American Immigration Council Asks U.S. Supreme Court to Ensure Bond Hearings for Certain Immigrants Seeking Protection in the United States

November 12, 2020

WASHINGTON—The American Immigration Council, other immigrant rights organizations, and legal service providers filed a friend-of-the-court (or amicus) brief today with the U.S. Supreme Court, urging the justices to find that immigrants who seek humanitarian protection from removal should have access to bond hearings—instead of being subjected to mandatory detention.

The brief was filed in Pham v. Guzman Chavez, which focuses on which of two provisions of the Immigration and Nationality Act applies to detained immigrants with prior removal orders who are seeking withholding of removal—which is akin to asylum—and are waiting to argue their case before an immigration judge.

The government has invoked one provision to argue that mandatory detention applies because, in their view, the removal order is “administratively final.” Lawyers for the individuals seeking protection invoked the second provision to argue that access to bond hearings applies because a decision on whether an individual actually will be removed remains pending.

This issue is before the Supreme Court, after lower courts across the country have reached different conclusions regarding which of the two provisions should apply. Now the Supreme Court must decide which interpretation applies for the country as a whole.

The brief, filed in support of access to bond hearings, argues that “a decision on whether removal will occur under a reinstated removal order remains pending and is not administratively final until the government ensures our nation’s moral and geopolitical commitments will not be broken.” Decades ago, U.S. law adopted international principles protecting individuals from being returned to countries where they fear persecution or torture. For those who have established that they have a reasonable fear of such persecution, they cannot be removed under U.S. law until those claims are resolved.                                                                               

The brief shares the stories of eight immigrants in withholding of removal proceedings to provide context for the court on the critical need to protect those who have been persecuted and to highlight the harms of mandatory detention.

The brief further explains that adjudication of withholding-only claims can take months and often years, and that “mandatory detention during that time can be intolerable, characterized by inhumane conditions and inadequate medical care. Facing prolonged detention, some noncitizens with meritorious withholding-only claims give up those claims before they can be adjudicated and are deported. The statute does not require that profoundly unjust result.”

“Mandatory detention is typically reserved for those who face imminent removal or who have been convicted of certain crimes. It makes no sense to automatically subject noncitizens with reinstated removal orders who have established a reasonable fear of persecution or torture to mandatory detention,” said Karolina Walters, staff attorney at the American Immigration Council. “While their withholding of removal claims are pending, removal is far from imminent. Preventing noncitizens from obtaining bond hearings and instead subjecting them to mandatory detention serves no purpose and runs counter to our nation’s commitment to provide protection to vulnerable populations.”

“Withholding-only proceedings implement and reflect our nation’s longstanding commitment to protect human rights,” said Elizabeth Prelogar, a partner at Cooley LLP who represented the Council and other organizations in the Supreme Court. “The statutory provisions at issue here are rightly interpreted against that historical background and establish that noncitizens in withholding-only proceedings are not subject to mandatory detention.”

The amicus brief was authored by the law firm of Cooley LLP. The Council, the American Immigration Lawyers Association, Brooklyn Defender Services, Capital Area Immigrants’ Rights Coalition, the Bronx Defenders, the Legal Aid Society of New York, the Refugee and Immigrant Center for Education and Legal Services (RAICES), the Rocky Mountain Immigrant Advocacy Network (RMIAN), and the Asylum Defense Project are signatories to the brief.

You can view the full brief online here.


For more information, contact:

 Maria Frausto at the American Immigration Council, [email protected] or 202-507-7526.

Media Contact

Elyssa Pachico
[email protected]

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