Johnson v. Guzman Chavez

(Slip Opinion) OCTOBER TERM, 2020 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

JOHNSON, ACTING DIRECTOR OF U. S.

IMMIGRATION AND CUSTOMS ENFORCEMENT, ET

AL. v. GUZMAN CHAVEZ ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

No. 19–897. Argued January 11, 2021—Decided June 29, 2021

Federal immigration law establishes procedures for removing aliens liv-

ing unlawfully in the United States as well as for determining whether

such persons are detained during removal proceedings. The Depart-

ment of Homeland Security (DHS) may arrest and detain an alien

“pending a decision on whether the alien is to be removed from the

United States.” 8 U. S. C. §1226(a). An alien detained under §1226(a)

may generally apply for release on bond or conditional parole.

§1226(a)(2). If an alien is ordered removed and the order becomes “ad-

ministratively final,” detention becomes mandatory. §§1231(a)(1)(A)–

(B), (a)(2). If an alien removed under this process reenters the country

without authorization, that person faces reinstatement of “the prior

order of removal from its original date.” §1231(a)(5). That order “is

not subject to being reopened or reviewed,” and the alien “shall be re-

moved under the prior order at any time after reentry.” Ibid.

Respondents are aliens who were removed from the United States

and later reentered without authorization. When DHS reinstated

their prior removal orders, each respondent sought withholding-only

relief to prevent DHS from executing those orders based on fear of re-

turning to their home country as designated in the removal orders.

While respondents’ withholding-only proceedings were pending, DHS

detained respondents, and respondents sought release on bond, which

was initially denied. The Government opposed their release, main-

taining that because respondents were detained under §1231, not

§1226, they were not entitled to bond hearings. Respondents filed ha-

beas proceedings in District Court, seeking a declaration that §1226

2 JOHNSON v. GUZMAN CHAVEZ

Syllabus

governs their detention, as well as an injunction ordering the Govern-

ment to grant them individualized bond hearings consistent with

§1226. The District Court entered summary judgment for respond-

ents, and the Fourth Circuit affirmed.

Held: Section §1231, not §1226, governs the detention of aliens subject to

reinstated orders of removal. Pp. 8–22.

(a) Section 1231 authorizes detention “when an alien is ordered re-

moved” and enters the “removal period,” which begins, as relevant

here, on “[t]he date the order of removal becomes administratively fi-

nal.” It is undisputed that each respondent was previously “ordered

removed” pursuant to a valid order of removal and that those orders

were “reinstated from [their] original date[s]” under §1231(a)(5).

Those reinstated removal orders were also “administratively final.” By

inserting the word “administratively,” Congress made clear that DHS

need not wait for the alien to seek or exhaust judicial review of that

order. Respondents contend that even if §1231 normally governs in

such cases, it ceases to apply when the alien pursues withholding-only

relief. Respondents’ arguments cannot overcome the statute’s plain

text. Pp. 8–18.

(1) Respondents misunderstand the nature of withholding-only

proceedings when they argue that because an immigration judge or

the Board of Immigration Appeals (BIA) might determine that DHS

cannot remove an alien to the specific country designated in the re-

moval order, the question whether the alien is “to be removed” remains

“pending” and is therefore governed by §1226. If an immigration judge

grants an application for withholding of removal, DHS is prohibited

from removing the alien to that particular country, not from the United

States. The removal order remains in full force, and DHS retains the

authority to remove the alien to any other authorized country. This

Court and the BIA have long understood the nature of withholding-

only relief this way. See, e.g., INS v. Aguirre-Aguirre, 526 U. S. 415,

419. Pp. 11–14.

(2) Respondents next argue that a removal order does not become

“administratively final” until the withholding-only proceedings con-

clude. A reinstated removal order, they contend, loses its prior finality

when the alien initiates withholding-only proceedings. This argument

ignores that removal orders and withholding-only proceedings address

two distinct questions and end in two separate orders. See Nasrallah

v. Barr, 590 U. S. ___, ___. Because the validity of removal orders is

not affected by the grant of withholding-only relief, an alien’s initiation

of withholding-only proceedings does not render non-final an otherwise

“administratively final” reinstated order of removal. Pp. 14–16.

(3) Respondents submit that the “except as otherwise provided in

this section” language in the opening clause of §1231(a)(1)(A)—which

Cite as: 594 U. S. ____ (2021) 3

Syllabus

sets the default for the length of the removal period at 90 days—places

a limit on when the removal period is triggered. The most natural

reading of that phrase, however, is that the Government must remove

an alien within 90 days unless another section of §1231 specifically

contemplates that the removal period can exceed 90 days. The pres-

ence of specific statutory provisions in §1231 that relate to the length

of the removal period leads to the conclusion that the opening clause

of §1231(a)(1)(A) refers to them and not the withholding-only provi-

sion, which does not mention the length of the removal period and does

not stand in the way of removal to a third country. Pp. 16–17.

