June has been a historic month for the Supreme Court, which released many groundbreaking, seismic opinions ranging from the Second Amendment (New York State Rifle and Pistol Assn, Inc. v. Bruen) to abortion (Dobbs v. Jackson Women’s Health Organization). Although it did not receive that much attention in the press, the Supreme Court also ruled on a non-citizen’s right to bond hearings in Johnson v. Arteaga-Martinez. In Johnson, the highest court in the land held that while the government must generally secure the removal of an noncitizen who is ordered removed within ninety days, there is nothing specific in the statute that mandates that the government afford detained individuals bond hearings. This is an especially significant decision for individuals in the Third Circuit (New Jersey, Pennsylvania, and Delaware) because the Court essentially overruled the Third Circuit, ruling that the practice of requiring bond hearings reach beyond the limits expressed in Zadvydas v. Davis, a 2001 landmark case that stands for the proposition that the Constitution does not permit indefinite detention of foreign nationals who have been ordered removed.
The impact of this decision should not be underestimated. For non-US citizens who have been ordered removed and cannot be sent back to their countries, there now is a very real prospect of being held for an inordinate period without having an automatic right to get a bond hearing. Under this new ruling, the government is not obligated to offer detained noncitizens a bond hearing after six months, or prove in such a hearing, by clear and convincing evidence, that the individual is a flight risk or danger to the community. This does not mean that individuals will not receive a bond hearing. After individuals who have been ordered removed have been in custody for ninety days, the government may continue to exercise its powers to release individuals under specified conditions. However, what does mean is that the government is not required to give a bond hearing after six months, as was the practice in the Third Circuit. This only underscores how important it is to vigorously contest removal at the immigration court level before things get to this stage.
The above is general information only. It is not specific legal advice nor intended to create an attorney client relationship. If you need advice, please consult with an attorney.