OPINION ANALYSIS

The demise of rights-protective statutory interpretation for detained immigrants and the rise of “piecemeal” textualism

On Monday, the Supreme Court sided with the government in a pair of cases brought by noncitizens who are under deportation orders and were in lengthy detention, rejecting lower courts’ rights-protective interpretation of the relevant detention statute and blocking an important avenue for injunctive relief in immigration detention cases.

Johnson v. Arteaga-Martinez

In Johnson v. Arteaga-Martinez, the court held 8-1 that the Immigration and Nationality Act does not require bond hearings for noncitizens who are under deportation orders and in lengthy detention. A bond hearing does not guarantee release but allows a detained noncitizen to argue for release before an impartial adjudicator in exchange for payment of a bond.

Title 8, Section 1231, known as the “post-removal-order statute,” governs the detention of noncitizens who have been ordered removed from the United States. It mandates detention for the first 90 days after a removal order becomes administratively final, known as the “removal period.” It further provides that certain inadmissible noncitizens “may be detained beyond the removal period.”   

Immigration enforcement officials arrested Antonio Arteaga-Martinez in 2018 and reinstated an earlier removal order. He then requested a form of humanitarian protection known as “withholding of removal,” based on his fear of persecution or torture if returned to Mexico. Claims for withholding of removal can take years to adjudicate. The government detained Arteaga-Martinez pending resolution of his claim, and after four months of detention, he sought release via a writ of habeas corpus.

The question before the court was whether the post-removal-order statute could plausibly be read to require bond hearings after a noncitizen has been detained for six months, a period deemed presumptively reasonable by a 2001 case, Zadvydas v. Davis. The lower courts answered “yes,” invoking the constitutional avoidance canon of statutory interpretation. The canon holds that, where a statute is susceptible to more than one plausible interpretation, and one interpretation potentially raises a constitutional question, the court should avoid that interpretation. The lower courts found that the post-removal-order statute was ambiguous and had to be interpreted to require bond hearings to avoid potentially violating the due process clause.

Justice Sonia Sotomayor, writing for the majority, disagreed. She deemed the constitutional avoidance canon inapplicable because, in her view, the post-removal-order statute was not ambiguous. It could not plausibly be read to require a bond hearing.

Disposing of Arteaga-Martinez’s statutory claim, the court expressly reserved the question whether the post-removal-order statute violated the due process clause as applied to him, noting that this claim warranted fuller development in the lower courts. It further noted that the Department of Homeland Security could, through regulations, provide for the bond hearing Arteaga-Martinez sought. With the court closing the door on a potent version of constitutional avoidance, the locus of immigrants’ rights protection might very well have to shift toward agency self-regulation.

Only Justice Stephen Breyer dissented. He believed that Zadvydas governed, because Arteaga-Martinez challenged his detention under the same statutory provision at issue in Zadvydas. Breyer further argued that Arteaga-Martinez presented more sympathetic facts than the successful petitioner in Zadvydas, who won outright release.

Garland v. Gonzalez

The court divided 6-3 along familiar lines in Garland v. Gonzalez, which held that a jurisdictional provision of the statute, 8 U.S.C. § 1252(f)(1), prohibits lower federal courts from awarding class-wide injunctive relief to noncitizens challenging their detention. The plaintiffs in Gonzalez were similarly situated to Arteaga-Martinez and challenged their lengthy detention without bond hearings.

Based on the constitutional avoidance canon, the lower courts interpreted the post-removal-order statute to require bond hearings and further issued a class-wide injunction ordering such hearings. But in his opinion for the majority, Justice Samuel Alito concluded that the text of the jurisdictional provision did not support this result. He was joined by Chief Justice John Roberts and Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.

Section 1252(f)(1) states:

Regardless of the nature of the action or claim or of the identity of the parties or parties bringing the action, no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of [certain INA provisions], other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated.

Alito consulted dictionary definitions of “to enjoin,” “to restrain,” and “operation of,” arriving at the conclusion that this provision “generally prohibits lower courts from entering injunctions that order federal officials to take or to retrain from taking actions to enforce, implement, or otherwise carry out the specified statutory provisions” (italics added).

He further noted that, like roads, drainage ditches, and other forms of infrastructure or technology, statutes can “operate” properly or improperly. As a result, the jurisdictional provision prohibits injunctions even against illegal executive action. The one exception is for “an individual alien against whom proceedings under such part have been initiated.”

Sotomayor, joined by Breyer and Justice Elena Kagan, dissented, decrying the majority’s elevation of “piecemeal dictionary definitions and policy concerns over plain meaning and context.” Sotomayor emphasized the context of the words within the jurisdictional provision and the INA more broadly. She argued that the jurisdictional provision does not bar lower courts from issuing injunctions that order the executive branch to comply with the law.

First, the jurisdictional statute refers to the enjoining or restraining of “the operation of” certain INA provisions. But “operation” means “functioning” or “working,” and illegal executive action is “not a part of the functioning or working of the authorizing statute.” The dissent further rejected the majority’s analogy to technology or infrastructure that can operate properly or improperly, emphasizing that a statute “does not operate in conflict with itself.”

Second, the dissent challenged the majority’s conflation of “operation” with “implementation.” Unlike other neighboring INA provisions that use the term “implementation” freely, the jurisdictional provision does not use it. As a result, the natural reading of that provision in its proper context does not encompass a prohibition on injunctions relating to how the executive “implements” the law.

The implications of these decisions are serious. Under Arteaga-Martinez, noncitizens challenging indefinite detention under Section 1231 must resort to constitutional litigation (or advocacy to pressure DHS to voluntarily change its practices). But under Gonzalez, very few noncitizens will be able to bring such challenges or win relief against unconstitutional detention because they must retain counsel individually or engage in complex federal litigation pro se. Detained immigrants face many hurdles in finding and consulting with counsel as it is. With the additional burden, Gonzalez denies them, in Sotomayor’s words, “a meaningful opportunity to protect their rights.”