(b) Statutory structure confirms this Court’s textual reading. Every

provision applicable to respondents is located in §1231. It would thus

be odd if the provision governing their detention was located in §1226,

rather than §1231, which contains its own detention provision. More-

over, the inclusion of the statutory withholding provision in §1231,

grouped with other provisions that relate to where DHS may remove

an alien, illustrates how withholding-only relief fits within the re-

moval process generally. The order of the applicable Immigration and

Nationality Act provisions provides further context for interpreting

the proper application of §1226 and §1231. Section 1226 applies before

an alien proceeds through the removal proceedings and obtains a de-

cision; §1231 applies after. Pp. 18–19.

(c) Respondents’ contrary reading would also undermine Congress’s

judgment regarding the detention of different groups of aliens who

posed different flight risks. Aliens who have not been ordered removed

are less likely to abscond because they have a chance of being found

admissible, while aliens who have already been ordered removed are

generally inadmissible, see §1182(a)(9)(C)(ii), and have already

demonstrated a willingness to violate the terms of a removal order, see

§1231(a)(6). Congress had obvious reasons to treat these two groups

differently. P. 20.

(d) Respondents remaining arguments are that withholding-only

proceedings are a legal impediment that, like the three triggers to the

start of the removal period listed in §1231(a)(1)(B), must be eliminated

before the removal period begins and that Congress could not have in-

tended §1231 to apply to an alien in withholding-only proceedings be-

cause withholding-only proceedings often take longer than 90 days.

Neither argument is persuasive. Pp. 20–22.

940 F. 3d 867, reversed.

ALITO, J., delivered the opinion of the Court, except as to footnote 4.

ROBERTS, C. J., and KAVANAUGH and BARRETT, JJ., joined that opinion in

full. THOMAS, J., filed an opinion concurring except for footnote 4 and

concurring in the judgment, in which GORSUCH, J., joined. BREYER, J.,

filed a dissenting opinion, in which SOTOMAYOR and KAGAN, JJ., joined.

Cite as: 594 U. S. ____ (2021) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash-

ington, D. C. 20543, of any typographical or other formal errors, in order that

corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 19–897

_________________

TAE D. JOHNSON, ACTING DIRECTOR OF U. S. IMMI-

GRATION AND CUSTOMS ENFORCEMENT,

ET AL., PETITIONERS v. MARIA ANGELICA

GUZMAN CHAVEZ, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT

[June 29, 2021]

JUSTICE ALITO delivered the opinion of the Court, except

as to footnote 4.

Federal immigration law contains various provisions au-

thorizing the Government to detain aliens during the re-

moval process. This case concerns two of them: 8 U. S. C.

§1226 and 8 U. S. C. §1231. We are asked to decide which

of those provisions applies to aliens who were removed from

the United States but later reentered without authoriza-

tion, were subject to reinstated orders of removal, and then

sought withholding of removal based on fear of persecution

in the particular countries designated by their removal or-

ders. If the answer is §1226, which applies “pending a de-

cision on whether the alien is to be removed from the United

States,” then the alien may receive a bond hearing before

an immigration judge. If the answer is §1231, which ap-

plies after the alien is “ordered removed,” then the alien is

not entitled to a bond hearing. We conclude that §1231, not

§1226, governs the detention of aliens subject to reinstated

orders of removal, meaning those aliens are not entitled to

2 JOHNSON v. GUZMAN CHAVEZ

Opinion of the Court

a bond hearing while they pursue withholding of removal.

I

A

The Immigration and Nationality Act (INA) establishes

procedures for removing aliens living unlawfully in the

United States. In the ordinary course, if the Department of

Homeland Security (DHS)1 discovers that an alien is living

in the United States without authorization, it may initiate

removal proceedings against the alien by sending him a “no-

tice to appear.” 110 Stat. 3009–587, as added and amended,

8 U. S. C. §1229(a). That notice informs the alien of, among

other things, the charges against him and the time and

place of the hearing at which an immigration judge will de-

termine whether the alien is to be removed.

§§1229(a)(1)(D), (G)(i).

The INA further provides that DHS may arrest and de-

tain the alien “pending a decision on whether the alien is to

be removed from the United States.” §1226(a). Aliens who

are arrested and detained may generally apply for release

on bond or conditional parole. §1226(a)(2).2 To secure re-

lease, the alien must show that he does not pose a danger

to the community and that he is likely to appear for future

proceedings. 8 CFR §§236.1(c)(8), 1236.1(c)(8) (2020); In re

Adeniji, 22 I. & N. Dec. 1102, 1113 (BIA 1999). If DHS de-

nies the alien’s request, the alien may request a bond hear-

ing in front of an immigration judge by filing an application

——————

1 Although many of the provisions at issue in this case refer to the At-

torney General, Congress has also empowered the Secretary of Home-

land Security to enforce the Immigration and Nationality Act. See Niel-

sen v. Preap, 586 U. S. ___, ___ n. 2 (2019) (slip op., at 3, n. 2); see also

Brief for Petitioners 2–3, and n. 1; Brief for Respondents 7, and n. 2.

