(Slip Opinion) OCTOBER TERM, 2020 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
JOHNSON, ACTING DIRECTOR OF U. S.
IMMIGRATION AND CUSTOMS ENFORCEMENT, ET
AL. v. GUZMAN CHAVEZ ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FOURTH CIRCUIT
No. 19–897. Argued January 11, 2021—Decided June 29, 2021
Federal immigration law establishes procedures for removing aliens liv-
ing unlawfully in the United States as well as for determining whether
such persons are detained during removal proceedings. The Depart-
ment of Homeland Security (DHS) may arrest and detain an alien
“pending a decision on whether the alien is to be removed from the
United States.” 8 U. S. C. §1226(a). An alien detained under §1226(a)
may generally apply for release on bond or conditional parole.
§1226(a)(2). If an alien is ordered removed and the order becomes “ad-
ministratively final,” detention becomes mandatory. §§1231(a)(1)(A)–
(B), (a)(2). If an alien removed under this process reenters the country
without authorization, that person faces reinstatement of “the prior
order of removal from its original date.” §1231(a)(5). That order “is
not subject to being reopened or reviewed,” and the alien “shall be re-
moved under the prior order at any time after reentry.” Ibid.
Respondents are aliens who were removed from the United States
and later reentered without authorization. When DHS reinstated
their prior removal orders, each respondent sought withholding-only
relief to prevent DHS from executing those orders based on fear of re-
turning to their home country as designated in the removal orders.
While respondents’ withholding-only proceedings were pending, DHS
detained respondents, and respondents sought release on bond, which
was initially denied. The Government opposed their release, main-
taining that because respondents were detained under §1231, not
§1226, they were not entitled to bond hearings. Respondents filed ha-
beas proceedings in District Court, seeking a declaration that §1226
2 JOHNSON v. GUZMAN CHAVEZ
Syllabus
governs their detention, as well as an injunction ordering the Govern-
ment to grant them individualized bond hearings consistent with
§1226. The District Court entered summary judgment for respond-
ents, and the Fourth Circuit affirmed.
Held: Section §1231, not §1226, governs the detention of aliens subject to
reinstated orders of removal. Pp. 8–22.
(a) Section 1231 authorizes detention “when an alien is ordered re-
moved” and enters the “removal period,” which begins, as relevant
here, on “[t]he date the order of removal becomes administratively fi-
nal.” It is undisputed that each respondent was previously “ordered
removed” pursuant to a valid order of removal and that those orders
were “reinstated from [their] original date[s]” under §1231(a)(5).
Those reinstated removal orders were also “administratively final.” By
inserting the word “administratively,” Congress made clear that DHS
need not wait for the alien to seek or exhaust judicial review of that
order. Respondents contend that even if §1231 normally governs in
such cases, it ceases to apply when the alien pursues withholding-only
relief. Respondents’ arguments cannot overcome the statute’s plain
text. Pp. 8–18.
(1) Respondents misunderstand the nature of withholding-only
proceedings when they argue that because an immigration judge or
the Board of Immigration Appeals (BIA) might determine that DHS
cannot remove an alien to the specific country designated in the re-
moval order, the question whether the alien is “to be removed” remains
“pending” and is therefore governed by §1226. If an immigration judge
grants an application for withholding of removal, DHS is prohibited
from removing the alien to that particular country, not from the United
States. The removal order remains in full force, and DHS retains the
authority to remove the alien to any other authorized country. This
Court and the BIA have long understood the nature of withholding-
only relief this way. See, e.g., INS v. Aguirre-Aguirre, 526 U. S. 415,
419. Pp. 11–14.
(2) Respondents next argue that a removal order does not become
“administratively final” until the withholding-only proceedings con-
clude. A reinstated removal order, they contend, loses its prior finality
when the alien initiates withholding-only proceedings. This argument
ignores that removal orders and withholding-only proceedings address
two distinct questions and end in two separate orders. See Nasrallah
v. Barr, 590 U. S. ___, ___. Because the validity of removal orders is
not affected by the grant of withholding-only relief, an alien’s initiation
of withholding-only proceedings does not render non-final an otherwise
“administratively final” reinstated order of removal. Pp. 14–16.
(3) Respondents submit that the “except as otherwise provided in
this section” language in the opening clause of §1231(a)(1)(A)—which
Cite as: 594 U. S. ____ (2021) 3
Syllabus
sets the default for the length of the removal period at 90 days—places
a limit on when the removal period is triggered. The most natural
reading of that phrase, however, is that the Government must remove
an alien within 90 days unless another section of §1231 specifically
contemplates that the removal period can exceed 90 days. The pres-
ence of specific statutory provisions in §1231 that relate to the length
of the removal period leads to the conclusion that the opening clause
of §1231(a)(1)(A) refers to them and not the withholding-only provi-
sion, which does not mention the length of the removal period and does
not stand in the way of removal to a third country. Pp. 16–17.
(b) Statutory structure confirms this Court’s textual reading. Every
provision applicable to respondents is located in §1231. It would thus
be odd if the provision governing their detention was located in §1226,
rather than §1231, which contains its own detention provision. More-
over, the inclusion of the statutory withholding provision in §1231,
grouped with other provisions that relate to where DHS may remove
an alien, illustrates how withholding-only relief fits within the re-
moval process generally. The order of the applicable Immigration and
Nationality Act provisions provides further context for interpreting
the proper application of §1226 and §1231. Section 1226 applies before
an alien proceeds through the removal proceedings and obtains a de-
cision; §1231 applies after. Pp. 18–19.
(c) Respondents’ contrary reading would also undermine Congress’s
judgment regarding the detention of different groups of aliens who
posed different flight risks. Aliens who have not been ordered removed
are less likely to abscond because they have a chance of being found
admissible, while aliens who have already been ordered removed are
generally inadmissible, see §1182(a)(9)(C)(ii), and have already
demonstrated a willingness to violate the terms of a removal order, see
§1231(a)(6). Congress had obvious reasons to treat these two groups
differently. P. 20.
(d) Respondents remaining arguments are that withholding-only
proceedings are a legal impediment that, like the three triggers to the
start of the removal period listed in §1231(a)(1)(B), must be eliminated
before the removal period begins and that Congress could not have in-
tended §1231 to apply to an alien in withholding-only proceedings be-
cause withholding-only proceedings often take longer than 90 days.
Neither argument is persuasive. Pp. 20–22.
940 F. 3d 867, reversed.
ALITO, J., delivered the opinion of the Court, except as to footnote 4.
ROBERTS, C. J., and KAVANAUGH and BARRETT, JJ., joined that opinion in
full. THOMAS, J., filed an opinion concurring except for footnote 4 and
concurring in the judgment, in which GORSUCH, J., joined. BREYER, J.,
filed a dissenting opinion, in which SOTOMAYOR and KAGAN, JJ., joined.
Cite as: 594 U. S. ____ (2021) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 19–897
_________________
TAE D. JOHNSON, ACTING DIRECTOR OF U. S. IMMI-
GRATION AND CUSTOMS ENFORCEMENT,
ET AL., PETITIONERS v. MARIA ANGELICA
GUZMAN CHAVEZ, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT
[June 29, 2021]
JUSTICE ALITO delivered the opinion of the Court, except
as to footnote 4.
Federal immigration law contains various provisions au-
thorizing the Government to detain aliens during the re-
moval process. This case concerns two of them: 8 U. S. C.
§1226 and 8 U. S. C. §1231. We are asked to decide which
of those provisions applies to aliens who were removed from
the United States but later reentered without authoriza-
tion, were subject to reinstated orders of removal, and then
sought withholding of removal based on fear of persecution
in the particular countries designated by their removal or-
ders. If the answer is §1226, which applies “pending a de-
cision on whether the alien is to be removed from the United
States,” then the alien may receive a bond hearing before
an immigration judge. If the answer is §1231, which ap-
plies after the alien is “ordered removed,” then the alien is
not entitled to a bond hearing. We conclude that §1231, not
§1226, governs the detention of aliens subject to reinstated
orders of removal, meaning those aliens are not entitled to
2 JOHNSON v. GUZMAN CHAVEZ
Opinion of the Court
a bond hearing while they pursue withholding of removal.
