass.

So there's a fundamental difference here.

Those people get a path to citizenship, actually, you know, through that case. And the reason why that matters so much is because the Court treated the concession of deportability as like a proxy for flight risk in Demore and accepted that as a proxy, a categorical generalization because the detention was brief, right?

Neil Gorsuch: Counsel, can you help me --

Ahilan T. Arulanantham: But that is a poor proxy for our -- excuse me, Your Honor.

Excuse me.

Neil Gorsuch: You know what, I'm sorry.

I'm way over here.

I was hoping you could help me with a couple of jurisdictional tangles I'm snarled up in. One is 1252(b)(9), which as you'll recall, indicates Congress's intent to strip courts of jurisdiction over final orders of removal, attack -- collateral attacks on them. What do we do about that, in your view? And then also (f)(1), which the Ninth Circuit worked around by saying, in part, it was interpreting the statute, not restraining the statute.

But if we go down constitutional grounds, we would be restraining the statute --

Ahilan T. Arulanantham: Yes.

Neil Gorsuch: -- at least through a declaratory judgment, which, of course, the government -- we would expect them to abide it much like an injunction.

So how do -- how do we handle those two problems?

Ahilan T. Arulanantham: Yes, Your Honor.

Neil Gorsuch: I'd like the government's view on that too.

Ahilan T. Arulanantham: Yes, Your Honor, (b)(9) unfortunately is not briefed, but the government has said repeatedly that it doesn't apply to detention claims.

And that makes sense because the only time you can challenge it is in a petition for review of your final removal order, which in this case is after all the detention has already happened.

So --

Neil Gorsuch: Right.

Ahilan T. Arulanantham: -- so they've read the statute, as have we, to not bar detention claims.

Neil Gorsuch: And --

Ahilan T. Arulanantham: As to (f), Your Honor, also unfortunately not briefed and I think waived insofar as the Ninth Circuit ruled when at the time that the Ninth Circuit --

Neil Gorsuch: Can it be waived? That would be an initial question I guess I'd have.

Ahilan T. Arulanantham: Yes, I think it can be waived, Your Honor.

It doesn't -- it just goes to the remedial power.

It doesn't go to subject matter jurisdiction.

Neil Gorsuch: Okay.

Ahilan T. Arulanantham: And the -- the Ninth Circuit ruled -- recognized that there was a constitutional claim in the case at the time it issued its class certification order. The government argued (f) at that time, and never sought certiorari, but if Your Honor also has concerns about it I would say, you know, it says the Supreme Court has the power.

Neil Gorsuch: Right.

Ahilan T. Arulanantham: Because it exempts the Supreme Court, and, you know, we're here now.

It's a habeas petition.

Neil Gorsuch: Right.

Ahilan T. Arulanantham: And it also doesn't mention habeas at all, which was the basis for the Court's jurisdictional ruling in Demore v. Kim.

And since then actually Congress amended the Real ID Act and they put explicit mentions to habeas in other provisions of 1252, but they didn't do it in (f), so I think there's a, you know, a reasonable statutory argument --

Neil Gorsuch: Thank you.

Ahilan T. Arulanantham: -- to that, Your Honor. You know, going back, though, to Your Honor's question, Justice Kagan, you know, they viewed deportability, the concession, as a proxy for flight risk.

And what we know now, at least as to our group of people who have substantial defenses, is it is a horrible proxy for flight risk. And, you know, we have people in our case who have citizenship claims -- excuse me, have married U.S. citizens, and they have a petition.

And they're going to win their case. They're just waiting for the DHS to decide the petition.

And they get detained like eight months, 10 months waiting for this petition to get decided.

That person has no reason to flee. We also have alternatives to detention now, intensive supervision, gets extremely, extraordinarily high appearance rates by the government's own witness testimony, and so the idea that the immigration judge can't just look at that to individually assess whether or not you actually do present a flight risk, it seems like the due process clause should require that here, even if it didn't require it in Demore.

