The Supreme Court heard arguments against Guzman Chavez by phone in Pham on Monday that raise a complex issue about the retention of migrants in deportation proceedings. The judges asked both sides difficult questions.
The case concerns migrants with “reinstated” deportation orders, ie they were previously deported, then returned to the US and now have pending claims to “withhold” their deportations due to fear of torture in their country of birth or citizenship that they would otherwise be removed. These non-citizens can only be removed once their retention claims have been clarified. This process can take months or years. The court must decide which of two federal laws governs the eligibility of these migrants to be released on bail.
The migrants argue that the more permissive attachment process of 8 USC governs § 1226; It applies “until a decision is made on whether the alien should be removed” and generally does not require a term of detention or supervision if a person is released. The government claims 8 USC controls Section 1231. This section, which deals with the actual removal process, generally applies “when an alien is removed” and the order is “administratively final”. It provides for a mandatory 90-day detention period, followed by a discretionary, restrictive release authority. Both parties agree that the migrants in question are subject to valid deportation orders, but that these cannot be carried out as the retention claims work their way through the system.
During the argument on Monday, the parties confirmed important information about the reality of the process. Withholding relief is very limited. Migrants can be taken to any other country in the world where they are not subjected to torture. However, in response to a question from Justice Elena Kagan, the assistant to the Attorney General Vivek Suri, who argued for the government, confirmed that the migrant must be given notice and the opportunity to appeal before such a deportation. And Suri agreed with Chief Justice John Roberts that “in the vast majority of cases” no third country is available. Granting a withholding tax relief means, for practical reasons, that the migrant will remain in the United States indefinitely. Suri told Justice Stephen Breyer that around 11% of applicants for withholding relief received it, which Breyer described as a “pretty good but not overwhelming percentage”. And Suri was unsure but did not deny of a study cited by the migrants, which found that 15% of source applicants were released at some point before their withholding tax proceedings were completed.
Six judges – Roberts, Breyer, Kagan, and Judges Clarence Thomas, Sonia Sotomayor, and Brett Kavanaugh – urged Suri to ask how an admittedly unenforceable deportation warrant could still be considered “final” to trigger Section 1231. In his concluding remarks, Suri admitted a: “You have some reasonable arguments under section 1226. How can you say that … there was a decision on whether to remove someone when it is not clear that a land is available?” However, he had answers to his own rhetorical question. One thing was technical: “Our position is based on what is true in the eyes of the law, and not what happens in practice.” A valid move triggers the consequences of a valid move. nothing in section 1231 says in so many words that it only applies if it can be performed. Indeed, the section authorizes release after the 90-day compulsory term if no removal occurs, so the possibility of non-removal appears to be considered.
Suri’s second answer was that Section 1231 made sense in this context because the language that the government requires to perform the removal is “unless otherwise stated”. His obvious point was that source claims migrants are an exception to the law’s assumption that those affected will be removed, as Section 1231 allows claims retention and an interruption in the deportation process when reviewing those claims provides an exception to the entire section.
Paul Hughes spoke out for Maria Angelica Guzman Chavez and other similarly situated migrants. Hughes argued that “unless otherwise noted” in section 1231, the language pointed in exactly the opposite direction. Until the withholding claims have been clarified, non-citizens are not only exempt from deportation, but also from compulsory detention to carry out the deportation. “There is a withholding discharge in 1231. If a withholding is made, the government cannot remove it, which means there is no deportation period,” Hughes told the judges.
Breyer was concerned about the long-term detention of detained applicants; “By and large, we don’t keep people in jail for years, whoever they are … with no chance of bail at all.” Suri indicated that a bond would be available after 90 days under Section 1231. He also highlighted the availability of habeas corpus relief under Zadvydas v Davis, a 2001 decision in which the Supreme Court recognized an opportunity for those detained under Section 1231 to seek judicial review once it was found that there was no significant likelihood of one Distance gave.
Kavanaugh, Sotomayor and Kagan traced the relevance of Zadvydas. Suri contended that Zadvydas mitigated all constitutional issues with section 1231. Hughes, on the other hand, took the view that the more lenient Section 1226 was applicable in this context in accordance with the usual principles of legal interpretation. But if there were any questions, Hughes concluded, the fact that habeas corpus would be necessary in the government’s reading is a strong reason to conclude that that reading is wrong. Based on the principle of avoidance of constitutions, he said, “It makes most sense to conclude that Congress has chosen a legal structure that would not result in routine and foreseeable violations of the constitution.” This would require habeas corpus relief .
Judge Neil Gorsuch focused on the finality problem created by the legal system. Reinstated move orders are usually final for months or years by the time a person re-entered the US and is arrested. These orders are not subject to review. However, migrants who are subject to resumed deportation orders have the right to assert source claims. However, a source claim can only be checked by law when reviewing a relocation order. So there has to be something. In order to reconcile a legal system that appears to both prohibit and allow the review of a resumed removal order, all circuits recognize an exception. They are of the opinion that a resumed deportation order will only become final once the withholding tax claim has been clarified for reasons of currency and availability of a judicial review. However, when reviewing the resumed deportation order, the court will only consider the day-a-long withholding tax claim, not any aspect of the deportation order itself.
How could an order be final for the purposes of section 1231, asked Gorsuch, if it were not final for section 1252, the judicial review provision? “Certainly a final removal order cannot mean one thing… in one law and another in another. That would – at least it seems unlikely. Maybe you can help me with this difficulty. “Suri replied that” ‘final’ can mean different things in different contexts. ” However, if Suri were forced to vote, he took the position that “these orders, both in this context and in this connection, are final and the foreigners would lose in both cases” – that is, there is no judicial review of the withholding of claims could give the context of resumed moving orders. This is a position that the United States has not otherwise taken, that has not entered the loop, and that none of the judges followed in the argument.
In her questions to both sides, Justice Amy Coney Barrett focused on legal nuances. She asked Suri why, according to § 1231, if a non-citizen could not be removed through no fault of either side, there was no presumption in favor of a release. Suri replied that “Relief is the default,” but “because these particular aliens have already been removed from the country, opposed their deportation orders, and illegally returned to the country and been captured, there is an especially strong basis on which to conclude that With Hughes, Barrett pointed out that the differences between Section 1226 and Section 1231 are largely due to by-law rather than to the text of the law itself, whereas Section 1226 allows unconditional release and Section 1231 prescribes conditions the remainder of the process, such as whether a neutral immigration judge makes the decision, is based on discretionary decisions of the Attorney General and Department of Homeland Security by ordinance, and it is not clear which side, in Barrett’s view, favors this fact.
Judge Samuel Alito asked Hughes how much of his reasoning was related to the practical application of the statute: in practice, those who were granted exoneration would be unlikely to be removed from the country. Hughes acknowledged that if a third country were available, his argument would not apply to non-citizens, as the United States would move people to those countries quickly and there would be no issue of detention. The implications of Alito’s question could have been broader – namely, that there is an argument that the meaning of a statute is fixed at the time of entry into force and cannot be changed or even interpreted in response to later events. This line of reasoning seems to favor the government.
Jack Chin, Argument Analysis: A Complex Issue of Immigration Retention,
SCOTUSblog (January 12, 2021, 1:18 p.m.), https://www.scotusblog.com/2021/01/argument-analysis-a-complex-question-of-immigration-bond/