Johnson v. Arteaga-Martinez

REQUIREMENTS OF 8 U.S.C. 1231

The director of U.S. Immigration and Customs Enforcement (“ICE”), Tae D. Johnson (“Johnson”) contends that the plain meaning of 8 U.S.C. § 1231 neither requires that a detainee receive a bond hearing after six months of detention nor that the Department of Homeland Security (“DHS”) prove by clear and convincing evidence that the detainee would be either a flight risk or a threat to the community following release. Brief for Petitioner, Tae D. Johnson at 9. As such, Johnson disagrees with additional procedural requirements imposed by Guerrero-Sanchez, as well as the Ninth Circuit in Diouf v. Napolitano. Id. Johnson claims that, under the statute, DHS may detain non-citizens beyond the removal period if the agency itself determines they pose a risk of flight or a danger to the community. Id. at 9–10. Further, Johnson maintains that the circuit courts ignored text in the statute, permitting DHS to detain non-citizens longer than the removal period if those detainees fell within the statutory category of certain “inadmissible” and “removable” non-citizens. Id. at 11. Finally, Johnson argues that the lower courts’ interpretations conflict with the text of 8 U.S.C. 1231(h)—which establishes that the statute is not meant to create additional rights—because their interpretations modified the burden of proof and engrafted a generalized bond hearing requirement. Id. at 13.

Arteaga-Martinez counters that the Third and Ninth Circuits properly found bond hearings to be required by 8 U.S.C. § 1231, just as the Supreme Court ruled in Zadvydas v. Davis (“Zadvydas”). Brief for Respondent, Antonio Arteaga-Martinez at 16. Arteaga-Martinez notes that DHS must have a strong reason for prolonged detention. Id. at 17. Thus, Arteaga-Martinez argues that, without some form of review, Johnson’s interpretation of the statute would result in non-citizens seeking withholding of removal being subject to either long imprisonment or being removed to potentially dangerous circumstances. Id. Arteaga-Martinez maintains that the circuit courts properly applied the rule of constitutional avoidance to avoid the risk of unconstitutional prolonged detention, particularly because the Court in Zadvydas found 8 U.S.C. § 1231 to be ambiguous regarding the length of detention. Id. at 15–16. Arteaga-Martinez explains that the Supreme Court in Zadvydas found detention beyond six months to be unlawful when removal is not likely in the “reasonably foreseeable future;” as a result, Arteaga-Martinez argues that the typically years-long process of seeking withholding of removal claims do not meet the “reasonably foreseeable” standard required by Zadvydas. Id. at 16, 19. Arteaga-Martinez interpreted 8 U.S.C. 1231(h) in line with the Supreme Court in Zadvydas, finding it inapplicable in cases of detention outside of those specifically authorized by other legislation. Id. Since the statute only allows six months of detention absent certain exceptions, Mr. Arteaga-Martinez maintains that this case falls outside of 8 U.S.C. 1231(h). Id.

CONSTITUTIONAL AVOIDANCE

Johnson maintains that the constitutional avoidance canon, which allows a court to choose an interpretation of an ambiguous statute, cannot apply to this statute because there is no ambiguity in the text or an underlying constitutional issue that supports the circuit courts’ interpretations. Id. at 16. Johnson argues that the statute here contains no ambiguity, even though the Supreme Court in Zadvydas found 8 U.S.C. § 1231 to be ambiguous regarding the length of detention, because non-citizens in these scenarios do not face the same “prolonged detention” that was at issue in Zadvydas. Id. at 22–23. In the alternative, Johnson claims that the circuit courts’ bond hearing requirement—unlike the Supreme Court’s procedural requirements in Zadvydas—are unreasonable. Id. at 22. Finally, Johnson maintains that the circuit courts cannot apply constitutional avoidance to this statute, because its current application by ICE does not pose a serious doubt of constitutionality. Id. at 17.

