An illegal alien under a deportation order isn’t entitled to a bond hearing after six months of detention, the Biden administration told the Supreme Court during a Jan. 11 hearing.
At issue is whether Zadvydas v. Davis, a 2001 Supreme Court ruling that found that federal law provides an implied time limit of six months for the immigration detention of noncitizens when their removal isn’t “reasonably foreseeable,” applies to detainees who have been ordered to be removed from the country.
The case is Johnson v. Arteaga-Martinez, court file 19-896. Tae D. Johnson is the acting director of U.S. Immigration and Customs Enforcement (ICE).
The respondent, Mexican citizen Antonio Arteaga-Martinez, entered the United States repeatedly without authorization. The U.S. government deported him to Mexico once. He reentered most recently after 2012. He claims that a criminal gang in Mexico has targeted him and his family and that he was beaten and robbed and his car was stolen. He says that he reentered the United States in order to be safe from the violence in Mexico.
He was arrested by immigration agents in 2018 and a prior removal order against him was reinstated. While detained, he said he was afraid of returning to Mexico, and an asylum officer determined that he had a “reasonable fear” of future persecution in Mexico. He stayed in detention while his claim—some such claims take years to be resolved—was processed. After several months, he filed a legal challenge to his detention, according to a SCOTUSblog summary.
Arteaga-Martinez was eventually released, but his attorneys say ICE still has the right to detain him and that they were challenging that with the lawsuit.
During oral arguments before the Supreme Court, Department of Justice attorney Austin Raynor said 8 U.S. Code Section 1231 provides that “certain categories of non-citizens, including inadmissible non-citizens like respondent here, ‘may be detained beyond the removal period.’”
This case is about “whether that language requires that noncitizens … be afforded a bond hearing before an immigration judge after six months of detention, at which the government bears the burden of proving by clear and convincing evidence that the non-citizen is either a flight risk or a danger to the community,” according to Raynor.
“That question answers itself,” he said.
This is why the respondent “focuses on an altogether different issue, namely, whether he is entitled to outright release under this court’s decision in Zadvydas because his removal is not reasonably foreseeable.”
Because he didn’t raise this argument, which is nonetheless mistaken, earlier in the litigation, he isn’t entitled to raise it now before the Supreme Court, Raynor said.
“The basic point of Zadvydas is you really can’t keep someone indefinitely without a reason basically. … [It] can’t be just whim,” Justice Sonia Sotomayor told Raynor. “We don’t like this person because—easy to point to a racial reason, but it could be something as simple as we just don’t like him.”
The system seems biased against would-be immigrants, according to Sotomayor.
“It’s hard to see how impoverished people, unfamiliar with the workings of this government, of this country, are going to find lawyers,” she said.
Justice Stephen Breyer asked Raynor when the government was likely to finalize Arteaga-Martinez’s case.
“I asked you for an estimate by the government as to when the government is likely to find a place,” Breyer said. “I don’t care what place. Any place in the world besides the United States where you will send him.”
Raynor said his next hearing would be in 2023 because he’s on the non-detained docket, which moves more slowly than the docket for detained individuals.
“What if the withholding of removal proceedings continue to drag on and on and on or [as] in Zadvydas, there was no country willing to take him, but he … was removable?” Justice Amy Coney Barrett asked.
The respondent’s attorney, Pratik A. Shah, said federal officials had determined that his client “had demonstrated a reasonable fear of torture if removed to his home country, a threshold standard that only 13 percent of applicants satisfy.”
That determination entitled him to an immigration court adjudication of his claim for relief, “which often takes a year or, as in this case, much longer, during which time he cannot be removed,” according to Shah.
“Now, three years later, the government still seeks the power to imprison him, despite his significant family ties and lack of any criminal record, pending his modified yet still unadjudicated withholding-of-removal claim.”
Justice Neil Gorsuch asked Shah if the fact that his client had been released mooted his legal claim.
“I don’t think, legally, it moots the claim … because the government still seeks the power to re-detain him,” Shah said. “And so, if you were to rule against us, in the government’s view, it could simply put him back into custody.”