Does an alien have the right to a bond hearing, at which the government must prove that the detainee is dangerous or a flight risk, after being held in custody for six months?
This case asks the Supreme Court to determine whether, under the Immigration and Nationality Act, the government must prove to an immigration judge by clear and convincing evidence, that an alien who has been detained for six months is a flight risk or dangerous to the community. In 2018, U.S. Immigration and Customs Enforcement agents detained Antonio Arteaga-Martinez, a native and citizen of Mexico, who had illegally entered the United States in September 2012. The parties differ on whether 8 U.S.C. § 1231 requires a bond hearing after six months of detention, or whether the Department of Homeland Security needs to prove that an alien is a flight risk or danger to the community. The government, represented by Tae Johnson, maintains that neither are required based on the plain meaning of the statute. Further, Johnson claims that current Immigration and Customs Enforcement policies satisfy due process requirements, citing mechanisms such as required hearings, review processes, and access to attorneys. In response, Arteaga-Martinez argues that a bond hearing is required after six months of detention, and that the Department of Homeland Security must then prove that the immigrant is a flight risk or a danger to the community. Mr. Arteaga-Martinez adds that due process is not met by the government’s scheme. This case has important implications for immigrant rights and the administration of immigration law.
Questions as Framed for the Court by the Parties
Whether an alien who is detained under 8 U.S.C. § 1231 is entitled by statute, after six months of detention, to a bond hearing at which the government must prove to an immigration judge by clear and convincing evidence that the alien is a flight risk or a danger to the community.
Respondent Antonio Arteaga-Martinez (“Arteaga-Martinez”) is a native and citizen of Mexico. Brief for Petitioner, Tae D. Johnson at 6. Arteaga-Martinez entered the United States four times over the past twenty years. Id. He first came to the United States in February 2000, and, after being stopped at the border, voluntarily returned to Mexico. Id. He successfully entered the United States in April 2001. Id. Arteaga-Martinez remained in the United States for a decade, and, in 2011, returned to Mexico to visit an ill family member. Brief for Respondent, Antonio Arteaga-Martinez at 8. In July 2012, while re-entering the United States, he was stopped at the border and removed through expedited removal orders. Id. Arteaga-Martinez entered the United States for a fourth time in September 2012. Id.
In May 2018, Immigration and Customs Enforcement (“ICE”) arrested and subsequently detained Arteaga-Martinez. Brief for Petitioner at 6. ICE officials reinstated his original deportation orders from July 2012, arguing that Arteaga-Martinez had re-entered the United States illegally despite having been removed before. Brief for Petitioner at 6. In doing this, ICE invoked the Immigration and Nationality Act at 8 U.S.C. § 1231(a)(5), which governs the reinstatement of removal orders against aliens that have illegally re-entered the United States. Id.
Concurrently with his detainment, Arteaga-Martinez claimed the right of asylum, informing ICE that his safety was in danger and that he could be persecuted or tortured if returned there. Brief for Respondent at 8. After interviewing him, an asylum officer determined that Arteaga-Martinez had reasonable fear for his security. Id. Arteaga-Martinez applied to withhold or defer his removal under 8 U.S.C. § 1231(b)(3). Id. If granted, the underlying removal order would remain in effect, but Arteaga-Martinez could not be removed to Mexico as a matter of law. Brief for Petitioner at 6.
With his application pending, Arteaga-Martinez remained detained under 8 U.S.C. § 1231(a)(6). Brief of Petitioner at 7. He filed a petition for a writ of habeas corpus in the U.S. District Court for the Middle District of Pennsylvania in September 2018, arguing that he was entitled to a bond hearing. Id. The government, represented by the acting director of ICE at the time, argued the discussion was pre-mature, as Arteaga-Martinez had not been detained for six months by this point, although it did not object to his right to a bond hearing. Brief for Respondent at 9.
