Justices on the Supreme Court on Tuesday heard two cases involving the prolonged detention of illegal immigrants – cases that come as the Biden administration continues to face a crisis at the southern border.

The court heard two related cases where immigrants arrested by Immigration and Customs Enforcement (ICE) were challenging the government’s right to hold them for long periods of time (longer than six months) without a bond hearing if there was no likelihood of deportation in the foreseeable future.


The court had ruled in 2001 that immigrants could not be held longer than six months if the immigrant’s deportation was not foreseeable. But in the cases before the court, the government claimed that the deportations were foreseeable – and therefore they were not limited by the 2001 ruling and could go beyond that timeframe without a bond hearing. 

However, the liberal justices on the court were skeptical of that claim, considering that the government appeared unable to give specifics on when they would be removed. In the first case, Johnson v. Arteaga-Martinez, a Mexican citizen with multiple deportations had claimed a fear of persecution if returned. 

While he had eventually been released from detention, his lawyers said the government has the right to detain him at any point, and they sought to challenge that. Justice Stephen Breyer quizzed the government’s attorney about what the outcome was likely to be considering the man was unlikely to be returned to Mexico given his claim of fear of persecution.

"I ask you for an estimate by the government as to when the government is likely to find a place, I don't care what place, any place in the world, beside the United States where you will send him," he asked.

The government’s lawyer said his next hearing was in 2023, because he is in the non-detained docket and therefore it is a longer process than for migrants who are detained. But he argued that the fact he was in those proceedings showed that it was not indefinite.

Justice Sonia Sotomayor, meanwhile, was not convinced by the government’s argument that immigrants in such a situation could request a hearing.

"It's hard to see how impoverished people, unfamiliar with the workings of this government, of this country, are going to find lawyers," she said. "It seems like a pyrrhic offering to say that an individual hearing is of any benefit to them."

Conservative justices were less hostile to the government's case, but showed concern about a situation of prolonged detention without a clear end date.

 "What if proceedings continue to drag on and on and on, or if there is no country to take him?" asked Justice Amy Coney Barrett.


The immigrant’s counsel, meanwhile, emphasized that with the many twists and turns of the immigration system, the likelihood of his client being deported any time soon is slim to none.

"We are talking months if not years until that happens," he said.

The case of Garland v Gonzalez, meanwhile, combines the case of two more immigrants who were previously deported and are now in detention and claim fear of persecution if returned.

That case also deals with the claim by the Biden administration that federal courts cannot impose a class-wide injunction on deportation and detention of illegal immigrants.

The Biden administration’s position had received a rebuke from the American Civil Liberties Union (ACLU.)

"After the horrors of the prior administration, we had hoped for a Biden administration that would choose the right side of history and be serious about protecting immigrant communities," it said in a statement. "Instead, Gonzalez is yet another disappointment."


The cases come as the Biden administration continues to stare down a crisis at the southern border, which has slowed slightly since the summer, but still saw more than 170,000 migrants encountered in November.

The Supreme Court upheld an order last year requiring the administration to reestablish the Trump-era Migrant Protection Protocols (MPP), which kept migrants in Mexico for their hearings.