Author Topic: Bond eligibility for certain noncitizens divides court along ideological lines  (Read 219 times)

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SCOTUSblog By Gabriel Chin 6/29/2021

Congress provided that noncitizens who have been removed from the country but are found back in the United States should be expeditiously removed again. The second deportation occurs through a reinstatement of the first removal order, normally without further hearing, procedure or review. A narrow exception allows people in that situation to apply for “withholding” relief, which does not render the noncitizen any less deportable or otherwise give them the right to remain in the U.S. However, it prevents their deportation to a particular country where they might be tortured or persecuted. In an opinion on Tuesday in Johnson v. Guzman Chavez, the court ruled against a group of noncitizens who applied for withholding relief and sought hearings to determine if they could be released on bond while immigration authorities reviewed their withholding claims.

The court divided along conservative and liberal lines. Justice Samuel Alito wrote the opinion for a six-member majority. Justice Stephen Breyer dissented for himself and Justices Sonia Sotomayor and Elena Kagan.

Concretely, the question was whether, as the noncitizens argued, the more lenient and neutral bond process of 8 U.S.C. § 1226 governed; it applies “pending a decision on whether the alien is to be removed,” and it allows a noncitizen the opportunity for a bond hearing before an immigration judge. The government contended that 8 U.S.C. § 1231 controlled. That section generally applies “when an alien is ordered removed” and the order is “administratively final.” Under that section, a noncitizen is to be removed within 90 days, and if removal is not carried out within that period, bond is granted or denied by immigration administrators. In practice, noncitizens are much less likely to be released under Section 1231. Given the division in the circuit courts on the issue, it is fair to say that the question of which section applied in this special circumstance was difficult.

Alito first reasoned that noncitizens subject to reinstated removal orders had been “ordered removed” and those orders were “administratively final.” Accordingly, the literal language of Section 1231 applied. That the noncitizens could apply for withholding relief did not alter the conclusion that the removal orders existed and were administratively final. The key was the limited nature of withholding relief: “It relates to where an alien may be removed,” Alito wrote. “It says nothing, however, about the antecedent question whether an alien is to be removed from the United States.” Alito gave no weight to a consideration credited by the dissent and lower courts — namely that, as a practical matter, most people who are granted withholding relief remain in the U.S. indefinitely: “[T]he fact that alternate-country removal is rare does not make it statutorily unauthorized.”  To Alito and the rest of the majority, a reinstated removal order means that the noncitizen’s removability has been conclusively established — even though the withholding claim means that the person might, in practice, never be removed from the United States.