Subsequently, a magistrate judge recommended that Arteaga-Martinez’s petition for a writ of habeas corpus be granted, and that he also be given a bond hearing. Brief of Respondent at 10. The district court then adopted these recommendations, which applied Guerrero-Sanchez v. Warden York County Prison (“Guerrero-Sanchez”). Brief of Petitioner at 7. Under Guerrero-Sanchez, Arteaga-Martinez would be entitled to a bond hearing after being detained for six months. Guerrero-Sanchez v. Warden York County Prison at 37–38. The government then appealed, and the Third Circuit affirmed. Id. Based on these rulings, Arteaga-Martinez received his bond hearing in November 2018 and was subsequently released. Brief of Respondent at 10. His withholding application remains pending—currently scheduled to be heard in May 2023. Id. at 11.
REQUIREMENTS OF 8 U.S.C. 1231
The director of U.S. Immigration and Customs Enforcement (“ICE”), Tae D. Johnson (“Johnson”) contends that the plain meaning of 8 U.S.C. § 1231 neither requires that a detainee receive a bond hearing after six months of detention nor that the Department of Homeland Security (“DHS”) prove by clear and convincing evidence that the detainee would be either a flight risk or a threat to the community following release. Brief for Petitioner, Tae D. Johnson at 9. As such, Johnson disagrees with additional procedural requirements imposed by Guerrero-Sanchez, as well as the Ninth Circuit in Diouf v. Napolitano. Id. Johnson claims that, under the statute, DHS may detain non-citizens beyond the removal period if the agency itself determines they pose a risk of flight or a danger to the community. Id. at 9–10. Further, Johnson maintains that the circuit courts ignored text in the statute, permitting DHS to detain non-citizens longer than the removal period if those detainees fell within the statutory category of certain “inadmissible” and “removable” non-citizens. Id. at 11. Finally, Johnson argues that the lower courts’ interpretations conflict with the text of 8 U.S.C. 1231(h)—which establishes that the statute is not meant to create additional rights—because their interpretations modified the burden of proof and engrafted a generalized bond hearing requirement. Id. at 13.
Arteaga-Martinez counters that the Third and Ninth Circuits properly found bond hearings to be required by 8 U.S.C. § 1231, just as the Supreme Court ruled in Zadvydas v. Davis (“Zadvydas”). Brief for Respondent, Antonio Arteaga-Martinez at 16. Arteaga-Martinez notes that DHS must have a strong reason for prolonged detention. Id. at 17. Thus, Arteaga-Martinez argues that, without some form of review, Johnson’s interpretation of the statute would result in non-citizens seeking withholding of removal being subject to either long imprisonment or being removed to potentially dangerous circumstances. Id. Arteaga-Martinez maintains that the circuit courts properly applied the rule of constitutional avoidance to avoid the risk of unconstitutional prolonged detention, particularly because the Court in Zadvydas found 8 U.S.C. § 1231 to be ambiguous regarding the length of detention. Id. at 15–16. Arteaga-Martinez explains that the Supreme Court in Zadvydas found detention beyond six months to be unlawful when removal is not likely in the “reasonably foreseeable future;” as a result, Arteaga-Martinez argues that the typically years-long process of seeking withholding of removal claims do not meet the “reasonably foreseeable” standard required by Zadvydas. Id. at 16, 19. Arteaga-Martinez interpreted 8 U.S.C. 1231(h) in line with the Supreme Court in Zadvydas, finding it inapplicable in cases of detention outside of those specifically authorized by other legislation. Id. Since the statute only allows six months of detention absent certain exceptions, Mr. Arteaga-Martinez maintains that this case falls outside of 8 U.S.C. 1231(h). Id.
Johnson maintains that the constitutional avoidance canon, which allows a court to choose an interpretation of an ambiguous statute, cannot apply to this statute because there is no ambiguity in the text or an underlying constitutional issue that supports the circuit courts’ interpretations. Id. at 16. Johnson argues that the statute here contains no ambiguity, even though the Supreme Court in Zadvydas found 8 U.S.C. § 1231 to be ambiguous regarding the length of detention, because non-citizens in these scenarios do not face the same “prolonged detention” that was at issue in Zadvydas. Id. at 22–23. In the alternative, Johnson claims that the circuit courts’ bond hearing requirement—unlike the Supreme Court’s procedural requirements in Zadvydas—are unreasonable. Id. at 22. Finally, Johnson maintains that the circuit courts cannot apply constitutional avoidance to this statute, because its current application by ICE does not pose a serious doubt of constitutionality. Id. at 17.
