Garland v. Gonzalez

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


Are detained noncitizens entitled to bond hearings after six months of detention; and do courts have jurisdiction to grant these detainees classwide injunctive relief?

Oral argument: 
January 11, 2022

This case asks the Supreme Court to consider the due process rights of noncitizens detained within the United States immigration system for over six months. Attorney General Merrick Garland argues that these detainees are not entitled to bond hearings before immigration judges after six months of detention and maintains that courts may not grant them classwide injunctive relief. Class action representative Esteban Aleman Gonzalez counters that the Due Process Clause requires that noncitizen detainees receive bond hearings before immigration judges and asserts that detainees may receive classwide injunctive relief. The outcome of this case will have impacts on the functioning of the federal immigration system as well as the safety of detainees.

Questions as Framed for the Court by the Parties 

(1) 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 that the alien is a flight risk or a danger to the community; and (2) whether, under 8 U.S.C. § 1252(f)(1), the courts below had jurisdiction to grant classwide injunctive relief.


Respondent Esteban Aleman Gonzalez is a class representative for two combined class action suits. See Gonzales v. Barr, at 764. All class representatives are noncitizens who entered the United States due to torture or persecution in their home countries, and then unlawfully re-entered the U.S. See Brief in Opposition, Respondents Esteban Aleman Gonzales et al. at 10. Upon re-entry, they were apprehended and subjected to summary reinstatement of removal, a process by which someone previously deported can be removed without judicial review after illegally re-entering the U.S. See id. However, Department of Homeland Security (DHS) officials determined these noncitizens had a “reasonable fear” of torture or persecution in their home countries and instead referred them for withholding-only proceedings, which are used to determine if someone previously deported should be permitted to remain in the U.S. to prevent them from facing persecution in their home country. See id.

After Gonzalez was detained for six months, his continued detention was approved by DHS because his case was pending. The DHS official made no finding that Gonzalez was a threat to the community or a flight risk, which is required for detainment. See id. at 11. Eventually, an Immigration Judge ("IJ") held that Gonzalez was neither a flight risk nor a danger and ordered he be released on bond. See id. The other class representatives’ immigration cases followed a similar pattern. See id. Before injunctions were granted, the class representatives were subject to prolonged confinement. See id.

In September 2016, one class representative filed a class action lawsuit, Flores v. Barr, challenging the legality of his detainment pending withholding-only proceedings. See id. at 13. In that case, the class representatives argued that, under the Due Process Clause and 8 U.S.C. § 1231(a)(6), they were entitled to a bond hearing if they endured a prolonged detention. See id. The court held that §1231(a)(6) mandated a bond hearing in immigration court before the noncitizens could be detained for over six months. See id. The court thus issued a permanent injunction mandating that the government provide IJ bond hearings every six months. See id. at 14. The Ninth Circuit Court of Appeals reversed, holding that while class members were entitled to a bond hearing after six months of detention, periodic hearings were not required. See id.

In March 2018, Gonzalez and another class representative filed a separate class action lawsuit, Aleman v. Barr, arguing that DHS violated §1231(a)(6) and the Due Process Clause by subjecting them to prolonged confinement without bond proceedings. See Gonzales, at 768. The Ninth Circuit Court of Appeals affirmed the preliminary injunction, holding class members were entitled to one bond hearing after six months of detention. Id. at 766.

These two cases were combined into the present case. Brief for Petitioner, Merrick B. Garland, Attorney General, et al. at II. As acting Attorney General, Merrick Garland was automatically substituted for former Attorney General William Barr. See id.

The United States Supreme Court granted the Attorney General’s petition for certiorari on August 23, 2021. Id. at 2.



Garland argues that 8 U.S.C. § 1231(a)(6) does not require that noncitizens receive adversarial bond hearings before immigration judges (“IJs”) after six months of detention, unless release or removal is imminent. Brief for Petitioner, Merrick B. Garland, Attorney General, et al. (“Garland”) at 33–34. Garland asserts that such a bond hearing requirement has no basis in the statutory text, as §1231(a)(6) makes no mention of six-month detention cutoffs, bond hearings, or adjudications by IJs. Id. at 34. Furthermore, Garland notes that 8 U.S.C. § 1231(h) forbids courts from construing statutory language to create procedural rights. Id. at 34. To interpret the statute as imposing a bond hearing requirement after six months of detention, Garland thus asserts, the Supreme Court would have to impermissibly rewrite the statutory language and create new procedural rights. Id. at 34–37. Additionally, Garland argues that imposing a bond hearing regime would conflict with precedent, which generally requires that substantive administrative procedures are created by agencies, not reviewing courts. Id. at 38–40.

