(Slip Opinion) OCTOBER TERM, 2021 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. 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 Arte-
aga-Martinez’s earlier removal order and detained him pursuant to its
authority under the Immigration and Nationality Act. 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 Con-
vention Against Torture, based on his fear that he would be persecuted
or tortured if he returned to Mexico. An asylum officer determined he
had established a reasonable fear of persecution or torture, and the
Department of Homeland Security referred him for withholding-only
proceedings before an immigration judge.
After being detained for four months, Arteaga-Martinez filed 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 deten-
tion under §1231(a)(6) is entitled by statute to a bond hearing before
an immigration judge and must be released unless the Government
establishes, by clear and convincing evidence, that the noncitizen
poses a risk of flight or a danger to the community. The District Court
granted relief on Arteaga-Martinez’s statutory claim and ordered the
Government to provide Arteaga-Martinez a bond hearing. The Third
Circuit summarily affirmed. At the bond hearing, the Immigration
2 JOHNSON v. ARTEAGA-MARTINEZ
Syllabus
Judge considered Arteaga-Martinez’s flight risk and dangerousness
and ultimately authorized his release pending resolution of his appli-
cation for withholding of removal.
Held: Section 1231(a)(6) does not require the Government to provide
noncitizens detained for six months with bond hearings in which the
Government bears the burden of proving, by clear and convincing evi-
dence, that a noncitizen poses a flight risk or a danger to the commu-
nity. Pp. 4–10.
(a) Section 1231(a)(6) cannot be read to require the hearing proce-
dures imposed below. After the entry of a final order of removal
against a noncitizen, the Government generally must secure the
noncitizen’s removal during a 90-day removal period, during which the
Government “shall” detain the noncitizen. 8 U. S. C. §§1231(a)(1), (2).
Beyond the removal period, §1231(a)(6) defines four categories 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
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 precedent, the Court
cannot discern the bond hearing procedures required below from
§1231(a)(6)’s text. Pp. 4–6.
(b) Arteaga-Martinez argues that §1231(a)(6)’s references to flight
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 suffice. The parties agree that the Gov-
ernment possesses discretion to provide bond hearings under
§1231(a)(6) or otherwise, but this Court cannot say the statute re-
quires them.
Finally, Arteaga-Martinez argues that Zadvydas v. Davis, 533 U. S.
678, which identified ambiguity in §1231(a)(6)’s permissive language,
supports a view that §1231(a)(6) implicitly incorporates the specific
bond hearing requirements and procedures imposed by the Court of
Appeals. In Zadvydas, this Court construed §1231(a)(6) “in light of the
Constitution’s demands” and determined that §1231(a)(6) “does not
permit indefinite detention” but instead “limits an alien’s post-re-
moval-period detention to a period reasonably necessary to bring about
Cite as: 596 U. S. ____ (2022) 3
Syllabus
that alien’s removal from the United States.” 533 U. S., at 689. The
bond hearing requirements articulated by the Third Circuit, however,
reach substantially beyond the limitation on detention authority
Zadvydas recognized. Zadvydas does not require, and Jennings v. Ro-
driguez, 583 U. S. ___, does not permit, the Third Circuit’s application
of the canon of constitutional avoidance. Pp. 6–8.
(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 alter-
native theory that he is presumptively entitled to release under
Zadvydas also was not addressed below. The Court leaves these argu-
ments for the lower courts to consider in the first instance. See Cutter
v. Wilkinson, 544 U. S. 709, 718, n. 7. Pp. 8–10.
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., filed a concurring opinion, in which GORSUCH,
J., joined as to Part I. BREYER, J., filed an opinion concurring in part and
dissenting in part.
Cite as: 596 U. S. ____ (2022) 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. 19–896
_________________
TAE D. JOHNSON, ACTING DIRECTOR OF U. S.
IMMIGRATION AND CUSTOMS ENFORCE-
MENT, ET AL., PETITIONERS v. ANTONIO
ARTEAGA-MARTINEZ
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
[June 13, 2022]
JUSTICE SOTOMAYOR delivered the opinion of the Court.
Section 241(a) of the Immigration and Nationality Act
(INA), codified 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 particular,
§1231(a)(6) provides that after a 90-day “removal period,” a
noncitizen “may be detained” or may be released under
terms of supervision. This Court recently held that
§1231(a) applies to individuals who are removed and who
then reenter without authorization and apply for withhold-
ing of removal based on a fear that they will be persecuted
or tortured if returned to their countries of origin. See
Johnson v. Guzman Chavez, 594 U. S. ___, ___ (2021) (slip
op., at 1). 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 flight risk
or a danger to the community. It does not.