Arteaga-Martinez maintains that the requirements for bond hearings—looking into a non-citizen’s risk of flight and potential dangerousness to the community—fulfill the “fairly possible” standard condition for relying on the canon of constitutional avoidance. Id. at 28. The requirements imposed by the circuit courts, argues Arteaga-Martinez, stem from both related statutory laws and common law traditions, such as the congressional expectation that action might be needed to “fill-in” statutory gaps. Id. Arteaga-Martinez notes that courts regularly use bond hearings as a method of gauging a person’s risk or need for supervision in similar circumstances. Id. at 30. Arteaga-Martinez contends that the use of both requirements logically fills the ambiguity that the Supreme Court found in the statute because the Court in Zadvydas used both requirements as factors for supervised release and the factors exist in the statute as well as DHS regulations. Id. at 28, 35. Further, Arteaga-Martinez argues that, while Congress did transfer some authority to the Secretary of DHS, the Attorney General—and DOJ employed immigration judges—retained authority in certain areas, including the adjudication of 8 U.S.C. § 1231 based claims. Id. at 32. Otherwise, Arteaga-Martinez claims that constitutional avoidance allows the court to infer such authority here. Id.
DUE PROCESS CONCERNS
Johnson claims that ICE’s current detention procedures satisfy due process requirements. Id. at 17. Johnson notes that the current regulations require a hearing by the ICE after six months of detention in order to keep a non-citizen detained. Id. at 18. Additionally, he contends that ICE’s procedural protections—such as access to an attorney and requiring a review after six months—are in line with Zadvydas and present no “‘serious constitutional concerns.’” Id.; Diouf v. Napolitano at 221. Further, Johnson argues due process does not require individual hearings nor proof by clear and convincing evidence that a non-citizen should remain detained. Id. at 20. To explain, Johnson claims that due process does not support the notion that an enforcement agency cannot also serve neutrally in an adjudicatory function because agencies regularly fill both roles and the Supreme Court has allowed such practices if no personal bias exists. Reply Brief for Petitioner at 21. Also, Johnson notes that due process and Supreme Court precedent does not require an agency to provide a non-citizen an avenue for appeal of an administrative custody decision. Brief for Petitioner at 19. At a minimum, Johnson maintains that the non-citizen in this case will be removed in the foreseeable future and therefore satisfies the requirement in Zadvydas that detainment continue after six months only where removal is foreseeable. Id. at 23.
Further, Johnson claims that the bond hearing requirement directly contradicts the Supreme Court’s ruling in Johnson v. Guzman Chavez (“Guzman Chavez”) which held that section 1231, unlike section 1226, does not require bond hearings. Brief for Petitioner at 13. Further, Johnson maintains that the circuit courts’ a-textual bond hearing engraftment attempts have been previously rejected by the Supreme Court in other contexts, such as in Jennings v. Rodriguez (“Jennings”). Id. at 14. Moreover, Johnson argues that the circuit courts’ requirements break with the Supreme Court’s agency precedents—namely, affording agencies the responsibility of creating procedures such as bond hearings where they have “responsibility for substantive judgments,” not the lower courts. Id. at 15.
In response, Arteaga-Martinez adds that 8 U.S.C. § 1231 would raise major due process concerns if interpreted to not require a release from detention or a bond hearing after six months. Id. at 17. Arteaga-Martinez maintains that the Supreme Court in Zadvydas found the statute created due process issues if it allowed continued detention after six months unless the government could prove it has a greater interest in the detention than an individual’s major interest in liberty. Id. at 24. Even if removal was “reasonably foreseeable” in this case, Arteaga-Martinez contends that Zadvydas requires a weighing of the government's interests against a detainee’s interest before ICE can continue to detain past the six-month threshold. Id. at 23. Arteaga-Martinez claims that the weighing of interests must be done by a neutral arbiter, and that the Supreme Court in Zadvydas supported the notion that the arbiter cannot be the agency responsible for detention. Id. at 31. Further, Arteaga-Martinez argues that requiring the burden of proof to be on the defendant raises due process concerns. Id. at 39. Also, the clear and convincing evidence standard adopted by the circuit courts, notes Arteaga-Martinez, is a normal practice of judicial decision making that the government itself uses in similar circumstances. Id. at 33.