Gonzalez counters that §1231(a)(6) requires a bond hearing before a neutral IJ to authorize the detention of a noncitizen beyond six months. Brief for Respondent, Esteban Aleman Gonzalez, et al. (“Gonzalez”) at 18. Gonzalez argues that this requirement is rooted in §1231(a)(6)’s text, structure, and regulatory construction. Id. at 22. Gonzalez asserts that the statutory language indicates that Congress intended to create a process similar to custody hearings before IJs, contemplating that an official must determine whether a noncitizen is a flight risk or poses a danger to the community. Id. To support this position, Gonzalez cites to the government’s longstanding interpretation of 8 U.S.C. § 1226(a), a statute governing detention prior to a final removal order that was both enacted at the same time and contains similar language as §1231(a)(6). Id. Gonzalez asserts that the government interprets §1226(a) to provide for an adversarial hearing before a neutral adjudicator, even though the statutory language does not explicitly require a hearing or specify who must make the custody determination. Id. at 23–24. As the Supreme Court normally presumes that the same language in related statutes carries the same meanings, Gonzalez claims that the Supreme Court must likewise construe §1231(a)(6) to require custody hearings. Id. at 24.


Garland maintains that the lower courts should not have applied the constitutional avoidance doctrine to justify imposing a bond hearing regime. Id. at 40. Under the doctrine of constitutional avoidance, Garland asserts that a court may avoid addressing “serious doubts” about a statute’s constitutionality if the court can instead use a “plausible” statutory interpretation that does not implicate constitutional concerns. Id. at 40–41. Garland asserts that the courts below did not “plausibly” construe §1231(a)(6) to require bond hearings, because it was implausible for the lower courts to effectively rewrite the statutory text. Id. at 41. Garland further argues that the government’s procedures under §1231(a)(6) do not raise “serious” due process concerns. Id. at 48. Garland claims that detainee interviews with Immigrations and Customs Enforcement (ICE) agents satisfy the Due Process Clause because ICE agents qualify as neutral administrative adjudicators. Id. at 44. Thus, Garland maintains that neutral IJs need not adjudicate disputes. Id. at 41–44. Garland points out that any claim of bias must overcome an adjudicator’s presumption of honesty and integrity with a specific reason why the adjudicator should be disqualified. Id. Garland asserts that Gonzalez has not overcome this presumption, because he failed to provide specific reasons to categorically impute bias on ICE agents. Id. In Garland’s view, combining an agency’s investigative and adjudicative functions does not establish bias. Id.

Gonzalez responds that the lower courts should not have applied the constitutional avoidance doctrine. Id. at 22. Long-term detention, Gonzalez maintains, raises due process concerns. Id. at 33. Gonzalez counters that it is plausible to construe §1231(a)(6) to prohibit prolonged detention without a hearing. Id. at 29. Gonzalez points out that modern civil detention precedent provides noncitizens with due process rights. Id. at 30. Supreme Court precedent, Gonzalez claims, holds statutes that are silent as to the permissible length of detention contain a presumptive six-month limit. Id. at 32–33. Gonzalez further asserts that the government’s existing custody review procedures, which require neither adversarial hearings nor neutral decisionmakers, lack the protections required by the Due Process Clause. Id. at 37. Gonzalez claims that interviews with ICE agents do not qualify as adversarial hearings, as noncitizens cannot present witnesses or challenge the government’s evidence. Id. at 41–43. According to Gonzalez, construing the statute to require an adversarial hearing before an IJ is a plausible reading that would avoid raising serious due process concerns. Id. at 46.


Garland maintains that 8 U.S.C. § 1252(f)(1) bars courts from granting classwide injunctive relief for noncitizens detained under §1231 for over six months without a bond hearing. Brief for Petitioner at 15. Garland argues that 8 U.S.C. § 1252(f)(2) establishes a general rule that courts do not have jurisdiction to enjoin “the operation of” §1231. Under §1252(f)(1), Garland asserts that cases that apply §1231 to “individual” noncitizens are exempt from this general jurisdictional bar. Id. Garland contends that the statute’s plain language bars injunctions that direct the Executive Branch to comply with a court’s reading of statutory language. Id. at 17–19. Garland contends that the broad framing of §1252(f)(1)’s first phrase, which states that the provision applies “[r]egardless of the nature of the action or claim,” indicates that the general jurisdictional bar is not limited to challenges to the statutes themselves. Id. at 19. Further, Garland asserts that Congress intended to limit judicial review of immigration proceedings when Congress promulgated the statute. Id. at 23. Garland also argues that the injunctions granted in this case did not fall under §1252(f)(1)’s exception for “individual” applications because Gonzalez sought classwide, not individual, relief. Id. at 25. Consequently, Garland maintains that the lower courts were barred from issuing classwide injunctive relief. See id. at 15.