Elena Kagan: You know, thinking about Demore again on just the timing issue, Demore makes a big point of saying how short the times are here and most of them are 90 days.

And even at the top end, it's only five months.

But Mr. Demore himself was six months. So I guess my question is does that mean that your proposed remedy, which is a six-month line, just doesn't fit with Demore, given that we sent Demore back and he was -- he continued to be detained?

Ahilan T. Arulanantham: Your Honor, I think the Court decides, the opinions should be read to decide the claims that are argued.

And Mr. Kim never argued that my detention is, I concede, fine, for the first six months, it only became unconstitutional after that time period. He never made the argument that, for example, there's a long history, even in the criminal context, with respect to petty offenses versus, you know, serious ones.

Six months is treated as a really significant limitation because of the jury trial right. He didn't argue that Zadvydas required, you know, because Congress previously doubted the constitutionality of detention beyond six months, that that was the relevant line.

So I don't think Demore controls the question.

I think it is open. And I think, you know, I think I've sort of given you some of the reasons why I think six months is a logical rule.

You know, this Court has never authorized detention without a hearing before a neutral decision-maker, outside of national security, beyond six months.

So I think it would be extraordinary to do that. Demore certainly didn't say that. Demore said the vast -- the outlier cases for the tiny percent involving appeals will be four and a half months, and most of them are 47 days.

And the Court didn't understand I think what the Court here obviously does now about backlogs and about also the way the immigration process is structured. So, if you want to apply for cancellation of removal, for example, you have to take what they call a continuance.

If my lawyer --

Ruth Bader Ginsburg: Would you -- would you clarify the relief that you're seeking now? I don't know of any regime, maybe there is one, where someone who is being detained has to be brought before a judge every six months. Is it, as you pointed out, with the pretrial detainees, there's an immediate bail hearing.

But is there any --

Ahilan T. Arulanantham: Yes, Your Honor.

Ruth Bader Ginsburg: Yes?

Ahilan T. Arulanantham: Yes, Your Honor. The agency's own regulations governing Zadvydas detainees, people who have lost the right to live here, there's -- there's two of them, 241.4 and 241.14.

The second one provides for IG bond hearings every six months for people who are especially dangerous.

So they're detaining them, notwithstanding Zadvydas, because they are a national security threat or sex offenders, and there's a couple of other provisions there. 241.4 provides it every year.

And there are other civil commitment schemes that do it every year.

It's true that six months is rare, although the agency does do it in this, you know, in this other context. Our main concern, Your Honor, is that this is a group of unrepresented people.

So --

Samuel A. Alito, Jr.: But that can be done by -- it can be done by Congress.

It can be done by regulation.

But it's quite something to find six months in the Constitution.

Where does it say six months in the Constitution? Why is it six? Why isn't it seven? Why isn't it five? Why isn't it eight?

Ahilan T. Arulanantham: Yes, Your Honor, it doesn't say it in the Constitution.

It didn't say 14 days in Justice Scalia's opinion in Shatzer.

Samuel A. Alito, Jr.: Yeah, that's the only example I can think of, but there, that's entirely within the power, the control of the -- of the government entity making the arrest. So you arrest somebody, you've got a certain period of time, the 48 days -- the 48 hours. It would have to be short, and the 48 hours is just -- provides clarity. But this is -- this is different. There are many factors that can go into the question of whether the delay is unreasonable. Isn't that true?

Ahilan T. Arulanantham: Well, I don't think that -- let me answer two ways, Your Honor. First, Congress previously doubted the constitutionality of detention beyond six months in Zadvydas.

It's also in McNeil a useful benchmark for a civil commitment --

Samuel A. Alito, Jr.: Well, how -- do you say Congress doubted the constitutionality --

Ahilan T. Arulanantham: I'm just quoting -- I'm just quoting the Court in Zadvydas.

