Johnson v. Arteaga-Martinez

P R E L I M I N A R Y P R I N T
Volume 596 U. S. Part 2
Pages 573–590
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
June 13, 2022
REBECCA A. WOMELDORF
reporter of decisions
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OCTOBER
TERM, 2021
573
Syllabus
JOHNSON, ACTING DIRECTOR OF U. S. IMMI-
GRA
TION AND CUSTOMS ENFORCEMENT,
et al. v. ARTEAGA-MARTINEZ
certiorari to the united states court of appeals for
the third circuit
No. 19–896. Argued January 11, 2022—Decided June 13, 2022
Respondent Antonio Arteaga-Martinez is a citizen of Mexico who was re-
moved in July 2012 and reentered the United States in September 2012.
U. S. Immigration and Customs Enforcement (ICE) issued a warrant for
Arteaga-Martinez's arrest in 2018. ICE reinstated Arteaga-Martinez's
earlier removal order and detained him pursuant to its authority under
the Immigrati on and Nati ona lity Ac t. See 8 U. S. C. § 1231(a).
Arteaga-Martinez applied for withholding of removal under § 1231(b)(3),
as well as relief under regulations implementing the Convention Against
Torture, based on his fear that he would be persecuted or tortured if he
returned to Mexico. An asylum offcer determined he had established
a reasonable fear of persecution or torture, and the Department of
Homeland Security referred him for withholding-only proceedings be-
fore an immigration judge.
After being detained for four months, Arteaga-Martinez fled a peti-
tion for a writ of habeas corpus in District Court challenging, on both
statutory and constitutional grounds, his continued detention without a
bond hearing. The Government conceded that Arteaga-Martinez would
be entitled to a bond hearing after six months of detention based on
circuit precedent holding that a noncitizen facing prolonged detention
under § 1231(a)(6) is entitled by statute to a bond hearing before an
immigration judge and must be released unless the Government estab-
lishes, by clear and convincing evidence, that the noncitizen poses a risk
of fight or a danger to the community. The District Court granted
relief on Arteaga-Martinez's statutory claim and ordered the Govern-
ment to provide Arteaga-Martinez a bond hearing. The Third Circuit
summarily affrmed. At the bond hearing, the Immigration Judge con-
sidered Arteaga-Martinez's fight risk and dangerousness and ultimately
authorized his release pending resolution of his application for withhold-
ing of removal.
Held: Section 1231(a)(6) does not require the Government to provide non-
citizens detained for six months with bond hearings in which the Gov-
ernment bears the burden of proving, by clear and convincing evidence,
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574 JOHNSON
v. ARTEAGA-MARTINEZ
Syllabus
that a noncitizen poses a fight risk or a danger to the community.
Pp
. 578–584.
(a) Section 1231(a)(6) cannot be read to require the hearing proce-
dures imposed below. After the entry of a fnal order of removal
against a noncitizen, the Government generally must secure the nonciti-
zen's removal during a 90-day removal period, during which the Govern-
ment “shall” detain the noncitizen. 8 U. S. C. §§ 1231(a)(1), (2). Be-
yond the remova l per i od, § 1231(a)(6) defi nes four categor ies of
noncitizens who “may be detained . . . and, if released, shall be subject
to [certain] terms of supervision.” There is no plausible construction
of the text of § 1231(a)(6) that requires the Government to provide bond
hearings with the procedures mandated by the Third Circuit. The stat-
ute says nothing about bond hearings before immigration judges or bur-
dens of proof, nor does it provide any other indication that such proce-
dures are required. Faithfully applying precedent, the Court cannot
discern the bond hearing procedures required below from § 1231(a)(6)'s
text. Pp. 578–580.
(b) Arteaga-Martinez argues that § 1231(a)(6)'s references to fight
risk, dangerousness, and terms of supervision, support the relief or-
dered below. Similarly, respondents in the companion case, see Gar-
land v. Gonzalez, 594 U. S. –––, analogize the text of § 1231(a)(6) to that
of 8 U. S. C. § 1226(a), noting that noncitizens detained under § 1226(a)
have long received bond hearings at the outset of detention. Assuming
without deciding that an express statutory reference to “bond” (as in
§ 1226(a)) might be read to require an initial bond hearing, § 1231(a)(6)
contains no such reference, and § 1231(a)(6)'s oblique reference to terms
of supervision does not suffce. The parties agree that the Government
possesses discretion to provide bond hearings under § 1231(a)(6) or oth-
erwise, but this Court cannot say the statute requires them.
