SCOTUS hears cases on indefinite migrant detention

Fort Bliss

The US Supreme Court this month heard oral arguments for two immigration cases that address the right of detained non-citizens to have a bond hearing after six months of detention. Both cases were brought by asylum-seekers who had been detained for extended periods without bond hearings following the issuance of a removal order.

The first case, Johnson v. Arteaga-Martinez, involves a Mexican national who entered the US without inspection four times and was arrested and detained after the fourth entry in 2018. Immigration & Customs Enforcement (ICE) reinstated a removal order from one of Arteaga-Martinez’s earlier entries, but Arteaga-Martinez filed for deferral of removal on the grounds that he had a credible fear of returning to Mexico due to threats of gang violence.

Arteaga-Martinez’s asylum case was referred to an immigration judge but he remained in detention while it was processed. After several months in detention, Arteaga-Martinez filed a petition for a writ of habeas corpus, arguing that the Immigration & Nationality Act entitled him to a bond hearing after six months of detention to evaluate whether he was a flight risk.

The second case, Garland v. Aleman Gonzalez, is a consolidation of class actions from non-citizens who also were detained after illegal re-entry from Mexico and subsequent filings for asylum. The respondents filed for bond hearings to prove that they were not flight risks, but immigration judges denied their motions. The respondents then filed habeas corpus petitions in federal court.

In 2001, the Supreme Court ruled in Zadvydas v. Davis that “post-removal-period” detention may not be extended beyond six months unless there is a realistic chance that the non-citizen could be removed. The US Constitution forbids imprisonment without due process of law and guarantees the right of habeas corpus.

From Jurist, Jan. 13. Used with permission.

Note: Zadvydas v. Davis is partly based on statutory interpretation, and could therefore be potentially overturned by Congress.

See our last report on indefinite detention of migrants and asylum-seekers.

Photo via Border Report

  1. SCOTUS upholds indefinite migrant detention

    The US Supreme Court on June 13 ruled in two separate cases that undocumented immigrants who are detained for more than six months are not entitled to a bond hearing. In Johnson v. Arteaga-Martinez, only Justice Breyer dissented in part, while Garland v. Aleman Gonzalez was a 6-3 decision. The decision turned on statutory rather than constitutional authority. (Jurist, NYT)

    In related news, a federal judge in Texas on June 10 granted a request to dismiss a policy by President Joe Biden’s administration that narrows the criteria for detention and deportation of migrants. In a memo released in September last year, the Department of Homeland Security (DHS) called for a refocusing to “prioritize for apprehension and removal noncitizens who are a threat to our national security, public safety, and border security.” The change was challenged by Texas and Louisiana. (Jurist)

  2. SCOTUS blocks Biden policy to limit deportations

    The Supreme Court temporarily blocked a Biden administration immigration policy. In a 5-4 order, the Court on July 21 denied the Biden administration’s application to reinstate an immigration memorandum that would stop deportation unless the non-citizen is a threat to national security, public safety or border security. Justices Amy Coney Barrett, Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson dissented from the majority. (Jurist)

  3. Court strikes down Biden alternatives to migrant detention

    The US District Court for the Northern District of Florida on March 8 struck down President Joe Biden’s policy that released asylum-seekers at the US-Mexico border rather than detaining them. Judge T. Kent Wetherell II, who was nominated by former President Trump, ruled that the policy, which Republican critics condemned as “catch and release,” violates the Immigration & Nationality Act. (Jurist, The Hill)