SCOTUS: No Bond for Aliens Who Reenter Illegally

The correct interpretation, but these aliens won’t be detained under the Biden administration anyway

By Andrew R. Arthur on June 30, 2021

On June 29, the Supreme Court issued a decision in Johnson v. Guzman Chavez, a case involving aliens who reentered illegally after being removed. The Court held that they are not entitled to release while they are applying for statutory withholding of removal and withholding under the Convention Against Torture (CAT). It will make little difference, however, at least until the next inauguration day.

In all fairness, you can really stop reading there, for two reasons.

First, this is the sort of commonsense decision that should never have made it to the Supreme Court. Every district court judge who received a habeas petition seeking release from an alien who reentered illegally after removal should have reached the same conclusion — that is what the law plainly says.

All that Justice Alito, writing for the majority, did was apply the actual language of the Immigration and Nationality Act (INA) as it’s written.

Second, given the fact that the Biden administration has largely stopped enforcing the immigration laws in the interior of the United States, it’s unlikely there will be any aliens in a similar position anytime soon. ICE either will never question — let alone arrest — them to begin with, or they will simply be released by the agency despite the fact that the INA says that they should be detained.

With that out of the way, here’s the analysis:

If an alien is removed from the United States under an order of removal and reenters illegally, DHS (logically) does not have to start new removal proceedings in order to remove the alien again.

Rather, Congress, in section 241(a)(5) of the INA, directed that the alien’s original order of removal be reinstated, expressly barred any reopening or review of that order, denied the alien of the right to apply for any relief under the INA, and mandated that the alien be removed.

That would normally be the end of the story, but it’s not, due to certain international obligations into which the United States voluntarily entered.

First, pursuant to the 1967 United Nations Protocol Relating to the Status of Refugees (which the United States signed in 1968), the U.S. government may not expel or return (refouler) aliens to countries where they would be persecuted on account of race, religion, nationality, membership in a particular social group, or political opinion.

To comply with our non-refoulement obligations under the 1967 Protocol, Congress created a carve-out in section 241(b)(3) of the INA to the rules governing removal, and created a protection referred to as “statutory withholding”. It allows an alien to apply to block removal to a specific country or countries by showing that he or she would be persecuted there on account of any of the five grounds above.

Importantly for purposes of Guzman Chavez, because it is country-specific, an alien granted statutory withholding can still be removed, but not to any country from which removal has been withheld.

You may assume that aliens are simply sent back home when they are removed — and that is usually the way it works — but section 241 contains a laundry list of countries to which an alien can be removed, and removal to other countries does occur.

If non-refoulement sounds familiar, it’s because statutory withholding under section 241(b)(3) of the INA is similar to asylum under section 208 of the INA, but there are many major differences between the two forms of protection.

The most significant is that an alien seeking statutory withholding protection bears a higher burden of proof — specifically that persecution is more likely than not to occur — than an alien who is applying for asylum, who must just show past persecution or a well-founded fear of persecution. In addition, aliens seeking asylum are subject to certain bars that do not apply to those seeking statutory withholding.

Further, unlike asylum, in order to grant an alien statutory withholding, the adjudicator must first order the alien removed, and then “withhold” the removal order.

Finally, asylum bars removal to any country — not just the one in which persecution occurred or is feared. And an alien granted asylum may remain in the United States indefinitely and quickly receive a green card and then citizenship. An alien granted withholding is stuck in that status.

Second, and similarly, the United States is also a signatory to the CAT, under which it may not refouler an alien to a country in which the alien would be tortured.

Like statutory withholding, CAT is country-specific and can only be granted to aliens who are under final orders of removal. While there is no specific CAT provision within the INA, regulations implementing the INA allow aliens facing removal to apply for CAT protection.

Moreover, CAT also does not require that the alleged torturer be motivated by race, religion, nationality, membership in a particular social group, or political opinion. If the alien shows that torture is going to occur if he or she is removed, the motivation for such harm is irrelevant.

As an aside that is not pertinent to this case, there are actually two different forms of CAT protection: CAT withholding and “deferral of removal”.

CAT withholding provides an alien more security than deferral of removal. Withholding can only be terminated if DHS shows that the alien is not likely to be tortured in a country from which removal is withheld. Aliens granted deferral to a country, on the other hand, can be removed to that country if the United States receives assurances that the alien will not be tortured (this has actually occurred, as well).

And, while there are bars to CAT withholding, there are none to deferral of removal. Had Osama bin Laden lived to make it to the United States, he almost definitely would have been granted deferral here.

Back to Guzman Chavez.