And that's it. But, Your Honor, the -- the other argument for it really arises from the fact that, you know, when detention becomes prolonged, something is fundamentally different.

So you have to draw a line somewhere, or else you don't end up with, you know, an administrable rule.

And what we -- what we've seen in the decade of litigation on this subject since Demore is that the lower courts that failed to -- I mean, it didn't even start out that way.

The Ninth Circuit first said detention was unconstitutional if prolonged, or construed the statute in light of that, in 2005. And then there were more cases.

Four and a half years detention, I had a client in 2006; seven years detention in Casas-Castrillon, another case that came, I think, another year later.

The Third Circuit, the same thing happened.

They first said it was unconstitutional or, excuse me, they construed the statute to avoid the constitutional problem, which I know Your Honor is not a huge fan of, but, you know, they did that first, and then four -- four years later, there's been two other cases. And so then they start saying we have to have some kind of guidepost.

So that's I think the rationale --

John G. Roberts, Jr.: Those are certainly --

Ahilan T. Arulanantham: -- for a temporal rule.

John G. Roberts, Jr.: Those are certainly outlier cases.

And, you know, they obviously -- concerns are heightened as you get beyond -- as you extend the time period. But six months, I mean, the time period that you've selected, how long -- what is --

Ahilan T. Arulanantham: Yes, Your Honor.

John G. Roberts, Jr.: Give me some sense of how I can figure out how often that is an issue with respect to the broad group of people that are --

Ahilan T. Arulanantham: Absolutely, Your Honor. If you look at EOIR updated statistics, so the government's statistics that they published in FY 2015, which they cite in their -- somewhere in their -- in their briefs, is when they -- when they corrected the error in Demore v. Kim, they cited it there, the updated statistics were published, 90 percent of all detention cases under mandatory detention finish in less than six months. So six --

Anthony M. Kennedy: What did you say?

Ahilan T. Arulanantham: Less than six months.

So six months, our class, is the outliers.

You know, we are the outliers.

And the reason for that is because our class is the people who have substantial defenses.

And it is true that --

John G. Roberts, Jr.: Well is that -- but just taking the outliers, the government makes the point that in many cases those individuals are compiling an evidentiary record to substantiate their -- their claims.

So that that should be taken into account in considering how -- how long it is. And I suppose the government's alternative of individualized assessment, which would take into account whether or not the people are using the time to compile a record or not and are particularly interested in getting out now as opposed to in three months or whatever, why doesn't the suitability of individualized -- the availability of individualized relief through habeas or another procedure become more plausible to the extent you're dealing with a smaller category of cases?

Ahilan T. Arulanantham: So although it's only 10 percent that go beyond six months, it's still thousands of case.

You know, if you take just snapshot data on any given day, we got that data for our class, it was 400 people in the Central District of California on any given day.

It was a 1,000 people over the --

John G. Roberts, Jr.: Some of whom -- some of whom, as we've been discussing are there because they're compiling evidence --

Ahilan T. Arulanantham: Right.

John G. Roberts, Jr.: -- to make -- allow them to make a stronger case, and it's not clear why --

Ahilan T. Arulanantham: Understood.

John G. Roberts, Jr.: -- that shouldn't be a consideration that diminishes their claim.

Ahilan T. Arulanantham: Right.

Understood, Justice.

So let me answer that portion of it. We fundamentally disagree on the question whether you get a hearing to assess whether your detention is lawful or not where the reason for the delay is because you're compiling a record and pursuing relief. I think, you know -- I agree that if you want to give up and go home -- you know, Mr. Rodriguez came here at the age of one, so, you know, I'm not sure where home is, but, anyway -- and, in fact, a huge majority, something like two-thirds of the Mandatory Subclass, came here prior to the age of 21.

So -- and they have -- 60 percent have U.S. citizen children or spouses.

But anyway, if, you know, if you want to leave, then you can give up and you control the length of time in your case; true. But if you want to apply for any relief, or make any defense, you want to contest the charge, anything like that, you do not have control over how long your case will take anymore.

