Previously Deported Illegal Aliens Aren’t Entitled to Bond Hearing After 6 Months Detention, Supreme Court Hears

An illegal alien under a deportation order is not entitled to a bond hearing after six months of detention, the Biden administration told the Supreme Court this morning.

At a bond hearing, an immigration judge decides if a person who is detained should stay in detention; if he is a flight risk or a danger to the community, he is supposed to remain detained. The issue here is whether the Supreme Court’s ruling, Zadvydas v. Davis (2001), that federal law provides an implied time limit of six months for the immigration detention of noncitizens when their removal is not “reasonably foreseeable,” applies to detainees who have been ordered removed from the country.

The case is Johnson v. Arteaga-Martinez, court file 19-896. Tae D. Johnson is the acting director of U.S. Immigration and Customs Enforcement (ICE).

The respondent, Mexican citizen Antonio Arteaga-Martinez, entered the United States repeatedly without authorization. The U.S. government deported him to Mexico once. He reentered most recently after 2012. He claims a criminal gang in Mexico targeted him and his family and that he was beaten and robbed and his car was stolen in a crime of violence. He claims he reentered the United States in order to be safe from the violence in Mexico.

He was arrested by immigration agents in 2018 and a prior removal order against him was reinstated. While detained he said he was afraid of returning to Mexico, and an asylum officer determined he had a “reasonable fear” of future persecution in Mexico. He stayed in detention while his claim, which sometimes take years to be resolved, was processed. After several months, he filed a legal challenge to his detention, according to a SCOTUSblog  summary.

During oral arguments before the Supreme Court on Jan. 11, Department of Justice lawyer Austin Raynor said 8 U.S. Code § 1231 provides that “certain categories of non-citizens, including inadmissible non-citizens like respondent here, ‘may be detained beyond the removal period.’”

This case is about “whether that language requires that noncitizens … be afforded a bond hearing before an immigration judge after six months of detention, at which the government bears the burden of proving by clear and convincing evidence that the non-citizen is either a flight risk or a danger to the community.”

“That question answers itself,” Raynor said. This is why the respondent “focuses on an altogether different issue, namely, whether he is entitled to outright release under this court’s decision in Zadvydas because his removal is not reasonably foreseeable.”

Because he did not raise this argument, which is nonetheless mistaken, earlier in the litigation, he isn’t entitled to raise it now before the Supreme Court, Raynor added.

Justice Sonia Sotomayor told Raynor: “The basic point of Zadvydas is you really can’t keep someone indefinitely without a reason basically … [it] can’t be just whim. We don’t like this person because — easy to point to a racial reason, but it could be something as simple as we just don’t like him.”

The system seems biased against would-be immigrants, Sotomayor said. “It’s hard to see how impoverished people, unfamiliar with the workings of this government, of this country, are going to find lawyers.”

The respondent’s attorney, Pratik A. Shah, said federal officials determined his client “had demonstrated a reasonable fear of torture if removed to his home country, a threshold standard that only 13 percent of applicants satisfy.”

That determination entitled him to an immigration court adjudication of his claim for relief, “which often takes a year or, as in this case, much longer, during which time he cannot be removed,” Shah said.

“Now, three years later, the government still seeks the power to imprison him, despite his significant family ties and lack of any criminal record, pending his modified yet still unadjudicated withholding-of-removal claim.”