JOHNSON, ACTING DIRECTOR OF U. S. IMMIGRATION AND CUSTOMS ENFORCEMENT, ET AL. v. GUZMAN CHAVEZ ET AL.
No. 19-897
SUPREME COURT OF THE UNITED STATES
June 29, 2021
594 U. S. ____ (2021)
Argued January 11, 2021
(Slip Opinion) OCTOBER TERM, 2020
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
JOHNSON, ACTING DIRECTOR OF U. S. IMMIGRATION AND CUSTOMS ENFORCEMENT, ET AL. v. GUZMAN CHAVEZ ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 19-897. Argued January 11, 2021—Decided June 29, 2021
Respondents are aliens who were removed from the United States and later reentered without authorization. When DHS reinstated their prior removal orders, each respondent sought withholding-only relief to prevent DHS from executing those orders based on fear of returning to their home country as designated in the removal orders. While respondents’ withholding-only proceedings were pending, DHS detained respondents, and respondents sought release on bond, which was initially denied. The Government opposed their release, maintaining that because respondents were detained under
Held: Section
(a) Section 1231 authorizes detention “when an alien is ordered removed” and enters the “removal period,” which begins, as relevant here, on “[t]he date the order of removal becomes administratively final.” It is undisputed that each respondent was previously “ordered removed” pursuant to a valid order of removal and that those orders were “reinstated from [their] original date[s]” under
(1) Respondents misunderstand the nature of withholding-only proceedings when they argue that because an immigration judge or the Board of Immigration Appeals (BIA) might determine that DHS cannot remove an alien to the specific country designated in the removal order, the question whether the alien is “to be removed” remains “pending” and is therefore governed by
(2) Respondents next argue that a removal order does not become “administratively final” until the withholding-only proceedings conclude. A reinstated removal order, they contend, loses its prior finality when the alien initiates withholding-only proceedings. This argument ignores that removal orders and withholding-only proceedings address two distinct questions and end in two separate orders. See Nasrallah v. Barr, 590 U. S. ___. Because the validity of removal orders is not affected by the grant of withholding-only relief, an alien‘s initiation of withholding-only proceedings does not render non-final an otherwise “administratively final” reinstated order of removal. Pp. 14–16.
(b) Statutory structure confirms this Court‘s textual reading. Every provision applicable to respondents is located in
(c) Respondents’ contrary reading would also undermine Congress‘s judgment regarding the detention of different groups of aliens who posed different flight risks. Aliens who have not been ordered removed are less likely to abscond because they have a chance of being found admissible, while aliens who have already been ordered removed are generally inadmissible, see
(d) Respondents’ remaining arguments are that withholding-only proceedings are a legal impediment that, like the three triggers to the start of the removal period listed in
940 F. 3d 867, reversed.
ALITO, J., delivered the opinion of the Court, except as to footnote 4. ROBERTS, C. J., and KAVANAUGH and
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
No. 19-897
TAE D. JOHNSON, ACTING DIRECTOR OF U. S. IMMIGRATION AND CUSTOMS ENFORCEMENT, ET AL., PETITIONERS v. MARIA ANGELICA GUZMAN CHAVEZ, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
[June 29, 2021]
JUSTICE ALITO delivered the opinion of the Court, except as to footnote 4.
Federal immigration law contains various provisions authorizing the Government to detain aliens during the removal process. This case concerns two of them:
I
A
The Immigration and Nationality Act (INA) establishes procedures for removing aliens living unlawfully in the United States. In the ordinary course, if the Department of Homeland Security (DHS)1 discovers that an alien is living in the United States without authorization, it may initiate removal proceedings against the alien by sending him a “notice to appear.” 110 Stat. 3009–587, as added and amended,
The INA further provides that DHS may arrest and detain the alien “pending a decision on whether the alien is to be removed from the United States.”
for a change in the alien‘s detention conditions. See
At some point, the alien will also have the above-mentioned hearing before an immigration judge to determine whether he is inadmissible or deportable, and therefore subject to removal.
Once an alien is ordered removed, DHS must physically remove him from the United States within a 90-day “removal period.”
