In a split decision, the U.S. Supreme Court announced that the Immigration and Customs Enforcement agency can detain some migrants who fear for their lives if deported without giving them even the power to ask for release. The 6-3 decision, Johnson v. Guzman Chavez, No. 19-897 (U.S. June 29, 2021), expands ICE’s mandatory detention power over people who have previously been ordered removed from the United States, but who immigration officials find in the country. A dissenting opinion written by Justice Breyer would have adopted an alternative reading of key statutory language that would have given these individuals the option of requesting release while immigration officials consider their applications to stop removal.
Immigration law includes two alternative detention provisions that the parties grapple with. On the one hand, INA § 236, 8 U.S.C. § 1226, gives ICE and immigration judges the power to detain migrants who present a flight risk or public-safety threat. Under that provision, detained migrants can request release and attempt to convince an immigration judge that they are not likely to abscond or endanger anyone. On the other hand, INA § 241, 8 U.S.C. § 1231, instructs ICE to detain anyone ordered removed. Immigration judges are barred from considering release at least for a 90-day removal period that begins when an immigration judge’s removal order becomes “administratively final” (a phrase that Congress hasn’t bothered to define and whose meaning the justices disagree about). In Guzman Chavez, the majority concludes that the mandatory detention provision at § 1231 applies, whereas the dissent says that the discretionary detention provision of § 1226 should control.
What I find most interesting about the decision isn’t that the justices split into two camps along ideological lines: political conservatives favoring imprisonment and liberals favoring the possibility of release (with an important concurring opinion by Justices Thomas and Gorsuch claiming that federal courts have no authority to weigh in on this issue in the first place, but if they’re going to, they should side with the government’s desire to imprison).
Instead, what’s most interesting is that the majority’s pro-confinement position is attached to the statutory text enacted by Congress only courtesy of a painful exegesis. To decisively conclude that § 1231’s mandatory detention language applies to people like Maria Angelica Guzman Chavez who requested a form of relief from removal called withholding of removal, the justices needed to ground themselves in the statutory text.
This is where the majority’s position weakens quickly. The majority’s position is certainly “possible,” as the dissent characterizes it, but it’s far from the required reading. Indeed, the majority’s analysis implies as much. At one point, Justice Alito, writing for the majority, claims that § 1231 mandatory detention applies because the statutory text is “a natural fit” to situations in which a prior removal order is being reinstated. In another place, the majority says that § 1231 applies because “it anticipates and addresses” the legal problems facing the court so “it is not plausible” that § 1226 does. Several pages later, still explaining why § 1231 applies, Alito adds, “It would thus be odd” to apply § 1226 because other parts of § 1231 apply to reinstatement of removal. One paragraph later, the majority dives into the headings that Congress used in this section of the Immigration and Nationality Act, before explaining “The order of the sections…provides helpful context for interpreting the proper application of § 1226 and § 1231.”
To be clear, these are legitimate references. Like many sections of the Immigration and Nationality Act, the provisions governing detention are a muddled mess. As a result, courts are frequently left with little option but to glean some reason out of provisions that conflict with one another or, as here, leave a lot unsaid. It would be nice if Congress would clarify what “administratively final” means or whether it wants people asking for safe harbor despite a prior removal to be confined without an opportunity for release. But because Congress hasn’t clarified its position, courts are left to make sense of the chaos.
The dissent takes issue with the majority’s “awkward way to read” key sections of § 1231. But to say that the majority adopts an awkward interpretation isn’t quite to say that it adopts an incorrect position. I agree. The majority adopts a strained interpretation that, as Alito explains, rejects “on-the ground statistics.” The dissent, meanwhile, embraces the practical realities of immigration court cases—concerned about the fact that many withholding of removal proceedings last more than one year and some take more than two years—while also trying earnestly to make sense of the statutory text. Both, I think, are plausible positions.
More importantly, both reveal the role of the justices’ ideological commitments. When the text adopted by Congress leaves courts grasping for “helpful context” and a “natural fit,” adopting one position over another is anything but mandated. When that’s the situation in which judges find themselves, the six justices in the majority lean in the direction of expanding the government’s power to strip people of their liberty and deny them the opportunity to even ask for release.
The three dissenting justices lean in the opposite direction: yes, they say, ICE can detain people, but eventually a migrant can go before an immigration judge to request release. “A bond hearing does not mean an alien will run away,” Justice Breyer correctly noted. He should have added that a bond hearing does signal that the U.S. legal system is committed to limiting the government’s power to imprison by ensuring that a neutral third-party can weigh in on whether detention is in fact necessary to protect the public and promote justice. Without that, we’re left with a situation in which ICE field officers wield immense power. They can decide to imprison someone who is following the legal process created by Congress, but because that process takes a long time to complete the person will stay locked up for many months, perhaps even years. And no immigration judge can do anything about it. Unilateral executive power to imprison for such a long period of time should be repugnant to the U.S. legal system. Sadly, Guzman Chavez reminds us that it’s not.
I suppose the only saving grace here is that the decision will apply to a fairly small number of people. In recent years, immigration courts have handled fewer than 3,000 cases involving withholding of removal annually.