Finally, Arteaga-Martinez argues that Zadvydas v. Davis, 533 U. S.
678, which identifed ambiguity in § 1231(a)(6)'s permissive language,
supports a view that § 1231(a)(6) implicitly incorporates the specifc bond
hearing requirements and procedures imposed by the Court of Appeals.
In Zadvydas, this Court construed § 1231(a)(6) “in light of the Constitu-
tion's demands” and determined that § 1231(a)(6) “does not permit in-
defnite detention” but instead “limits an alien's post-removal-period de-
tention to a period reasonably necessary to bring about that alien's
removal from the United States.” 533 U. S., at 689. The bond hearing
requirements articulated by the Third Circuit, however, reach substan-
tially beyond the limitation on detention authority Zadvydas recog-
nized. Zadvydas does not require, and Jennings v. Rodriguez, 583
U. S. –––, does not permit, the Third Circuit's application of the canon
of constitutional avoidance. Pp. 580–582.
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Opinion of the Court
(c) Constitutional challenges to prolonged detention under § 1231(a)(6)
were
not addressed below, in part because those courts read § 1231(a)(6)
to require a bond hearing. Arteaga-Martinez's alternative theory that
he is presumptively entitled to release under Zadvydas also was not
addressed below. The Court leaves these arguments for the lower
courts to consider in the frst instance. See Cutter v. Wilkinson, 544
U. S. 709, 718, n. 7. Pp. 583–584.
Reversed and remanded.
Sotomayor, J., delivered the opinion of the Court, in which Roberts,
C. J., and Thomas, Alito, Kagan, Gorsuch, Kavanaugh, and Barrett,
JJ., joined. Thomas, J., fled a concurring opinion, in which Gorsuch, J.,
joined as to Part I, post, p. 584. Breyer, J., fled an opinion concurring
in part and dissenting in part, post, p. 587.
Austin L. Raynor argued the cause for petitioners. With
him on the briefs were Acting Solicitor General Fletcher,
Solicitor General Prelogar, Acting Assistant Attorney Gen-
eral Boynton, Deputy Solicitor General Gannon, Vivek
Suri, Jessica W. D'Arrigo, and John J. W. Inkeles.
Pratik A. Shah argued the cause for respondent. With
him on the brief were James E. Tysse, Aileen M. McGrath,
Marcia Binder Ibrahim, and Brock L. Bevan.*
Justice Sotomayor delivered the opinion of the Court.
Section 241(a) of the Immigration and Nationality Act
(INA), codifed at 8 U. S. C. § 1231(a), authorizes the deten-
tion of noncitizens who have been ordered removed from the
United States. See 110 Stat. 3009 – 598. In par ticu lar,
§ 1231(a)(6) provides that after a 90-day “removal period,” a
noncitizen “may be detained” or may be released under
ter ms of superv isi on. Th is Cour t recently held that
*Briefs of amici curiae urging affrmance were fled for the Constitu-
tional Accountability Center by Elizabeth B. Wydra, Brianne J. Gorod,
and Brian R. Frazelle; and for Former Immigration Judges et al. by Jo-
seph R. Palmore and James J. Beha II.
Nancy Morawetz fled a brief for Asian Americans Advancing Justice–
Asian Law Caucus et al. as amici curiae.
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Opinion of the Court
§ 1231(a) applies to individuals who are removed and who
then
reenter without authorization and apply for withholding
of removal based on a fear that they will be persecuted or
tortured if returned to their countries of origin. See John-
son v. Guzman Chavez, 594 U. S. –––, ––– (2021). The issue
in this case is whether the text of § 1231(a)(6) requires the
Government to offer detained noncitizens bond hearings
after six months of detention in which the Government bears
the burden of proving by clear and convincing evidence that
a noncitizen poses a fight risk or a danger to the community.
It does not.
I
Respondent Antonio Arteaga-Martinez is a citizen of Mex-
ico. He admits that he has entered the United States with-
out inspection four times. He frst entered in March 2001
and was detained at the border and removed; he reentered
in April of that year. Ten years later, in 2011, he left the
country to care for his sick mother, reentering in July of the
following year. The Government again detained him at the
border, determined he was inadmissible, and removed him.
Arteaga-Martinez represents that, after returning to Mex-
ico, he was beaten violently by members of a criminal street
gang. Fearing that he would be persecuted or tortured
again with the acquiescence of government offcials, he reen-
tered the United States in September 2012.
