Pham v. Chavez

LII note: the oral arguments in Pham v. Chavez are now available from Oyez. The U.S. Supreme Court has now decided Pham v. Chavez .


Does 8 U.S.C. § 1231 or 8 U.S.C. § 1226 apply to a bond hearing for an individual who returned to the United States after being removed and claims that they faced death threats and torture in their country of origin?

Oral argument: 
January 11, 2021

This case asks the Supreme Court to consider if 8 U.S.C. § 1231 or 8 U.S.C. § 1226 applies to the bond hearing of a noncitizen who was previously deported from the United States, subject to a removal order, and returned to the United States with the request of a deferral of the deportation order. Petitioners Pham et al., on behalf of the United States, contend that 8 U.S.C. § 1231, which would prevent the bond hearing from occurring and require the detention of Chavez, applies to this case. Respondent Chavez contends that 8 U.S.C. § 1226, which would allow her to receive a bond hearing, should apply to this case. The outcome of this case has implications for immigration and detention policies for noncitizens that travel to the United States without authorization.

Questions as Framed for the Court by the Parties 

Whether the detention of an alien who is subject to a reinstated removal order and who is pursuing withholding or deferral of removal is governed by 8 U.S.C. § 1231, or instead by 8 U.S.C. § 1226.


Maria Angelica Guzman Chavez and her fellow respondents are a group of noncitizen individuals that were removed from the United States based on an order of removal. Chavez v. Holt at 869. Once the individuals returned to their respective countries, the individuals allegedly faced torture, persecution, death threats, and other “threats of persecution” and violence. Id. at 870. Chavez and the other individuals returned to the United States without permission, in violation of the removal orders. Id. When the government discovered Chavez was in the United States, it reinstated the removal order under 8 U.S.C. § 1231(a)(5). Id. at 870–871. Under this provision, the removal order was not able to be reviewed. Id. at 871. Chavez argued that under 8 U.S.C. § 1231 (b)(3)(A), her removal from the country should be delayed as she would face torture and persecution in her country of origin. Id. at 869. An asylum officer found that Chavez did have a reasonable fear of persecution or torture, which allowed Chavez to receive a withholding-only hearing in front of an immigration judge. Id. at 871. Chavez and her fellow respondents were detained by the government. Id. Chavez sought release on bond. Id. However, bond hearings were denied under the mandatory detention requirement of 8 U.S.C. § 1231. Id.

In 2017, two sets of petitioners filed habeas petitions in the United States District Court for the Eastern District Court of Virginia. Id. In one of the cases the district court granted a motion to create a class of plaintiffs who were detained throughout withholding-only proceedings. Id. Matthew T. Albence, the petitioner and the acting director of U.S. Immigrations and Customs Enforcement (ICE), declined to challenge the certification of the class. Id. Chavez argued that the court should apply 8 U.S.C. § 1226 which would grant an individualized bond hearing to Chavez. Id. The District Court stated that 8 U.S.C. § 1226 controls the detention of noncitizens, “pending a decision on whether the alien is to be removed from the United States.” Id. Tony H. Pham, Senior Official Performing the Duties of the Director, ICE, contended that 8 U.S.C. § 1231 should apply to Chavez, which would not allow Chavez to receive a bond hearing. Id. Pham became the named Petitioner after he became the Director of ICE. The Court of Appeals stated that 8 U.S.C. § 1231 applies, “when an alien is ordered removed” and requires the government to detain the alien for 90 days. Id. During those 90 days, the individual is “removed” from the United States. Id. In November of 2017, the district court granted summary judgment in favor of Chavez and ruled that 8 U.S.C. § 1226 governed Chavez’s detention and that Chavez was entitled to a bond hearing. Id. Relief to Chavez and her fellow respondents was granted in two separate district court decisions. Id.

Pham appealed the case to the United States Court of Appeals for the Fourth Circuit, which affirmed the district court’s ruling. Id. at 882. The court consolidated the two sets of petitioners from the district court. Id. at 872. The Court of Appeals concluded that 8 U.S.C. § 1226 applied to Chavez. Id. at 882. The Court of Appeals noted that under their reading of the statutes, 8 U.S.C. § 1226 applies before the United States has the “actual authority” to deport a noncitizen. Id. at 876. 8 U.S.C. § 1231 applies once the government has “actual authority” to deport a noncitizen. Id. The Court of Appeals stated that the United States did not have the “actual authority” to remove Chavez until the United States received the result of the withholding-only hearing. Id. The Court of Appeals rejected Pham’s argument that the court should treat the original removal order as final for detention but not final for judicial review. Id. at 881.