Gonzalez counters that §1252(f)(1) does not bar courts from enjoining the unlawful implementation of a statute by the Executive Branch through a classwide injunction. Brief for Respondent at 46. As an initial matter, Gonzalez maintains that Garland forfeited his argument that classwide injunctions exceeded the lower courts’ statutory authority by failing to raise it previously. Id. at 46–47. In the alternative, Gonzalez asserts that the plain text of §1252(f)(1) does not bar courts from issuing injunctions that compel agencies to follow statutes’ terms, as properly interpreted by the courts. Id. at 49. Rather, Gonzalez claims that §1252(f)(1) merely prohibits lower courts from restraining an agency’s enforcement of §1231. Id. at 49–50. Therefore, Gonzalez argues that Garland’s reading of §1252(f)(1)’s “regardless of the nature of the action or claim” clause is too expansive. Id. at 52. Gonzalez contends that the injunction granted here fell under §1252(f)(1)’s exception to the general prohibition against injunctive relief, because he asserts it is unlikely that Congress intended to block all class actions and other cases involving two or more plaintiffs and instead only permit individual litigants to seek injunctions. Id. at 55–57. Gonzalez further argues that the statute does not bar classwide injunctive relief for persons already in removal proceedings—rather, Congress intended to restrict pre-enforcement challenges by persons and organizations not involved in removal proceedings. Id. at 55. Gonzalez thus asserts that the lower courts permissibly granted classwide injunctive relief. See id. at 46.



The Immigration Reform Law Institute (“IRLI”), in support of Garland, asserts that federal policies would be undercut by a judicially required bond hearing. See Brief of Amici Curiae of Immigration Reform Law Institute (“IRLI”), in Support of Petitioner at 10. IRLI argues that creating a bond hearing requirement undermines Congress’s absolute power to control immigration policy, and the United States should be addressing immigration using only the single, united voice of Congress. See id. at 10–11. Moreover, IRLI contends that the government has a compelling interest to limit incentives such as public benefits for illegal immigrants. See id. IRLI argues that releasing noncitizens from detention after six months cripples the government’s power in negotiating the return of foreign nationals because a detained noncitizen does not have the ability to send money home, whereas a released detainee gains that advantage. See id. Furthermore, IRLI fears that this policy essentially broadcasts to foreign citizens that detainment in the United States for unauthorized entry will last for only six months See id. IRLI thus contends that if the bond hearing requirement prevails, there will be fewer deterrents to illegal immigration, thereby causing an overload of illegal immigrants and making it impossible for the government to process all of the claims. See id.

Several former Immigration Judges and Board of Immigration Appeals members (“the former judges”), in support of Gonzalez, counter that a bond hearing requirement would not impose a significant burden on IJs. See Brief of Amici Curiae Former Immigration Judges and Board of Immigration Appeals Members (“Board of Immigration Appeals”), in Support of Respondents at 18. The former judges argue that the additional number of required bond hearings would be minor compared to a normal docket for an IJ. See id. The former judges assert that, given how there are roughly 400 IJs in the immigration court system, this bond hearing requirement would result in each IJ receiving only a handful of additional hearings each year. See id. at 18–19. Moreover, the former judges emphasize that any administrative burdens posed by the additional bond hearings would be controlled by streamlined proceedings. See id. at 19. Additionally, the former judges argue that bond hearings can be held in conjunction with other hearings, and bond determinations can be made via telephone or based on written records. See id. The former judges further emphasize that the minor burden on the court system caused by the bond hearing requirement would be outweighed by the decrease in the physical and mental burden faced by immigrants who are detained for over six months. See id.


The Immigration Reform Law Institute (“IRLI”), in support of Garland, asserts that during a pandemic, a requirement for a bond hearing after six months is improper. See IRLI at 12. IRLI argues that just because a six-month period was deemed reasonable by the Supreme Court in 2001 does not mean that the same six-month trigger for a bond hearing is reasonable now, specifically given the challenges posed by the COVID-19 pandemic. See id. IRLI emphasizes that the government may need more time to orchestrate removal arrangements to other countries because the COVID-19 pandemic has slowed the response times of both domestic and foreign governments in terms of both removal and receival of illegal immigrants. See id.

The Asian Americans Advancing Justice–Asian Law Caucus (“Asian Law Caucus”), in support of Gonzalez, argues that procedural protections are warranted because extended detention time harms immigrants and their families. See Brief of Amici Curiae Asian Americans Advancing Justice–Asian Law Caucus, et. al., in Support of Respondents at 8. The Asian Law Caucus asserts that immigration detention has mental and physical health effects such as harassment, traumatic experiences of assault, and solitary confinement. See id. at 9. The Asian Law Caucus emphasizes that, while in immigrant detention, detainees are often not treated for physical health issues. See id. Specifically, the Asian Law Caucus argues that the COVID-19 pandemic and the spread of the virus in crowded detention centers has caused additional suffering among detainees. See id. The Asian Law Caucus thus asserts that prolonged detention during the COVID-19 pandemic could lead to more physical health issues, especially among vulnerable detainees with underlying health conditions, making the requirement of bond hearings even more important at this time. See id.