Pham v. Guzman Chavez

No. 19-897 - Argued January 11, 2021
At Issue

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?

  • Vivek Suri, Assistant to the Solicitor General, on behalf of the Petitioners
  • Paul W. Hughes, on behalf of the Respondents
Background and Case Commentary

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:

Key Questions from Oral Argument

Justice Sotomayor to Respondent (45:30): Counsel, how much of your argument depends on your due process concern? As I understood, one of your arguments in your brief is, if we read it the government's way, we're inviting the potential of due process violations. Is that correct?

Denise Gilman: Thank you for raising the constitutional concerns, Your Honor. We ask the Court to read the statute in light of foundational constitutional norms protecting liberty. The parties agree that the interplay between 1226 and 1231 is complicated. It is easier to understand if the Court assumes that Congress developed this complex detention regime with the Constitution in mind. Under constitutional analysis, which is also consistent with the international consensus of nations expressed through human rights law, immigration detention should be exceptional since it is civil detention not imposed as punishment after a criminal proceeding. A deprivation of liberty should take place only where there is a strong governmental justification in an individual case—generally limited to addressing flight risk or danger or to executing immediate physical removal once deportation is inevitable. Against this constitutional backdrop, Section 1226 applies rather than Section 1231. Section 1231 cannot apply because it is set up to allow for a time-limited period of detention for the specific purpose of arranging physical removal. This section cannot apply to individuals in withholding of removal proceedings, because they cannot be immediately removed and may well never be removed. Their situation does not fit with the limited detention purpose of Section 1231 permitted by constitutional norms. On the other hand, Section 1226 is a constitutional fit with individuals in withholding of removal proceedings after reinstatement of a prior order. Section 1226 applies to detention decisions during lengthy pending proceedings where removal at the end is uncertain. It permits detention only where necessary in connection with the proceedings, mainly to ensure appearance at hearings. Unlike with detention for removal, there is no presumptive across-the-board need to detain non-citizens during the proceedings, so Section 1226 requires inquiry into flight risk or danger necessitating detention in a particular case, with review. Fundamentally, the government cannot choose the detention provision that tilts towards more frequent and lengthier detention—Section 1231—when the Constitution mandates a presumption of liberty.

Justice Kagan to Respondent (48:28):: [J]ust on the constitutional point again, is -- is your understanding -- I guess I'm a little bit confused as to what the government is -- is saying about Zadvydas and -- and -- and how it serves as a backdrop. Is -- is your understanding that, once six months passes, all of the people in your clients' position will be able to get hearings under Zadvydas?

Denise Gilman: No, Your Honor. The government’s invocation of Zadvydas is a helpful acknowledgment that there are constitutional limits on detention at play here. However, it is disingenuous for the government to argue that habeas or DHS review mechanisms address the constitutional concerns posed by lengthy detention in individual cases under Section 1231, particularly since the government regularly denies or opposes release under those mechanisms. First of all, to be clear, DHS’ own procedures under 1231 do not offer a hearing by an independent arbiter at all. And neither DHS’ procedures nor Zadvydas habeas cases are set up to address the scenario of individuals in active withholding of removal proceedings. The mechanisms instead consider whether physical removal has become impossible and detention for removal thus futile, despite the existence of a final executable removal order, usually where a country of return refuses to accept a deportee. In fact, the government regularly denies release under these mechanisms for those seeking withholding of removal citing to the ongoing nature of the proceedings. It asserts that removal may still occur upon conclusion of the proceedings and so detention should continue for their duration, essentially insisting on pausing the time-limited removal period under 1231 during the pendency of the proceedings. Sometimes the government even asserts that the delay in removal is attributable to the non-citizen for seeking withholding protection and so does not require release under the time limits set forth in Section 1231.

The government is trying to have it both ways. The government insists on applying Section 1231, the statute that detains automatically for immediate removal. But then it detains beyond the period allowed for removal under Section 1231 because of the pending proceedings. And it offers up as a solution inapposite procedures intended for situations where removal is impossible and then denies release under those mechanisms in practice. The government cannot simultaneously argue that removal is: (1) so impending that it justifies applying 1231; (2) so prolonged by ongoing proceedings that detention beyond the time period set out in Section 1231 is justifiable; and (3) so impossible that release might be sought under DHS procedures and Zadvydas. All of these government arguments are contradictory. It is much more straightforward to conclude that Congress did not intend any Catch-22 and instead assumed that individuals in ongoing withholding of removal proceedings would be subject to detention under 8 U.S.C. § 1226(a). Their detention could then be assessed on relevant grounds relating to potential risk of flight or danger during the proceedings, rather than on the inapplicable question of immediacy of a removal that might never occur.