Under
Although the statute does not specify a time limit on how long DHS may detain an alien in the post-removal period, this Court has “read an implicit limitation” into the statute “in light of the Constitution‘s demands,” and has held that an alien may be detained only for “a period reasonably necessary to bring about that alien‘s removal from the United States.” Zadvydas v. Davis, 533 U. S. 678, 689 (2001). And according to the Court, a period reasonably necessary to bring about the alien‘s removal from the United States is presumptively
If no exception applies, an alien who is not removed within the 90-day removal period will be released subject to supervision. See
B
In addition to the removal procedures outlined above, Congress has created an expedited process for aliens who reenter the United States without authorization after having already been removed. The relevant statutory provision states:
“If the Attorney General finds that an alien has reentered the United States illegally after having been removed or having departed voluntarily, under an order of removal, the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed, the alien is not eligible and may not apply for any relief under this chapter, and the alien shall be removed under the prior order at any time after the reentry.”
§1231(a)(5) .
DHS‘s regulations set out the process for reinstating an order of removal. In short, the agency obtains the alien‘s prior order of removal, confirms the alien‘s identity, determines whether the alien‘s reentry was unauthorized, provides the alien with written notice of its determination, allows the alien to contest that determination, and then reinstates the order. See
Title
C
Much of this case turns on the nature of withholding-only proceedings. There are two paths for seeking withholding of removal. First, the alien may seek statutory withholding under
The process for applying for withholding of removal depends on whether the alien is subject to the standard removal proceedings or a reinstated order of removal. As mentioned above, an alien subject to the standard removal process typically applies for withholding during the course of his removal proceedings. See supra, at 3. But because an alien subject to a reinstated order of removal will
If an alien is granted withholding-only relief, DHS may not remove the alien to the country designated in the removal order unless the order of withholding is terminated.
D
Respondents are aliens who were removed from the United States and later reentered without authorization. Guzman Chavez v. Hott, 940 F. 3d 867, 870 (CA4 2019). When DHS discovered their presence, it reinstated their prior removal orders. Id., at 870–871. Each respondent expressed a fear of returning to his or her home country and was referred to an asylum officer for a reasonable fear interview. Id., at 871. In each case, the asylum officer determined that the respondent had a reasonable fear of persecution or torture and referred the respondent to an immigration judge for withholding-only proceedings. Ibid. Although some of the respondents were initially granted supervised release, all were ultimately detained by DHS. Ibid. They then sought release on bond while their withholding-only proceedings were pending. The Government opposed release, maintaining that because respondents were detained under
Respondents filed two habeas proceedings in the Eastern District of Virginia seeking a declaration that
II
A
We turn first to the statutory text. Section
(B),
The parties agree that
First, respondents have been “ordered removed.” It is undisputed that each respondent was previously removed pursuant to a valid order of removal. And after respondents later reentered the United States without authorization, those prior orders were “reinstated from [their] original date[s]” under
Second, respondents’ reinstated removal orders are “administratively final.” Although that phrase is not defined in the statute, its meaning is clear. By using the word “administratively,” Congress focused our attention on the
agency‘s review proceedings, separate and apart from any judicial review proceedings that may occur in a court. Context confirms this interpretation. Recall that under
Respondents do not contest that their prior removal orders have long been “administratively final,” as we understand the term. See Brief for Respondents 8, 20–21, 24-26.6 Each had the opportunity to seek review in the BIA after the initial removal order was entered, and
For these reasons,
1
Respondents first argue that because an immigration judge or the BIA might determine that DHS cannot remove an alien to the specific country designated in the removal order, the question whether the alien is “to be removed” remains “pending” and is therefore governed by
This Court and the BIA have long understood the nature of withholding-only relief this way. In INS v. Aguirre-Aguirre, 526 U. S. 415, 419 (1999), we distinguished withholding-only relief from asylum, noting that “a grant of asylum permits an alien to remain in the United States and to apply for permanent residency after one year,” while “withholding only bars deporting an alien to a particular country or countries.” (Emphasis added.) And in Matter of I-S & C-S, 24 I. & N. Dec. 432, 434 (BIA 2008), the BIA made clear that withholding-only relief “does not afford [an alien] any permanent right to remain in the United States.” Rather, as the “regulations make clear,” a grant of withholding “does not prevent the DHS from removing an alien to a country other than the one to which removal has been withheld.” Ibid. Indeed, just last Term, we affirmed that a grant of withholding-only relief “means only that, notwithstanding the order of removal, the noncitizen may not be removed to the designated country of removal, at least until conditions change in that country,” and that “the noncitizen still may be removed at any time to another country.” Nasrallah v. Barr, 590 U. S. ___, ___ (2020) (slip op., at 8) (internal quotation marks omitted).