John G. Roberts, Jr.: I'm not talking -- I understand -- I understand I think both the government's point and your response about you hold the keys in your pocket and why that's not satisfactory in -- in every case. But my question is that it's -- it's not everybody who is -- the government is not entirely responsible for the length of time that the individual or the individuals are being detained.

Ahilan T. Arulanantham: Yes, and, Your Honor --

John G. Roberts, Jr.: And -- and I'm just trying to get a number.

You say 400 people in -- in -- in where? In the Central District --

Ahilan T. Arulanantham: In the Central District of California.

John G. Roberts, Jr.: Central District of California.

Ahilan T. Arulanantham: Yes.

John G. Roberts, Jr.: And the number of people who are not partially responsible for that delay themselves is -- is some smaller percentage of that.

Ahilan T. Arulanantham: Yeah.

John G. Roberts, Jr.: And I'm wondering, as the number gets smaller and smaller, at some point the prospect of individual rather than -- individual application rather than unusual class-wide relief becomes a more palatable option.

Ahilan T. Arulanantham: Understood, Your Honor.

I think if the Court were to hold that you don't even get a hearing, you don't even get to look at your detention, if you are partly responsible for the delay insofar as you're litigating your case, then almost nobody will get out, and you're right that the number of habeas petitions will be very small, you know, assuming that this would be done through individual habeas petitions. But I disagree with the premise because I don't think it's fair to say that you control the length of your detention just -- I mean, you control it in the sense that you could give up, but beyond that, you do not control it.

John G. Roberts, Jr.: No, control is -- right.

I'm thinking something of the way we approach speedy trial claims.

In deciding whether or not you've been deprived of a speedy trial, you have to take out of the calculation times when you've asked for a continuance and so on and so forth.

Ahilan T. Arulanantham: Right.

And that analogy is -- is I think fundamentally misguided, you know, because the Speedy Trial Act gives you release, and it gives you dismissal of the prosecution if, after you do the calculation you describe, you know there has been a violation.

It applies even if people are not detained, right, because the government has a separate obligation to pursue a proceeding in an expeditious manner. There's probably some speedy trial-like constraint also in the immigration context, but we haven't argued that.

The Due Process Clause is a separate constraint, which is detention has to be necessary to serve its purpose. And even if you are litigating your case in good faith, because you're a U.S. citizen's wife or because Mr. Rodriguez has, you know, a baby child at home, he misses the first three years of his child's life, you know, that is because he's pursuing relief. So, in that sense, he is responsible.

But it doesn't make him a flight risk.

You know, and so all we're saying is that, for that reason, you should be able to get the hearing on due process grounds, not speedy trial, you get it on due process grounds when the detention has become prolonged. And while the judge may say, you know what, you are pursuing dilatory tactics, you don't have a good faith claim here, or I think you're going to flee, I think even putting an ankle monitor with a GPS device on you is not going to be good enough or you have a horrible criminal history, then that's fine; that person gets detained.

But the other people for whom that is not true, which is a lot of people in our class, you know, those people should have the chance to -- to make the case in front of the immigration judge. Your Honor --

Samuel A. Alito, Jr.: Well, why do you say -- why do you say it should -- it should happen at six months? Why shouldn't it happen immediately?

Ahilan T. Arulanantham: Your Honor, we -- we thought it should happen immediately.

In Demore v. Kim, we lost.

And I think that the Court accepted the idea that a categorical generalization, rather than an individualized assessment, was okay for brief detentions as to people who had conceded their deportability. So -- and that's essentially it, you know. If -- if -- that may be fine and you don't need that hearing on day one, but once your case has taken a long time, deprivation of liberty is greater, then you need --

Samuel A. Alito, Jr.: But what -- does that reflect the idea that there is a significant flight risk in this category of cases? That's why there's the six-month rule?

