The United States Supreme Court recently released a decision on June 13th, 2022 that will allow for prolonged detention of certain noncitizens who have a removal order, without the benefit of judicial review. This decision is an unwelcome blow to those that have been held in custody for periods longer than six months because they will not be able to obtain a bond hearing in front of an immigration judge. The decision whether to continue detention or to release them on terms of supervision will remain with ICE.
§241(a) of the Immigration and Nationality Act authorizes the detention of noncitizens who have deportation orders against them. Under that provision, the noncitizen is supposed to be detained and removed within a period of 90 days. This is known as the “removal period.” §241(a)(6) provides that after the 90 day removal period, certain noncitizens may be detained or released on terms of supervision. Any noncitizen not enumerated under §241(a)(6) that has not been removed within 90 days must be released.
§241(a)(6) allows the continued detention of noncitizens who (1) are inadmissible on certain grounds, (2) are removable on certain grounds, (3) are a risk to the community, or (4) are unlikely to comply with an order of removal. The problem with this provision is that it does not state how long a noncitizen can be detained past the 90 day removal period. Six months? A year? Ten years? Some courts have dealt with this issue by authorizing a bond hearing after six months in custody. Such was the case here, in Johnson v. Arteaga-Martinez.