I
A
The Immigration and Nationality Act (INA) establishes
procedures for removing aliens living unlawfully in the
United States. In the ordinary course, if the Department of
Homeland Security (DHS)1 discovers that an alien is living
in the United States without authorization, it may initiate
removal proceedings against the alien by sending him a “no-
tice to appear.” 110 Stat. 3009–587, as added and amended,
8 U. S. C. §1229(a). That notice informs the alien of, among
other things, the charges against him and the time and
place of the hearing at which an immigration judge will de-
termine whether the alien is to be removed.
§§1229(a)(1)(D), (G)(i).
The INA further provides that DHS may arrest and de-
tain the alien “pending a decision on whether the alien is to
be removed from the United States.” §1226(a). Aliens who
are arrested and detained may generally apply for release
on bond or conditional parole. §1226(a)(2).2 To secure re-
lease, the alien must show that he does not pose a danger
to the community and that he is likely to appear for future
proceedings. 8 CFR §§236.1(c)(8), 1236.1(c)(8) (2020); In re
Adeniji, 22 I. & N. Dec. 1102, 1113 (BIA 1999). If DHS de-
nies the alien’s request, the alien may request a bond hear-
ing in front of an immigration judge by filing an application
——————
1 Although many of the provisions at issue in this case refer to the At-
torney General, Congress has also empowered the Secretary of Home-
land Security to enforce the Immigration and Nationality Act. See Niel-
sen v. Preap, 586 U. S. ___, ___ n. 2 (2019) (slip op., at 3, n. 2); see also
Brief for Petitioners 2–3, and n. 1; Brief for Respondents 7, and n. 2.
2 There is one exception. For certain criminal aliens and aliens who
have connections to terrorism, detention is mandatory and release is per-
mitted in very limited circumstances. See 8 U. S. C. §1226(c); Nielsen,
586 U. S., at ___–___, ___–___ (slip op., at 3–4, 23–24). That exception
does not apply here.
Cite as: 594 U. S. ____ (2021) 3
Opinion of the Court
for a change in the alien’s detention conditions. See
§§236.1(d)(1), 1003.19(a), 1236.1(d)(1). Either the alien or
DHS may appeal the immigration judge’s decision to the
Board of Immigration Appeals (BIA). See §§236.1(d)(3)(i),
1003.19(f ), 1236.1(d)(3)(i).
At some point, the alien will also have the above-
mentioned hearing before an immigration judge to deter-
mine whether he is inadmissible or deportable, and there-
fore subject to removal. 8 U. S. C. §1229a(a)(1). The alien
may seek various forms of relief or protection from removal,
such as asylum or withholding of removal. See
§1229a(c)(4)(A); 8 CFR §§1208.4(b)(3)(i), 1240.11(c), (e). If
the immigration judge decides that the alien is inadmissible
or deportable and that the alien is not entitled to any of the
relief or protection that he requested, the immigration
judge will issue an order of removal. 8 U. S. C. §1229a(c)(5).
If the immigration judge issues an order of removal, the al-
ien may file a motion to reconsider, a motion to reopen, an
appeal to the BIA, and a petition for review in federal court.
§§1229a(c)(5)–(7), 1252(b); 8 CFR §1240.15.
Once an alien is ordered removed, DHS must physically
remove him from the United States within a 90-day “re-
moval period.” 8 U. S. C. §1231(a)(1)(A). The removal pe-
riod begins on the latest of three dates: (1) the date the or-
der of removal becomes “administratively final,” (2) the
date of the final order of any court that entered a stay of
removal, or (3) the date on which the alien is released from
non-immigration detention or confinement. §1231(a)(1)(B).
During the removal period, detention is mandatory.
§1231(a)(2).
Under §1231, the removal period may be extended in at
least three circumstances, such that an alien remains de-
tained after 90 days have passed. First, the removal period
may be extended if the alien fails to make a timely applica-
tion for travel documents or acts to prevent his removal.
4 JOHNSON v. GUZMAN CHAVEZ
Opinion of the Court
§1231(a)(1)(C). Second, DHS may stay the immediate re-
moval of certain aliens if it decides that such removal is not
practicable or proper, or if the alien is needed to testify in a
pending prosecution. §1231(c)(2)(A). And finally, the stat-
ute provides that an alien may be detained beyond the re-
moval period or released under supervision if he is (1) inad-
missible, (2) removable as a result of violations of status
requirements, entry conditions, or the criminal law, or for
national security or foreign policy reasons, or (3) a risk to
the community or unlikely to comply with the removal or-
der. §1231(a)(6); see also 8 CFR §241.4 (setting out proce-
dures DHS must follow to impose continued detention).
Continued detention under this provision creates the “post-
removal-period.”
Although the statute does not specify a time limit on how
long DHS may detain an alien in the post-removal period,
this Court has “read an implicit limitation” into the statute
“in light of the Constitution’s demands,” and has held that
an alien may be detained only for “a period reasonably nec-
essary to bring about that alien’s removal from the United
States.” Zadvydas v. Davis, 533 U. S. 678, 689 (2001). And
according to the Court, a period reasonably necessary to
bring about the alien’s removal from the United States is
presumptively six months. Id., at 701. After that point, if
the alien “provides good reason to believe that there is no
significant likelihood of removal in the reasonably foresee-
able future,” the Government must either rebut that show-
ing or release the alien. Ibid.; see also 8 CFR §241.13 (set-
ting out the Zadvydas procedures).
If no exception applies, an alien who is not removed
within the 90-day removal period will be released subject to
supervision. See 8 U. S. C. §1231(a)(3); see also 8 CFR
§241.5.
B
In addition to the removal procedures outlined above,
Cite as: 594 U. S. ____ (2021) 5
Opinion of the Court
Congress has created an expedited process for aliens who
reenter the United States without authorization after hav-
ing already been removed. The relevant statutory provision
states:
“If the Attorney General finds that an alien has reen-
tered the United States illegally after having been re-
moved or having departed voluntarily, under an order
of removal, the prior order of removal is reinstated from
its original date and is not subject to being reopened or
reviewed, the alien is not eligible and may not apply for
any relief under this chapter, and the alien shall be re-
moved under the prior order at any time after the
reentry.” §1231(a)(5).
DHS’s regulations set out the process for reinstating an or-
der of removal. In short, the agency obtains the alien’s prior
order of removal, confirms the alien’s identity, determines
whether the alien’s reentry was unauthorized, provides the
alien with written notice of its determination, allows the al-
ien to contest that determination, and then reinstates the
order. See 8 CFR §§241.8(a)–(c), 1241.8(a)–(c).
Title 8 U. S. C. §1231(a)(5) applies to “all illegal reen-
trants,” and it “explicitly insulates the removal orders from
review,” while also “generally foreclos[ing] discretionary re-
lief from the terms of the reinstated order.” Fernandez-Var-
gas v. Gonzales, 548 U. S. 30, 35 (2006). It does not, how-
ever, preclude an alien from pursuing withholding-only
relief to prevent DHS from executing his removal to the par-
ticular country designated in his reinstated removal order.
Ibid., n. 4; see also §1231(b)(3)(A).
C
Much of this case turns on the nature of withholding-only
proceedings. There are two paths for seeking withholding
of removal. First, the alien may seek statutory withholding
under §1231(b)(3)(A), which provides that “the Attorney
6 JOHNSON v. GUZMAN CHAVEZ
Opinion of the Court
General may not remove an alien to a country if the Attor-
ney General decides that the alien’s life or freedom would
be threatened in that country because of the alien’s race,
religion, nationality, membership in a particular social
group, or political opinion.” Second, the alien may seek
withholding under regulations implementing the Conven-
tion Against Torture and Other Cruel, Inhuman or Degrad-
ing Treatment or Punishment (CAT), Dec. 10, 1984, S.
Treaty Doc. No. 100–20, 1465 U. N. T. S. 113, which prohib-
its removal of an alien to a country where the alien is likely
to be tortured. See 8 CFR §§208.16–208.17, 1208.16–
1208.17.
The process for applying for withholding of removal de-
pends on whether the alien is subject to the standard re-
moval proceedings or a reinstated order of removal. As
mentioned above, an alien subject to the standard removal
process typically applies for withholding during the course
of his removal proceedings. See supra, at 3. But because
an alien subject to a reinstated order of removal will not
have any removal proceedings, the process begins for him
only if he expresses a fear to DHS of returning to the coun-
try of removal. See §§208.31(a), 1208.31(a). At that point,
DHS will refer him to an asylum officer for a reasonable
fear determination, which will normally be conducted
within 10 days of the referral. §§208.31(b), 1208.31(b). If
the asylum officer concludes that the alien has a reasonable
fear, he will refer the matter to an immigration judge for
initiation of withholding-only proceedings. §§208.31(e),
1208.31(e). Those proceedings are “limited to a determina-
tion of whether the alien is eligible for withholding or defer-
ral of removal,” and as such, “all parties are prohibited from
raising or considering any other issues, including but not
limited to issues of admissibility, deportability, eligibility
for waivers, and eligibility for any other form of relief.”