Respondents counter that, as a practical matter, the questions “whether” an alien may be removed and “where” he may be removed to are indistinguishable because DHS often does not remove an alien to an alternative country if withholding relief is granted. They point to one source claiming that in 2017, only 1.6% of aliens who were granted withholding of removal were actually removed to an alternative coun-try. See Brief for Respondents 6, 30–31 (citing American Immigration Council & National Immigrant Justice Center, The Difference Between Asylum and Withholding of Removal 7 (Oct. 2020), www.americanimmigrationcouncil.org/sites/default/files/research/the_difference_between_asylum_and_withholding_of_removal.pdf). But the fact that alternative-country removal is rare does not make it statutorily unauthorized. Here, the statute makes clear that removability and withholding relief are distinct, and we decline to ignore the plain import of the statutory text in favor of on-the-ground statistics about the feasibility of removal to a third country.
Indeed, respondents’ argument—that the decision about whether an alien “is to be removed” remains “pending” for purposes of
Our decision in Zadvydas confirms this distinction between whether an alien is to be removed and where an alien is to be sent. In that case, we addressed claims raised by two aliens who, due to the Government‘s inability to locate a country of removal, had been detained for prolonged periods of time under
2
Respondents next argue that a removal order does not become “administratively final” until the withholding-only proceedings conclude. That is so, they say, even if a reinstated order of removal is “administratively final” at the time of its reinstatement; according to their submission, when the alien initiates withholding-only proceedings, the reinstated order loses its prior finality. See Brief for Respondents 24-25. In a similar vein, the dissent contends that respondents’ removal orders are not “administratively final” because, by seeking withholding-only relief, respondents are “in effect” seeking “a modification of, a change in, or a withholding of, the ‘prior order of removal.‘” Post, at 9.
These related arguments suffer from the same flaw as the one just discussed: They ignore that removal orders and withholding-only proceedings address two distinct questions. As a result, they end in two separate orders, and the finality of the order of removal does not depend in any way on the outcome of the withholding-only proceedings.
Case law makes this clear. In Matter of I-S & C-S, two aliens asserted that they were entitled to withholding of removal during their initial removal proceedings. The Immigration Judge concluded that they were removable but agreed that they were entitled to withholding relief. As a result, the Immigration Judge did not issue an order of removal but instead simply granted the aliens’ withholding applications. 24 I. & N. Dec., at 432-433. DHS appealed, arguing that it was error for the Immigration Judge not to issue the order of removal. Id., at 433. The BIA agreed. It stated that “[a]lthough entering an order of removal prior to granting withholding may appear to be a technicality,” it is “axiomatic that in order to withhold removal there must first be an order of
3
At oral argument, respondents offered a new textual argument in support of their position that
Even assuming that respondents did not forfeit this argument by failing to raise it in their brief, it fails on the merits. Section
In short, the statutory text makes clear that
B
The statutory structure confirms the textual reading. Consider first the structure of
Moreover, the inclusion of the statutory-withholding provision in
The general structure of the INA provides further support. Sections 1226 and 1231 both appear in Part IV of Title 8, chapter 12, of the United States Code, entitled “Inspection, Apprehension, Examination,
The order of the sections in Part IV provides helpful context for interpreting the proper application of
C
Respondents’ contrary reading would undermine Congress‘s judgment regarding the detention of different groups of aliens who posed different risks of flight: aliens detained under
Aliens who have not been ordered removed are less likely to abscond because they have a chance of being found admissible, but aliens who have already been ordered removed are generally inadmissible. See
III
Respondents’ remaining arguments are unpersuasive. They primarily argue that
Respondents’ argument fails on multiple levels. First, even if
Respondents next turn to the 90-day removal requirement in
Relatedly, respondents suggest that because
We reverse the judgment of the U. S. Court of Appeals for the Fourth Circuit.