Ahilan T. Arulanantham: You know -- sorry, you mean the six-month rule from Demore? Congress -- Congress said, and we disagree with this because I think -- the Congress said that there was significant flight risk concerns here.

That was because of their lack of bed space, you know, but that's -- that's -- that ship has passed, as long as Demore is good law; you know, the -- the Court said, you know, that's a -- that's a sufficient justification. But it didn't foreclose our showing in a case like this.

Neil Gorsuch: Counsel, building on that, I can imagine some individuals thinking that they have a good argument that they should be released before six months, at some point between zero and six months. Would the class-wide relief preclude those claims and, if not, and we're going to be doing individualized claims anyway for the period of zero to six months, what -- what do we gain by creating this bright line rule?

Ahilan T. Arulanantham: We defined the classes that we thought was the outer limit.

I agree with you.

I think there may be -- Your Honor, excuse me -- that there may be people who are entitled to hearings before that. I don't read this as foreclosing that because, you know, the maximum -- or the sort of most favorable relief we sought was detention -- excuse me -- was -- was hearings at six months. So I think we've foreclosed -- yeah, we've foreclosed the claims we pled but, you know, don't -- don't foreclose, you know, for the -- for the things that we didn't ask for.

Neil Gorsuch: So we're still going to have individualized claims between zero and six months and individualized claims, I assume, between six months and 12 months and so forth?

Ahilan T. Arulanantham: Well, hopefully not the latter if -- if we were to win on six months, but as to the initial --

Neil Gorsuch: Well, why not? If they're detained at six months, but conditions change between six and 12, I would -- I would want to bring a habeas petition at that point.

Ahilan T. Arulanantham: I under -- I understand, Your Honor. So first, as to the short, the before six months, as a practical matter, very unlikely because it is impossible to get a habeas adjudicated most of the time before six months. The American for Immigrant Justice brief at page 31, it co-lists the statistics.

Neil Gorsuch: I would hope that in detention habeas petitions get prompt attention.

Ahilan T. Arulanantham: You would hope so, Your Honor, but in practice --

Neil Gorsuch: Yeah.

Ahilan T. Arulanantham: -- it -- it takes 19 months in the Eleventh Circuit.

It takes about 14 months, I think, in the Third.

The fastest circuit --

Neil Gorsuch: To get before a judge at all or to have it finally adjudicated?

Ahilan T. Arulanantham: To have it finally adjudicated.

Neil Gorsuch: Okay.

Ahilan T. Arulanantham: To have it finally adjudicated. But -- but part of the problem, Your Honor, is they're assessing all these individualized factors, which they don't know about, because they don't have the case in front of them, and that takes time.

The immigration judge --

Stephen G. Breyer: How has it worked? I'd assume that the reason six months is not picked out of the air but, rather, six months reflects what's -- reflects Zadvydas, where it wasn't absolutely six months, it was presumptively six months.

Ahilan T. Arulanantham: Right.

Stephen G. Breyer: And you could say your continued detention was unreasonable prior to six months, and you could say it was reasonable up to eight months, all those things were true of that case.

Ahilan T. Arulanantham: Right.

Stephen G. Breyer: Now, how has that worked out? I assume that it has worked out that the problems that had been raised are not overwhelming and, therefore, for purposes of uniformity, which gives the government some time, like many times what it has in an ordinary criminal case, to proceed, and yet doesn't have the extreme detention, that that's where that number comes from. So how has that worked out in the Zadvydas context?

Ahilan T. Arulanantham: Your Honor, let me answer both that and then just finish answering Justice Gorsuch's question. I think Zadvydas has worked out quite well.

You know, after -- there was one big dispute, which is does it apply to excludeables.

That was resolved in Clark v. Martinez.

You know, I don't -- I'd be surprised if Your Honors have seen a cert petition.