§§208.2(c)(3)(i), 1208.2(c)(3)(i). The immigration judge’s fi-
nal decision as to withholding can be appealed to the BIA.
Cite as: 594 U. S. ____ (2021) 7
Opinion of the Court
§§208.31(e), 1208.31(e).
If an alien is granted withholding-only relief, DHS may
not remove the alien to the country designated in the re-
moval order unless the order of withholding is terminated.
§§208.22, 1208.22. But because withholding of removal is
a form of “ ‘country specific’ ” relief, INS v. Cardoza-Fonseca,
480 U. S. 421, 428, n. 6 (1987), nothing prevents DHS “from
removing [the] alien to a third country other than the coun-
try to which removal has been withheld or deferred,”
§§208.16(f ), 1208.16(f ); see also §§208.17(b)(2),
1208.17(b)(2).
D
Respondents are aliens who were removed from the
United States and later reentered without authorization.
Guzman Chavez v. Hott, 940 F. 3d 867, 870 (CA4 2019).
When DHS discovered their presence, it reinstated their
prior removal orders. Id., at 870–871. Each respondent ex-
pressed a fear of returning to his or her home country and
was referred to an asylum officer for a reasonable fear in-
terview. Id., at 871. In each case, the asylum officer deter-
mined that the respondent had a reasonable fear of perse-
cution or torture and referred the respondent to an
immigration judge for withholding-only proceedings. Ibid.
Although some of the respondents were initially granted su-
pervised release, all were ultimately detained by DHS.
Ibid. They then sought release on bond while their with-
holding-only proceedings were pending. The Government
opposed release, maintaining that because respondents
were detained under 8 U. S. C. §1231, not §1226, they were
not entitled to bond hearings.
Respondents filed two habeas proceedings in the Eastern
District of Virginia seeking a declaration that §1226 rather
than §1231 governs their detention, as well as an injunction
ordering the Government to grant them individualized
8 JOHNSON v. GUZMAN CHAVEZ
Opinion of the Court
bond hearings consistent with §1226.3 In both cases, the
District Court entered summary judgment in favor of re-
spondents, concluding that §1226 governs their detention.
See Romero v. Evans, 280 F. Supp. 3d 835, 849 (2017); Diaz
v. Hott, 297 F. Supp. 3d 618, 623, 628 (2018). The Govern-
ment appealed both decisions, and the Fourth Circuit af-
firmed, over a dissent by Judge Richardson. See 940 F. 3d,
at 882. In doing so, the Fourth Circuit joined the Second
Circuit but departed from the Third, Sixth, and Ninth Cir-
cuits. Compare Guerra v. Shanahan, 831 F. 3d 59, 64 (CA2
2016), with Martinez v. LaRose, 968 F. 3d 555, 559 (CA6
2020); Guerrero-Sanchez v. Warden York County Prison,
905 F. 3d 208, 213 (CA3 2018); Padilla-Ramirez v. Bible,
882 F. 3d 826, 832 (CA9 2017). We granted certiorari to re-
solve the split. Albence v. Guzman Chavez, 590 U. S. ___
(2020). We conclude that §1231, not §1226, governs re-
spondents’ detention and now reverse the judgment of the
Fourth Circuit.4
II
A
We turn first to the statutory text. Section 1226 provides
that “an alien may be arrested and detained pending a de-
cision on whether the alien is to be removed from the United
States.” §1226(a). Section 1231, by contrast, authorizes de-
tention “when an alien is ordered removed” and enters the
“removal period,” which begins on “[t]he date the order of
removal becomes administratively final.” §§1231(a)(1)(A)–
——————
3 In one of the proceedings, the District Court certified a Virginia-wide
class of aliens detained during withholding-only proceedings. 940 F. 3d,
at 871. The Government did not challenge below, and does not challenge
in this Court, the District Court’s decision to certify the class, and we do
not address that decision here.
4 We have jurisdiction to review the decision below. See Jennings v.
Rodriguez, 583 U. S. ___, ___–___ (2018) (plurality opinion) (slip op., at
8–11).
Cite as: 594 U. S. ____ (2021) 9
Opinion of the Court
(B), (2).5 It further provides that when an alien reenters
the country after having already been removed, “the prior
order of removal is reinstated from its original date and is
not subject to being reopened or reviewed.” §1231(a)(5). In
that scenario, “the alien is not eligible and may not apply
for any relief under this chapter” and “shall be removed un-
der the prior order at any time after the reentry.” Ibid.
The parties agree that §1226 governs the detention of al-
iens until §1231’s “removal period” begins. As relevant
here, the removal period begins when an alien is “ordered
removed,” and the removal order becomes “administra-
tively final.” To resolve this case, we therefore must decide
two questions: whether respondents were “ordered re-
moved” and whether their reinstated removal orders were
“administratively final.” The answer to both questions is
yes.
First, respondents have been “ordered removed.” It is un-
disputed that each respondent was previously removed pur-
suant to a valid order of removal. And after respondents
later reentered the United States without authorization,
those prior orders were “reinstated from [their] original
date[s]” under §1231(a)(5). Those reinstated orders are not
subject to reopening or review, nor are respondents eligible
for discretionary relief under the INA. Instead, they “shall
be removed under the prior order at any time after the
reentry.” Ibid. Accordingly, respondents’ prior orders, re-
instated under §1231(a)(5), show that respondents were or-
dered removed.
Second, respondents’ reinstated removal orders are “ad-
ministratively final.” Although that phrase is not defined
in the statute, its meaning is clear. By using the word “ad-
ministratively,” Congress focused our attention on the
——————
5 The other two triggers for the removal period—a court order lifting a
stay and the release from non-immigration detention or confinement—
do not apply here. See §§1231(a)(1)(B)(ii)–(iii).
10 JOHNSON v. GUZMAN CHAVEZ
Opinion of the Court
agency’s review proceedings, separate and apart from any
judicial review proceedings that may occur in a court. Con-
text confirms this interpretation. Recall that under
§1231(a)(1)(B), the removal period begins “on the latest of ”
three events: (1) “[t]he date the order of removal becomes
administratively final”; (2) “[i]f the removal order is judi-
cially reviewed and if a court orders a stay of the removal
of the alien, the date of the court’s final order”; and (3) “[i]f
the alien is detained or confined” outside the immigration
process, the date of the alien’s release. Reading the first
two provisions together, it is clear that DHS need not wait
for the alien to seek, and a court to complete, judicial review
of the removal order before executing it. Rather, once the
BIA has reviewed the order (or the time for seeking the
BIA’s review has expired), DHS is free to remove the alien
unless a court issues a stay. That reinforces why Congress
included “administratively” before the word “final” in the
first provision.
Respondents do not contest that their prior removal or-
ders have long been “administratively final,” as we under-
stand the term. See Brief for Respondents 8, 20–21, 24–26.6
Each had the opportunity to seek review in the BIA after
the initial removal order was entered, and §1231(a)(5) ex-
plicitly prohibits them from seeking review or relief from
the order after it is reinstated following unlawful reentry.
In other words, there is nothing left for the BIA to do with
respect to the removal order other than to execute it. Thus,
respondents’ orders are administratively final.
——————
6 Respondents do argue, however, that some lower courts’ interpreta-
tion of the phrase “final order of removal” as it is used in 8 U. S. C.
§1252(b)(1) requires that this Court adopt respondents’ interpretation of
§1231 here. Brief for Respondents 24–26, and n. 8. We express no view
on whether the lower courts are correct in their interpretation of §1252,
which uses different language than §1231 and relates to judicial review
of removal orders rather than detention.
Cite as: 594 U. S. ____ (2021) 11
Opinion of the Court
For these reasons, §1231’s detention provisions are a nat-
ural fit for aliens subject to reinstated orders of removal.
Respondents and the dissent appear to accept this much
but nevertheless contend that even if §1231 normally gov-
erns aliens in this posture, it ceases to apply when such an
alien pursues withholding-only relief. See post, at 6–7
(opinion of BREYER, J.). Each of the arguments on this score
fails.