In May 2018, U. S. Immigration and Customs Enforcement
(ICE) issued a warrant for Arteaga-Martinez's arrest. By
then, he had been living and working in the United States
for nearly six years and was expecting the birth of his frst
child. He had no criminal record aside from minor traffc
violations. ICE detained Arteaga-Martinez without any op-
portunity for bond and reinstated his earlier removal order.
Arteaga-Martinez applied for withholding of removal
under § 1231(b)(3), as well as relief under regulations imple-
menting the Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, Dec. 10,
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Opinion of the Court
1984, S. Treaty Doc. No. 100–20, 1465 U. N. T. S. 113. The
D
epartment of Homeland Security (DHS) referred Arteaga-
Martinez to an asylum offcer, who found that Arteaga-
Martinez's testimony was credible and that he had estab-
lished a reasonable fear of persecution or torture. As a
result, DHS referred Arteaga-Martinez's claims for adjudica-
ti on by an i mmigrati on judge i n what we have ca l led
“w ithholding-only proceedings. ” G uzman Chav ez, 594
U. S., at –––. Pending these proceedings, however, the Gov-
ernment continued to detain Arteaga-Martinez pursuant to
§ 1231(a)(6).
1
In September 2018, after he had been detained for four
months without a hearing, Arteaga-Martinez fled a petition
for a writ of habeas corpus in the U. S. District Court for the
Middle District of Pennsylvania. His petition challenged his
continued detention without a bond hearing on both statu-
tory and constitutional grounds. Shortly thereafter, in a
separate case, the Third Circuit held that a noncitizen facing
prolonged detention under § 1231(a)(6) is entitled by statute
to a bond hearing before an immigration judge and must be
released from detention unless the Government establishes,
by clear and convincing evidence, that the noncitizen poses a
risk of fight or a danger to the community. See Guerrero-
Sanchez v. Warden York County Prison, 905 F. 3d 208, 224,
and n. 12 (2018).
The Government conceded that under Guerrero-Sanchez,
Arteaga-Martinez would be entitled to a bond hearing pursu-
ant to § 1231(a)(6) as of November 4, 2018, six months after
the start of his detention. See App. to Pet. for Cert. 4a.
Once Arteaga-Martinez's time in detention had reached
nearly six months, a Magistrate Judge recommended that
the District Court grant a writ of habeas corpus on Arteaga-
1
Arteaga-Martinez represents, and the Government does not dispute,
that the Government conducted an administrative review of his danger-
ousness and fight risk in August 2018 and denied him release without
interviewing him or providing a hearing. See 8 CFR § 241.4(h)(1) (2021).
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Martinez's statutory claim and order the Government to pro-
v
ide him an individualized bond hearing before an immigra-
tion judge. Id., at 4a–5a. The District Court adopted the
report and recommendation and ordered a bond hearing.
Id., at 3a.
The Government appealed. The Court of Appeals sum-
marily affrmed, citing its earlier decision in Guerrero-
Sanch ez. See App. to Pet. for Cer t. 1a – 2a. Ar teaga-
Martinez received a bond hearing at which an Immigration
Judge, considering Arteaga-Martinez's fight risk and dan-
gerousness, author i zed h is release on bond. Ar teaga-
Martinez posted bond and was released pending a fnal de-
termination on his application for withholding of removal,
which, as of today, the Immigration Judge has yet to make.
Pet. for Cert. 6; Brief for Respondent 10–11.
This Court granted certiorari. 594 U. S. ––– (2021).
2
II
A
The INA establishes procedures for the Government to
use when removing certain noncitizens from the United
States and, in some cases, detaining them. The section at
issue here, 8 U. S. C. § 1231(a), governs the detention, release,
and removal of individuals “ordered removed.” This Court
has held that § 1231(a) applies to individuals with pending
withholding-only proceedings. See Guzman Chavez, 594
U. S., at ––– – –––.
After the entry of a fnal order of removal against a noncit-
izen, the Government generally must secure the noncitizen's
removal during a 90-day “ `removal period.' ” § 1231(a)
(1)(A). The statute provides that the Government “shall”
detain noncitizens during the statutory removal period.
§ 1231(a)(2). After the removal period expires, the Govern-
2
The Court also granted certiorari in a companion case presenting the
same question. See Garland v. Gonzalez, 594 U. S. ––– (2021).
