The Supreme Court issued an opinion on June 13, 2022, in which it held that noncitizens who reenter the United States after being ordered removed and are placed in withholding-only proceedings are not entitled to bond hearings under INA § 241(a)(6). Johnson v. Arteaga-Martinez, 596 U.S. ___ (2022). Withholding of removal is available to persons who are ineligible for asylum but who have a reasonable fear of persecution if returned to their home countries. The Court expanded upon its decision in Johnson v. Guzman Chavez, 141 S. Ct. 2271 (2021), that held that INA § 241 applies to this group of noncitizens, rather than INA § 236, which does provide for bond hearings.

The respondent in this case, Antonio Arteaga-Martinez, was removed in July 2012 and reentered in September 2012. In June 2018, he was arrested by ICE, which reinstated his removal order and detained him. Mr. Arteaga-Martinez applied for withholding of removal under INA § 241(b)(3) and protection under the Convention Against Torture, due to a fear of persecution in his country of origin. After being detained for four months, Mr. Arteaga-Martinez filed a petition for writ of habeas corpus in district court to challenge his continued detention. The district court granted relief to Mr. Arteaga-Martinez based on Third Circuit precedent, which holds that noncitizens detained under INA § 241(a)(6) are entitled to bond hearings every six months. In those hearings, the government must prove by clear and convincing evidence that the noncitizen poses a flight risk or a danger to the community. The district court ordered the government to provide a bond hearing. The Third Circuit affirmed, and the immigration judge released Mr. Arteaga-Martinez at the conclusion of his bond hearing.

The Supreme Court held that, contrary to the Third Circuit precedent, INA § 241(a)(6) does not require the government to provide a bond hearing to noncitizens detained for six months. In reaching its holding, the Court found that INA § 241(a)(6) says nothing about bond hearings being required every six months or about the burden of proof the government must meet to continue detention of a noncitizen under the statute. In doing so, the Supreme Court followed its decision in Jennings v. Rodriguez, 583 U.S. ___ (2018), in which it found that INA § 236(c), which governs the detention of noncitizens apprehended at the border, does not require periodic bond hearings where the government must prove by clear and convincing evidence that further detention is justified. The Court distinguished its prior decision in Zadvydas v. Davis, 533 U.S. 678, 689 (2001), which held that INA § 241(a)(6) “does not permit indefinite detention.”

In addition to finding that the language of INA § 241 does not explicitly require bond hearings with a specific burden of proof, the Supreme Court found that the statute’s references to “flight risk, dangerousness, and ‘terms of supervision’” do not constitute a statutory requirement for such bond hearings.

Ultimately, just as the Court “faulted the Ninth Circuit for going significantly further than Zadvydas,” by requiring bond hearings with a specific burden of proof imposed on the government for those detained under INA § 236(c), the Supreme Court found that the “detailed procedural requirements imposed by the Court of Appeals reach substantially beyond the limitation on detention authority recognized by Zadvydas.” Finally, because the lower courts did not reach the issue of whether such bond hearings were required under the Constitution, the Supreme Court did not consider these questions. Therefore, those who have been detained for long periods of time pending their withholding proceedings can still challenge their prolonged detention on due process grounds in accordance with Zadvydas.