Pham v. Guzman Chavez
Are the respondents—who were subject to reinstated removal orders, but with pending claims for withholding of removal—detained under 8 U.S.C. § 1226 or under 8 U.S.C. § 1231?Advocates
- Vivek Suri, Assistant to the Solicitor General, on behalf of the Petitioners
- Paul W. Hughes, on behalf of the Respondents
The Guzman-Chavez case has been teed up before the Supreme Court as a pure statutory interpretation issue. The Court will decide which of two detention statutes applies to certain non-citizens who are seeking to remain in the United States on the grounds that they would face persecution or torture if deported. Specifically, the case involves non-citizens who were previously deported, reentered the United States, and passed a screening interview determining that they have a viable claim to refugee-related protection known as withholding of removal that will be heard in the Immigration Court.
The first statute that may govern is 8 U.S.C. § 1226(a), which allows for detention or release of non-citizens “pending a decision on whether the alien is to be removed from the United States.” In other words, this detention statute applies to individuals who are still awaiting a decision as to whether they will be deported or not. Importantly, under this statute, the immigration authorities make an individualized determination regarding the need for detention, with independent review by the Immigration Court. The respondents—detained non-citizens—assert that this provision applies because persons in withholding of removal proceedings are awaiting a decision as to whether they will actually be removed on the reinstated removal order.
The second detention statute posited as applicable is 8 U.S.C. § 1231(a)(2). This provision envisions detention during a time-limited “removal period” once a removal decision is ready to be executed. Individuals detained under this provision are held automatically during the removal period. After the removal period, the Department of Homeland Security (DHS) makes a decision about continued detention, without any review by the Immigration Court. The petitioner here—the government—argues that this provision applies to persons in withholding of removal proceedings with a reinstated prior removal order even though that order cannot be executed yet and may never be executed if protection is granted.
While the statutory question may seem mundane, the stakes are high. Thousands of non-citizens each year pass the screening interview, with its high threshold, that places them into Immigration Court proceedings on a refugee-related withholding of removal claim. The Immigration Court proceedings are often lengthy, easily lasting six months and often dragging on for years. Non-citizens who win withholding cannot be removed to the countries they fled. While they could theoretically be removed to another country that would take them, after the non-citizens have a fair opportunity to claim danger there as well, removals to a third country rarely take place. Under the government’s interpretation, traumatized non-citizens who are seeking safety after surviving threats and attacks are deprived of their liberty. DHS serves as judge and jailor and is disinclined to release even in the most compelling cases—and even during the COVID-19 pandemic.
The oral argument before the Supreme Court laid out the statutory arguments on both sides with great clarity and effectiveness. However, the larger context was scarcely a shadow flitting in and out of the argument. Counsel for the detained non-citizens might have more emphatically reminded the Court of constitutional principles establishing that immigration detention is a civil, rather than criminal, process. As such, it is to be exceptional in nature and permissible only in individual cases with strong governmental justification and independent review. At the end of the oral argument before the Supreme Court, counsel for the government recognized that there were multiple plausible interpretations of the statute. Counsel suggested several “tiebreaker” considerations that would lead to a finding that 8 U.S.C. § 1231 applies. Yet, the government did not reference the Constitution as the most important tiebreaker of all.Pham v. Guzman Chavez on Oyez: https://www.oyez.org/cases/2020/19-897