Supreme Court justices waded through immigration law to determine whether deportees who return to the U.S. illegally due to torture fears at home must be detained while they await a decision on a second removal.
It wasn’t clear following oral arguments on Monday where the justices would end up on questions about so-called “withholding-only” removal proceedings.
At issue in the case affecting a narrow class of undocumented immigrants are two conflicting Immigration and Nationality Act provisions. One—8 U.S.C. § 1231—requires that immigrants already ordered removed be detained for at least 90 days. The other—Section 1226—says those still awaiting a decision on removal can be released on bond by federal immigration officials.
Immigrants affected by this case arguably fall somewhere in between. They’ve already been deported but returned to the U.S. claiming they would be tortured if they stayed in their home country.
While the original removal order is reinstated, a federal immigration officer determined that these immigrants have a reasonable fear of torture. If true, the government can’t send them back.
Rodriquez Zometa, for example, says in the case that he received a death threat from a gang immediately upon his return to El Salvador.
The U.S. argues the plain language of Section 1231 requires detention.
The “text of Section 1231 refers repeatedly to an order of removal or to the aliens who have been ordered removed,” said Justice Department lawyer Vivek Suri. “There is no dispute here that these aliens have been ordered removed.”
That principle seemed to persuade Chief Justice John Roberts.
“Counsel, your clients have been ordered removed,” Roberts said to attorney Paul Hughes of McDermott Will & Emery. Wouldn’t “you expect that their detention would be governed by a provision that is entitled ‘Detention and Removal of Aliens Ordered Removed’?”
Hughes countered that the decision about whether they can stay in the U.S. is still pending, so they claim to fall within 1226.
“During withholding proceedings, the INA does not authorize removal,” Hughes said. “When the government lacks authority to remove, the decision on whether the alien is to be removed from the United States remains pending.”
Justice Stephen Breyer noted that some of these immigrants will never leave the U.S., meaning they could be detained for years.
This “is a country where, by and large, we don’t keep people in prison for years, whoever they are, for years without any chance of even getting bail,” Breyer said.
So why shouldn’t the statute be read to avoid that result? he asked Suri.
Suri responded that that’s a “vary unusual case” that would last longer than six months.
“In the vast majority of these cases, the detention will last three to four months before the immigration judge issues his decision,” Suri said.
The case is Pham v. Guzman Chavez, U.S., No. 19-897, argued 1/11/21.