As noted, the aliens in the case had previously been removed from the United States and illegally reentered. They were apparently apprehended by DHS in the United States, and when the department attempted to reinstate their prior removal orders, each claimed a “reasonable fear” of return, which like “credible fear” in the expedited removal process triggered their applications for withholding.

Each was interviewed by an asylum officer who determined that they had a reasonable fear, and referred them to an immigration judge to apply for protection in what are known as “withholding-only” proceedings.

In such proceedings, the only consideration for the court is whether the alien is eligible for statutory withholding or CAT. The alien has already been ordered removed (the order that was reinstated), and the immigration judge cannot reassess whether that determination was correct or not. And the alien cannot apply for any other relief.

While those proceedings were pending, the aliens requested bond, which was denied because they were detained under section 241(a)(2) of the INA, under which detention is mandatory.

The aliens filed separate habeas petitions with the U.S. District Court for the Eastern District of Virginia, however, alleging that they were actually being detained under section 236 of the INA, which permits release for aliens not removable on specified criminal and national-security grounds (which these aliens apparently weren’t).

The district court judge in each case bought the alien’s argument, and ordered that they be given an opportunity to apply for release. The government appealed, and when the Fourth Circuit affirmed the lower courts’ decisions, the government sought Supreme Court review.

The Court held that detention in each alien’s case was governed by section 241 of the INA, because each of the aliens was under a final order of removal, and section 241 governs the detention, release, and removal of aliens ordered removed.

Section 236 of the INA, on the other hand, applies to the detention of aliens “pending a decision on whether the alien is to be removed from the United States”.

To oversimplify Justice Alito’s exhaustive analysis, the decision on whether these aliens would be removed from the United States had already been made when they received administratively final orders of removal the first time.

The second time they were caught, those orders were reinstated, and the only question in their subsequent withholding-only proceedings was where they would be — or rather could not be — sent. Section 236 did not apply.

As explained above, had they been granted either statutory withholding or CAT withholding, the aliens could have been sent to any country other than the country or countries from which removal had been withheld. If not, the government would have sent them to any designated country of removal.

Justice Alito considered it of no moment that most aliens granted withholding are never actually removed to an alternate country, nor should he have — it is the language of the statute that controls, as he held.

That’s the law, and the way that those cases should have proceeded under the law. The Biden administration, however, has shown little interest in actually applying the INA if it adversely affects illegal aliens, so here is the way that I see such cases playing out, at least until the next inauguration.

In section 241(a) of the INA, Congress mandated that DHS remove aliens within 90 days of the issuance of an administratively final order, unless a federal court issues a stay of that order (in which case the 90-day clock starts when that court issues its final order) or unless the alien is in non-immigration detention or confinement (in which case it starts when the alien is released from that detention or confinement).

The Biden administration, however, has already attempted — notwithstanding the legal mandate — to impose a 100-day moratorium on removals (starting on January 20), which would have blatantly ignored the congressional requirement that aliens under final orders be removed in 90 days.

Although a district court judge imposed a nationwide injunction on that moratorium, as my colleague Rob Law has noted, that injunction is “mostly symbolic” because it “does not mandate that the Biden administration actually remove aliens”.

Nor could it. One of the weaknesses in our system of government is that while courts can force DHS to grant immigration benefits to aliens (as often occurred during the Trump administration), it cannot force DHS to actually apprehend, detain, prosecute, or remove anyone, regardless of the ground of removal.

Under agency guidance, ICE officers cannot even question aliens like those in Guzman Chavez, let alone reinstate their orders of removal. The aliens themselves thus get to pick which laws they will and will not comply with. If those aliens want some immigration benefit they can probably request it, but otherwise DHS won’t bother them.

That such policies will endanger Americans (when criminal aliens reenter the United States or aliens are released to commit crimes instead of being removed) or make border enforcement all the more difficult (as previously removed aliens can simply come back in) is obvious, but little understood.

And, of course, protections like asylum, statutory withholding, and CAT are exceptions to our well-structured and otherwise stringent immigration laws, which are intended to protect our national security and the wages and working conditions of American workers (citizens and lawful aliens alike).

When the laws are not otherwise enforced (and the Biden administration in all except the most serious cases has stated that it refuses to enforce them) those exceptions will swallow the rule. There is a reason that illegal migrants are called “asylum seekers” by those who oppose enforcement, regardless of whether they are coming here for protection or simply better wages.

In the end, the Supreme Court correctly determined that aliens who reenter the United States illegally after being removed are not eligible to seek release. Under its non-enforcement regime, however, the opinion will mean little, because the Biden administration will never detain those aliens to begin with.