It is so ordered.
JUSTICE THOMAS, with whom JUSTICE GORSUCH joins, concurring except for footnote 4 and concurring in the judgment.
This Court has an “independent obligation” to assess whether it has jurisdiction. Arbaugh v. Y & H Corp., 546 U. S. 500, 514 (2006). We do not have it here.
Congress has restricted our jurisdiction in removal cases. See
Therefore, if respondents’ claims “aris[e] from any action taken or proceeding brought to remove an alien,” the jurisdictional bar in
Although Jennings concerned aliens whom the Government had not yet ordered removed whereas the aliens here have removal orders reinstated against them, the result does not change. Section 1252(b)(9) “cover[s] all claims related to removal proceedings.” Nasrallah v. Barr, 590 U. S. ___, n. 2 (2020) (THOMAS, J., dissenting) (slip op., at 4, n. 2) (internal quotation marks omitted). That includes claims arising after final orders of removal are issued, such as withholding-of-removal claims. See id., at ___ (slip op., at 3-4). And it includes claims like the ones here, which involve a part “of the deportation process that necessarily serve[s] the purpose of ensuring an alien‘s removal.” Jennings, 583 U. S., at ___ (slip op., at 5).
In light of this jurisdictional problem, the Court should vacate and remand with instructions to dismiss for lack of jurisdiction. But “because the Court has held that we have jurisdiction in cases like these” and the Court‘s opinion is otherwise correct, I join it except for footnote four. See Nielsen v. Preap, 586 U. S. ___ (2019) (THOMAS, J., concurring in part and concurring in judgment) (slip op., at 1).
JUSTICE BREYER, with whom JUSTICE SOTOMAYOR and JUSTICE KAGAN join, dissenting.
Respondents in this case are noncitizens previously ordered removed from the
The question in this case is whether respondents are entitled to a bond hearing while immigration authorities engage in the lengthy process of determining whether respondents have the legal right (because of their fear of persecution or torture) to have their removal withheld. The Court points to two statutory provisions that might answer that question. The first,
The Court agrees with the Government. In its view, respondents’ circumstances fall within the scope of what
I
Readers should keep in mind two subsections of
“(1) Removal period
“(A) In general
“Except as otherwise provided in this section, when an alien is ordered removed, the Attorney General shall remove the alien from the United States within a period of 90 days (in this section referred to as the ‘removal period‘).”
8 U. S. C. §1231(a)(1)(A) .
“(3) Restriction on removal to a country where alien‘s life or freedom would be threatened
“(A) In general
“[T]he Attorney General may not remove an alien to a country if the Attorney General decides that the alien‘s life or freedom would be threatened in that country because of the alien‘s race, religion, nationality, membership in a particular social group, or political opinion.”
§1231(b)(3)(A) .
This restriction on removal when an alien fears persecution or torture embodies an important international legal obligation that the United States has undertaken. See Refugee Act of 1980, 94 Stat. 107, codified in part at
A
The procedures to determine whether an alien qualifies for withholding-only relief are complex. Any alien, including one “whose removal is reinstated” under
Studies have found that this procedure often takes over a year, with some proceedings lasting well over two years before eligibility for withholding-only relief is resolved. See Hausman, ACLU Immigrants’ Rights Project, Fact-Sheet: Withholding-Only Cases and Detention 2 (Apr. 19, 2015), https://www.aclu.org/sites/default/files/field_document/withholding_only_fact_sheet_-_final.pdf
Studies have also found that, once withholding-only relief is granted, the alien is ordinarily not sent to another, less dangerous country. Rather, the alien typically remains in the United States for the foreseeable future. See Brief for Respondents 6 (noting only 1.6% of noncitizens granted withholding-only relief were ever actually removed to an alternative country (citing American Immigration Council & National Immigrant Justice Center, The Difference Between Asylum and Withholding of Removal 7 (Oct. 2020), https://www.americanimmigrationcouncil.org/sites/default/files/research/the_difference_between_asylum_and_withholding_of_removal.pdf)).
