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Congressional
~ Research Service
High Court Limits Ability of Aliens Ordered
Removed to Challenge Prolonged Detention
July 20, 2022
Non-U.S. nationals (aliens, as the term is used in the Immigration and Nationality Act [INA]) ordered
removed may be detained pending efforts to effectuate their transfer to a foreign country. In its 2001
decision in Zadvydas v Davis, the Supreme Court held that the indefinite detention of aliens awaiting
removal would raise serious constitutional concerns. The Court thus construed the statute authorizing
their detention as having an implicit temporal limitation of six months, after which an alien should
generally be released absent a significant likelihood of removal in the reasonably foreseeable future.
Recently, in Johnson v. Arteaga-Martinez, the Court considered whether the statute should also be
construed as requiring bond hearings for detained aliens. In a nearly unanimous opinion, the Court held
that the statute does not require bond hearings for aliens ordered removed after six months of detention, or
require the government to prove that any continued detention is warranted. In a related case, Garland v.
Gonzalez, the Court held that a separate statute prohibited lower courts from issuing class-wvide
injunctions requiring the government to provide bond hearings for detained aliens who have been ordered
removed. This Legal Sidebar examines the Court's rulings in Arteaga-Martinez and Gonzalez.
Legal Background
As discussed in this CRS report, the immigration detention scheme is multifaceted, and different rules
may apply at different stages of the removal process. Under INA @ 236(a), the Department of Homeland
Security's (DHS's) detention of an alien during formal removal proceedings is discretionary, unless the
alien is subject to mandatory detention (e.g., if the alien was convicted of specified crimes). If detained,
the alien may request an immigration judge's review of DHS's custody determination at a bond hearing
and potentially secure release from custody pending the outcome of the removal proceedings.
In contrast, INA @ 241(a) governs the detention of an alien who is ordered removed. Under the statute,
the alien must generally be removed within a 90-day removal period that typically begins when the
order becomes administratively final. While detention is generally mandatory during the removal
period, in most cases the alien must be released on an order of supervision if not removed within that
period. INA @ 241(a)(6), however, provides that certain aliens may be detained beyond the removal
period (e.g., those found to be a risk to the community or unlikely to comply with the order of
Congressional Research Service
https://crsreports.congress.gov
LSB10793
CRS Legal Sidebar
Prepared for Members and
Committees of Congress](ViewImageLocal?handle=hein.crs/govehzd0001&div=1&collection=&method=preview&ext=.png&size=3)
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