Legal Sidebari
High Court Limits Ability of Aliens Ordered
Removed to Challenge Prolonged Detention
July 20, 2022
Non-U.S. nationals (aliens, as the term is used in the Immigration and Nationality Act [INA]) ordered
removed may be detained pending efforts to effectuate their transfer to a foreign country. In its 2001
decision in Zadvydas v. Davis, the Supreme Court held that the indefinite detention of aliens awaiting
removal would raise “serious constitutional concerns.” The Court thus construed the statute authorizing
their detention as having an implicit temporal limitation of six months, after which an alien should
generally be released absent a significant likelihood of removal in the reasonably foreseeable future.
Recently, in Johnson v. Arteaga-Martinez, the Court considered whether the statute should also be
construed as requiring bond hearings for detained aliens. In a nearly unanimous opinion, the Court held
that the statute does not require bond hearings for aliens ordered removed after six months of detention, or
require the government to prove that any continued detention is warranted. In a related case, Garland v.
Gonzalez, the Court held that a separate statute prohibited lower courts from issuing class-wide
injunctions requiring the government to provide bond hearings for detained aliens who have been ordered
removed. This Legal Sidebar examines the Court’s rulings in Arteaga-Martinez and Gonzalez.
Legal Background
As discussed in this 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 during formal removal proceedings is discretionary, unless the
alien is subject to mandatory detention (e.g., if the alien was convicted of specified crimes). If detained,
the alien may request an immigration judge’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 is “ordered removed.” Under the statute,
the alien must generally be removed within a 90-day “removal period” that typically begins when the
order becomes “administratively final.” While detention is generally mandatory during the removal
period, in most cases the alien must be released on an order of supervision if not removed within that
period. INA § 241(a)(6), however, provides that certain aliens “may be detained” beyond the removal
period (e.g., those found to be “a risk to the community or unlikely to comply with the order of
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removal”). If they are released, they are subject to “terms of supervision” described elsewhere in § 241(a).
Unlike INA § 236(a), § 241(a) does not mention bond.
In 2001, the Supreme Court in Zadvydas determined that the indefinite detention of an alien awaiting
removal under INA § 241(a)(6) would raise “serious constitutional concerns.” Noting that the statute
provided no “clear indication” as to whether an alien ordered removed may remain detained indefinitely,
the Court applied the canon of constitutional avoidance and construed the statute as permitting detention
only for “a period reasonably necessary to secure the alien’s removal.” The Court construed § 241(a)(6)
as having an implicit, temporal limitation of six months post-order of removal, after which an alien must
generally be released absent a significant likelihood of removal in the reasonably foreseeable future.
While Zadvydas generally limited the length of detention under INA § 241(a)(6), the Supreme Court did
not consider whether the statute should be interpreted as imposing other procedural requirements,
including bond hearings. In Diouf v. Napolitano, the U.S. Court of Appeals for the Ninth Circuit held in
2011 that prolonged detention under § 241(a)(6) without adequate procedural safeguards would also raise
“serious constitutional concerns.” Citing Zadvydas, the court construed the statute as requiring a bond
hearing after six months of detention if the alien’s release or removal is not imminent, and placing the
burden on the government to prove that the alien is a flight risk or danger to the community. In 2018, the
Third Circuit in Guerrero-Sanchez v. Warden York County Prison likewise held that the statute implicitly
requires a bond hearing after six months of detention if release or removal is not imminent, and that the
alien has a right to release unless the government proves that further detention is warranted.
In Jennings v. Rodriguez, the Supreme Court in 2018 considered the government’s statutory authority to
indefinitely detain aliens during formal removal proceedings, including under INA § 236(a), which
authorizes (but does not require) the detention of aliens placed in removal proceedings. The Jennings
Court rejected a Ninth Circuit decision construing § 236(a) as implicitly requiring bond hearings every six
months, where the government has the burden of proving that further detention is warranted. The Ninth
Circuit expressed concern that the statute, if construed to permit the indefinite detention of aliens placed
in removal proceedings, would raise “constitutional concerns” under Zadvydas. In rejecting that analysis,
the Jennings Court explained that the canon of constitutional avoidance applies only when statutory
language is susceptible to more than one construction. The Court distinguished Zadvydas, where the
canon was applied, because the statute there was ambiguous as to whether open-ended detention pending
removal was authorized. In contrast, the Jennings Court explained, INA § 236(a) is textually clear in not
requiring periodic bond hearings or specifying the government’s burden of proof.