Arteaga-Martinez counters that Johnson cites dicta in Guzman Chavez which only decided that section 1231 applies in similar cases, not whether bond hearings apply in this case. Brief for Respondent at 42. Arteaga-Martinez notes that the Supreme Court’s ruling in Jennings specifically distinguished its ruling there from Zadvydas because the statute in Jennings was not ambiguous. Id. at 43. Because 8 U.S.C. § 1231 is ambiguous, Mr. Arteaga-Martinez argues that the circuit courts’ bond requirements do not contradict the ruling in Jennings on bond requirements. Id.
Johnson contends that the existing regulations provide sufficient due process protections for detained unlawful aliens. Brief for Petitioner, Tae D. Johnson at 18. To support its case, Johnson details multiple existing layers of review: a custody review by the field office after roughly three months of post-removal-order detention, followed by further review by a panel at ICE headquarters six months later, and then annual reviews by that panel afterwards. Id. Johnson notes that a variety of factors are evaluated during those reviews, including favorable and unfavorable ones; favorable ones relate to whether the individual has family members living legally in the United States, whereas unfavorable factors consider each person’s criminal record and danger to the community. Id. Johnson contends that non-citizens already have avenues to be heard, describing the right to submit evidence, enlist representation, and seek help from a translator. Id.
In response, the Constitutional Accountability Center (“CAC”), in support of Arteaga-Martinez, acknowledges the government’s right to deport non-citizens, but argues this is not a blank check to ignore fundamental due process concerns. Brief of Amicus Curiae Constitutional Accountability Center (“CAC”), in support of Respondents at 12. CAC argues an alien’s due process rights include opportunities to be heard, and these hearings must be adversarial. Id. at 13. Thus, CAC contends that deportation without fair hearings as constituting a denial of the individual’s due process rights. Id. CAC asserts that non-citizens are entitled to no less protection against wrongful detention; all individuals have an interest in personal liberty; and wrongful detention is a denial of non-citizens’ personal liberty. Id. at 19. The CAC argues that requiring the government to participate in a fair bond hearing is an important safeguard for immigrants’ due process rights. Id. at 21. CAC underscores this by suggesting that, though the government may have broad authority to decide which non-citizens can remain in the United States, courts have not given it similar discretion to decide who to imprison. Id. at 20.
EFFICIENCY AND FAIRNESS IN COURTS
Though it acknowledges the need for judges to serve as “neutral administrative adjudicators,” Johnson argues that claims of bias or unfairness need to override the presumption given to judges and hearing officers that they are behaving fairly and with integrity. Brief for Petitioner, Tae D. Johnson at 19. Johnson rejects the notion that an agency having both “investigative and adjudicative functions” establishes bias, describing this as a recurring feature of the system. Id. Moreover, Johnson argues that detainees can already submit evidence, enlist representation, and seek help from translators under the existing structure. Id. at 18. Similarly, Johnson clarifies that there are processes to have judges recused or disqualified from cases, but those require demonstrating a qualifying conflict of interest. Id. at 19.
In support of Arteaga-Martinez, former immigration judges and Board of Immigration Appeals members (“BIA members”) argue that requiring individualized bond hearings before immigration judges would promote more efficient and fair administration of immigration law. Brief of Amicus Curiae Former Immigration Judges and BIA Members, in support of Respondents at 9. Here, BIA members contend that the current process impairs detainees’ ability to present their cases, which, in turn, makes it more challenging for judges to administer proceedings in a fair manner. Id. To illustrate this, BIA members mention that detainees often do not obtain legal representation, which can have outcome-determinative impacts on their ability to collect evidence and present their cases. Id. at 9-10. The CAC concurs, emphasizing the important role that judges must play as “neutral decisionmaker[s],” in which judges and prosecutors are not one and the same. Brief of CAC, in support of Respondents at 22.
- Karolina Walters, Here Are the Immigration Cases Before the Supreme Court This Term, Immigration Impact (Nov. 18, 2021)
- Colin Kalmbacher, Supreme Court to Decide Case That Opens Door for Government to Potentially Detain Immigrants Indefinitely, Law & Crime (Aug. 23, 2021)