In a pair of cases being argued today, the U.S. Supreme Court reviews the federal government’s power to detain migrants. This pair of cases, Johnson v. Arteaga-Martinez and Garland v. Aleman Gonzalez, raise similar legal issues: Can federal immigration officials detain a person indefinitely without the possibility of requesting release from an immigration judge when a person who is not a U.S. citizen has already been detained for at least 6 months and is waiting for immigration officials to decide whether they will be allowed to remain in the United States?
In each case, a circuit court took the position that in those circumstances, these individuals are entitled to request release on bond from an immigration judge. At that hearing, the government must show that detention is necessary, either because the detained individual poses a danger to the community or a flight risk.
Both cases involve classes certified by the district court. All of the people in each class have legal claims pending before the immigration courts. In one class, everyone is undergoing what is called a “withholding only” hearing. What that means is that the immigration courts are deciding whether they are subject to a federal statute that bars the federal government from forcibly removing them because they will be persecuted. All of these people have already had their circumstances vetted by an officer with the Department of Homeland Security, who concluded that there is sufficient evidence of their likely persecution that they should receive a more thorough review by an immigration judge. In the other class, most people are in withholding only proceedings, though a few have other legal claims pending, but they have been granted a stay of removal by either a federal court or an immigration court.
In most instances, a migrant only requests withholding of removal when they have no other option for staying in the United States. It is a weak form of relief from removal because it does not provide any permanent protection from removal. It merely blocks the United States from sending away a person while the risk of persecution remains, so if circumstances change then the migrant’s protection evaporates.
In practice, Arteaga-Martinez and Aleman Gonzalez center on the power of the Immigration and Customs Enforcement division of the U.S. Department of Homeland Security to detain people without oversight from a third-party. Importantly, neither case presents the possibility of a guarantee of release. At most, the migrants are asking for a hearing before an immigration judge. As readers of crimmigration.com know, immigration courts are not traditional Article III courts. Instead, they are a component of the Justice Department, meaning that the immigration judges act as a surrogate for the Attorney General.
Undergirding both cases is a web of statutes that always threaten to intersect with the Constitution’s Due Process Clause. The federal statute governing immigration law—called the Immigration and Nationality Act—instructs ICE to detain people who have been ordered removed from the United States. The statute says that detention “shall” run for 90 days or until the person is actually removed from the United States.
Most people ordered removed are actually removed from the United States during that three-month period. But some are not. Sometimes that is because the United States can not find a country willing to take a person. This usually occurs when the United States does not have a repatriation agreement with the detained individual’s country of citizenship. In fewer instances, that happens when no one is willing to claim a person as a citizen of their country.
In these cases, the people can not be removed because, even though they have all been ordered removed, they still have legal claims pending in the form of withholding of removal requests. Those can sometimes take years to make their way through the courts.
As a result, these cases implicate a separate statutory provision: one that says ICE “may”—but is not required to—detain a person beyond 90 days. During this period, DHS reviews the continued custody of each person, but that review never involves an immigration judge. Moreover, the review is entirely of the paper file and the detained individual has no right to see—nonetheless challenge—the evidence upon which DHS is relying to decide whether continued review is merited.
In a 2001, the U.S. Supreme Court reviewed the constitutionality of this period of discretionary review. In Zadvydas v. Davis, it announced that indefinite detention “would raise serious constitutional concerns.” As such, it concluded that an additional 90 days of detention without review by an immigration judge—meaning 180 days of detention—is presumptively reasonable.
Since then, migrants detained by ICE for more than 6 months since being ordered removed have been entitled to request review of their continued custody. Through a series of regulations, DHS allows detained migrants to ask DHS officials whether continued detention is necessary.
Since Zadvydas, the Supreme Court has considered ICE’s power to detain migrants multiple times since then, most recently in 2018. In Jennings v. Rodriguez, which considered other statutory provisions authorizing detention, the Court held that detention pending immigration proceedings can go on indefinitely without periodic bond hearings, reversing a Ninth Circuit decision requiring review by an immigration judge.
The cases now before the Court address a combination of the issues that the Court has previously addressed in those prior decisions: Are the Third and Ninth Circuits correct that 180 days after being ordered removed, detained migrants must be brought before an immigration judge where the burden is on the federal government to show, by clear and convincing evidence, that continued detention is appropriate? If the migrants involved in these cases win, that will be the rule across the United States. But if the Biden administration has its way, prolonged detention without review by an immigration judge and without placing the burden on the government permissible will receive legal blessing from the nation’s highest court even if migrants are detailed for more than 180 days.