2 JOHNSON v. ARTEAGA-MARTINEZ
Opinion of the Court
I
Respondent Antonio Arteaga-Martinez is a citizen of
Mexico. He admits that he has entered the United States
without inspection four times. He first entered in March
2001 and was detained at the border and removed; he reen-
tered 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 re-
moved him.
Arteaga-Martinez represents that, after returning to
Mexico, he was beaten violently by members of a criminal
street gang. Fearing that he would be persecuted or tor-
tured again with the acquiescence of government officials,
he reentered the United States in September 2012.
In May 2018, U. S. Immigration and Customs Enforce-
ment (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 first child. He had no criminal record aside from minor
traffic violations. ICE detained Arteaga-Martinez without
any opportunity for bond and reinstated his earlier removal
order.
Arteaga-Martinez applied for withholding of removal un-
der §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,
1984, S. Treaty Doc. No. 100–20, 1465 U. N. T. S. 113. The
Department of Homeland Security (DHS) referred Arteaga-
Martinez to an asylum officer, who found that Arteaga-
Martinez’s testimony was credible and that he had estab-
lished a reasonable fear of persecution or torture. As a re-
sult, DHS referred Arteaga-Martinez’s claims for adjudica-
tion by an immigration judge in what we have called
“withholding-only proceedings.” Guzman Chavez, 594
U. S., at ___ (slip op., at 6). Pending these proceedings,
Cite as: 596 U. S. ____ (2022) 3
Opinion of the Court
however, the Government 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 filed a peti-
tion for a writ of habeas corpus in the U. S. District Court
for the Middle District of Pennsylvania. His petition chal-
lenged his continued detention without a bond hearing on
both statutory and constitutional grounds. Shortly there-
after, 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 Gov-
ernment establishes, by clear and convincing evidence, that
the noncitizen poses a risk of flight or a danger to the com-
munity. 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 pur-
suant to §1231(a)(6) as of November 4, 2018, six months af-
ter 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-
Martinez’s statutory claim and order the Government to
provide him an individualized bond hearing before an im-
migration judge. Id., at 4a–5a. The District Court adopted
the report and recommendation and ordered a bond hear-
ing. Id., at 3a.
The Government appealed. The Court of Appeals sum-
marily affirmed, citing its earlier decision in Guerrero-
Sanchez. See App. to Pet. for Cert. 1a–2a. Arteaga-Mar-
tinez received a bond hearing at which an Immigration
——————
1 Arteaga-Martinez represents, and the Government does not dispute,
that the Government conducted an administrative review of his danger-
ousness and flight risk in August 2018 and denied him release without
interviewing him or providing a hearing. See 8 CFR §241.4(h)(1) (2021).
4 JOHNSON v. ARTEAGA-MARTINEZ
Opinion of the Court
Judge, considering Arteaga-Martinez’s flight risk and dan-
gerousness, authorized his release on bond. Arteaga-Mar-
tinez posted bond and was released pending a final deter-
mination 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, re-
lease, 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 ___–___ (slip op., at 7–8).
After the entry of a final order of removal against a
noncitizen, 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 pe-
riod. §1231(a)(2). After the removal period expires, the
Government “may” detain only four categories of people:
(1) those who are “inadmissible” on certain specified
grounds; (2) those who are “removable” on certain specified
grounds; (3) those it determines “to be a risk to the commu-
nity”; and (4) those it determines to be “unlikely to comply
with the order of removal.” §1231(a)(6). Individuals re-
leased after the removal 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
——————
2 The Court also granted certiorari in a companion case presenting the
same question. See Garland v. Gonzalez, 594 U. S. ___ (2021).