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Opinion of the Court
ment “may” detain only four categories of people: (1) those
who
are “inadmissible” on certain specifed grounds; (2) those
who are “removable” on certain specifed grounds; (3) those
it determines “to be a risk to the community”; and (4) those
it determines to be “unlikely to comply with the order of
removal.” § 1231(a)(6). Individuals released after the re-
moval period remain subject to terms of supervision. Ibid.
Section 1231(a)(6) does not expressly specify how long de-
tention past the 90-day removal period may continue for
those who fall within the four designated statutory catego-
ries. In Zadvydas v. Davis, 533 U. S. 678 (2001), the Court
observed that the statute's use of the term “may” introduces
some ambiguity and “does not necessarily suggest unlimited
discretion.” Id., at 697. The Court explained that “[a] stat-
ute permitting indefnite detention of an alien would raise
a serious constitutional problem,” noting that it had upheld
noncriminal detention as consistent with the Due Process
Clause of the Fifth Amendment only under certain narrow
circumstances. Id., at 690. Accordingly, the Court applied
the canon of constitutional avoidance and determined that
“read in light of the Constitution's demands,” § 1231(a)(6)
“does not permit indefnite detention” but instead “limits an
alien's post-removal-period detention to a period reasonably
necessary to bring about that alien's removal from the
United States.” Id., at 689.
Subsequently, in Jennings v. Rodriguez, 583 U. S. –––
(2018), this Court considered the text of other provisions of
the INA that authorize detention. One such provision was
§ 1226(a), which governs the detention of certain noncitizens
present in the country who were inadmissible at the time of
entry or who have been convicted of certain criminal of-
fenses since they were admitted. Id., at –––. Section
1226(a) provides that the attorney general “may” detain
these noncitizens pending their removal proceedings and
“may release” such individuals on “bond . . . or conditional
parole.” 8 U. S. C. §§ 1226(a)(1), (2). Noncitizens detained
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under § 1226(a) receive bond hearings after the Government
i
nitially detains them. See 8 CFR §§ 236.1(d)(1), 1236.1(d)(1)
(2021). Relying on Zadvydas, the Ninth Circuit had inter-
preted § 1226(a) to require additional, periodic bond hearings
every six months, with the burden on the Government to
prove by clear and convincing evidence that further deten-
tion was justifed. Jennings, 583 U. S., at ––– – –––. The
Court in Jennings disagreed. It held that “the meaning
of the relevant statutory provisio[n] is clear” and that it did
not support a periodic bond hearing requirement. Id.,
at –––.
The Jennings Court also rejected the lower court's appli-
cation of the canon of constitutional avoidance. Earlier in
its opinion, the Court explained that “[t]he canon of constitu-
tional avoidance `comes into play only when, after the appli-
cation of ordinary textual analysis, the statute is found to
be susceptible of more than one construction.' ” Id., at –––
(quoting Clark v. Martinez, 543 U. S. 371, 385 (2005)). “In
the absence of more than one plausible construction, the
canon simply has no application. ” Jennings, 583 U. S.,
at ––– (internal quotation marks omitted). Applying this
reasoning to § 1226(a), the Court concluded that the canon
was inapposite because “[n]othing in § 1226(a)'s text . . . even
remotely supports the imposition of either of th[e] require-
ments” the Ninth Circuit had imposed. Id., at –––.
B
The question presented is whether § 1231(a)(6) requires
bond hearings before immigration judges after six months of
detention in which the Government bears the burden of
proving by clear and convincing evidence that a noncitizen
poses a fight risk or a danger to the community. Section
1231(a)(6) provides that certain noncitizens who have been
ordered removed “may be detained beyond the removal pe-
riod and, if released, shall be subject to [certain] terms of
supervision.” This text, which does not address or “even
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hin[t]” at the requirements imposed below, directs that we
answer
this question in the negative. Id., at –––.
The Jennings Court emphasized that the canon of constitu-
tional avoidance is only applicable where a statute has “more
than one plausible construction.” Id., at –––. Here, there
is no plausible construction of the text of § 1231(a)(6) that
requires the Government to provide bond hearings before
immigration judges after six months of detention, with the
Government bearing the burden of proving by clear and con-
vincing evidence that a detained noncitizen poses a fight risk
or a danger to the community. Section 1231(a)(6) provides
only that a noncitizen ordered removed “may be detained
beyond the removal period” and if released, “shall be subject
to [certain] terms of supervision.” On its face, the statute
says nothing about bond hearings before immigration judges
or burdens of proof, nor does it provide any other indication
that such procedures are required. Faithfully applying our
precedent, the Court can no more discern such requirements
from the text of § 1231(a)(6) than a periodic bond hearing
requirement from the text of § 1226(a). See id., at –––.