I certainly am not aware of one arising out of Zadvydas. You know, in contrast, the Demore rule, you've got our case, you've got Prayopp, which is currently pending before this Court, and there is other -- I mean, there's a lot of litigation that arose from trying to figure out the limits on Demore, unlike Zadvydas. Just to go back briefly, Your Honor, the immigration judge, if they are the one conducting the hearing, it does not take them long to make this assessment.

The hearings take about 10 to 15 minutes actually just because they have the merits case, right.

The habeas court, totally a different story. As to the -- the later habeases, Your Honor, that's part of the justification in our view for periodic review.

It is also a rule of administrability.

It ensures that there's another look at the hearing -- at the detention after one month -- excuse me -- after one year. You know, it might be that what was sufficient to detain at six months, that -- that's not sufficient to detain after six years, which is how long Mr. Rodriguez's case, you know, took to finish.

And in their view, all of his detention for that entire time would have been justified because it's his fault, he is the one who is trying to challenge his claim. And even when he gets to the Ninth Circuit, the government confesses error, and then remands it back, you know, but -- but he's still the one pursuing relief.

And he can go home to Mexico, which he hasn't been since the age of one.

And so that's why --

John G. Roberts, Jr.: Well, I don't think the government -- I don't think the government says that the entire period is his fault because he's pursuing relief.

I think their point was there are discrete periods where they're actually trying to compile a record. They're not suggesting simply because he's seeking relief, they can keep him as long as they want because he can always give up the relief.

Ahilan T. Arulanantham: I -- I would hope that is their position, Your Honor.

I guess my -- my broader point would still be that the fact that he's pursuing relief, if it's dilatory, that should -- you should not let that person out, and the immigration judge can make that assessment. If it's a plausible claim, a colorable claim, which it obviously was in his case, then he shouldn't have to be locked up.

Ruth Bader Ginsburg: May I ask a --

Sonia Sotomayor: Counsel, can I go to the 12 --

Ruth Bader Ginsburg: May I ask you a procedural question before? Suppose we reject your constitutional avoidance question. Would there be any impediment to the relief you are seeking if we were to remand it to the Ninth Circuit to take a first view of the constitutionality?

Ahilan T. Arulanantham: I mean, obviously, the Court could do that, certainly.

It's within its power to do that.

I'm not sure if that's -- but we're continuing to press the construction claim as well, although I haven't discussed it, but, yes, the Court could do that. That being said, the Ninth Circuit I think quite clearly viewed the relief as necessary to vindicate constitutional rights. It said that at the end of the opinion, that the purpose of these hearings is to make sure that the detention actually serves its purpose. So, you know, I can come back for Number 3 perhaps, Your Honor.

Sonia Sotomayor: Counsel, can I ask you a practical question?

Ahilan T. Arulanantham: Yes.

Sonia Sotomayor: I -- I have seen the statistics that since the Ninth Circuit order, under the 1226(a) category, there have been more people released than previously. Why? Under 1226(a), you get a bail hearing before an INS judge.

The burden is on the -- on the -- on the immigrant to prove that they're not a flight risk and are not a danger to the community.

And they can make a motion to have that situation relooked at.

Ahilan T. Arulanantham: I have two guesses, Your Honor.

Sorry.

Sorry.

Sonia Sotomayor: Yeah.

And so what is it that has changed the outcome so much?

Ahilan T. Arulanantham: Right.

So I'm not -- I'm not actually aware of the particular statistics you're referring to, but my two guesses as to why there might be more releases, one is the burden shifts after six months, even for 1226(a) detainees, and they get also a requirement that alternatives to detention be considered under the injunction.

That didn't exist under regular 1226(a). And second, Your Honor, as a practical matter, we know, you can see it in the Metidat declaration, in the Inlander declaration, even people who are eligible under changed circumstances for bond hearings, they don't have lawyers, they don't know that rule.

They don't read the regulation.

Whereas when you have a periodic hearing, the people get the hearing automatically and they're more likely to get access to the Court.