Cite as: 596 U. S. ____ (2022) 5
Opinion of the Court
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 unlim-
ited discretion.” Id., at 697. The Court explained that “[a]
statute permitting indefinite 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 deter-
mined that “read in light of the Constitution’s demands,”
§1231(a)(6) “does not permit indefinite detention” but in-
stead “limits an alien’s post-removal-period detention to a
period reasonably necessary to bring about that alien’s re-
moval 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 nonciti-
zens present in the country who were inadmissible at the
time of entry or who have been convicted of certain criminal
offenses since they were admitted. Id., at ___ (slip op., at
4). Section 1226(a) provides that the attorney general
“may” detain these noncitizens pending their removal pro-
ceedings and “may release” such individuals on “bond . . . or
conditional parole.” 8 U. S. C. §§1226(a)(1), (2). Nonciti-
zens detained under §1226(a) receive bond hearings after
the Government initially detains them. See 8 CFR
§§236.1(d)(1), 1236.1(d)(1) (2021). Relying on Zadvydas,
the Ninth Circuit had interpreted §1226(a) to require addi-
tional, periodic bond hearings every six months, with the
burden on the Government to prove by clear and convincing
evidence that further detention was justified. Jennings,
583 U. S., at ___–___ (slip op., at 22–23). The Court in Jen-
nings disagreed. It held that “the meaning of the relevant
6 JOHNSON v. ARTEAGA-MARTINEZ
Opinion of the Court
statutory provisio[n] is clear” and that it did not support a
periodic bond hearing requirement. Id., at ___ (slip op., at
23).
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 consti-
tutional avoidance ‘comes into play only when, after the ap-
plication of ordinary textual analysis, the statute is found
to be susceptible of more than one construction.’ ” Id., at ___
(slip op., at 12) (quoting Clark v. Martinez, 543 U. S. 371,
385 (2005)). “In the absence of more than one plausible con-
struction, the canon simply has no application. ” Jennings,
583 U. S., at ___ (slip op., at 12) (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] requirements” the Ninth Circuit had im-
posed. Id., at ___ (slip op., at 23).
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 flight 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
hin[t]” at the requirements imposed below, directs that we
answer this question in the negative. Id., at ___ (slip op., at
14).
The Jennings Court emphasized that the canon of consti-
tutional avoidance is only applicable where a statute has
“more than one plausible construction.” Id., at ___ (slip op.,
at 12). Here, there is no plausible construction of the text
Cite as: 596 U. S. ____ (2022) 7
Opinion of the Court
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 convincing evidence that a detained
noncitizen poses a flight 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 supervi-
sion.” On its face, the statute says nothing about bond hear-
ings before immigration judges or burdens of proof, nor does
it provide any other indication that such procedures are re-
quired. 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 ___ (slip op., at 23). Section 1231(a)(6)
therefore cannot be read to incorporate the procedures im-
posed by the courts below as a matter of textual command.
Arteaga-Martinez responds that §1231(a)(6)’s references
to flight 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 Respond-
ents in Garland v. Gonzalez, O. T. 2021, No. 20–322,
pp. 22–24. However, assuming without deciding that an ex-
press statutory reference to “bond” (as in §1226(a)) might
be read to require an initial bond hearing, §1231(a)(6) con-
tains no such reference. A more oblique reference to terms
of supervision does not suffice.
Respondents in the companion case also emphasize that
regulations offer custody hearings before immigration
judges for noncitizens the Government detains 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
8 JOHNSON v. ARTEAGA-MARTINEZ
Opinion of the Court
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 parties
do not dispute that the Government possesses discretion to
provide bond hearings under §1231(a)(6), see Brief for Peti-
tioners 15, but this Court cannot say, consistent with Jen-
nings, that the statutory text requires them.
Finally, Arteaga-Martinez argues that Zadvydas, which
identified ambiguity in §1231(a)(6)’s permissive language,
supports a view that §1231(a)(6) implicitly incorporates the
specific bond hearing requirements and procedures enu-
merated by the Court of Appeals. In Jennings, however,
this Court faulted the Ninth Circuit for going significantly
further than Zadvydas. 583 U. S., at ___ (slip op., at 15).
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 avoid-
ance.3
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
——————
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 reallo-
cated executive authority.
Cite as: 596 U. S. ____ (2022) 9
Opinion of the Court
that outside of the national-security context, this Court has
never “authorized prolonged detention without an individ-
ualized hearing, before a neutral adjudicator, at which the
detainee has a meaningful opportunity to participate.”
Ibid. (collecting cases). He asserts that the Government’s
interest in denying bond hearings is minimal because such
hearings do not require release. Id., at 26 (citing Zadvydas,
533 U. S., at 696). And he argues that his status as an in-
dividual with a reinstated removal order “ ‘bears no relation
to [his] dangerousness,’ ” as evidenced by the fact that an
Immigration Judge authorized his release on bond. Brief
for Respondent 26–27 (quoting Zadvydas, 533 U. S., at
692). The Government responds that regulations directing
ICE officials to conduct administrative custody reviews for
individuals in ICE detention provide adequate process, “at
least as a general matter.” Brief for Petitioners 18–19. The
Government contends that these regulations—which gen-
erally require a custody review at the end of the 90-day re-
moval period, a second review by a panel at ICE headquar-
ters after six months of detention, and subsequent annual
reviews—provide constitutionally sufficient substantive
and procedural protections for noncitizens whose detention
is prolonged. Id., at 18. The Government also notes that
as-applied constitutional challenges remain available to ad-
dress “exceptional” cases. Id., at 21.