1
Respondents first argue that because an immigration
judge or the BIA might determine that DHS cannot remove
an alien to the specific country designated in the removal
order, the question whether the alien is “to be removed” re-
mains “pending” and is therefore governed by §1226. Re-
spondents misunderstand the nature of withholding-only
proceedings. When an alien applies for withholding-only
relief, he does so as to a particular country. See 8 CFR
§§208.31(a), 1208.31(a). The proceedings that result from
such an application are “limited to a determination of
whether the alien is eligible for withholding or deferral of
removal,” and “all parties are prohibited from raising or
considering any other issues, including but not limited to
issues of admissibility, deportability, eligibility for waivers,
and eligibility for any other form of relief.” §§208.2(c)(3)(i),
1208.2(c)(3)(i). If an immigration judge grants an applica-
tion for withholding of removal, he prohibits DHS from re-
moving the alien to that particular country, not from the
United States. The removal order is not vacated or other-
wise set aside. It remains in full force, and DHS retains the
authority to remove the alien to any other country author-
ized by the statute. See §§208.16(f ), 1208.16(f ), 1240.12(d).
And the statute provides numerous options: a country des-
ignated by the alien; the alien’s country of citizenship; the
alien’s previous country of residence; the alien’s country of
birth; the country from which the alien departed for the
12 JOHNSON v. GUZMAN CHAVEZ
Opinion of the Court
United States; and finally, any country willing to accept the
alien. Brief for Petitioners 3 (citing 8 U. S. C. §1231(b)(2)).
In short, withholding-only relief is country-specific. It re-
lates to where an alien may be removed. It says nothing,
however, about the antecedent question whether an alien is
to be removed from the United States.
This Court and the BIA have long understood the nature
of withholding-only relief this way. In INS v. Aguirre-
Aguirre, 526 U. S. 415, 419 (1999), we distinguished with-
holding-only relief from asylum, noting that “a grant of asy-
lum permits an alien to remain in the United States and to
apply for permanent residency after one year,” while “with-
holding only bars deporting an alien to a particular country
or countries.” (Emphasis added.) And in Matter of I–S &
C–S, 24 I. & N. Dec. 432, 434 (BIA 2008), the BIA made
clear that withholding-only relief “does not afford [an alien]
any permanent right to remain in the United States.” Ra-
ther, as the “regulations make clear,” a grant of withholding
“does not prevent the DHS from removing an alien to a
country other than the one to which removal has been with-
held.” Ibid. Indeed, just last Term, we affirmed that a
grant of withholding-only relief “means only that, notwith-
standing the order of removal, the noncitizen may not be
removed to the designated country of removal, at least until
conditions change in that country,” and that “the noncitizen
still may be removed at any time to another country.”
Nasrallah v. Barr, 590 U. S. ___, ___ (2020) (slip op., at 8)
(internal quotation marks omitted).
Respondents counter that, as a practical matter, the ques-
tions “whether” an alien may be removed and “where” he
may be removed to are indistinguishable because DHS often
does not remove an alien to an alternative country if with-
holding relief is granted. They point to one source claiming
that in 2017, only 1.6% of aliens who were granted withhold-
ing of removal were actually removed to an alternative coun-
Cite as: 594 U. S. ____ (2021) 13
Opinion of the Court
try. See Brief for Respondents 6, 30–31 (citing American Im-
migration Council & National Immigrant Justice Center,
The Difference Between Asylum and Withholding of Re-
moval 7 (Oct. 2020), www.americanimmigrationcouncil
.org/sites/default/files/research/the_difference_between_
asylum_and_withholding_of_removal.pdf ). But the fact
that alternative-country removal is rare does not make it
statutorily unauthorized. Here, the statute makes clear
that removability and withholding relief are distinct, and
we decline to ignore the plain import of the statutory text
in favor of on-the-ground statistics about the feasibility of
removal to a third country.
Indeed, respondents’ argument—that the decision about
whether an alien “is to be removed” remains “pending” for
purposes of §1226 until DHS is certain that it will be able
to carry out that removal—is at odds with the statutory text
of §1231 and our decision in Zadvydas. To begin, it is not
plausible that an alien is detained under §1226 instead of
§1231 while DHS resolves any practical problems associ-
ated with the execution of a removal order because §1231,
not §1226, is the part of the INA that anticipates and ad-
dresses those problems. For example, §1231(a)(1)(C) ex-
tends the removal period if the alien fails to timely apply
for travel documents and therefore cannot be removed to
the relevant country. Section 1231(c)(2)(A) authorizes DHS
to stay the immediate removal of certain aliens if it decides
that immediate removal “is not practicable or proper.” And
§1231(a)(3) allows for supervised release after the 90-day
removal period expires “[i]f the alien does not leave or is not
removed” during that time period. Those provisions would
be unnecessary if questions of how and where an alien is to
be removed were bound up in whether the alien was remov-
able at all under §1226.
Our decision in Zadvydas confirms this distinction be-
tween whether an alien is to be removed and where an alien
is to be sent. In that case, we addressed claims raised by
14 JOHNSON v. GUZMAN CHAVEZ
Opinion of the Court
two aliens who, due to the Government’s inability to locate
a country of removal, had been detained for prolonged peri-
ods of time under §1231. See 533 U. S., at 684–686. But
rather than holding that these aliens should not have been
detained under §1231 at all because the decision about
whether they were to be removed remained “pending,” the
Court set out certain procedural mechanisms to allow al-
iens to seek release from §1231 detention if there was no
significant likelihood of removal in the reasonably foresee-
able future. Id., at 701. That holding would make little
sense if DHS had to conclusively resolve the question of
“where” an alien was to be removed before resolving
“whether” the alien was to be removed under §1226.7
2
Respondents next argue that a removal order does not be-
come “administratively final” until the withholding-only
proceedings conclude. That is so, they say, even if a rein-
stated order of removal is “administratively final” at the
time of its reinstatement; according to their submission,
when the alien initiates withholding-only proceedings, the
reinstated order loses its prior finality. See Brief for Re-
spondents 24–25. In a similar vein, the dissent contends
that respondents’ removal orders are not “administratively
——————
7 Respondents attempt to distinguish our approach in Zadvydas v. Da-
vis, 533 U. S. 678 (2001), by arguing that there is a difference between
the Government’s inability to remove an alien due to the grant of with-
holding-only relief and its inability to remove an alien because of the ge-
opolitical and practical concerns that prevented removal in that case.
But the premise of respondents’ argument is that a decision about
whether an alien “is to be removed” remains pending during withhold-
ing-only proceedings because it is not certain that the Government will
actually be able to remove the alien from the country. The same lack of
certainty existed in Zadvydas, where the Government’s attempt to re-
turn an alien to the country listed in the removal order was rebuffed for
geopolitical or practical reasons, and the Government had to search for
an alternative.
Cite as: 594 U. S. ____ (2021) 15
Opinion of the Court
final” because, by seeking withholding-only relief, respond-
ents are “in effect” seeking “a modification of, a change in,
or a withholding of, the ‘prior order of removal.’ ” Post, at 9.
These related arguments suffer from the same flaw as the
one just discussed: They ignore that removal orders and
withholding-only proceedings address two distinct ques-
tions. As a result, they end in two separate orders, and the
finality of the order of removal does not depend in any way
on the outcome of the withholding-only proceedings.
Case law makes this clear. In Matter of I–S & C–S, two
aliens asserted that they were entitled to withholding of re-
moval during their initial removal proceedings. The Immi-
gration Judge concluded that they were removable but
agreed that they were entitled to withholding relief. As a
result, the Immigration Judge did not issue an order of re-
moval but instead simply granted the aliens’ withholding
applications. 24 I. & N. Dec., at 432–433. DHS appealed,
arguing that it was error for the Immigration Judge not to
issue the order of removal. Id., at 433. The BIA agreed. It
stated that “[a]lthough entering an order of removal prior
to granting withholding may appear to be a technicality,” it
is “axiomatic that in order to withhold removal there must
first be an order of removal that can be withheld.” Ibid.
(emphasis added). In other words, the order of removal is
separate from and antecedent to a grant of withholding of
removal. Every Member of this Court approved that read-
ing just last Term. In Nasrallah v. Barr, the majority ex-
plained that the grant of withholding relief under CAT
“does not disturb the final order of removal,” “affect the va-
lidity of the final order of removal,” or otherwise “merge into
the final order of removal.” 590 U. S., at ___ (slip op., at 8).