I mean, for sure --

Stephen G. Breyer: What is your answer -- what is your argument on statutory -- I don't get the statutory part on the second part.

Ahilan T. Arulanantham: Yes, Your Honor.

Stephen G. Breyer: Which is that, you know, the criminals, they finish their sentence, they're finished.

After there's a final deportation order, you can only keep them six months, roughly, while you're looking for a country, but in between the time they are released, finish sentence, and there is no final deportation order, keep them for months and months and months without a bail hearing. So, but the statute says shall take them into custody when he's released from his prison time, and then it says the Attorney General may release only if, basically, the AG is necessary witness protection.

Ahilan T. Arulanantham: Right.

Your Honor, let me --

Stephen G. Breyer: Now I can't figure out a way, how do you interpret the statute to get around that even under constitutional components?

Ahilan T. Arulanantham: Right, Your Honor. Let me briefly answer that and then turn to Arrivings, because I see that my time is limited and we haven't discussed that yet. We have nothing new to say on the subject.

The two arguments were Your Honors' decision in Zadvydas required that Congress speak in clear terms to authorize a prolonged detention. We read only if as allowing release even as to brief detentions, and we know that Congress understood this because in the Patriot Act they did clearly authorize detention beyond six months even for pending cases under 1226a, with no parentheses.

That's -- that's the argument. If I may turn briefly to the Arrivings, Your Honor.

Just three quick points.

You know, first, my friends twice in their briefs defended or cited Matter of X-K- as though it was a description of the law. So, on the question whether you do get a bond hearing under 1226(a) if you cross in the desert and shortly after are arrested but then pass the credible fear interview, they -- they -- I thought they had endorsed that.

They say it in their -- in their brief. He now relies on the regulation.

If you look at our opening brief on this question, which is unanswered by the government, the problem with the regulation, with relying on the regulation is that the statute, 1226(a), says attorney general in it. And the attorney general cannot then turn around and give that authority to the DHS. If Congress gave it to the attorney general, the attorney general's delegate has to exercise that.

And that's the BIA's decision in the Matter of Garcia/Garcia, that the immigration judges are the attorney general's delegate.

So that's why they are the ones who have to decide as a statutory matter when someone passes the credible fear interview and are in their full removal proceeding, whether they're entitled to release on bond. And the advantage of that -- I mean, I think that's the best reading of the statute, period, even if there's no constitutional problem because, you know, as we discussed last time, Justice Kennedy, there's a neighboring provision for people who are denied credible fear that says you shall be detained pending the removal proceeding.

This one only says shall be detained for the proceeding, like I'm standing in line for the movie or I'm studying for an exam, you know, that's how we read the provision. And certainly, if you add the constitutional question of whether, if you can't put them to hard labor, as in Wong Wing, and you can't torture or -- or shoot them, you also can't detain them for no reason whatsoever, you know. And the government concedes -- I -- I -- I took my friend to be saying we agree or at least in practice, not as a constitutional matter, but we released the people who are not a danger or flight risk after they have passed a credible fear interview. So then our constitutional dispute is really quite narrow, it's just whether the jailer gets to make that decision, I think you're not a danger or a flight risk, or instead a neutral, the immigration judge, who's got the case, should be the one making the decision. Because we both agree that if they're not a danger or a flight risk and they've passed the credible fear interview, they should get out.

You know, and as we saw, you know, two-thirds of this class, these people who passed the credible fear interview, they win asylum, even when they're detained.

You know, that number surely goes up when you get out of -- when you get out of prison, when you're talking about a class of people who have fled horrific persecution in some cases. And in that situation, we think that it's entirely appropriate for the Court to find that those people have a right to be free from arbitrary detention.

And that's the reason why we would request the Court affirm the injunction as to the Arrivings, as well as with respect to everybody else.

John G. Roberts, Jr.: Thank you, Counsel. Mr. Stewart, two minutes.

John G. Roberts, Jr.: Thank you, Counsel.

The case is submitted.