The Supreme Court recently issued an almost unanimous decision in Johnson v. Arteaga-Martinez holding that INA section 1231(a)(6) does not require the government to provide bond hearings for migrants who have been detained for more than six months pending execution of a deportation order — or require it to prove that continued detention is justified.

The ACLU says that this decision “upheld the federal government’s policy of locking up immigrants for months or years without a bond hearing.”

Maybe, but that’s not what I get from reading the opinion.

The court just interprets the statutory provision that authorizes the detention of an immigrant subject to a final order of deportation and concludes that it does not include the right to a bond hearing.

The court acknowledges that this might be a violation of the Due Process Clause in the Constitution; accordingly, it remands the case to a lower court for further proceedings to consider that issue.

Is detention even needed?

The DHS Fiscal Year 2020 Enforcement Lifecycle Report to Congress describes the end-to-end enforcement lifecycle of 2.8 million undocumented immigrants encountered between ports of entry along the Southwest Border between fiscal 2014 and fiscal 2019, and an additional 725,000 who were found to be inadmissible at Southwest Border ports of entry. Final enforcement outcomes included confirmed repatriations, grants of relief or other forms of protections from removal, and findings of non-removability.

The report indicates that — to a great extent — enforcement outcomes depend on detention practices.


Published originally on the Hill.

Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow him at