The dissent acknowledged the same. See id., at ___ (opinion
of THOMAS, J.) (slip op., at 5) (“The majority correctly notes
that a CAT order does not fall within” the statute’s defini-
tion of an order of removal); id., at ___–___ (slip op., at 6–7)
(“[S]tatutory withholding seeks to prevent removability and
16 JOHNSON v. GUZMAN CHAVEZ
Opinion of the Court
is considered after the alien has been deemed removable.
Thus, statutory withholding claims also do not affect the
validity of the underlying removal order” (citation omit-
ted)). Because the validity of removal orders is not affected
by the grant of withholding-only relief, an alien’s initiation
of withholding-only proceedings does not render non-final
an otherwise “administratively final” reinstated order of re-
moval.
3
At oral argument, respondents offered a new textual ar-
gument in support of their position that §1231 does not gov-
ern their detention. They point to the opening clause of
§1231(a)(1)(A), which states in full: “Except as otherwise
provided in this section, when an alien is ordered removed,
the Attorney General shall remove the alien from the
United States within a period of 90 days.” (Emphasis
added.) Respondents submit that because withholding-only
relief is provided for in §1231, DHS cannot remove an alien
who seeks such relief, and the removal period cannot begin
under §1231(a)(1)(B). Tr. of Oral Arg. 33–34, 45. Stated
differently, respondents read the “[e]xcept as” language as
another limit on when the removal period is triggered, a
reading that the dissent endorses. See post, at 7–9.
Even assuming that respondents did not forfeit this ar-
gument by failing to raise it in their brief, it fails on the
merits. Section 1231(a)(1)(A) relates to the length of the
removal period, and it sets the default for that period at 90
days. It does not, as respondents suggest, serve as the
“gateway” for when the removal period begins. Tr. of Oral
Arg. 45. Those triggers appear in §1231(a)(1)(B). Nor does
it simply offer “basic operative language” regarding what
DHS must do. Post, at 8. The provision’s focus is the length
of time that DHS has to remove an alien once the alien is
ordered removed. And the most natural reading of the “ex-
Cite as: 594 U. S. ____ (2021) 17
Opinion of the Court
cept as otherwise provided” clause is that DHS must re-
move an alien within 90 days unless another subsection of
§1231 specifically contemplates that the removal period can
exceed 90 days. That aligns with the rest of §1231, which
contains specific provisions mandating or authorizing DHS
to extend detention beyond 90 days. See, e.g.,
§1231(a)(1)(C) (requiring the extension of the 90-day period
and permitting continued detention “if the alien fails or re-
fuses to make timely application in good faith for travel or
other documents necessary to the alien’s departure or con-
spires or acts to prevent the alien’s removal subject to an
order of removal”); §1231(c)(2)(A) (permitting DHS to stay
immediate removal of certain aliens if such “removal is not
practicable or proper” or the alien is needed to testify in a
criminal case); §1231(a)(6) (permitting DHS to detain cer-
tain groups of aliens “beyond the removal period”).8 Given
the presence of specific statutory provisions in §1231 under
which DHS is not required to remove the alien within 90
days, we have little trouble concluding that the opening
clause of §1231(a)(1)(A) refers to them and not the with-
holding-only provision, which does not mention the length
of the removal period and does not stand in the way of re-
moval to a third country.
In short, the statutory text makes clear that §1231, not
——————
8 The dissent contends that the second of these provisions,
§1231(c)(2)(A), is “beside the point” because another provision in that
subsection and a regulation provide that DHS has the authority to re-
lease on bond an alien for whom it had previously stayed immediate re-
moval so that the alien could testify in a prosecution. See post, at 8. But
DHS’s ability to release certain aliens on bond tells us nothing about the
meaning of the phrase “[e]xcept as otherwise provided” in §1231(a)(1)(A).
The point is that other provisions in §1231 contemplate situations in
which DHS is not required to remove an alien in less than 90 days. The
dissent otherwise dismisses the remaining two provisions as “unlike the
restriction-on-removal provision” in that they “sugges[t] . . . an extension
of the removal period beyond ninety days.” Post, at 8. But that is the
very feature that makes these provisions relevant to §1231(a)(1)(A).
18 JOHNSON v. GUZMAN CHAVEZ
Opinion of the Court
§1226, governs respondents’ detention, and none of re-
spondents’ counterarguments can overcome that plain text.
B
The statutory structure confirms the textual reading.
Consider first the structure of §1231 itself, which is titled
“Detention and removal of aliens ordered removed.” Every
provision applicable to respondents is located in §1231. Re-
spondents’ orders of removal are reinstated against them
under §1231(a)(5). The bar on reopening or reviewing those
removal orders, as well as the requirement that DHS re-
move aliens subject to reinstated orders, also appears in
§1231(a)(5). And the provision allowing respondents to
seek withholding-only relief comes from §1231(b)(3)(A). It
would thus be odd if the provision governing respondents’
detention was located in §1226, rather than §1231, which
contains its own detention provision. See 940 F. 3d, at 887
(Richardson, J., dissenting).
Moreover, the inclusion of the statutory-withholding pro-
vision in §1231, grouped with other provisions that relate
to where DHS may remove an alien, illustrates how with-
holding-only relief fits within the removal process gener-
ally. Section 1231(b) is entitled “Countries to which aliens
may be removed.” Paragraph (1) lists all of the countries to
which an alien “arriving at the United States” may be re-
moved. Paragraph (2) lists all of the countries to which
“[o]ther aliens” may be removed. And paragraph (3)(A)—
the statutory-withholding provision—states that “[n]ot-
withstanding paragraphs (1) and (2), the Attorney General
may not remove an alien to a country if the Attorney Gen-
eral decides that the alien’s life or freedom would be threat-
ened in that country because of the alien’s race, religion,
nationality, membership in a particular social group, or po-
litical opinion.” The placement of the statutory-withhold-
ing provision in §1231 is therefore strong evidence that
Cite as: 594 U. S. ____ (2021) 19
Opinion of the Court
withholding-only proceedings are relevant to where an al-
ien will be removed (and therefore detention under §1231),
not whether the alien will be removed at all (and therefore
detention under §1226).
The general structure of the INA provides further sup-
port. Sections 1226 and 1231 both appear in Part IV of Title
8, chapter 12, of the United States Code, entitled “Inspec-
tion, Apprehension, Examination, Exclusion, and Re-
moval.” The sections within that part proceed largely in the
sequential steps of the removal process. Sections 1221 to
1224 address the arrival of aliens. Section 1225 provides
instructions for inspecting aliens, expediting the removal of
some, and referring others for a removal hearing. Section
1226 authorizes the arrest and detention of aliens pending
a decision on whether they are to be removed. Section 1227
explains which aliens are deportable. Section 1228 author-
izes the expedited removal of some of those deportable al-
iens. Sections 1229, 1229a, and 1229b set out the process
for initiating and conducting removal proceedings, and they
specify the types of relief that an alien can request during
those proceedings, such as cancellation of removal. Section
1229c addresses voluntary departure. Section 1230 ex-
plains what to do if an alien is admitted. And §1231 ex-
plains what to do if the alien is ordered removed.
The order of the sections in Part IV provides helpful con-
text for interpreting the proper application of §1226 and
§1231. See 940 F. 3d, at 887–888 (Richardson, J., dissent-
ing). Section 1226 applies before an alien proceeds through
the removal proceedings and obtains a decision; §1231 ap-
plies after. Once an alien has been ordered removed from
the United States in a removal proceeding under §1229a
and that order has been reinstated under §1231(a)(5), “the
alien cannot go back in time, so to speak, to §1226.” Id., at
888.
20 JOHNSON v. GUZMAN CHAVEZ
Opinion of the Court
C
Respondents’ contrary reading would undermine Con-
gress’s judgment regarding the detention of different
groups of aliens who posed different risks of flight: aliens
detained under §1226 before having been ordered removed
and those held under §1231 after already having been or-
dered removed.
Aliens who have not been ordered removed are less likely
to abscond because they have a chance of being found ad-
missible, but aliens who have already been ordered re-
moved are generally inadmissible. See 8 U. S. C.
§1182(a)(9)(C). The only apparent relief they can hope to
obtain is a grant of withholding-only relief, and they would
seem to still have a chance to get that relief if they ab-
sconded and were again apprehended. In addition, aliens
who reentered the country illegally after removal have
demonstrated a willingness to violate the terms of a re-
moval order, and they therefore may be less likely to comply
with the reinstated order. See §1231(a)(6). Congress had
obvious reasons to treat these two groups differently.
