Supreme Court denies bond hearings for illegal immigrants who return after being deported

The court's majority held that people with prior final orders of removal must be detained

The Supreme Court ruled Tuesday that illegal immigrants who reentered the U.S. without authorization after already having been deported are not entitled to bond hearings.

A 6-3 decision split between the court’s conservative and liberal justices held that a federal statute requiring detention for non-residents who have already received an administratively final removal order applied, even though the illegal immigrants were seeking withholding hearings to keep them from being sent back to their countries of origin. The court ruled that because they were now facing removal based on the reinstatement of the previous final order, they were not entitled to a hearing to argue for release.

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"[T]he finality of the order of removal does not depend in any way on the outcome of the withholding-only proceedings," Justice Samuel Alito wrote in the court’s opinion, reversing a ruling by the Fourth Circuit Court of Appeals.

The immigrants claimed that because they sought withholding hearings, the law governing final orders does not apply to their situation. Instead, they argued that the law that applies "pending a decision on whether the alien is to be removed from the United States" is relevant.

Alito made it clear that this was incorrect, because no question remains as to whether they would be removed from the U.S.

"If an immigration judge grants an application for withholding of removal, he prohibits DHS from removing the alien to that particular country, not from the United States," Alito wrote.

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Alito noted that this would not mean that a person could simply be detained indefinitely.

"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,’" he wrote, adding that the court has found this reasonable period to be six months. If they are still detained after six months, there would be a chance for release.

Additionally, in cases where a person reenters after already being deported, there is an expedited process where the Department of Homeland Security obtains the previous order, confirms the person’s identity, determines whether their latest entry was unauthorized, gives them an opportunity to contest a finding that they reentered illegally, and unless they succeed the old order is reinstated.

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The court’s opinion also explained that the process for seeking a withholding hearing is different in cases of unlawful reentry. In those cases, the individuals have to express fear of return to their countries to a DHS official, who will then refer them to an asylum officer. That officer would then refer them to an immigration judge for a hearing. In other deportation cases, a withholding hearing is sought at the same time as the regular removal proceedings.

Alito wrote that withholding hearings are "limited to a determination of whether the alien is eligible for withholding or deferral of removal," and as such, "all parties are prohibited from raising or considering any other issues, including but not limited to issues of admissibility, deportability, eligibility for waivers, and eligibility for any other form of relief."

In a dissenting opinion, Justice Stephen Breyer cited studies that discuss the reality of withholding proceedings. Such proceedings have been found to often take more than a year and sometimes more than two years to be resolved.

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"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," Breyer wrote. He also claimed that situations like the individuals in this case fall under an exception to the very law the majority relies on.

"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,"  Breyer wrote. "And I do not agree with the majority’s reading of the statute’s language as denying them that opportunity."