Section 1231(a)(6) therefore cannot be read to incorporate
the procedures imposed by the courts below as a matter of
textual command.
Arteaga-Martinez responds that § 1231(a)(6)'s references
to fight risk, dangerousness, and “ `terms of supervision' ”
support the relief ordered below. Brief for Respondent 29–
30. Similarly, respondents in the companion case analogize
the text of § 1231(a)(6) to that of § 1226(a), and they note that
noncitizens detained under § 1226(a) have long received bond
hearings at the outset of detention. Brief for Respondents
in Garland v. Gonzalez, O. T. 2021, No. 20–322, pp. 22–24.
However, assuming without deciding that an express statu-
tory reference to “bond” (as in § 1226(a)) might be read to
require an initial bond hearing, § 1231(a)(6) contains no such
reference. A more oblique reference to terms of supervision
does not suffce.
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Respondents in the companion case also emphasize that
r
eg u lati ons offer custody hear i ngs before i mmigrati on
judges for nonciti zens the Gover nment det ai ns under
§ 1231(a)(6) because it deems them “specially dangerous.”
See 8 CFR § 241.14; Brief for Respondents in No. 20–322, at
16, 25–26. They argue that if the statute can allow custody
hearings for these individuals, it requires such hearings
for those in Arteaga-Martinez's situation as well. Federal
agencies, however, “are free to grant additional procedural
rights in the exercise of their discretion.” Vermont Yankee
Nuclear Power Corp. v. Natural Resources Defense Council,
Inc., 435 U. S. 519, 524 (1978). “[R]eviewing courts,” on the
other hand, “are generally not free to impose them if the
agencies have not chosen to grant them.” Ibid. The par-
ties do not dispute that the Government possesses discretion
to provide bond hearings under § 1231(a)(6), see Brief for
Petitioners 15, but this Court cannot say, consistent with
Jennings, that the statutory text requires them.
Finally, Arteaga-Martinez argues that Zadvydas, which
identifed ambiguity in § 1231(a)(6)'s permissive language,
supports a view that § 1231(a)(6) implicitly incorporates the
specifc bond hearing requirements and procedures enumer-
ated by the Court of Appeals. In Jennings, however, this
Court faulted the Ninth Circuit for going signifcantly fur-
ther than Zadvydas. 583 U. S., at –––. Jennings did not
overrule or abrogate Zadvydas. But the detailed procedural
requirements imposed by the Court of Appeals below reach
substantially beyond the limitation on detention authority
recognized in Zadvydas. Zadvydas does not require, and
Jennings does not permit, the Third Circuit's application of
the canon of constitutional avoidance.
3
3
Because the text of 8 U. S. C. § 1231(a)(6) does not require the relief
ordered below, the Court does not address the parties' disagreements over
whether that relief contravened § 1231(h) or impermissibly reallocated ex-
ecutive authority.
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C
Separately
from his statutory claims, Arteaga-Martinez
contends that reading § 1231(a)(6) not to require bond hear-
ings when detention becomes prolonged “raises serious due
process concerns.” Brief for Respondent 24. He points out
that outside of the national-security context, this Court has
never “authorized prolonged detention without an individu-
alized hearing, before a neutral adjudicator, at which the de-
tainee has a meaningful opportunity to participate.” Ibid.
(collecting cases). He asserts that the Government's inter-
est in denying bond hearings is minimal because such hear-
ings do not require release. Id., at 26 (citing Zadvydas, 533
U. S., at 696). And he argues that his status as an individual
with a reinstated removal order “ `bears no relation to [his]
dangerousness,' ” as evidenced by the fact that an Immigra-
tion Judge authorized his release on bond. Brief for Re-
spondent 26–27 (quoting Zadvydas, 533 U. S., at 692). The
Government responds that regulations directing ICE off-
cials to conduct administrative custody reviews for individu-
als in ICE detention provide adequate process, “at least as
a general matter.” Brief for Petitioners 18–19. The Gov-
ernment contends that these regulations—which generally
require a custody review at the end of the 90-day removal
period, a second review by a panel at ICE headquarters after
six months of detention, and subsequent annual reviews—
provide constituti onally sufficient substantive and pro-
cedura l protec ti ons for nonciti zens whose detenti on is
prolonged. Id., at 18. The Government also notes that as-
applied constitutional challenges remain available to address
“exceptional” cases. Id., at 21.
