Legal Sidebari
Johnson v. Chavez: Aliens with Reinstated
Removal Orders May Be Detained Without
Bond Hearings
July 12, 2021
Certain non-U.S. nationals (aliens, as the term is used in the Immigration and Nationality Act) who
unlawfully reenter the United States after being removed are subject to a “reinstatement of removal”
process, which generally requires their prompt removal without a hearing. If the alien with a reinstated
removal order shows a reasonable fear of persecution or torture in the country of removal, however, he or
she may pursue protection from removal in “withholding-only” proceedings. In Johnson v. Chavez the
Supreme Court recently construed provisions of the Immigration and Nationality Act (INA) as
authorizing the detention without bond of aliens with reinstated removal orders pending the outcome of
their withholding-only proceedings. The Court reversed a decision by the U.S. Court of Appeals for the
Fourth Circuit (Fourth Circuit) ruling that aliens placed in withholding-only proceedings are entitled to
bond hearings under the discretionary detention provisions of INA § 236(a). The Supreme Court held that
aliens with reinstated orders of removal are subject to the more stringent detention provisions of INA
§ 241(a) because that statute, by its “plain text,” applies to aliens who have been ordered removed.
Legal Background
Detention of Aliens Subject to Removal
As discussed in a CRS report, the immigration detention scheme is multifaceted, and different rules may
apply at different stages of the removal process. Under INA § 236(a), the Department of Homeland
Security’s (DHS’s) detention of an alien “pending a decision on whether the alien is to be removed” is
generally discretionary, unless the alien is subject to mandatory detention (e.g., if the alien has been
convicted of specified crimes). If detained, the alien may request an immigration judge’s (IJ’s) review of
DHS’s custody determination at a bond hearing and potentially secure release from custody pending the
outcome of the removal proceedings.
In contrast, INA § 241(a) governs the detention of an alien who has been “ordered removed.” Under the
statute, “[e]xcept as otherwise provided in [§ 241],” the alien must be removed within a 90-day “removal
Congressional Research Service
https://crsreports.congress.gov
LSB10620
CRS Legal Sidebar
Prepared for Members and
Committees of Congress
Congressional Research Service
2
period” that starts when one of three circumstances occur, including when the order becomes
“administratively final.” Detention is generally mandatory during the 90-day removal period. INA
§ 241(a) provides that, if the alien is not removed within that period, the alien must be released on an
order of supervision. The statute authorizes the continued detention of some aliens beyond the removal
period (e.g., those who are “unlikely to comply with the order of removal” if released). Unlike INA
§ 236(a), the statute provides for no bond hearings. However, given the “serious constitutional concerns”
raised by indefinite detention, the Supreme Court in Zadvydas v. Davis construed § 241(a) as having an
implicit, temporal limitation of six months post-order of removal if there is no significant likelihood of
the alien’s removal in the reasonably foreseeable future.
Reinstatement of Removal
Most removable aliens in the interior of the United States are subject to “formal” removal proceedings
and have the right to appear at a hearing before an IJ to contest their removal or pursue any available
relief (e.g., asylum). INA § 241(a)(5) sets forth a streamlined “reinstatement of removal” process for
those who unlawfully reenter the United States after previously being removed. For those aliens, the
statute provides, the prior removal order “is reinstated from its original date and is not subject to being
reopened or reviewed.” Additionally, the alien “is not eligible and may not apply for any relief” from
removal, and “shall be removed under the prior order at any time after the reentry.” However, an alien
who expresses a fear of returning to the designated country of removal is entitled to administrative review
of that claim. If the alien shows a “reasonable fear” of persecution or torture, the alien is referred to an IJ
for “withholding-only proceedings” to consider the alien’s eligibility for withholding of removal and
protection under the Convention Against Torture (CAT) only. Unlike asylum, which provides an alien
with a permanent legal foothold in the United States, withholding of removal and CAT protection only bar
removal to the country where the alien fears persecution or torture (but not necessarily to an alternative
country), and afford no pathway to lawful permanent resident status or citizenship.
Procedural History in Johnson v. Chavez
The Chavez litigation involved three plaintiffs who had previously been removed from the United States.
They unlawfully reentered the country, and their removal orders were reinstated under INA § 241(a)(5).