The United States Supreme Court granted certiorari on June 15, 2020. Orders and Proceedings, 19-897.



Pham argues that 8 U.S.C. § 1231(a) governs the detention of an alien who has been ordered to be removed from the United States, rather than 8 U.S.C. § 1226, which governs the detention of an alien who is still awaiting a decision on removal. Brief for Petitioner, Matthew Albence et al. at 12. Pham contends that because Chavez is subject to reinstated orders of removal, and requests for withholding and CAT protection do not affect the validity or finality of the removal orders, 8 U.S.C. § 1231(a) is the governing provision. Id. at 12–13. In support of this argument, Pham refers to numerous instances within 8 U.S.C. § 1231(a) that reference the detention of aliens that have been “ordered removed,” as opposed to 8 U.S.C. § 1226's reference to the pending decision of “whether the alien is to be removed.” Id. at 13–16. Pham contends that Chavez's removal is no longer pending, but has been ordered, and that this is true regardless of Chavez seeking statutory withholding and CAT protection, which leave the underlying removal order intact. Id. at 16. Pham also argues that the context and structure of the two provisions confirm that 8 U.S.C. § 1231(a) is the governing provision. Id. at 17.

Pham contends that Congress intended for the detention of aliens with reinstated removal orders to be governed by 8 U.S.C. § 1231, because the statutory provisions addressing reinstatement of removal orders and statutory withholding of orders are placed within 8 U.S.C. § 1231, rather than 8 U.S.C. § 1226. Id. Likewise, Pham also refers to the sequential organization of the statute as a whole, where the sections preceding 8 U.S.C. § 1226 govern the initial removal order, but the sections surrounding 8 U.S.C. § 1231 govern when that removal order has been reinstated. Id. Pham further notes that when Congress adopted the current reinstatement statute in 1996, it sought to clarify the removal procedures for illegal reentrants specifically to ensure aliens subject to orders of removal were actually removed. Id. at 19. Pham argues that applying 8 U.S.C. § 1231(a) better serves this purpose by ensuring that aliens remain subject to conditions of removal, while applying 8 U.S.C. § 1226 would allow aliens to demand a bond determination hearing, and an appeal, in an opportunity to be released from their order. Id. at 20.

On the other hand, Chavez argues that 8 U.S.C. § 1226 applies before the government's decision to remove a person from the United States, during which an immigration judge has discretion to order detention, while 8 U.S.C. § 1231(a) only applies after the decision for removal has been made and the removal period has begun. Brief for Respondents, Maria Angelica Guzman Chavez et al. at 15. Chavez contends that during withholding proceedings, the question of whether the government will remove the person from the United States is still pending, as no final decision as to removal has been made yet, because the individual still is entitled to certain legal challenges. Id. at 15–16. In addition, Chavez contends that there is a distinction between whether the government has legal authority to remove a person, and whether there are still legal obstacles that may prevent that exercise of authority, which occur before the government obtains such removal authority. Id. at 17, 23. Chavez notes, specifically, that during withholding proceedings, the government does not yet have the authority to execute removal orders. Id. at 23–24. Therefore, Chavez argues that 8 U.S.C. § 1226 applies to this proceeding, because there remains a question as to whether the government has authority for removal. Id. at 17. Chavez also cites 8 U.S.C. § 1231's language in support of this argument, which is said to apply “during the removal period,” which only begins when there is an obligation to execute the removal of an individual, rather than when the removal is still being challenged in some manner. Id. at 18–19.