2 There is one exception. For certain criminal aliens and aliens who

have connections to terrorism, detention is mandatory and release is per-

mitted in very limited circumstances. See 8 U. S. C. §1226(c); Nielsen,

586 U. S., at ___–___, ___–___ (slip op., at 3–4, 23–24). That exception

does not apply here.

Cite as: 594 U. S. ____ (2021) 3

Opinion of the Court

for a change in the alien’s detention conditions. See

§§236.1(d)(1), 1003.19(a), 1236.1(d)(1). Either the alien or

DHS may appeal the immigration judge’s decision to the

Board of Immigration Appeals (BIA). See §§236.1(d)(3)(i),

1003.19(f ), 1236.1(d)(3)(i).

At some point, the alien will also have the above-

mentioned hearing before an immigration judge to deter-

mine whether he is inadmissible or deportable, and there-

fore subject to removal. 8 U. S. C. §1229a(a)(1). The alien

may seek various forms of relief or protection from removal,

such as asylum or withholding of removal. See

§1229a(c)(4)(A); 8 CFR §§1208.4(b)(3)(i), 1240.11(c), (e). If

the immigration judge decides that the alien is inadmissible

or deportable and that the alien is not entitled to any of the

relief or protection that he requested, the immigration

judge will issue an order of removal. 8 U. S. C. §1229a(c)(5).

If the immigration judge issues an order of removal, the al-

ien may file a motion to reconsider, a motion to reopen, an

appeal to the BIA, and a petition for review in federal court.

§§1229a(c)(5)–(7), 1252(b); 8 CFR §1240.15.

Once an alien is ordered removed, DHS must physically

remove him from the United States within a 90-day “re-

moval period.” 8 U. S. C. §1231(a)(1)(A). The removal pe-

riod begins on the latest of three dates: (1) the date the or-

der of removal becomes “administratively final,” (2) the

date of the final order of any court that entered a stay of

removal, or (3) the date on which the alien is released from

non-immigration detention or confinement. §1231(a)(1)(B).

During the removal period, detention is mandatory.

§1231(a)(2).

Under §1231, the removal period may be extended in at

least three circumstances, such that an alien remains de-

tained after 90 days have passed. First, the removal period

may be extended if the alien fails to make a timely applica-

tion for travel documents or acts to prevent his removal.

4 JOHNSON v. GUZMAN CHAVEZ

Opinion of the Court

§1231(a)(1)(C). Second, DHS may stay the immediate re-

moval of certain aliens if it decides that such removal is not

practicable or proper, or if the alien is needed to testify in a

pending prosecution. §1231(c)(2)(A). And finally, the stat-

ute provides that an alien may be detained beyond the re-

moval period or released under supervision if he is (1) inad-

missible, (2) removable as a result of violations of status

requirements, entry conditions, or the criminal law, or for

national security or foreign policy reasons, or (3) a risk to

the community or unlikely to comply with the removal or-

der. §1231(a)(6); see also 8 CFR §241.4 (setting out proce-

dures DHS must follow to impose continued detention).

Continued detention under this provision creates the “post-

removal-period.”

Although the statute does not specify a time limit on how

long DHS may detain an alien in the post-removal period,

this Court has “read an implicit limitation” into the statute

“in light of the Constitution’s demands,” and has held that

an alien may be detained only for “a period reasonably nec-

essary to bring about that alien’s removal from the United

States.” Zadvydas v. Davis, 533 U. S. 678, 689 (2001). And

according to the Court, a period reasonably necessary to

bring about the alien’s removal from the United States is

presumptively six months. Id., at 701. After that point, if

the alien “provides good reason to believe that there is no

significant likelihood of removal in the reasonably foresee-

able future,” the Government must either rebut that show-

ing or release the alien. Ibid.; see also 8 CFR §241.13 (set-

ting out the Zadvydas procedures).

If no exception applies, an alien who is not removed

within the 90-day removal period will be released subject to

supervision. See 8 U. S. C. §1231(a)(3); see also 8 CFR

§241.5.