The plaintiffs expressed a fear of returning to their native countries and established a “reasonable fear” of
persecution or torture at their screening interviews. The plaintiffs, who were detained, were placed in
withholding-only proceedings and denied bond hearings. The plaintiffs challenged their detention in
federal district court. They argued that, because they had pending applications for withholding of
removal, they were entitled to bond hearings under INA § 236(a), which governs detention “pending a
decision on whether the alien is to be removed.” The government argued that the plaintiffs’ detention was
governed by § 241(a) instead because they were previously ordered removed. According to the
government, plaintiffs were subject to the statute’s mandatory 90-day detention period upon reinstatement
of their removal orders, and could potentially remain detained beyond that period without bond. A federal
district court ruled that the plaintiffs were detained under INA § 236(a) and ordered the government to
provide bond hearings. The Fourth Circuit, in a split decision, affirmed, holding that INA § 236(a)
governs the detention of aliens in withholding-only proceedings because they are technically still in
proceedings to determine whether they are “to be removed,” and their removal orders are not final.
The Fourth Circuit’s decision furthered a split among the federal circuits on this issue. Like the Fourth
Circuit, the Second Circuit had held that INA § 236(a) governs the detention of aliens placed in
withholding-only proceedings. Conversely, the Third, Sixth, and Ninth Circuits had held that INA
§ 241(a) governs the detention of aliens subject to reinstated removal orders, including those placed in
Congressional Research Service
3
withholding-only proceedings (the Third and Ninth Circuits, however, had ruled that aliens detained
under § 241(a) have a right to bond hearings after prolonged periods of detention).
The government petitioned the Supreme Court to review the Fourth Circuit’s decision in Chavez, and the
Supreme Court granted that petition.
The Supreme Court’s Decision
In a 6-3 decision, the Supreme Court reversed the Fourth Circuit’s decision. In the majority opinion
written by Justice Alito (joined in full by Chief Justice Roberts, Justice Kavanaugh, and Justice Barrett,
and joined in part by Justice Thomas and Justice Gorsuch), the Court held that INA § 241(a) governs the
detention of aliens placed in withholding-only proceedings. Relying on the “statutory text,” the Court
reasoned that § 241(a) applies because (1) such aliens have previously been “ordered removed,” and (2)
their removal orders are “administratively final” given that they already had a chance to appeal those
orders at the conclusion of their prior removal proceedings.
The Court rejected the plaintiffs’ claim that, because an IJ could grant them withholding of removal, they
are being detained “pending a decision on whether the alien is to be removed” under INA § 236(a). The
Court explained that, in withholding-only proceedings, the question is not whether an alien can be
removed from the United States, but whether an alien can be removed to a particular country.
Withholding of removal, the Court observed, only bars removal to the country designated for removal, but
does not prevent removal to an alternative country authorized by statute, such as a country willing to
accept the alien. The distinction between whether an alien is to be removed and where an alien is to be
sent, the Court explained, is also confirmed by the fact that INA § 241 addresses the execution of a
removal order (i.e., how and where an alien is to be removed). In contrast, INA § 236(a) addresses the
separate issue of whether the alien is “removable at all” and should be detained pending that
determination; that provision, the Court reasoned, would not apply to aliens in the reinstatement process
because they were already found removable.
The Court also rejected the plaintiffs’ argument that a removal order does not become “administratively
final,” and thus trigger INA § 241(a)’s post-order of removal detention provisions, until withholding-only
proceedings are concluded. The Court reasoned that regular removal proceedings and withholding-only
proceedings “address two distinct questions”—whether an alien can be removed and where the alien can
be sent—and thus result in two separate orders. Because the removal order is “separate from and
antecedent to a grant of withholding of removal,” the Court stated, the finality of the removal order “does
not depend in any way on the outcome of the withholding-only proceedings.”
The Court further rejected the plaintiffs’ claim that INA § 241(a)(1)(A)’s opening clause, “[e]xcept as
otherwise provided in this section,” should be construed as pausing the start of the 90-day “removal
period” when an alien initiates withholding-only proceedings. Noting that § 241(a)(1)(A) relates to the
length of the removal period, not when it begins, the Court read the opening clause as simply referring to
provisions that allow DHS to extend detention beyond 90 days. According to the Court, this clause does
not refer to the withholding-only provision, “which does not mention the length of the removal period and
does not stand in the way of removal to a third country.”
The Court determined that the INA’s statutory structure also indicated that § 241(a) governs detention
during withholding-only proceedings. The Court noted that § 241 itself is titled “Detention and removal
of aliens ordered removed,” and that all the provisions relating to reinstatement of removal, withholding
of removal, and the countries to which aliens may be removed are found within § 241. More broadly, the
Court noted, the INA’s overall structure showed “the sequential steps of the removal process” from initial
inspection to arrest, detention, and removal. Based on how the INA’s sections were ordered, the Court
determined, INA § 236(a) applies when an alien is still in formal removal proceedings while § 241(a)
Congressional Research Service
4
applies later, after an alien is ordered removed. Congress “had obvious reasons to treat these two groups
differently,” the Court opined, because aliens who have not been ordered removed are less likely to
abscond than those ordered removed, particularly those who reentered unlawfully after removal.