“[W]e are a court of review, not of first 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 first instance. See Jennings, 583 U. S., at ___ (slip op.,
at 29).
Arteaga-Martinez also advances an alternative theory
that he is presumptively entitled to release under Zadvydas
because, in view of the length of time that withholding-only
10 JOHNSON v. ARTEAGA-MARTINEZ
Opinion of the Court
proceedings tend to take, his removal is not reasonably fore-
seeable. See Brief for Respondent 19–22. The Government
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
first 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.
Cite as: 596 U. S. ____ (2022) 1
THOMAS, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 19–896
_________________
TAE D. JOHNSON, ACTING DIRECTOR OF U. S.
IMMIGRATION AND CUSTOMS ENFORCE-
MENT, ET AL., PETITIONERS v. ANTONIO
ARTEAGA-MARTINEZ
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
[June 13, 2022]
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 re-
view “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 “final or-
der” of removal, or (2) when §1252 otherwise grants juris-
diction. See, e.g., Johnson v. Guzman Chavez, 594 U. S. ___,
___ (2021) (THOMAS, J., concurring in part and concurring
in judgment) (slip op., at 1); Jennings v. Rodriguez, 583
U. S. ___, ___–___ (2018) (same) (slip op., at 3–4). This ju-
risdictional zipper clause “cover[s] all claims related to re-
moval proceedings,” including detention-related “withhold-
ing-of-removal claims.” Guzman Chavez, 594 U. S., at ___
(slip op., at 2) (internal quotation marks omitted); see also
Jennings, 583 U. S., at ___–___ (slip op., at 4–7).
Because Arteaga-Martinez does not seek review of a final
2 JOHNSON v. ARTEAGA-MARTINEZ
THOMAS, J., concurring
removal order or otherwise invoke §1252, and because his
claim “aris[es] from” his removal proceedings, I would va-
cate and remand with instructions to dismiss for lack of ju-
risdiction. 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 ___ (slip op., at 2) (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.” Ses-
sions v. Dimaya, 584 U. S. ___, ___ (2018) (dissenting opin-
ion) (slip op., at 6). But even assuming the Due Process
Clause extends to some aliens contesting their removabil-
ity, it does not protect from detention an alien who, like
Arteaga-Martinez, does not challenge his final removal or-
der. Illegal aliens deemed removable have no “right of re-
lease into this country.” Zadvydas v. Davis, 533 U. S. 678,
703 (2001) (Scalia, J., dissenting). Although the Court
properly declines to decide Arteaga-Martinez’s due process
claim, see ante, at 9, we should revisit whether the Due Pro-
cess 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 “indefinite
detention of an alien.” Id., at 690. To avoid that supposed
“problem,” the Court deemed “ambiguous” the statutory au-
thorization that a removable alien “may be detained beyond
the removal period,” and then, clothed in constitutional
garb, invoked that manufactured ambiguity to graft a
made-up rule onto §1231(a)(6). Id., at 697. Namely, the
Cite as: 596 U. S. ____ (2022) 3
THOMAS, J., concurring
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 of-
fered no textual support for that (or any) length of time. See
ibid.
As we later implied in Jennings, the constitutional-avoid-
ance canon cannot justify adoption of such an implausible
construction of §1231(a)(6). See 583 U. S., at ___ (slip op.,
at 12). And, until we overrule Zadvydas, it will continue to
invite nothing but mischief. An ill-defined, quasi-
constitutional command of “reasonableness” inevitably en-
courages courts to fashion procedural rules with no basis in
statutory text. We confronted that mischief in Jennings,
see 583 U. S., at ___ (slip op., at 14) (reversing the Ninth
Circuit for “all but ignor[ing] the statutory text” and instead
“reading Zadvydas . . . as essentially granting a license to
graft a time limit onto the text of §1225(b)”), and we do so
again today, compare ante, at 8, 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 ef-
fect.” Clark v. Martinez, 543 U. S. 371, 401 (2005)
(THOMAS, J., dissenting); see also Gamble v. United States,
587 U. S. ___, ___ (2019) (THOMAS, J., concurring) (slip op.,
at 17) (“[W]e should not invoke stare decisis to uphold prec-
edents 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. ____ (2022) 1
Opinion of BREYER, J.
