SCOTUS Rejects Bond-Hearing Mandate for Aliens Under Removal Orders Seeking Relief

Signal that a prior Supreme Court precedent may be on borrowed time

By Andrew R. Arthur on June 13, 2022

There have been three breaking decisions in immigration in the past few days. One — the Supreme Court’s decision in Johnson v. Arteaga-Martinez — is important, but it simply corrects erroneous circuit-court precedent and “explains” (read: “narrows”) prior precedent. The second, also from the High Court in Garland v. Aleman Gonzalez, is a bit more substantive. The third, from district court Judge Drew Tipton in Texas v. United States, is a bombshell, but not a totally unexpected one. I will discuss the first decision in this post, and the other two in subsequent ones.

Arteaga-Martinez. Arteaga-Martinez is a Mexican national who has entered the United States illegally four times. The first time, in March 2001, he was detained and removed, and he was again detained and removed in 2011.

He claims that when he was returned to Mexico on that occasion, he was beaten by a criminal street gang. Consequently, he reentered illegally in September 2012.

Nearly six years after his return, ICE arrested him and reinstated his prior removal order under section 241(a)(5) of the Immigration and Nationality Act (INA). Arteaga-Martinez applied for statutory withholding under section 241(b)(3) of the INA (which is like asylum, only with a higher burden of proof and fewer benefits) and protection under the Convention Against Torture.

He was referred to an asylum officer, who found that Arteaga-Martinez has a reasonable fear of harm if returned and was placed into “withholding-only” proceedings before an immigration judge at which the only issue is his eligibility for statutory withholding and CAT.

Post-Removal Detention. Under section 241 of the INA, DHS is required to detain and remove aliens under final orders of removal within 90 days, but it also gives DHS the authority, at section 241(a)(6), to extend that 90-day detention period for various reasons, including that the alien “is a risk to the community or unlikely to comply with the order of removal”. ICE detained Arteaga-Martinez under that authority.

Of course, in this case, DHS could not remove the alien while he was in withholding-only proceedings, a glitch in the current statute as applied to aliens whose orders of removal have been reinstated and who are seeking immigration protection. Simply put, DHS can’t generally remove them in 30 days.

The Third Circuit. Four months after ICE took him into custody, Arteaga-Martinez filed a petition with the U.S. District Court for the Middle District of Pennsylvania for a writ of habeas corpus seeking release (it appears that he was detained in my old court in York County).

Shortly thereafter, the Third Circuit (which has jurisdiction over Pennsylvania) issued a decision in Guerrero-Sanchez v. Warden York County Prison. It held that section 241(a)(6) of the INA requires immigration judges to give bond hearings to aliens under orders of removal facing prolonged detention of six months or more. At such hearings, the circuit court held, ICE bears the burden of proving by clear and convincing evidence that the alien poses a danger to the community and/or a flight risk.

The district court ordered a bond hearing in Arteaga-Martinez’s case in accordance with that Third Circuit precedent. The government appealed, and the Third Circuit summarily affirmed the district court judge. The immigration judge held the bond hearing, ordering the alien released. No decision on his applications for statutory withholding and CAT has yet been issued — not a surprise in non-detained proceedings.

Justice Sotomayor, for the Majority. Justice Sotomayor, writing for five other justices, held that section 241(a)(6) of the INA cannot be read to require bond hearings of the sort mandated by Guerrero-Sanchez, and that such hearings are not required under Supreme Court precedent in Zadvydas v. Davis (examined below).

She did not rule, however, on Arteaga-Martinez’s constitutional challenges to his prolonged detention (which had not been addressed by the Third Circuit), and the case was remanded to the Third Circuit — meaning that it may come bouncing back to the High Court.

Justices Thomas and Gorsuch. Justice Thomas, writing for himself and Justice Gorsuch, argued that section 242(b)(9) of the INA — which gives courts authority to review “questions of law and fact ... arising from any action taken or proceeding brought to remove an alien ... only” when the alien is under a final order of removal or when section 242 otherwise grants jurisdiction — deprives it (and every other federal court) of power to hear the case.

The justice also argues (as he has previously) that the due process clause of the Constitution “does not ‘apply to laws governing the removal of aliens’”, or that if it did apply to such aliens, “does not protect from detention an alien who, like Arteaga-Martinez, does not challenge his final removal order”. Once more, Arteaga-Martinez’s applications are preventing his removal from being final.

Zadvydas. Finally, Justice Thomas contended that this case shows why the Supreme Court should overrule Zadvydas v. Davis, where it held that there would be constitutional problems if section 241(a)(6) of the INA permitted indefinite detention.

In Zadvydas, the Court held that the statutory detention/release language in section 241(a)(6) was ambiguous, and that DHS could only detain an alien whose removal was “reasonably foreseeable”.

Most significantly, the Court also arbitrarily found that six months was the point at which detention was no longer “presumptively reasonable”. Not surprisingly, Zadvydas was the basis for the Third Circuit’s decision in Guerrero-Sanchez, and as noted the case distinguished by Justice Sotomayor.

Zadvydas was “a man without a country” because he had been born of Lithuanian parents in a German “displaced persons” camp. Due to that, and his “long criminal record, involving drug crimes, attempted robbery, attempted burglary, ... theft” and a cocaine trafficking conviction, neither country wanted him back.

Arteaga-Martinez, however, is simply going through the process while his applications are considered. He will be removed — or not — at the end of that process, and nothing suggests that Mexico won’t accept his return.

In any event, in Jennings v. Rodriguez, the Court narrowed Zadvydas to reject judicially crafted bond hearings not mandated by the INA like the ones imposed by the Third Circuit in Guerrero-Sanchez. Rodriguez was in removal proceedings, however, and was subject to mandatory detention under section 236(c) of the INA due to his criminal history, so the cases were distinguishable, but the writing was likely on the wall for Guerrero-Sanchez.

Justice Breyer. Justice Breyer, however, noting that the same provision was at issue in both Zadvydas and in Arteaga-Martinez, held that the precedent decision — which is still good law — controlled. He also asserted that the fact that Arteaga-Martinez didn’t have the same criminal record as Zadvydas gave the former a stronger claim.

And he noted that while Zadvydas provided for outright release, the Third Circuit simply required Arteaga-Martinez to have a bond hearing, distinguishing the two cases. He suggested that the parties may want to develop the constitutional due process claim further on remand.

Zadvydas on Borrowed Time? I will note, again, that Arteaga-Martinez is still going through the process. He is under an order of removal, albeit one that was reinstated following his prior illegal entries. Serial violations of the immigration laws — if nothing else — suggest that the alien is a flight risk, even absent a criminal history.

Absent some significant shift in the law or the makeup of the Supreme Court, the release presumptions in Zadvydas are likely on borrowed time. The Court has already narrowed those presumptions twice, and the third time may not be the charm for aliens facing prolonged detention.