Supreme Court critics really need to read the opinions

The Supreme Court recently issued an almost unanimous (8-1) decision in Johnson v. Arteaga-Martinez holding that INA section 1231(a)(6) does not require the government to provide bond hearings for migrants who have been detained for more than six months pending execution of a deportation order — or require it to prove that continued detention is justified.  

The ACLU says that this decision “upheld the federal government’s policy of locking up immigrants for months or years without a bond hearing.”

Maybe, but that’s not what I get from reading the opinion.

The court just interprets the statutory provision that authorizes the detention of an immigrant subject to a final order of deportation and concludes that it does not include the right to a bond hearing.

The court acknowledges that this might be a violation of the Due Process Clause in the Constitution; accordingly, it remands the case to a lower court for further proceedings to consider that issue.

Is detention even needed?

The DHS Fiscal Year 2020 Enforcement Lifecycle Report to Congress describes the end-to-end enforcement lifecycle of 2.8 million undocumented immigrants encountered between ports of entry along the Southwest Border between fiscal 2014 and fiscal 2019, and an additional 725,000 who were found to be inadmissible at Southwest Border ports of entry. Final enforcement outcomes included confirmed repatriations, grants of relief or other forms of protections from removal, and findings of non-removability.

The report indicates that — to a great extent — enforcement outcomes depend on detention practices.

Overall, 42 percent of the migrants remained in DHS custody between their initial encounter and a final enforcement outcome (or had no final outcome but were still in DHS custody as of March 31, 2020). These migrants were repatriated 98 percent of the time, with 0.5 percent receiving relief or other protection from removal and 1.5 percent remaining unresolved as of March 31, 2020.

Only 30 percent of migrants who were never detained were repatriated; 15 percent were granted relief; and 55 percent were unresolved.

The detention practice with the highest percentage of unresolved cases was placing the migrants in detention initially and then releasing them prior to a final enforcement outcome. These cases resulted in repatriations just 3 percent of the time; relief 12 percent of the time; and 85 percent were unresolved. 

The plaintiff’s situation

The plaintiff in this case, Antonio Arteaga-Martinez, is a Mexican citizen who entered the U.S. without authorization and was ordered removed. Then he claimed that he would be persecuted or tortured if he were to be returned to Mexico and sought withholding of removal under INA section 1231(b)(3). The government detained him pursuant to INA section 1231(a)(6).

Withholding is country specific — It would just prevent him from being deported to Mexico; he could still be deported to another country where he wouldn’t be persecuted or tortured. 

This delayed his deportation. He can’t be deported to Mexico until his withholding application is adjudicated, and apparently the government has been unwilling or unable to find another country that will accept him.

Supreme Court’s decision

The decision is based on an interpretation of INA section 1231(a)(6), which reads as follows:

• “(6) Inadmissible or criminal aliens — An alien ordered removed who is inadmissible under section 1182 of this title [Ineligible for visas or admission], removable under section 1227(a)(1)(C) [Violated nonimmigrant status or conditions of entry], 1227(a)(2) [criminal offenses], or 1227(a)(4) of this title [security or related removal grounds] or who has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal, may be detained beyond the [90-day] removal period and, if released, shall be subject to the terms of supervision in paragraph (3).”

INA section 1231(a)(6) does not specify how long detention may continue after the removal period has expired. In a previous case, Zadvydas v. Davis, the court observed that a statute permitting indefinite detention would raise a serious constitutional problem.

The court avoids this issue in the present case in accordance with the canon of constitutional avoidance, which is the principle that, if possible, the Supreme Court should avoid ruling on constitutional issues and resolve cases on other, non-constitutional grounds. 

It disposes of the case instead on the basis of an interpretation of whether the text in INA section 1231(a)(6) requires the government to provide bond hearings, or to prove that continued detention is justified. 

The court observes in this regard that there is no plausible construction of the text in INA section 1231(a)(6) that would require the government to provide bond hearings after six months of detention or require the government to prove that continued detention is justified. It just states that certain aliens “may be detained” after the 90-day removal period. 

Arteaga-Martinez also raises an issue that wasn’t disposed of when the case was in the lower courts: He asserts that prolonged detention without the right to a bond hearing raises serious due process concerns. He claims that outside of the national-security context, the Supreme Court has never authorized prolonged detention without an individualized hearing before a neutral adjudicator at which the detainee has a meaningful opportunity to participate.

The court notes with regard to this argument that it is a court of review, not of first view. Accordingly, it remands the case to the lower court for further proceedings to dispose of this issue.

If indefinite detention without the right to a bond hearing violates the Due Process Clause, which I think is the case, the best solution might be for Congress to amend the provision to include the right to periodic bond hearings for determining whether continued detention is warranted.

Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.  Follow him at https://www.blogger.com/blog/posts/2306123393080132994