These figures—particularly the length of time needed to complete the related administrative proceedings—raise an obvious question. Typically, Congress permits aliens initially placed in removal proceedings to apply for bond (while such proceedings transpire). See
I can understand why Congress might not want to grant a bond hearing to an alien whose circumstances fall within the removal period. That period, after all, should normally be brief. The statute says “90 days.”
B
Does the statutory provision‘s language nonetheless require the majority‘s result? In my view, it does not. Reread the first seven words of that provision‘s general rule. They say that the provision‘s removal rules apply “[e]xcept as otherwise provided in this section.”
Read on. Following the “general” terms governing the removal period rule,
“(B) Beginning of Period
“The removal period begins on the latest of the following:
“(i) The date the order of removal becomes administratively final.
“(ii) If the removal order is judicially reviewed and if a court orders a stay of the removal of the alien, the date of the court‘s final order. “(iii) If the alien is detained or confined . . . , the date the alien is released from detention or confinement.”
§1231(a)(1) (emphasis added).
No one here claims that
II
A
The majority believes we must read the statute differently. It reads the “except clause” as serving only to extend the “length of the removal period,” ante, at 16–17, not to exempt the removal procedures altogether. In its view, the time during which respondents seek administrative relief from the order of removal due to a reasonable fear of persecution or torture nevertheless remains within the “removal period,” which the restriction-on-removal provision simply extends. (And, as I said, the majority assumes that
While this is a possible reading, it is not what the statute actually says. The statute begins with the phrase “except as otherwise provided in this section,” and it follows that clause with basic operative language, namely, “the Attorney General shall remove the alien.”
The majority then points to three statutory phrases to which it believes the “except clause” applies. Those phrases, it says, are evidence that the “except clause” simply instructs that “the removal period may be extended” for three reasons. Ante, at 3. The first provision, plainly titled “Suspension of period,” “extend[s]” the “removal period . . . beyond a period of 90 days” if the alien, for example, fails to seek appropriate travel documents.
The third example, however, is beside the point, for it comes equipped with its own bond and supervised released possibility, staying (rather than extending) the removal period. See
B
The majority‘s interpretation of the words “administratively final” is no more convincing. The majority says that these words apply only to the finality of the original removal orders, i.e., the orders issued before respondents left the country and returned, as of the time those orders were first issued. After all, the majority adds, see ante, at 9–10, a further subsection of
This last mentioned provision, however, is not relevant here. It cannot prevent an alien from seeking what is in effect a modification of, a change in, or a withholding of, the “prior order of removal” for reasons of fear of persecution or torture. After all,
Now consider the temporal problem. The time when the majority says the reinstated removal order became “administratively final” is the time at which the original order of removal became final. But to take the words “administratively final” as referring only to that time would lead to a very peculiar statute. It means that most reinstated removal orders will have become administratively final many years before the proceedings during which they are reinstated. Recall that in most instances the 90-day removal period begins when the removal order becomes administratively final. If the majority is right, in the case of most respondents, the 90-day removal period began long before the aliens left the country, let alone returned. Did the 90-day removal period begin to run at that earlier time? Did it run and then terminate? Is there now no removal period? Read as the majority does, the 90-day limit that governs all of
For this reason, I believe the better reading of those words would be to apply them to any removal orders, reinstated or not, that are not yet “administratively final.” And here, the orders are not final until the administrative proceedings (concerning eligibility for withholding-only relief on account of fear of persecution or torture) are complete. Cf. Bennett v. Spear, 520 U. S. 154, 178 (1997) (agency action is not “final” until, inter alia, all “rights or obligations have been determined . . . from which legal consequences will flow” (internal quotation marks omitted)).
* * *
In sum, I can find no good reason why Congress would have wanted categorically to deny bond hearings to those who, like respondents, seek to have removal withheld or deferred due to a reasonable fear of persecution or torture. And I do not agree with the majority‘s reading of the statute‘s language as denying them that opportunity. If, as I believe,
With respect, I dissent.