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Immigration Law

SCOTUS Adds Immigration Cases to 2021-22 Docket

Amy L. Howe, Aug. 23, 2021

"The Supreme Court added two new immigration cases to its docket for the 2021-22 term on Monday morning, granting a pair of petitions filed by the federal government. The relatively rare mid-summer additions came as part of the court’s regularly scheduled summer order list, which also included a series of routine orders that (among other things) divided up argument time and disposed of procedural motions in upcoming merits cases.

The justices granted review in Johnson v. Arteaga-Martinez and Garland v. Gonzalez. Both cases involve noncitizens who have been ordered deported but claim they are entitled to “withholding” protection – a form of humanitarian relief in which noncitizens cannot be deported to their home country because they may be tortured or persecuted there. The noncitizens argue that, after spending more than six months in immigration detention awaiting the resolution of their withholding claims, they are entitled to a hearing before an immigration judge to determine whether they can be released on bond. Two federal appeals courts agreed with the noncitizens.

The Supreme Court held in 2018 in Jennings v. Rodriguez that a different provision of federal immigration law does not give noncitizens in prolonged detention the right to periodic hearings; the federal government now argues that the same is true for the provision of immigration law at issue in these cases. The justices also asked the parties in Gonzalez to brief a second question: whether the lower courts had the authority to order the government to provide a class of similarly situated noncitizens with individualized hearings after six months in detention."