The Court did not agree with the plaintiffs’ claim that INA § 236(a), rather than § 241(a), governed their
detention because their withholding-only proceedings deprived DHS of “full legal authority” to remove
them. The Court noted that the specific triggers enumerated in § 241(a) that must occur before the
“removal period” begins do not include completion of withholding-only proceedings. Finally, the Court
determined, although § 241(a) contemplates a 90-day removal period, the fact that withholding-only
proceedings can take longer than that does not mean that § 241(a)’s detention provisions do not apply at
that stage. The Court explained that, after the removal period ends, § 241(a) authorizes DHS to release
aliens on supervision or continue their detention in some circumstances, and DHS could exercise that
same authority during withholding-only proceedings.
In sum, the Court held, “the text makes plain” that INA § 241(a), and not § 236(a), governs detention
during withholding-only proceedings.
In a concurring opinion, Justice Thomas, joined by Justice Gorsuch, agreed with the majority’s ruling that
aliens in withholding-only proceedings are subject to detention under INA § 241(a). Justice Thomas
argued, however, that the Court lacked jurisdiction to review plaintiffs’ challenge to their detention in
light of an INA provision generally limiting judicial review of actions to remove an alien except as part of
the review of a final order of removal or other specified circumstances.
In a dissenting opinion, Justice Breyer, joined by Justice Sotomayor and Justice Kagan, contended that
INA § 236(a) should govern detention during withholding-only proceedings because a removal order is
not “administratively final” at that stage for purposes of triggering the 90-day removal period under
§ 241(a). Justice Breyer observed that the majority’s interpretation of “administratively final” as applying
only to the finality of the original removal order “would lead to a very peculiar statute.” Under that
interpretation, Justice Breyer noted, the 90-day removal period contemplated by § 241(a) would have
likely expired long before most aliens with reinstated removal orders had unlawfully returned to the
United States. Consequently, Justice Breyer reasoned, a removal order—whether reinstated or not—is not
“administratively final” until the associated administrative proceedings conclude. Thus, Justice Breyer
argued, the plaintiffs had a right to bond hearings during their withholding-only proceedings.
Congressional Considerations
The Supreme Court’s decision in Chavez is the latest in a series of decisions that recognize the
government’s broad authority to detain removable aliens. Under Chavez, an alien whose removal order is
reinstated may be detained without bond hearings pending the outcome of withholding-only proceedings.
However, the government’s detention authority is not unfettered. In prior decisions, the Supreme Court
has interpreted INA § 241(a) consistently with due process principles to limit detention to a six-month
period after a final removal order if there is no significant likelihood of removal in the reasonably
foreseeable future. Moreover, some courts have held that aliens with final removal orders have a right to
bond hearings after prolonged periods of detention, even if their continued detention is otherwise
permitted by the statute. Nevertheless, given that reinstatement of removal accounts for many of the
removals of aliens in the interior of the United States, Chavez’s impact on DHS’s detention authority
during that process appears significant.
In the 117th Congress, there have been legislative proposals that would restrict DHS’s ability to detain
removable aliens, including those subject to final removal orders. For instance, the New Way Forward Act
(H.R. 536) and the Dignity for Detained Immigrants Act of 2021 (S. 1186, H.R. 2222) would reduce the
90-day “removal period” to 60 days and allow a detained alien to seek his or her release at a custody
Congressional Research Service
5
hearing during that period. Both bills would also require an alien’s release from custody after the 60-day
removal period unless the government shows that continued detention is warranted. The New Way
Forward Act would also eliminate the reinstatement of removal process, enabling aliens who unlawfully
reenter the United States to contest their removal or apply for any available relief in regular removal
proceedings, and potentially secure their release from custody under the discretionary detention
provisions of INA § 236(a).
Author Information
Hillel R. Smith
Legislative Attorney
Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff
to congressional committees and Members of Congress. It operates solely at the behest of and under the direction of
Congress. Information in a CRS Report should not be relied upon for purposes other than public understanding of
information that has been provided by CRS to Members of Congress in connection with CRS’s institutional role.
CRS Reports, as a work of the United States Government, are not subject to copyright protection in the United
States. Any CRS Report may be reproduced and distributed in its entirety without permission from CRS. However,
as a CRS Report may include copyrighted images or material from a third party, you may need to obtain the
permission of the copyright holder if you wish to copy or otherwise use copyrighted material.
LSB10620 · VERSION 1 · NEW