The US Supreme Court heard oral arguments for two immigration cases Tuesday that address the rights of detained noncitizens to have a bond hearing after six months of detention. Both cases were brought by noncitizens seeking asylum relief who had been detained for extended periods of time without bond hearings following the issuance of a removal order.
The first case, Johnson v. Arteaga-Martinez, involves a Mexican national who entered the US without inspection four times and was arrested and detained after the fourth entry in 2018. Immigration and Customs Enforcement (ICE) reinstated a removal order from one of Arteaga-Martinez’s earlier entries, but Arteaga-Martinez filed for deferral of removal on the grounds that he had a credible fear of returning to Mexico due to threats of gang violence.
Arteaga-Martinez’s asylum case was referred to an immigration judge but he remained in detention while it was processed. After several months in detention, Arteaga-Martinez filed a petition for a writ of habeas corpus, arguing that the Immigration and Nationality Act entitled him to a bond hearing after 6 months of detention to evaluate whether he was a flight risk.
The second case, Garland v. Aleman Gonzalez, is a consolidation of class actions from noncitizens who also were detained after illegal re-entry from Mexico and subsequent filings for asylum. The respondents filed for bond hearings to prove that they were not flight risks, but immigration judges denied their motions for a lack of jurisdiction. The respondents then filed habeas corpus petitions in federal court.
In 2001, the Supreme Court ruled in Zadvydas v. Davis that post-removal detention could not be extended beyond six months unless there was a realistic chance that the noncitizen could be removed. The US Constitution forbids imprisonment without due process of law and guarantees the right to a writ of habeas corpus. These rights make it unclear whether migrants maintain a right to a bond hearing for cases where the noncitizen’s removal is not realistic or imminent, such as for individuals in the above cases with pending asylum petitions that may last for years.