Arteaga-Martinez maintains that the requirements for bond hearings—looking into a non-citizen’s risk of flight and potential dangerousness to the community—fulfill the “fairly possible” standard condition for relying on the canon of constitutional avoidance. Id. at 28. The requirements imposed by the circuit courts, argues Arteaga-Martinez, stem from both related statutory laws and common law traditions, such as the congressional expectation that action might be needed to “fill-in” statutory gaps. Id. Arteaga-Martinez notes that courts regularly use bond hearings as a method of gauging a person’s risk or need for supervision in similar circumstances. Id. at 30. Arteaga-Martinez contends that the use of both requirements logically fills the ambiguity that the Supreme Court found in the statute because the Court in Zadvydas used both requirements as factors for supervised release and the factors exist in the statute as well as DHS regulations. Id. at 28, 35. Further, Arteaga-Martinez argues that, while Congress did transfer some authority to the Secretary of DHS, the Attorney General—and DOJ employed immigration judges—retained authority in certain areas, including the adjudication of 8 U.S.C. § 1231 based claims. Id. at 32. Otherwise, Arteaga-Martinez claims that constitutional avoidance allows the court to infer such authority here. Id.

DUE PROCESS CONCERNS

Johnson claims that ICE’s current detention procedures satisfy due process requirements. Id. at 17. Johnson notes that the current regulations require a hearing by the ICE after six months of detention in order to keep a non-citizen detained. Id. at 18. Additionally, he contends that ICE’s procedural protections—such as access to an attorney and requiring a review after six months—are in line with Zadvydas and present no “‘serious constitutional concerns.’” Id.; Diouf v. Napolitano at 221. Further, Johnson argues due process does not require individual hearings nor proof by clear and convincing evidence that a non-citizen should remain detained. Id. at 20. To explain, Johnson claims that due process does not support the notion that an enforcement agency cannot also serve neutrally in an adjudicatory function because agencies regularly fill both roles and the Supreme Court has allowed such practices if no personal bias exists. Reply Brief for Petitioner at 21. Also, Johnson notes that due process and Supreme Court precedent does not require an agency to provide a non-citizen an avenue for appeal of an administrative custody decision. Brief for Petitioner at 19. At a minimum, Johnson maintains that the non-citizen in this case will be removed in the foreseeable future and therefore satisfies the requirement in Zadvydas that detainment continue after six months only where removal is foreseeable. Id. at 23.

Further, Johnson claims that the bond hearing requirement directly contradicts the Supreme Court’s ruling in Johnson v. Guzman Chavez (“Guzman Chavez”) which held that section 1231, unlike section 1226, does not require bond hearings. Brief for Petitioner at 13. Further, Johnson maintains that the circuit courts’ a-textual bond hearing engraftment attempts have been previously rejected by the Supreme Court in other contexts, such as in Jennings v. Rodriguez (“Jennings”). Id. at 14. Moreover, Johnson argues that the circuit courts’ requirements break with the Supreme Court’s agency precedents—namely, affording agencies the responsibility of creating procedures such as bond hearings where they have “responsibility for substantive judgments,” not the lower courts. Id. at 15.

In response, Arteaga-Martinez adds that 8 U.S.C. § 1231 would raise major due process concerns if interpreted to not require a release from detention or a bond hearing after six months. Id. at 17. Arteaga-Martinez maintains that the Supreme Court in Zadvydas found the statute created due process issues if it allowed continued detention after six months unless the government could prove it has a greater interest in the detention than an individual’s major interest in liberty. Id. at 24. Even if removal was “reasonably foreseeable” in this case, Arteaga-Martinez contends that Zadvydas requires a weighing of the government's interests against a detainee’s interest before ICE can continue to detain past the six-month threshold. Id. at 23. Arteaga-Martinez claims that the weighing of interests must be done by a neutral arbiter, and that the Supreme Court in Zadvydas supported the notion that the arbiter cannot be the agency responsible for detention. Id. at 31. Further, Arteaga-Martinez argues that requiring the burden of proof to be on the defendant raises due process concerns. Id. at 39. Also, the clear and convincing evidence standard adopted by the circuit courts, notes Arteaga-Martinez, is a normal practice of judicial decision making that the government itself uses in similar circumstances. Id. at 33.

Arteaga-Martinez counters that Johnson cites dicta in Guzman Chavez which only decided that section 1231 applies in similar cases, not whether bond hearings apply in this case. Brief for Respondent at 42. Arteaga-Martinez notes that the Supreme Court’s ruling in Jennings specifically distinguished its ruling there from Zadvydas because the statute in Jennings was not ambiguous. Id. at 43. Because 8 U.S.C. § 1231 is ambiguous, Mr. Arteaga-Martinez argues that the circuit courts’ bond requirements do not contradict the ruling in Jennings on bond requirements. Id.