III
Respondents’ remaining arguments are unpersuasive.
They primarily argue that §1226 governs whenever the INA
does not “authorize” DHS to remove an alien. Brief for Re-
spondents 16. Respondents rely on §1231(a)(1)(B), which,
again, provides that the removal period begins on the latest
of three dates: (1) the date the order of removal becomes
“administratively final,” (2) the date of the final order of any
court that entered a stay of removal, or (3) the date on
which the alien is released from non-immigration detention
or confinement. Respondents contend that those triggers
constitute various legal impediments to removal, and those
legal impediments show that §1231 detention applies only
if DHS has secured full and complete legal authority to re-
move an alien. In other words, to detain an alien under
Cite as: 594 U. S. ____ (2021) 21
Opinion of the Court
§1231, DHS must eliminate all legal impediments to re-
moval. Otherwise, §1226 applies. Like the three legal im-
pediments listed in §1231(a)(1)(B), respondents say, with-
holding-only proceedings are another impediment that
deprives DHS of the full legal authority required to remove.
Respondents’ argument fails on multiple levels. First,
even if §1231(a)(1)(b) imposes three “legal impediments” to
removal, that does not mean that all legal impediments
must be eliminated before the removal period begins. In-
deed, the text of §1231(a)(1)(B) suggests the opposite. It
enumerates three specific triggers for the removal period
but nowhere includes “the completion of withholding-only
proceedings.” See NLRB v. SW General, Inc., 580 U. S. ___,
___ (2017) (slip op., at 11) (“[E]xpressing one item of an as-
sociated group or series excludes another left unmentioned”
(brackets and internal quotation marks omitted)). Nor does
it otherwise include a catchall provision that might support
respondents’ position, such as “or the date on which DHS
obtains final legal authority to remove the alien.” Second,
even if we accepted that there is an implicit requirement
that DHS have full “legal authority” before the removal pe-
riod begins, withholding-only proceedings have nothing to
do with that authority. As explained above, DHS retains
its authority during withholding-only proceedings to re-
move the alien to any country other than the country that
is the subject of those proceedings.
Respondents next turn to the 90-day removal require-
ment in §1231(a)(1)(A). They contend that Congress could
not have intended §1231 to apply to an alien in withholding-
only proceedings because the removal period contemplated
by §1231(a)(1)(A) is only 90 days, and withholding-only pro-
ceedings take much longer than that. Brief for Respondents
22, 26–27. In respondents’ view, the removal period’s short
duration proves that it is meant to apply only during the
final period during which DHS takes steps to put an alien
22 JOHNSON v. GUZMAN CHAVEZ
Opinion of the Court
on an outbound plane. Id., at 22. Even assuming respond-
ents are correct that withholding-only proceedings are not
usually completed in 90 days, it does not follow that §1231
is inapplicable to aliens who initiate them. In addition to
setting out a 90-day removal period, §1231 expressly au-
thorizes DHS to release under supervision or continue the
detention of aliens if removal cannot be effectuated within
the 90 days. See §§1231(a)(3), (6). There is no reason why
DHS cannot detain aliens in withholding-only proceedings
under those same post-removal-period provisions. As ex-
plained above, DHS routinely holds aliens under these pro-
visions when geopolitical or practical problems prevent it
from removing an alien within the 90-day period. See, e.g.,
Zadvydas, 533 U. S., at 684–686.
Relatedly, respondents suggest that because
§1231(a)(1)(A) says DHS “shall” remove the alien within
the 90-day removal period, and it would be practically im-
possible to do that in most cases involving withholding-
only proceedings, §1231 must not apply when withholding-
only proceedings are pending. See Brief for Respondents
26. But this argument overlooks the rest of §1231’s di-
rective, which states that DHS “shall” remove the alien
within 90 days “[e]xcept as otherwise provided in this sec-
tion.” §1231(a)(1)(A). And, as noted above, “this section”
provides for post-removal detention and supervised re-
lease in the event an alien cannot be removed within the
90-day removal period, §§1231(a)(3), (6). Interpreting
§1231 to apply even if withholding-only proceedings re-
main pending longer than 90 days thus does not “mak[e]
it structurally impossible” for DHS “to satisfy its statutory
obligation,” as respondents argue. Brief for Respondents
26.9
——————
9 The parties offer two other arguments, neither of which we need ad-
dress. The Government asks that we apply deference under Chevron
Cite as: 594 U. S. ____ (2021) 23
Opinion of the Court
* * *
We reverse the judgment of the U. S. Court of Appeals for
the Fourth Circuit.
It is so ordered.
——————
U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837
(1984), to its interpretation of §1231. But Chevron deference does not
apply where the statute is clear. For their part, respondents argue that
the canon of constitutional avoidance favors application of §1226, not
§1231, to their detention. But that canon “comes into play only when,
after the application of ordinary textual analysis, the statute is found to
be susceptible of more than one construction.” Jennings, 583 U. S., at
___ (slip op., at 12) (internal quotation marks omitted). As already ex-
plained, the text makes plain that §1231, not §1226, governs.
Cite as: 594 U. S. ____ (2021) 1
THOMAS, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 19–897
_________________
TAE D. JOHNSON, ACTING DIRECTOR OF U. S. IMMI-
GRATION AND CUSTOMS ENFORCEMENT,
ET AL., PETITIONERS v. MARIA ANGELICA
GUZMAN CHAVEZ, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT
[June 29, 2021]
JUSTICE THOMAS, with whom JUSTICE GORSUCH joins,
concurring except for footnote 4 and concurring in the judg-
ment.
This Court has an “independent obligation” to assess
whether it has jurisdiction. Arbaugh v. Y & H Corp., 546
U. S. 500, 514 (2006). We do not have it here.
Congress has restricted our jurisdiction in removal cases.
See 8 U. S. C. §1252(b)(9); Jennings v. Rodriguez, 583 U. S.
___, ___ (2018) (THOMAS, J., concurring in part and concur-
ring in judgment) (slip op., at 3). Under §1252(b)(9), we can
exercise judicial review of “questions of law and fact . . .
arising from any action taken or proceeding brought to re-
move an alien” in only two circumstances. One is to review
a final order of removal. §1252(b)(9). The other is to exer-
cise an express grant of jurisdiction elsewhere in §1252.
Ibid.; Jennings, 583 U. S., at ___ (slip op., at 3). Neither
circumstance is present here.
Therefore, if respondents’ claims “aris[e] from any action
taken or proceeding brought to remove an alien,” the juris-
dictional bar in §1252(b)(9) applies. And for all the reasons
I discussed in Jennings, challenges to detention during the
removal process, such as this one, “fall within the heartland
of §1252(b)(9).” Id., at ___ (slip op., at 5).
2 JOHNSON v. GUZMAN CHAVEZ
THOMAS, J., concurring
Although Jennings concerned aliens whom the Govern-
ment had not yet ordered removed whereas the aliens here
have removal orders reinstated against them, the result
does not change. Section 1252(b)(9) “cover[s] all claims re-
lated to removal proceedings.” Nasrallah v. Barr, 590 U. S.
___, ___, n. 2 (2020) (THOMAS, J., dissenting) (slip op., at 4,
n. 2) (internal quotation marks omitted). That includes
claims arising after final orders of removal are issued, such
as withholding-of-removal claims. See id., at ___–___ (slip
op., at 3–4). And it includes claims like the ones here, which
involve a part “of the deportation process that necessarily
serve[s] the purpose of ensuring an alien’s removal.” Jen-
nings, 583 U. S., at ___ (slip op., at 5).
In light of this jurisdictional problem, the Court should
vacate and remand with instructions to dismiss for lack of
jurisdiction. But “because the Court has held that we have
jurisdiction in cases like these” and the Court’s opinion is
otherwise correct, I join it except for footnote four. See Niel-
sen v. Preap, 586 U. S. ___, ___ (2019) (THOMAS, J., concur-
ring in part and concurring in judgment) (slip op., at 1).
Cite as: 594 U. S. ____ (2021) 1
BREYER, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 19–897
_________________
TAE D. JOHNSON, ACTING DIRECTOR OF U. S. IMMI-
GRATION AND CUSTOMS ENFORCEMENT,
ET AL., PETITIONERS v. MARIA ANGELICA
GUZMAN CHAVEZ, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT
[June 29, 2021]
JUSTICE BREYER, with whom JUSTICE SOTOMAYOR and
JUSTICE KAGAN join, dissenting.