“[W]e are a court of review, not of frst view.” Cutter v.
Wilkinson, 544 U. S. 709, 718, n. 7 (2005). The courts below
did not reach Arteaga-Martinez's constitutional claims be-
cause they agreed with him that the statute required a bond
hearing. We leave them for the lower courts to consider in
the frst instance. See Jennings, 583 U. S., at –––.
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Thomas, J., concurring
Arteaga-Martinez also advances an alternative theory that
he
is presumptively entitled to release under Zadvydas be-
cause, in view of the length of time that withholding-only
proceedings tend to take, his removal is not reasonably fore-
seeable. See Brief for Respondent 19–22. The Govern-
ment disagrees on the merits and adds that the issue is not
properly before this Court because it would alter the scope
of the judgment below, which granted Arteaga-Martinez a
bond hearing, not release. See Reply Brief 11–12 (citing
Trans World Airlines, Inc. v. Thurston, 469 U. S. 111, 119,
n. 14 (1985)). Again, we decline to reach this claim in the
frst instance. See Cutter, 544 U. S., at 718, n. 7.
***
The judgment of the Court of Appeals for the Third Cir-
cuit is reversed, and the case is remanded for further pro-
ceedings consistent with this opinion.
It is so ordered.
Justice Thomas, with whom Justice Gorsuch joins as
to Part I, concurring.
I join the Court's opinion because it correctly decides that
8 U. S. C. § 1231(a)(6) does not require periodic, 6-month bond
hearings. I write separately to make three points.
I
First, we lack jurisdiction to hear this case. Under 8
U. S. C. § 1252(b)(9), a federal court has jurisdiction to review
“questions of law and fact . . . arising from any action taken
or proceeding brought to remove an alien . . . only” in two
circumstances: (1) when the court reviews a “fnal order” of
removal, or (2) when § 1252 otherwise grants jurisdiction.
See, e. g., Johnson v. Guzman Chavez, 594 U. S. –––, –––
(2021) (Thomas, J., concurring in part and concurring in
judgment); Jennings v. Rodriguez, 583 U. S. –––, ––– – –––
(2018) (same). This jurisdictional zipper clause “cover[s] all
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585
Thomas, J., concurring
claims related to removal proceedings,” including detention-
related
“withholding-of-removal claims.” Guzman Chavez,
594 U. S., at ––– (internal quotation marks omitted); see also
Jennings, 583 U. S., at ––– – –––.
Because Arteaga-Martinez does not seek review of a fnal
removal order or otherwise invoke § 1252, and because his
claim “aris[es] from” his removal proceedings, I would vacate
and remand with instructions to dismiss for lack of jurisdic-
tion. Nonetheless, “because the Court has held that we
have jurisdiction in cases like these and the Court's opinion
is otherwise correct,” I join it in full. Guzman Chavez, 594
U. S., at ––– (internal quotation marks omitted).
II
Second, as I have explained elsewhere, there is consider-
able historical evidence that the Due Process Clause does not
“apply to laws governing the removal of aliens.” Sessions
v. Dimaya, 584 U. S. –––, ––– (2018) (dissenting opinion).
But even assuming the Due Process Clause extends to some
aliens contesting their removability, it does not protect from
detention an alien who, like Arteaga-Martinez, does not chal-
lenge his fnal removal order. Illegal aliens deemed remov-
able have no “right of release into this country.” Zadvydas
v. Davis, 533 U. S. 678, 703 (2001) (Scalia, J., dissenting). Al-
though the Court properly declines to decide Arteaga-
Martinez's due process claim, see ante, at 583, we should re-
visit whether the Due Process Clause applies at all in this
context.
III
Third, this case illustrates why we should overrule
Zadvydas at the earliest opportunity. There, the Court held
that § 1231(a)(6) “would raise a serious constitutional prob-
lem” under the Fifth Amendment if it permitted “indefnite
detention of an alien.” 533 U. S., at 690. To avoid that sup-
posed “problem,” the Court deemed “ambiguous” the statu-
tory authorization that a removable alien “may be detained
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586 JOHNSON
v. ARTEAGA-MARTINEZ
Thomas, J., concurring
beyond the removal period,” and then, clothed in constitu-
ti
onal garb, invoked that manufactured ambiguity to graft a
made-up rule onto § 1231(a)(6). Id., at 697. Namely, the
Court decided that immigration authorities can detain an
alien only long enough to accomplish the “basic purpose [of]
effectuating an alien's removal” and must release him “once
removal is no longer reasonably foreseeable.” Id., at 697, 699.