Procedural History
Johnson v. Arteaga-Martinez involved a detained alien from Mexico whose prior order of removal was
reinstated following his unlawful reentry into the United States. He pursued withholding of removal and
protection under the Convention Against Torture (CAT) during his reinstatement of removal proceedings
based on his fear of returning to Mexico. (The Supreme Court has held that an alien whose prior removal
order is reinstated is subject to detention under INA § 241(a) because that statute applies to those who
have been ordered removed.) The alien, who had been detained for four months without a hearing,
petitioned for a writ of habeas corpus challenging his prolonged detention under INA § 241(a)(6). Once
the detention period approached six months, a federal district court ordered a bond hearing. Citing
Guerrero-Sanchez, the Third Circuit summarily affirmed.
Garland v. Gonzalez was a consolidated case involving two Mexican nationals and an El Salvadoran
national (“the plaintiffs”) who were also placed in reinstatement of removal following their illegal
reentries. They remained detained while they sought withholding of removal and CAT protection. The
plaintiffs filed lawsuits arguing that, under INA § 241(a)(6), they had a right to bond hearings after six
months of detention. The district courts in those cases entered class-wide injunctive relief barring DHS
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from detaining the plaintiffs and similarly detained aliens under § 241(a)(6) for more than 180 days
without a bond hearing. Citing Diouf as precedent, the Ninth Circuit affirmed the lower court decisions.
The government petitioned for further review in Arteaga-Martinez and Gonzalez, arguing that INA
§ 241(a)(6)’s text does not require bond hearings or the government to prove that continued detention is
warranted. Citing Jennings, the government noted that the Supreme Court rejected similar constructions
of other detention provisions as containing implicit bond hearing requirements when the applicable
statutes imposed no such requirements. The government distinguished Zadvydas, arguing that
§ 241(a)(6)’s ambiguity about the length of post-removal order detention (rather than whether it requires
bond hearings) enabled the Court in that case to apply the canon of constitutional avoidance and construe
the statute as containing an implicit time limitation.
The Supreme Court’s Decision in Arteaga-Martinez
In an 8-1 decision, the Supreme Court reversed the Third Circuit’s decision. In the majority opinion
written by Justice Sotomayor (joined by Chief Justice Roberts and Justices Thomas, Alito, Kagan,
Gorsuch, Kavanaugh, and Barrett), the Court held that “as a matter of textual command,” INA § 241(a)(6)
does not require bond hearings after six months of detention in which the government must prove that an
alien poses a flight risk or danger to the community. The Court recognized that, under Jennings, the canon
of constitutional avoidance applies only when a statute has “more than one plausible construction.” As in
Jennings, the Court determined there is “no plausible construction” of INA § 241(a)(6)’s text that requires
the government to provide bond hearings or to prove that continued detention is justified. The Court
observed that the statute states only that certain aliens “may be detained” after the 90-day removal period,
but says or indicates nothing about bond hearings or burdens of proof. The Court determined that
§ 241(a)(6)’s “oblique” reference to “terms of supervision” for those who are released is insufficient to
read into the statute any bond hearing requirement.
The Court also rejected the notion that INA § 241(a)(6) should be construed as requiring bond hearings
under Zadvydas. The Court explained that the bond hearing requirements imposed by the Third Circuit
“reach substantially beyond the limitation on detention authority recognized in Zadvydas.” The Court also
noted that Zadvydas had “identified ambiguity” in § 241(a)(6) as to whether an alien could be detained
indefinitely while awaiting removal. Because there was no textual ambiguity as to whether that statute
requires bond hearings, the Court determined that “Zadvydas does not require, and Jennings does not
permit, the Third Circuit’s application of the canon of constitutional avoidance.”
In a concurring opinion, Justice Thomas, joined in part by Justice Gorsuch, agreed with the majority
opinion on the merits, but argued that the Court lacked jurisdiction under 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. (Jennings previously held that this provision does not preclude
review of detention challenges.) Justice Thomas also urged the Court to reconsider whether the Due
Process Clause “applies at all” to aliens subject to removal, and to overrule its decision in Zadvydas
because, in his view, that case was wrongly decided.
In a separate opinion concurring in part and dissenting in part, Justice Breyer argued that Zadvydas, which
limited the length of detention under the same statute, INA § 241(a)(6), required construing it as having a
bond hearing requirement to avoid the same constitutional problem posed by potentially indefinite
detention. Justice Breyer, however, agreed with the majority that § 241(a)(6) was textually clear in not
requiring the government to bear the burden of proving that continued detention is necessary.