Respondents in this case are noncitizens previously or-
dered removed from the United States. After leaving the
United States, each of them later returned (illegally). The
Government then reinstated their original removal orders.
See 8 U. S. C. §1231(a)(5). Each of the respondents argued
to immigration authorities that the Government could not
remove them because they reasonably feared persecution or
torture in the country to which the Government sought to
send them. And pursuant to the United States’ interna-
tional commitments, the immigration authorities began the
process of determining whether the Government should
grant withholding-only relief (the withholding or deferral of
removal). See §1231(b)(3)(A); 8 CFR §§208.16–208.18,
208.31, 241.8(e), 1208.16–1208.18, 1208.31, 1241.8(e)
(2020).
The question in this case is whether respondents are en-
titled to a bond hearing while immigration authorities en-
gage in the lengthy process of determining whether re-
spondents have the legal right (because of their fear of
persecution or torture) to have their removal withheld. The
Court points to two statutory provisions that might answer
2 JOHNSON v. GUZMAN CHAVEZ
BREYER, J., dissenting
that question. The first, §1226, is a more general provision
governing detention, and favors respondents. It says that
“pending a decision on whether the alien is to be removed
from the United States,” 8 U. S. C. §1226(a), the Govern-
ment “may release the alien on . . . bond” or “conditional pa-
role.” §§1226(a)(2)(A), (B); see also 8 CFR §§236.1(c)(8),
1236.1(c)(8) (authorizing parole where the alien has demon-
strated that “such release would not pose a danger to prop-
erty or persons” and he or she “is likely to appear for any
future proceeding”). The second, §1231, is a provision that
more specifically applies to “aliens ordered removed,” and
can be read to favor the Government because it does not
expressly provide for a bond hearing during what it calls
the 90-day “removal period.” 8 U. S. C. §1231(a)(2); see also
8 CFR §241.13(b)(2)(ii). The Government claims that §1231
applies to respondents and allows the Government to deny
them bond hearings while their withholding-only relief pro-
ceedings take place.
The Court agrees with the Government. In its view, re-
spondents’ circumstances fall within the scope of what
§1231 calls a “removal period.” §§1231(a)(1)(A)–(B). And it
believes that section implicitly allows the Government to
deny bond hearings during the 90-day removal period. See
ante, at 7–8; §1231(a)(2). I agree that we have jurisdiction
to review the decision below. See ante, at 8, n. 4; see also
Jennings v. Rodriguez, 583 U. S. ___, ___–___ (2018)
(BREYER, J., dissenting) (slip op., at 30–31). In my view,
however, respondents do not fall within the scope of §1231.
Hence, §1231 does not apply. Rather, respondents’ circum-
stances are governed by the more general section that con-
cerns the conditions of detention pending a final determi-
nation on removal. See §1226. And they are entitled to the
bond hearings for which that general section provides. See
§1226(a)(2).
Cite as: 594 U. S. ____ (2021) 3
BREYER, J., dissenting
I
Readers should keep in mind two subsections of §1231’s
relevant statutory text. The first subsection at issue makes
clear what §1231 is about, namely, a “removal period.” It
then sets forth a general rule. It says:
“(1) Removal period
“(A) In general
“Except as otherwise provided in this section, when
an alien is ordered removed, the Attorney General shall
remove the alien from the United States within a pe-
riod of 90 days (in this section referred to as the ‘re-
moval period’).” 8 U. S. C. §1231(a)(1)(A).
(Readers should also note that while many of the provi-
sions at issue here refer to the “Attorney General,” Con-
gress has elsewhere transferred enforcement of some of
those provisions to the Secretary of Homeland Security.
See Nielsen v. Preap, 586 U. S. ___, ___, n. 2 (2019) (slip op.,
at 3, n. 2).) The second subsection sets forth a restriction
on removal (the restriction-on-removal provision), an excep-
tion to the general rule. It says:
“(3) Restriction on removal to a country where
alien’s life or freedom would be threatened
“(A) In general
“[T]he Attorney General may not remove an alien to
a country if the Attorney General decides that the al-
ien’s life or freedom would be threatened in that coun-
try because of the alien’s race, religion, nationality,
membership in a particular social group, or political
opinion.” §1231(b)(3)(A).
This restriction on removal when an alien fears persecu-
tion or torture embodies an important international legal
obligation that the United States has undertaken. See Ref-
ugee Act of 1980, 94 Stat. 107, codified in part at 8 U. S. C.
4 JOHNSON v. GUZMAN CHAVEZ
BREYER, J., dissenting
§1231(b)(3); see also Protocol Relating to the Status of Ref-
ugees, Art. 1, §1, Jan. 31, 1967, 19 U. S. T. 6223, 6225,
T. I. A. S. No. 6577 (United States acceding to Articles 2
through 34 of the Convention Relating to the Status of Ref-
ugees, Art. 33(1), July 28, 1951, 189 U. N. T. S. 150). The
United States also follows a policy that withholds or defers
removal “of any person to a country in which there are sub-
stantial grounds for believing the person would be in dan-
ger of being subjected to torture.” §2242, 112 Stat. 2681–
822, note following 8 U. S. C. §1231, p. 844; 8 CFR
§§208.16–208.18 (implementing the Convention Against
Torture and Other Cruel, Inhuman or Degrading Treat-
ment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100–
20, 1465 U. N. T. S. 85). These policy commitments, embod-
ied in §1231’s restriction-on-removal provision, apply to any
alien ordered removed, including respondents, who are en-
titled to ask for withholding-only relief. See Fernandez-
Vargas v. Gonzales, 548 U. S. 30, 35, n. 4 (2006); 8 CFR
§§208.31, 241.8(e), 1208.31, 1241.8(e).
A
The procedures to determine whether an alien qualifies
for withholding-only relief are complex. Any alien, includ-
ing one “whose removal is reinstated” under 8 U. S. C.
§1231(a)(5), must be afforded the opportunity to “expres[s]
a fear of returning to the country of removal” specified in
the order of removal. 8 CFR §208.31(a) (boldface omitted).
An asylum officer will then interview the individual to de-
termine whether that individual “has a reasonable fear of
persecution or torture.” §208.31(c). (Asylum officers found
that each respondent here has a “reasonable fear.” Romero
v. Evans, 280 F. Supp. 3d 835, 837 (ED Va. 2017).) If so, an
immigration judge will “full[y] conside[r] . . . the request for
withholding of removal only.” §§208.31(e); 1208.31(e). If
the immigration judge denies the claim, the alien can ap-
Cite as: 594 U. S. ____ (2021) 5
BREYER, J., dissenting
peal to the Board of Immigration Appeals (BIA) and, as ap-
plicable, seek judicial review. §§208.31(e), (g), 1208.31(e),
(g); 8 U. S. C. §§1252(a)(1), (4).
Studies have found that this procedure often takes over a
year, with some proceedings lasting well over two years be-
fore eligibility for withholding-only relief is resolved. See
Hausman, ACLU Immigrants’ Rights Project, Fact-Sheet:
Withholding-Only Cases and Detention 2 (Apr.
19, 2015), https://www.aclu.org/sites/default/files/field_doc-
ument/withholding_only_fact_sheet_-_final.pdf (finding an
average length of detention of 114 days when neither party
appealed the immigration judge’s final decision, 301 days
when at least one party appealed and the BIA rendered a
final decision, and 447 days when the BIA remanded the
case and the immigration judge made a final decision); see
also, e.g., Martinez v. Larose, 968 F. 3d 555, 558 (CA6 2020)
(alien detained for over 28 months while awaiting withhold-
ing-only relief eligibility determination).
Studies have also found that, once withholding-only relief
is granted, the alien is ordinarily not sent to another, less
dangerous country. Rather, the alien typically remains in
the United States for the foreseeable future. See Brief for
Respondents 6 (noting only 1.6% of noncitizens granted
withholding-only relief were ever actually removed to an al-
ternative country (citing American Immigration Council &
National Immigrant Justice Center, The Difference Between
Asylum and Withholding of Removal 7 (Oct. 2020),
https://www.americanimmigrationcouncil.org/sites/de-
fault/files/research/the_difference_between_asy-
lum_and_withholding_of_removal.pdf )).
These figures—particularly the length of time needed to
complete the related administrative proceedings—raise an
obvious question. Typically, Congress permits aliens ini-
tially placed in removal proceedings to apply for bond (while
such proceedings transpire). See 8 U. S. C. §1226(a)(2).