The “presumptively reasonable” detention period, the Court
declared, was six months. Id., at 701. The Court offered
no textual support for that (or any) length of time. See ibid.
As we later implied in Jennings, the constitutional-
avoidance canon cannot justify adoption of such an implausi-
ble construction of § 1231(a)(6). See 583 U. S., at –––. And,
until we overrule Zadvydas, it will continue to invite nothing
but mischief. An ill-defned, quasi-constitutional command
of “reasonableness” inevitably encourages courts to fashion
procedural rules with no basis in statutory text. We con-
fronted that mischief in Jennings, see 583 U. S., at ––– (re-
versing the Ninth Circuit for “all but ignor[ing] the statutory
text” and instead “read[ing] Zadvydas . . . as essentially
granting a license to graf t a time limit onto the text of
§ 1225(b)”), and we do so again today, compare ante, at 582,
with Guerrero-Sanchez v. Warden York County Prison, 905
F. 3d 208, 223 (CA3 2018). We will be forced to engage in
this jurisprudential whack-a-mole until we recognize that
Zadvydas was wrong the day it was decided and thus does
not warrant “stare decisis effect.” Clark v. Martinez, 543
U. S. 371, 401 (2005) (Thomas, J., dissenting); see also Gam-
ble v. United States, 587 U. S. –––, ––– (2019) (Thomas, J.,
concurring) (“[W]e should not invoke stare decisis to uphold
precedents that are demonstrably erroneous”).
***
These three points notwithstanding, the Court's opinion
correctly interprets § 1231(a)(6). Accordingly, I concur.

Cite
as: 596 U. S. 573 (2022)
587
Opinion of Breyer, J.
Justice Breyer, concurring in part and dissenting in
par
t.
The Government can normally detain persons unlawfully
present in, and ordered removed from, the United States for
a 90-day statutory “removal period.” 8 U. S. C. § 1231(a).
However, § 1231(a)(6) provides that the Attorney General
may sometimes hold such a person in custody for a longer
period. It says:
“An alien ordered removed [1] who is inadmissible [2]
[or] removable [as a result of violations of status require-
ments or entry conditions, certain violations of criminal
law, or reasons of security or foreign policy] or [3] who
has been determined by the Attorney General to be a
risk to the community or unlikely to comply with the
order of removal, may be detained beyond the removal
period . . . .”
In Zadvydas v. Davis, 533 U. S. 678, 689 (2001), “we read
an implicit limitation into” this provision. Because a “stat-
ute permitting indefnite detention of an alien would raise a
serious constitutional problem,” we held that the “statute,
read in light of the Constitution's demands, limits an alien's
post-removal-period detention to a period reasonably neces-
sary to bring about that alien's removal from the United
States. It does not permit indefnite detention.” Id., at
689–690; see also id., at 690–696 (explaining potential consti-
tutional concerns presented by indefnite detention under
§ 1231(a)(6)).
We also held that the period reasonably necessary to effect
removal was presumptively six months. Id., at 701. “[W]e
recognize[d] that period” “for the sake of uniform adminis-
tration in the federal courts.” Ibid. But “[a]fter this 6-
month period, once the alien provides good reason to believe
that there is no signifcant likelihood of removal in the rea-
sonably foreseeable future, the Government must respond
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with evidence suffcient to rebut that showing. And for de-
tenti
on to remain reasonable, as the period of prior postre-
moval confnement grows, what counts as the `reasonably
foreseeable future' conversely would have to shrink.” Ibid.
In my view, Zadvydas controls the outcome here. The
statutory language is identical, which is not surprising, for
this case concerns the same statutory provision. There are
two conceivable differences between this case and Zadvydas,
but both argue in favor of applying Zadvydas' holding here.