Further, Chavez argues that Congress intended 8 U.S.C. § 1226 to apply to these proceedings because 8 U.S.C. § 1226 provides for detention authority during immigration proceedings and challenges to the order of removal, which align with Congress's intention to balance the liberty of noncitizens with the interests of detention. Id. at 21–22. This is contrasted with 8 U.S.C. § 1231, which requires mandatory detention as one step in the execution of the removal order. Id. at 22. Chavez also argues that the duration of withholding proceedings suggests that 8 U.S.C. §1226 should apply. Id. at 26. Chavez notes that 8 U.S.C. §1231(a)’s removal period is prescribed to be only 90 days long, while withholding proceedings typically last longer than 90 days. Id. at 26. Finally, Chavez argues that interpreting the statutory structure of 8 U.S.C. § 1231(a) to read as a final removal order would conflict with the specific protections establishing withholding proceedings in 8 U.S.C. § 1231(b). Id. at 33.


Pham also argues that the Supreme Court should defer to the government’s interpretation of an unclear statute that is administered by ICE. Brief for Petitioner at 36–37. Pham reasons that the government’s interpretation of the statutes was both reasonable and supported by policies in the Departments of Justice and Homeland Security. Id. at 37. Pham cites policy under those departments which instructed detention based on 8 U.S.C. § 1231 for individuals that received a renewed order of removal. Id. at 37–38. Pham contends that detention is valid as a part of the deportation procedure. Reply Brief of Petitioner, Tony Pham at 14. Pham contends that by returning to the United States, the noncitizens have shown that they are “unlikely to comply” with removal orders and detention is necessary to ensure compliance. Id. at 14–15. Pham cites Zadvydas v. Davis to argue that section 8 U.S.C. § 1231 is constitutionally permissible with restrictions to permit indefinite detention. Id. at 15. Pham reasons that Zadvydas resolved the constitutional issues of the statute as long as the government followed the restrictions that were put in place by the government. Id. Pham also denies that 8 U.S.C. § 1231 was designed to punish noncitizens given the protections established by ICE and the courts. Id. at 18. Pham argues that under the constitutional standard, policies may be designed for “exclusion or expulsion” of illegal immigrants. Id. at 19. Pham also argues that 8 U.S.C. § 1231 does not present a risk to the Due Process Clause of the Fifth Amendment. Id. at 16-17. Pham contends that Chavez overestimates the amount of time that noncitizens would spend in detention. Id. at 17. Pham cites evidence which shows that individuals will spend around four months in detention, which is less than the six-month limit established by Zadvydas. Id. Pham also argues that 8 U.S.C. § 1231 does not affect the “finality” or the time frame of the removal orders. Brief for Petitioner at 29. Pham reasons that two separate definitions of finality were reasonable, as the removal order remains valid despite the withholding hearing. Id. at 28. Pham contends that orders have already been reinstated and thus 8 U.S.C. § 1231 is appropriate to govern the detention of Chavez. Id. at 28–29.

Chavez counters that applying 8 U.S.C. § 1226 would eliminate constitutional problems. Brief for Respondents at 38. Chavez reasons that, under principles of statutory interpretation, courts should choose interpretations that do not place the statute at risk of a constitutional violation. Id. Chavez argues that if the Supreme Court rules in favor of Pham, the statute would likely violate the Due Process clause of the Fifth Amendment. Id. Chavez cites Zadvydas v. Davis to establish the principle that detaining illegal immigrants for a span of longer than six months without imminent deportation poses “grave constitutional concerns.” Id. at 38–39. Chavez contends that under 8 U.S.C. § 1231 immigrants would face detention for far more than six months. Id. at 39. Chavez cites a study to argue that withholding-only claims would result in noncitizens facing an average of three years of detention. Id. Chavez reasons that Pham’s interpretation would lead to regular Fifth Amendment challenges given the general longevity of the legal process. Id. at 40. Chavez argues that using 8 U.S.C. § 1226 presents a plausible alternative and thus the Supreme Court should consider which policy better protects constitutional rights. Id. at 41. Chavez contends that the United States Government has adopted Chavez’s interpretation of the statute before in other circumstances. Id. at 42. Chavez contends that the government and Pham intend to use 8 U.S.C. § 1231 as a punishment for illegal immigrants which Chavez argues is impermissible for a civil detention case. Id. at 43. Chavez also argues that detaining immigrants does not streamline the removal process as it does not consider the specific risk that individuals will not return for their day in court. Id. at 44. Chavez contends that the removal orders are not finalized as that finality is determined by the end of the withholding hearing. Id. at 25. Chavez reasons that the Supreme Court should not defer to ICE until all other methods of interpretation are used and there is no correct answer to the question. Id. at 46. Chavez concludes that the “plain text” and the purpose of 8 U.S.C. § 1226 show that it applies to Chavez’s situation. Id. at 49.