That makes sense. A bond hearing does not mean an alien
6 JOHNSON v. GUZMAN CHAVEZ
BREYER, J., dissenting
will run away. Bond is normally granted only if the immi-
gration judge has assurance that the alien will not abscond
and is instead “likely to appear for any future proceeding.”
8 CFR §§236.1(c)(8), 1236.1(c)(8). And an alien’s release
from detention during such proceedings may have collateral
effects. See Katzmann, When Legal Representation Is De-
ficient: The Challenge of Immigration Cases for the Courts,
143 Daedalus 37, 43–44 (2014) (describing how those de-
tained during removal proceedings are less likely to achieve
the outcomes they seek).
I can understand why Congress might not want to grant
a bond hearing to an alien whose circumstances fall within
the removal period. That period, after all, should normally
be brief. The statute says “90 days.” 8 U. S. C.
§1231(a)(1)(A). But why would Congress want to deny a
bond hearing to individuals who reasonably fear persecu-
tion or torture, and who, as a result, face proceedings that
may last for many months or years (while their withhold-
ing-only proceedings wend their way toward completion)? I
can find no satisfactory answer to this question.
B
Does the statutory provision’s language nonetheless re-
quire the majority’s result? In my view, it does not. Reread
the first seven words of that provision’s general rule. They
say that the provision’s removal rules apply “[e]xcept as oth-
erwise provided in this section.” §1231(a)(1)(A) (emphasis
added). And later in the same section, following that “ex-
cept clause,” the restriction-on-removal provision says that
“the Attorney General may not remove” an alien who falls
within its terms. §1231(b)(3)(A) (emphasis added); see also
note following §1231, at 884. Why does that provision, then,
not count as what the general statutory rule calls an “ex-
cept[ion]?”
Read on. Following the “general” terms governing the re-
moval period rule, §1231 says:
Cite as: 594 U. S. ____ (2021) 7
BREYER, J., dissenting
“(B) Beginning of Period
“The removal period begins on the latest of the fol-
lowing:
“(i) The date the order of removal becomes adminis-
tratively final.
“(ii) If the removal order is judicially reviewed and if
a court orders a stay of the removal of the alien, the
date of the court’s final order.
“(iii) If the alien is detained or confined . . . , the date
the alien is released from detention or confinement.”
§1231(a)(1) (emphasis added).
No one here claims that §1231 authorizes detention with-
out a bond hearing before the removal period begins. And
the most natural reading of the italicized language should
lead to the conclusion that the removal period has not yet
begun. The removal period does not commence until the
administrative proceedings are over, i.e., until “the order of
removal” is “administratively final.” And the order is not
“final” until the immigration judge and the BIA finally de-
termine whether the restriction on removal applies and pro-
hibits removal (unless and until the Government can iden-
tify a willing alternative receiving country).
II
A
The majority believes we must read the statute differ-
ently. It reads the “except clause” as serving only to extend
the “length of the removal period,” ante, at 16–17, not to
exempt the removal procedures altogether. In its view, the
time during which respondents seek administrative relief
from the order of removal due to a reasonable fear of perse-
cution or torture nevertheless remains within the “removal
period,” which the restriction-on-removal provision simply
extends. (And, as I said, the majority assumes that §1231
allows the Government to deny bond hearings during the
90-day “removal period.”)
8 JOHNSON v. GUZMAN CHAVEZ
BREYER, J., dissenting
While this is a possible reading, it is not what the statute
actually says. The statute begins with the phrase “except
as otherwise provided in this section,” and it follows that
clause with basic operative language, namely, “the Attor-
ney General shall remove the alien.” §1231(a)(1)(A). It does
not say, “within a period of 90 days except if this section pro-
vides for a longer period.” The majority’s interpretation is
an awkward way to read that sentence.
The majority then points to three statutory phrases to
which it believes the “except clause” applies. Those
phrases, it says, are evidence that the “except clause”
simply instructs that “the removal period may be extended”
for three reasons. Ante, at 3. The first provision, plainly
titled “Suspension of period,” “extend[s]” the “removal pe-
riod . . . beyond a period of 90 days” if the alien, for example,
fails to seek appropriate travel documents. §1231(a)(1)(C)
(boldface omitted). A second provision allows the Govern-
ment to “detai[n ] beyond the removal period” individuals
who have committed certain serious crimes or pose “a risk
to the community or [are] unlikely to comply with the order
of removal.” §1231(a)(6). And a third allows the Govern-
ment to “stay the removal of an alien” if “immediate re-
moval is not practicable or proper” or the alien is “needed
to testify” in a prosecution. §§1231(c)(2)(A)(i), (ii).
The third example, however, is beside the point, for it
comes equipped with its own bond and supervised released
possibility, staying (rather than extending) the removal pe-
riod. See §1231(c)(2)(C); 8 CFR §241.6(a). The first two ex-
amples are unlike the restriction-on-removal provision in
that their language simply suggests, not invalidation of the
removal order’s identified country of removal, but an exten-
sion of the removal period beyond 90 days. See 8 U. S. C.
§1231(a)(1)(C) (“exten[d] beyond a period of 90 days”);
§1231(a)(6) (“detai[n] beyond the removal period”). The re-
striction-on-removal provision contains no such language.
I add that the majority’s exceptions, unlike the restriction-
Cite as: 594 U. S. ____ (2021) 9
BREYER, J., dissenting
on-removal provision, typically do not entail proceedings
that last (and keep the alien in the United States) for many
months or years. Nor do they call into question whether the
removal order will ultimately be implemented. These in-
consistencies suggest the “except clause” does more than
merely extend the 90-day limit.
B
The majority’s interpretation of the words “administra-
tively final” is no more convincing. The majority says that
these words apply only to the finality of the original re-
moval orders, i.e., the orders issued before respondents left
the country and returned, as of the time those orders were
first issued. After all, the majority adds, see ante, at 9–10,
a further subsection of §1231 says that “the prior order of
removal is reinstated from its original date and is not sub-
ject to being reopened or reviewed, [and] the alien . . . may
not apply for any relief under this chapter.” §1231(a)(5).
This last mentioned provision, however, is not relevant
here. It cannot prevent an alien from seeking what is in
effect a modification of, a change in, or a withholding of, the
“prior order of removal” for reasons of fear of persecution or
torture. After all, §1231(b)(3)(A) says the contrary. Gov-
ernment practice is also to the contrary. See note following
§1231, at 884; 8 CFR §§208.31, 241.8(e), 1208.31, 1241.8(e).
And all here agree that the aliens are legally entitled to
seek that withholding-only relief. See Fernandez-Vargas,
548 U. S., at 35, n. 4.
Now consider the temporal problem. The time when the
majority says the reinstated removal order became “admin-
istratively final” is the time at which the original order of
removal became final. But to take the words “administra-
tively final” as referring only to that time would lead to a
very peculiar statute. It means that most reinstated re-
moval orders will have become administratively final many
10 JOHNSON v. GUZMAN CHAVEZ
BREYER, J., dissenting
years before the proceedings during which they are rein-
stated. Recall that in most instances the 90-day removal
period begins when the removal order becomes administra-
tively final. If the majority is right, in the case of most re-
spondents, the 90-day removal period began long before the
aliens left the country, let alone returned. Did the 90-day
removal period begin to run at that earlier time? Did it run
and then terminate? Is there now no removal period? Read
as the majority does, the 90-day limit that governs all of
§1231 would not apply at all to aliens in respondents’ cir-
cumstances.
For this reason, I believe the better reading of those
words would be to apply them to any removal orders, rein-
stated or not, that are not yet “administratively final.” And
here, the orders are not final until the administrative pro-
ceedings (concerning eligibility for withholding-only relief
on account of fear of persecution or torture) are complete.
Cf. Bennett v. Spear, 520 U. S. 154, 178 (1997) (agency ac-
tion is not “final” until, inter alia, all “rights or obligations
have been determined . . . from which legal consequences
will flow” (internal quotation marks omitted)).
* * *
In sum, I can find no good reason why Congress would
have wanted categorically to deny bond hearings to those
who, like respondents, seek to have removal withheld or de-
ferred due to a reasonable fear of persecution or torture.
And I do not agree with the majority’s reading of the stat-
ute’s language as denying them that opportunity. If, as I
believe, §1231 does not apply to the withholding-only relief
proceedings before us, then, as the majority concedes, see
ante, at 1, §1226 applies, and grants them bond hearings. I
would apply that provision and afford respondents bond
hearings.
With respect, I dissent.