First, the respondent here, Antonio Arteaga-Martinez, has
been ordered removed, and is therefore subject to § 1231(a),
for a different reason than the persons whose cases we con-
sidered in Zadvydas. Kestutis Zadvydas and Kim Ho Ma
were ordered removed because they had been convicted of
serious crimes. Id., at 684–685. Zadvydas had committed
drug crimes, attempted robbery, attempted burglary, and
theft; Ma was involved in a gang-related shooting and con-
victed of manslaughter. Ibid. Arteaga-Martinez's only
crime (besides minor traffc violations) is entering the United
States without inspection. Ante, at 576. The Government
seeks to detain him while an immigration judge considers his
claim that he will be persecuted or tortured if he is returned
to Mexico. Ante, at 576–578. There is less reason, not
more, to detain Arteaga-Martinez without bail.
Second, Zadvydas provided for outright release, 533 U. S.,
at 699–700; this case involves a bail hearing. Again, the
Government has less reason to detain a person when the al-
ternative is a bail hearing (where the Government has an
opportunity to show that that person might pose a danger to
the community or a fight risk) than when the alternative is
simply release.
The Government argues that a later case, Jennings v. Ro-
driguez, 583 U. S. ––– (2018), dictates the result here, rather
than Zadvydas. Not at all. That later case involved deten-
tion under statutes other than the one at issue here and in
Zadvydas. Jennings, 583 U. S., at ––– (“The primary issue
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as: 596 U. S. 573 (2022)
589
Opinion of Breyer, J.
is the proper i nter pret ati on of §§ 1225( b), 1226(a), and
1226(
c)”). The Court in Jennings did not modify or overrule
Zadv ydas, but rather explicitly distinguished that case.
Jennings, 583 U. S., at –––. It did so on multiple grounds,
including the fact that almost all of the statutes at issue in
Jennings used words that mandated detention, such as
“shall,” rather than words of discretion, such as “may.” Id.,
at –––, –––. In Zadvydas, the word “may” created ambigu-
ity that permitted the Court to interpret § 1231(a)(6) (the
statute before us) in a manner that avoided the constitutional
problem that indefnite detention could have created. 533
U. S., at 697. The majority in Jennings held that the statu-
tory provisions at issue there were not similarly ambiguous,
and therefore did not permit the Court to reach a similar
interpretation. 583 U. S., at –––, ––– – –––.
It is true that one of the statutes interpreted in Jennings,
§ 1226(a), said that the Attorney General “may . . . arres[t]
and detai[n an alien] pending a decision on whether the alien
is to be removed,” or “may release the alien on . . . bond . . .
or . . . conditional parole.” Why did this statute not give
the Court the textual leeway needed to permit a bail hearing
(given the constitutional problem posed by potentially in-
defnite detention)? Here is the Court's answer to that
question in its entirety:
“The Court of Appeals ordered the Government to pro-
vide procedural protections that go well beyond the ini-
tial bond hearing established by existing regulations—
namely, periodic bond hearings every six months in
which the Attorney General must prove by clear and
convincing evidence that the alien's continued detention
is necessary. Nothing in § 1226(a)'s text—which says
only that the Attorney General `may release' the alien
`on . . . bond'—even remotely supports the imposition of
either of those requirements. Nor does § 1226(a)'s text
even hint that the length of detention prior to a bond
hearing must specifcally be considered in determining
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Opinion of Breyer, J.
whether the alien should be released.” Id., at ––– – –––
(
emphasis added).
The court below did not order periodic bond hearings, but
it did require the Government to satisfy a “clear and convinc-
ing evidence” standard. Ante, at 577. I agree that Jen-
nings forecloses this latter requirement. Otherwise, I
would fnd the lower courts' bail hearing requirements rea-
sonable implementations of the Zadvydas standard, which is
applicable here.
Since the Court remands this case for further proceedings,
I would add that, in my view, Zadvydas applies (the Court
does not hold to the contrary), and the parties are free to
argue about the proper way to implement Zadvydas' stand-
ard in this context, and, if necessary, to consider the underly-
ing constitutional question, a matter that this Court has
not decided.
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Reporter’s Note
The attached opinion has been revised to refect the usual publication
and citation style of the United States Reports. The revised pagination
makes available the offcial United States Reports citation in advance of
publication. The syllabus has been prepared by the Reporter of Decisions
for the convenience of the reader and constitutes no part of the opinion of
the Court. A list of counsel who argued or fled briefs in this case, and
who were members of the bar of this Court at the time this case was
argued, has been inserted following the syllabus. Other revisions may
include adjustments to formatting, captions, citation form, and any errant
punctuation. The following additional edits were made:
None