Director, Center for Supreme Court AdvocacyNational Association of Attorneys General
This Report summarizes opinions issued on June 13, 2022 (Part I).
Opinion: Johnson v. Arteaga-Ramirez, 19-896
Johnson v. Arteaga-Ramirez, 19-896. In an 8-1 decision, the Court ruled that the Immigration and Nationality Act does not require the government to provide noncitizens detained for six months with bond hearings in which the government must show by clear and convincing evidence that a noncitizen will be a flight risk or danger to the community. Respondent Antonio Arteaga-Ramirez is a citizen of Mexico who, after multiple prior removals from the United States, was located and ordered removed once again. Arteaga-Ramirez was not deported right away, however, and remained in custody under 8 U.S.C. §1231(a)(6), pending a withholding-only proceeding where an immigration judge would assess his claims of fear of persecution or torture if returned to Mexico. After four months without a hearing, Arteaga-Ramirez filed a habeas corpus petition challenging on statutory and constitutional grounds his continued detention without a bond hearing. Soon thereafter in an unrelated case, the Third Circuit ruled that noncitizens facing prolonged detention under §1231(a)(6) pending a withholding-only proceeding are entitled to a bond hearing before an immigration judge where the government must show by clear and convincing evidence that the noncitizen poses a flight risk or danger to the community. Based on that decision, the district court ordered a bond hearing for Arteaga-Martinez around the six-month mark in detention, and the Third Circuit summarily affirmed. Arteaga-Martinez had the hearing, posted bond, and remains out pending a final determination of the withholding of removal. In an opinion by Justice Sotomayor, the Court reversed the Third Circuit.
The Court began with a look at §1231(a), which “governs the detention, release, and removal of individuals ‘ordered removed.’” The government must generally secure removal of such individuals within 90 days of entry of the final order of removal, and the noncitizen must remain in custody during that period. After the 90 days expire, the government “may” detain four categories of people, including those deemed “inadmissible” or “removable” on certain grounds, and those likely to pose a danger to the community or flight risk. Section 1231(a)(6) does not specify how long noncitizens may stay in custody after the 90-day removal period. Thus, the Court turned to Zadvydas v. Davis, 533 U.S. 678, 689 (2001), which also analyzed §1231(a)(6) and “explained that ‘[a] statute permitting indefinite detention of an alien would raise a serious constitutional problem.’” Applying the canon of constitutional avoidance, the Zadvydas Court held that §1231(a)(6) “limits an alien’s post-removal-period detention to a period reasonably necessary to bring about that alien’s removal from the United States,” presumptively six months. The Court here also reviewed Jennings v. Rodriguez, 138 S. Ct. 830 (2018), which considered other INA provisions authorizing detention of noncitizens. One such provision, §1226(a), authorized release of noncitizens on bond after their initial detention. The Jennings Court found that only one plausible interpretation exists and held that periodic six-month bond hearings are not required. It “emphasized that the canon of constitutional avoidance is only applicable where a statute has ‘more than one plausible construction.’”
With Zadvydas and Jennings in mind, the Court considered whether §1231(a)(6) has a plausible construction that requires bond hearings and the burden of proof on the government. It concluded that “[o]n its face, the statute says nothing about bond hearings . . . or burdens of proof, nor does it provide any other indication that such procedures are required.” Thus, it could not read §1231(a)(6) “to incorporate the procedures imposed by the courts below as a matter of textual command.” Nor could it accept arguments that “references to flight risk, dangerousness, or ‘terms of supervision’” in §1231(a)(6), or to “bond” in §1226(a), support the relief ordered below. The Court was not persuaded by additional points asserted in the companion case, Garland v. Gonzalez (summarized above), citing the existing practice of bond hearings after initial detentions or custody hearings for noncitizens the government deems “specially dangerous.” The Court responded that “[f]ederal agencies . . . are free to grant additional procedural rights in the exercise of their discretion,” but “[r]eviewing courts . . . are generally not free to impose them if the agencies have not chosen to grant them.” (Internal citations and quotation marks omitted.) Based on the foregoing, the Court concluded that §1231(a)(6) does not have a plausible construction that requires the procedures imposed by the Third Circuit. The Court remanded the case for the lower courts to resolve in the first instance Arteaga-Martinez’s constitutional claims.
Justice Thomas issued a concurring opinion, which Justice Gorsuch joined in part. He agreed with the decision that “§1231(a)(6) does not require periodic, 6-month bond hearings,” but wrote separately to address three points. First, with Justice Gorsuch joining in this point only, he opined that the Court lacked jurisdiction to hear the case because there was no final order of removal or other grant of jurisdiction under §1252. Second, he asserted “that the Due Process Clause does not ‘apply to laws governing the removal of aliens.’” And even if it does permit challenges to removability, “it does not protect from detention an alien who, like Arteaga-Martinez, does not challenge his final removal order.” Third, Justice Thomas advocated for overruling Zadvydas “at the earliest opportunity.” He thinks the Court there “graft[ed] a made-up rule onto §1231(a)(6)” about detaining a noncitizen only long enough to effectuate removal, and lacked “textual support” for the “presumptively reasonable” period of six months.
Justice Breyer concurred in part and dissented in part. He maintained that Zadvydas governs this case because it “concerns the same statutory provision.” While recognizing there are “two conceivable differences” between the cases, he said that “both argue in favor of applying Zadvydas’ holding here.” First, Arteaga-Martinez’s main crime is re-entering the country without inspection, unlike the more serious offenses involved in Zadvydas. Second, “this case involves a bail hearing,” whereas Zadvydas “provided for outright release.” In his view, “the Government has less reason to detain a person when the alternative is a bail hearing . . . than when the alternative is simply release.” He also disagreed that Jennings applies here because it analyzed a different statute and did not otherwise modify or overrule Zadvydas. Justice Breyer did, however, agree that Jennings foreclosed imposing a “clear and convincing evidence standard” on the government.