June 29, 2021

Supreme Court Decides Johnson v. Guzman Chavez

On June 29, 2021, the U.S. Supreme Court decided Johnson v. Guzman Chavez, holding that the detention of a noncitizen ordered removed from the United States who reenters without authorization is governed by 8 U.S.C. § 1231.

The Respondents are noncitizens who were removed from the United States and later reentered without permission. After being arrested and detained by DHS, the Respondents sought so-called “withholding-only” relief to prevent DHS from executing their prior removal orders, on the grounds that they would be subject to persecution in the country to which DHS proposed to remove them. Respondents asked to be released on bond. The United States had argued that 8 U.S.C. § 1231 governs. Under Section 1231, noncitizens already ordered removed must be held for 90 days to carry out deportation. If for some reason the noncitizen has not been deported after 90 days, release is granted or denied based on an internal Immigrations and Customs Enforcement process. Section 1231 does not explicitly require that the noncitizen be afforded a bond hearing.

The Respondents argued that they may be released under 8 U.S.C. § 1226. Under Section 1226, the Department of Homeland Security may arrest and detain a noncitizen “pending a decision on whether the alien is to be removed from the United States.” However, Section 1226 generally requires no period of detention, does not mandate supervision if a person is released, and permits an immigration judge to evaluate the question of release based on live testimony.

The Respondents filed a habeas proceeding in the district court, seeking a declaration that Section 1226 governs their detention, as well as an injunction ordering the Government to grant them an individualized bond hearing consistent with Section 1226. The lower courts agreed and entered summary judgment for the Respondents.

In a 6–3 opinion, the U.S. Supreme Court reversed. The Court held that Section 1231, not Section 1226, governs the detention of aliens subject to reinstated orders of removal. The Court reasoned that Section 1231 “authorizes detention ‘when an alien is ordered removed’ and enters the ‘removal period,’ which begins, as relevant here, on ‘[t]he date the order of removal becomes administratively final.’” The Court went on to note that Section 1231 further provides that, if a removed noncitizen reenters the United States, “the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed.” The Court noted that the record on appeal established that each of the respondents had a removal order that was administratively final under Section 1231. Based on this, the Court stated that “§ 1231’s detention provisions are a natural fit for aliens subject to reinstated orders of removal.”

In so doing, the Court rejected the Respondents’ argument that noncitizens pursuing withholding-only relief have not been “ordered removed” because an immigration judge or the Board of Immigration Appeals might determine that DHS cannot remove the noncitizen to the specific country designated in the initial removal order. The Court reasoned that even if a noncitizen was granted withholding of removal relief, DHS has only been prohibited from deporting the noncitizen to the specific country in the prior removal order; the noncitizen has nonetheless been ordered removed from the United States, and DHS retains authority to remove the noncitizen to any other authorized country.

Justice Alito delivered the opinion of the Court, in which Chief Justice Roberts, and Justices Kavanaugh and Barrett joined in full; Justice Thomas filed a concurring opinion in which Justice Gorsuch joined. Justice Breyer filed a dissenting opinion, in which Justices Sotomayor and Kagan joined.

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