SUPREME COURT OF THE UNITED STATES
_________________
No. 19–896
_________________
TAE D. JOHNSON, ACTING DIRECTOR OF U. S.
IMMIGRATION AND CUSTOMS ENFORCE-
MENT, ET AL., PETITIONERS v. ANTONIO
ARTEAGA-MARTINEZ
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
[June 13, 2022]
JUSTICE BREYER, concurring in part and dissenting in
part.
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 re-
quirements 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 re-
moval period . . . .”
In Zadvydas v. Davis, 533 U. S. 678, 689 (2001), “we read
an implicit limitation into” this provision. Because a “stat-
ute permitting indefinite 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
2 JOHNSON v. ARTEAGA-MARTINEZ
Opinion of BREYER, J.
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 indefinite detention.” Id., at 689–
690; see also id., at 690–696 (explaining potential constitu-
tional concerns presented by indefinite detention under
§1231(a)(6)).
We also held that the period reasonably necessary to ef-
fect removal was presumptively six months. Id., at 701.
“[W]e recognize[d] that period” “for the sake of uniform ad-
ministration in the federal courts.” Ibid. But “[a]fter this
6-month period, once the alien provides good reason to be-
lieve that there is no significant likelihood of removal in the
reasonably foreseeable future, the Government must re-
spond with evidence sufficient to rebut that showing. And
for detention to remain reasonable, as the period of prior
postremoval confinement grows, what counts as the ‘rea-
sonably 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 considered 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 bur-
glary, and theft; Ma was involved in a gang-related shoot-
ing and convicted of manslaughter. Ibid. Arteaga-Mar-
tinez’s only crime (besides minor traffic violations) is
entering the United States without inspection. Ante, at 2.
The Government seeks to detain him while an immigration
Cite as: 596 U. S. ____ (2022) 3
Opinion of BREYER, J.
judge considers his claim that he will be persecuted or tor-
tured if he is returned to Mexico. Ante, at 2–3. 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 alternative is a bail hearing (where the Government has
an opportunity to show that that person might pose a dan-
ger to the community or a flight risk) than when the alter-
native is simply release.
The Government argues that a later case, Jennings v. Ro-
driguez, 583 U. S. ___ (2018), dictates the result here, ra-
ther than Zadvydas. Not at all. That later case involved
detention under statutes other than the one at issue here
and in Zadvydas. Jennings, 583 U. S., at ___ (slip op., at 5)
(“The primary issue is the proper interpretation of
§§1225(b), 1226(a), and 1226(c)”). The Court in Jennings
did not modify or overrule Zadvydas, but rather explicitly
distinguished that case. Jennings, 583 U. S., at ___ (slip
op., at 17). 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 ___, ___ (slip
op., at 16, 19). In Zadvydas, the word “may” created ambi-
guity that permitted the Court to interpret §1231(a)(6) (the
statute before us) in a manner that avoided the constitu-
tional problem that indefinite detention could have created.
533 U. S., at 697. The majority in Jennings held that the
statutory provisions at issue there were not similarly am-
biguous, and therefore did not permit the Court to reach a
similar interpretation. 583 U. S., at ___, ___–___ (slip op.,
at 17, 22–23).
It is true that one of the statutes interpreted in Jennings,
§1226(a), said that the Attorney General “may . . . arres[t]
4 JOHNSON v. ARTEAGA-MARTINEZ
Opinion of BREYER, J.
and detai[n an alien] pending a decision on whether the al-
ien 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 hear-
ing (given the constitutional problem posed by potentially
indefinite 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 in-
itial 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 deten-
tion 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 impo-
sition of either of those requirements. Nor does
§1226(a)’s text even hint that the length of detention
prior to a bond hearing must specifically be considered
in determining whether the alien should be released.”
Jennings, 583 U. S., at ___–___ (slip op., at 22–23) (em-
phasis added).
The court below did not order periodic bond hearings, but
it did require the Government to satisfy a “clear and con-
vincing evidence” standard. Ante, at 3. I agree that Jen-
nings forecloses this latter requirement. Otherwise, I
would find 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 proceed-
ings, 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’
standard in this context, and, if necessary, to consider the
underlying constitutional question, a matter that this
Court has not decided.