Pham notes that 8 U.S.C. § 1231(a) provides adequate protections for detained aliens against unwarranted detention. Brief of Petitioner at 34. Pham notes that any exercise of discretion for detention is reviewed by an ICE field office, and is subject to periodical review by a review panel at ICE headquarters. Id. at 35. Pham explains that these reviews allow for the detained alien to submit information believed to be helpful for their release, specifically to rebut the factors that they may pose a flight risk or engage in future criminal activity. Id. Pham argues that these reviews provide a sufficient opportunity to present evidence and an argument against detention. Id. Finally, Pham also notes that any detention period that lasts longer than six months must be supported by evidence from the Government, which again, allows for the detained individual to submit a written request for release. Id. In sum, Pham argues that there are already sufficient procedural protections under 8 U.S.C. § 1231(a) that justify it to be the governing provision, without needing to look to other provisions, such as 8 U.S.C. § 1226. Id. at 36.

The American Immigration Council and other non-profit organizations, in support of Chavez, note that dangerous conditions of detention mean that mandatory detention creates substantial risk of harm to the individuals. Brief of Amici Curiae American Immigration Council et al., in Support of Respondents at 26–28. These conditions dissuade some individuals from pursuing their otherwise meritorious withholding proceedings to fruition. Id. They specifically refer to both inhumane treatment of detainees, as well as inadequate levels of medical care, that have been, at times, fatal. Id. at 27. Former US Immigration Judges and Members of the Board of Immigration Appeals, in support of Respondents, contend that the government maintains responsibility for the health and safety conditions of immigration detention system as a whole as a matter of due process. Brief of Amici Curiae Former United States Immigration Judges and Members of the Board of Immigration Appeals, in Support of Respondents at 30. They note that COVID-19 has presented an unreasonable risk to detained individuals, who are unable to socially distance and are not provided with protective equipment. Id. at 31. This is further supported, they argue, by the large amount of federal lawsuits that have been filed seeking bond hearings on the basis of the lack of safety of detention. Id. Further, various groups, in support of Chavez, argue that the practices of mandatory detention may run afoul of various international human rights treaties, including the United States' international human and civil rights commitments under the UN Convention Relating to the Status of Refugees, International Covenant on Civil and Political Rights, and the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Brief of Amici Curiae American Immigration Council et al., in Support of Respondents at 4; Brief of Amici Curiae Human Rights First and International Law Scholars, in Support of Respondents at 7–9, 10–11, 15.


The Immigration Law Reform Institute, in support of Pham, argues that the United States Court of Appeals for the Fourth Circuit's opinion is inconsistent with established administrative law interpretation. Brief of Amici Curiae The Immigration Law Reform Institute, in Support of Petitioners at 7–8. The Institute first notes that the opinion’s holding that a reinstated removal order is not final until withholding proceedings are completed is inconsistent with administrative proceedings that establish that a final order of removal must first be made before any withholding of removal can even be granted. Id. at 7. Further, they also note that withholding proceedings do not prevent the actual deportation of an alien, but only withhold deportation to specific countries. Id. at 8.

Human Rights First and International Law Scholars further note that the International Covenant on Civil and Political Rights guarantees review proceedings conducted by a court, or at the very least, a body that is independent of the detaining authority, with the authority to order release. Brief of Amici Curiae Human Rights First and International Law Scholars, in Support of Respondents at 24–25. They contend that this review must be provided periodically or regularly to prevent arbitrary detention to ensure that any detention remains justified, and not violative of the Covenant. Id. at 25. The National Immigration Justice Center also makes similar arguments in support of Respondents. Brief of Amici Curiae National Immigration Justice Center, in Support of Respondents at 8, 12–13. They cite to the text of 8 U.S.C. § 1229(a)(1), which provides explicitly that an immigration judge is responsible for conducting proceedings to determine whether an alien should be deemed inadmissible or deportable. Id. at 8. Further, they also note that Congress intended that deportation proceedings be conducted by immigration judges, by specifically re-enacting a removal provision to avoid a reading of the previous Act that required a hearing only before “special inquiry officers.” Id. at 12–13.

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