WASHINGTON (CN) — The government’s indefinite detention of immigrants waiting for deportation divided the Supreme Court during Tuesday’s argument session as the justices squabbled over how to apply their precedents to the case without creating chaos for the lower courts.
At the heart of the case Tuesday are Antonio Arteaga-Martinez and Esteban Aleman Gonzalez, who came to the U.S. in search of a safer life because they feared violence in Mexico, their home country, at the hands of street gangs and criminals. The U.S. government previously deported both men back to Mexico after older border crossings, but both men chose to return repeatedly because of existing safety concerns.
As the men insist that they qualify for asylum because they fear violence back home, their legal battles have proved lengthy, leaving them in detention for indefinite periods of time. The Biden administration claims noncitizens must wait out their proceedings in detention, but Arteaga-Martinez and Gonzalez claim they were entitled to bond hearings after six months.
The cases relied heavily on the 2001 decision in Zadvydas v. Davis, in which Justice Stephen Breyer established that noncitizens could not be held indefinitely while waiting for their removal from the country. Zadvydas said that noncitizens must be removed from detention after six months when their removal is not “reasonably foreseeable.” Justice Brett Kavanaugh said the court needed to better define that definition to rule in the case.
“In terms of the lower courts, if we are flushing out reasonably foreseeable future there could be chaos unless we say something more specific,” the Trump appointee said.
Justice Elena Kagan seemed cautious about expanding Zadvydas.
“Suppose that this court thinks about Zadvydas as, you know, a precedent that needs to be applied, but not one that is altogether comfortable and should not be extended,” the Obama appointee said.
Chief Justice John Roberts asked the government’s lawyers how to limit the precedent without overruling it.
“I'm wondering … if you think that Zadvydas should be limited, as opposed to Zadvydas should be overruled, my question is, how do you distinguish the applicability of 1231h,” Roberts asked.
Pratik Shah, an attorney with Akin Gump Strauss, representing Arteaga-Martinez said the justices just had to apply Zadvydas for his client to prevail. For the government, however, Zadvydas doesn’t apply because Arteaga-Martinez’s detention was not indefinite.
“Unlike in Zadvydas, the detention here pending a proceeding is not indefinite,” said Austin Raynor, assistant to the solicitor general at the Department of Justice. “It has a logical termination point, the conclusion of the proceeding. It, therefore, does not trigger the Zadvydas rule.”
Arteaga-Martinez had been living and working in the U.S. for almost six years when he was detained in May of 2018. The government again attempted to remove him from the country, but an asylum officer determined he had a reasonable fear of future persecution and torture if he returned to Mexico.
After four months in detention, Arteaga-Martinez applied for a habeas petition asking the government to release him or provide a hearing to justify his continued detention. The government determined that his petition was premature since he had not yet been detained for six months. Once Arteaga-Martinez reached the six-month mark on his detention, a district court granted his habeas petition and ordered a bond hearing. The government appealed, but the Third Circuit summarily affirmed.
Justice Sonia Sotomayor pressed the government’s lawyer on his claim that most detentions are less than six months and that some proceedings last years. She asked how immigrants — most of whom do not speak English or have a legal background — are supposed to protect their rights when they aren’t entitled to lawyers to represent them.
“It's hard to see how impoverished people unfamiliar with the workings of this government, of this country, are going to find lawyers,” the Obama appointee remarked. “Seems like a theoric offering to say that an individual hearing is of any benefit to them, counsel.”
The government warned a ruling in the case could have large implications on immigration law.
“If this court were to hold it said Zadvydas applies to detention pending proceedings that would be a watershed ruling and immigration law,” Raynor said.
Gonzales’ case asked the court the same question on indefinite detention as asked by Arteaga-Martinez, however, it also asked if the lower courts had jurisdiction to grant relief in class action suits.
Another party in Gonzalez’s case is Jose Eduardo Gutierrez Sanchez. Like Arteaga-Martinez, both men are citizens of Mexico who came to the U.S. after being previously deported. While they were detained while waiting to be deported again, the men filed forms preventing them from being sent back to Mexico where they would face persecution or torture. Immigration judges denied their motions for lack of jurisdiction.
The men then filed a habeas suit, stating they were entitled to a bond hearing after six months in detention and seeking classwide declaratory and injunctive relief. The district court issued a preliminary injunction stopping the government from detaining members of the suit for over 180 days without a bond hearing before an immigration judge. The government appealed the ruling, but it was affirmed by the Ninth Circuit.
Arteaga-Martinez and Gonzalez claim the government illegally held them for indefinite periods in detention without bond hearings that they were entitled to.
Curtis Gannon, deputy solicitor general at the Department of Justice, called the case a “bond hearing regime” imposed by the Ninth and Third Circuits. He claimed Congress has limited the lower court’s ability to offer relief in class actions.
“The courts below could not enter a class-wide injunctive relief because in Section 1252f1, Congress has expressly limited the lower court's jurisdiction to enjoin or restrain the operation of certain provisions of the INA, including those governing postorder custody,” Gannon said.
Kagan dissected Gannon’s interpretation of the statute.
“The court cannot prohibit the functioning of a statute but what is also true is that the court can prohibit agency action that's in violation of the statute,” Kagan said.
Sotomayor argued that the government was asking the court to make an advisory ruling.
“You're asking us to make a ruling that would possibly be completely advisory on something that you by your own admission is very complex,” Sotomayor said.
Matthew Adams, an attorney for the Northwest Immigrant Rights Project representing Gonzalez, said the government’s ability to keep immigrants in detention for indefinite periods raised constitutional concerns.
“Interpreting the statute to permit the agency to lock up persons for prolonged periods at their discretion — often more than a year — without the most basic prerequisite of due process raises serious constitutional concerns,” Adams said.
Adams argued that Congress’s statute did not preclude relief being offered to other immigrants being detained indefinitely.
“It follows that others detained under the same statute are entitled to similar protection against unlawful detention,” Adams said.
The Justice Department and Shah declined to comment further following oral arguments. Adams did not respond to requests for comment.
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