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The Supreme Court’s Decision in Gonzalez
On the same day of the Arteaga-Martinez decision, the Court ruled in Gonzalez. Given that the Court had
already addressed whether INA § 241(a)(6) requires bond hearings in Arteaga-Martinez, the Court did not
reach that issue in Gonzalez. Instead, the Court addressed a separate “threshold” issue raised in that case:
whether INA § 242(f)(1) prohibited the lower courts from entering class-wide injunctions requiring the
government to provide bond hearings for aliens detained under INA § 241(a)(6).
In a 6-3 decision, the Supreme Court reversed the Ninth Circuit’s decisions affirming the class-wide
injunctions. In the majority opinion written by Justice Alito (joined by Chief Justice Roberts and Justices
Thomas, Gorsuch, Kavanaugh, and Barrett), the Court held that the lower courts exceeded their authority
in awarding class-wide injunctive relief. The Court examined INA § 242(f)(1), which provides that no
court (other than the Supreme Court) “shall have jurisdiction or authority to enjoin or restrain the
operation of” certain INA provisions governing the inspection, apprehension, detention, and removal of
aliens, including INA § 241(a)(6), “other than with respect to the application of such provisions to an
individual alien” placed in formal removal proceedings. Based on the “ordinary meaning” of “enjoin or
restrain the operation of,” the Court determined the statute “generally prohibits lower courts from entering
injunctions that order federal officials to take or to refrain from taking actions to enforce, implement, or
otherwise carry out the specified statutory provisions.” The Court rejected the plaintiffs’ contention that §
242(f)(1) only precludes injunctions that prohibit the government from doing what federal law authorizes,
but not injunctions that prohibit or seek to rectify unlawful agency action. Further, the Court explained,
although the statute permits injunctive relief for “a particular alien,” issuing injunctive relief for an “entire
class of aliens” does not meet that exception. Thus, the Court held, the lower courts were barred from
issuing injunctions requiring bond hearings for an entire class of similarly situated aliens.
In an opinion concurring in part and dissenting in part, Justice Sotomayor (joined in full by Justice Kagan,
and joined in part by Justice Breyer) interpreted INA § 242(f)(1)’s “enjoin or restrain the operation of”
clause more narrowly, arguing that it only bars injunctions that prevent the lawful implementation of the
specified INA provisions. Justice Sotomayor argued that § 242(f)(1) does not prohibit lower courts “from
commanding compliance with the statutes or enjoining unauthorized action.” Justice Sotomayor further
argued that the exception for injunctive relief on behalf of “an individual alien” permitted the injunctions
here in any event because a class action “is a collection of individual claims.” On the merits, however,
Justice Sotomayor concurred with the Court’s judgment in light of Arteaga-Martinez.
Congressional Considerations
The Supreme Court’s Arteaga-Martinez decision is the latest in a series of rulings generally reinforcing
DHS’s broad detention authority. Although the Court in Zadvydas restricted the length of detention of
most aliens awaiting removal under INA § 241(a)(6), the Court has declined to read any further
limitations or procedural safeguards into the statute. Equally significant, the Court’s related decision in
Gonzalez precludes lower courts from issuing class-wide injunctive relief on behalf of similarly situated
aliens who are subject to prolonged detention. More generally, given the Gonzalez Court’s broad
interpretation of INA § 242(f)(1), the Court’s decision may reduce the likelihood of nationwide
injunctions in the immigration detention and removal context. For example, just a few days after
Gonzalez, the Supreme Court in Biden v. Texas held that a district court violated § 242(f)(1) by issuing a
nationwide injunction requiring DHS to implement a policy requiring the return of some arriving
migrants to Mexico pending the outcome of their formal removal proceedings.
To the extent there is uncertainty about the extent to which the government may detain aliens awaiting
removal, Congress may clarify that authority through legislation. In the 117th Congress, bills have been
introduced, including the New Way Forward Act (H.R. 536) and the Dignity for Detained Immigrants Act
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(S. 1186, H.R. 2222), that would limit the period in which aliens may remain detained beyond the
removal period to 60 days, and require DHS to prove at a hearing that the alien’s continued detention is
warranted. Conversely, other bills, such as the Empowering Law Enforcement Act (S. 1582, H.R. 4796)
and Keep Our Communities Safe Act (S. 4370), would provide that an alien detained beyond the removal
period has no right to seek release on bond.
Author Information
Hillel R. Smith
Legislative Attorney
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