Last month, AILA’s Executive Committee opened the 2021 Annual Conference with a discussion of “Hot Topics,” that included a review of this last Supreme Court term. For those of you who attended or viewed the recording, please consider this a supplement.
On June 29, 2021, in Johnson v. Guzman Chavez, the Supreme Court concluded along its new 6-3 ideological split that detention during “Withholding Only” proceedings is governed by INA § 241 rather than INA § 236. Let me explain. When a person has been previously removed from the United States and returns unlawfully, the person may be subjected to a process called “reinstatement of removal” as set out at INA § 241(a)(5). As the phrase implies, the government simply reinstates the previous order of removal, which allows them to expedite the removal of the noncitizen and thereby limits the availability of relief available to the noncitizen. Detention, and mandatory detention under INA § 241, is now required under the Guzman Chavez decision.
Generally, detention of a person subject to a final removal order is mandatory pursuant to INA § 241(a)(2). However, if a person subject to reinstatement expresses a reasonable fear of persecution or torture, the person is referred to immigration court for withholding only proceedings and, during that time, the removal order is not effectuated. Mr. Guzman Chavez argued INA § 236(a) entitles him to a bond hearing because the subsection applies “pending a decision on whether the alien is to be removed from the United States.” The Department of Justice (DOJ) argued the non-mandatory detention provision and availability for bond under INA § 236 does not apply to a reinstated removal order because the prior decision to remove the person remains final, regardless of whether the removal order is ultimately withheld or deferred in the new “withholding only” proceedings. Thus, according to DOJ’s position, the mandatory detention provision at INA § 241(a)(2) must control. The conservative majority agreed with the government’s textual interpretation.
There are at least three instructive points to be taken from Guzman Chavez. First is the majority’s willingness to take a linguistic step backwards. Justice Alito repeats the term “alien” ad nauseum—and it’s ridiculous and dehumanizing. While the INA has not yet been amended, both the current Administration and the current makeup of this Supreme Court had already ceased use of the antiquated term, at least until Justice Alito had his turn with the pen. . See e.g., Barton v. Barr, 140 S. Ct. 1442, 1446 n. 2 (2020) (majority opinion written by Justice Kavanaugh); Memo of Acting ICE Director Johnson, “Updated Terminology for Communications and Materials,” April 19, 2021. The regrettable reference adds insult to the injury of the opinion.
Second, there was no application of Chevron or Auer deference anywhere in this decision because the majority treated the INA as plainly answering the thorny issue. See Johnson v. Guzman Chavez, No. 19-897, 2021 WL 2653264, at *12 n. 9 (2021). Chevron is judicial deference to an agency’s reasonable interpretation of ambiguous or missing statutory language. Auer is judicial deference to an agency’s reasonable interpretation of federal regulation. Both Chevron and Auer deference is a two-step process: (1) using the traditional tools of statutory or regulatory interpretation, does the actual language resolve the legal question? (2) if not, is the agency’s interpretation reasonable? Both Chevron and Auer deference were certainly relevant to the disposition of Guzman Chavez’s legal challenge yet missing entirely from both the majority and dissenting opinions. I believe this is so because most of the current Court’s makeup deliberately refuse to reach Step 2; the Court simply employs its interpretive toolbelt to resolve ambiguities or gaps in the language. The majority wants to tell us what the language means and Chevron step 1 is its voicebox. While both doctrines are still on the books, the concept of agency deference remains in the words of Justice Gorsuch, “maimed and enfeebled—in truth, zombified.” Kisor v. Wilkie, 139 S. Ct. 2400 (2019) (J. Gorsuch concurring). The takeaway for practitioners is to push back when an agency employs Auer or Chevron deference as a shield protecting its faulty administrative decision making. Push ahead with your interpretation of the applicable statute or regulation. You’ve got plenty of friends at the Supreme Court right now who want to tell the administrative agency what the words of the INA mean.
Finally, although I am disappointed with the result in Guzman Chavez, we are also standing on the shoulders of giants—those that have litigated the contours of prolonged detention for years. While those subject to reinstatement in withholding of removal are now officially subject to mandatory detention, thanks to cases such as Zadvydas v. Davis, 533 U.S. 678 (2001) and the resulting regulation at 8 C.F.R. § 241.4, practitioners should push for release from detention and litigate when detention becomes unreasonable. See Jennings v. Rodriguez, 138 S. Ct. 830, 851 (2018) (making clear the Jennings decision was “no occasion to consider respondents’ constitutional arguments on their merits”). We lost this battle, but the fight goes on.