B

In addition to the removal procedures outlined above,

Cite as: 594 U. S. ____ (2021) 5

Opinion of the Court

Congress has created an expedited process for aliens who

reenter the United States without authorization after hav-

ing already been removed. The relevant statutory provision

states:

“If the Attorney General finds that an alien has reen-

tered the United States illegally after having been re-

moved or having departed voluntarily, under an order

of removal, the prior order of removal is reinstated from

its original date and is not subject to being reopened or

reviewed, the alien is not eligible and may not apply for

any relief under this chapter, and the alien shall be re-

moved under the prior order at any time after the

reentry.” §1231(a)(5).

DHS’s regulations set out the process for reinstating an or-

der of removal. In short, the agency obtains the alien’s prior

order of removal, confirms the alien’s identity, determines

whether the alien’s reentry was unauthorized, provides the

alien with written notice of its determination, allows the al-

ien to contest that determination, and then reinstates the

order. See 8 CFR §§241.8(a)–(c), 1241.8(a)–(c).

Title 8 U. S. C. §1231(a)(5) applies to “all illegal reen-

trants,” and it “explicitly insulates the removal orders from

review,” while also “generally foreclos[ing] discretionary re-

lief from the terms of the reinstated order.” Fernandez-Var-

gas v. Gonzales, 548 U. S. 30, 35 (2006). It does not, how-

ever, preclude an alien from pursuing withholding-only

relief to prevent DHS from executing his removal to the par-

ticular country designated in his reinstated removal order.

Ibid., n. 4; see also §1231(b)(3)(A).

C

Much of this case turns on the nature of withholding-only

proceedings. There are two paths for seeking withholding

of removal. First, the alien may seek statutory withholding

under §1231(b)(3)(A), which provides that “the Attorney

6 JOHNSON v. GUZMAN CHAVEZ

Opinion of the Court

General may not remove an alien to a country if the Attor-

ney General decides that the alien’s life or freedom would

be threatened in that country because of the alien’s race,

religion, nationality, membership in a particular social

group, or political opinion.” Second, the alien may seek

withholding under regulations implementing the Conven-

tion Against Torture and Other Cruel, Inhuman or Degrad-

ing Treatment or Punishment (CAT), Dec. 10, 1984, S.

Treaty Doc. No. 100–20, 1465 U. N. T. S. 113, which prohib-

its removal of an alien to a country where the alien is likely

to be tortured. See 8 CFR §§208.16–208.17, 1208.16–

1208.17.

The process for applying for withholding of removal de-

pends on whether the alien is subject to the standard re-

moval proceedings or a reinstated order of removal. As

mentioned above, an alien subject to the standard removal

process typically applies for withholding during the course

of his removal proceedings. See supra, at 3. But because

an alien subject to a reinstated order of removal will not

have any removal proceedings, the process begins for him

only if he expresses a fear to DHS of returning to the coun-

try of removal. See §§208.31(a), 1208.31(a). At that point,

DHS will refer him to an asylum officer for a reasonable

fear determination, which will normally be conducted

within 10 days of the referral. §§208.31(b), 1208.31(b). If

the asylum officer concludes that the alien has a reasonable

fear, he will refer the matter to an immigration judge for

initiation of withholding-only proceedings. §§208.31(e),

1208.31(e). Those proceedings are “limited to a determina-

tion of whether the alien is eligible for withholding or defer-

ral of removal,” and as such, “all parties are prohibited from

raising or considering any other issues, including but not

limited to issues of admissibility, deportability, eligibility

for waivers, and eligibility for any other form of relief.”

§§208.2(c)(3)(i), 1208.2(c)(3)(i). The immigration judge’s fi-

nal decision as to withholding can be appealed to the BIA.

Cite as: 594 U. S. ____ (2021) 7

Opinion of the Court

§§208.31(e), 1208.31(e).

If an alien is granted withholding-only relief, DHS may

not remove the alien to the country designated in the re-

moval order unless the order of withholding is terminated.

§§208.22, 1208.22. But because withholding of removal is

a form of “ ‘country specific’ ” relief, INS v. Cardoza-Fonseca,

480 U. S. 421, 428, n. 6 (1987), nothing prevents DHS “from

removing [the] alien to a third country other than the coun-

try to which removal has been withheld or deferred,”

§§208.16(f ), 1208.16(f ); see also §§208.17(b)(2),

1208.17(b)(2).

D

Respondents are aliens who were removed from the

United States and later reentered without authorization.

Guzman Chavez v. Hott, 940 F. 3d 867, 870 (CA4 2019).

When DHS discovered their presence, it reinstated their

prior removal orders. Id., at 870–871. Each respondent ex-

pressed a fear of returning to his or her home country and

was referred to an asylum officer for a reasonable fear in-

terview. Id., at 871. In each case, the asylum officer deter-

mined that the respondent had a reasonable fear of perse-

cution or torture and referred the respondent to an

immigration judge for withholding-only proceedings. Ibid.

Although some of the respondents were initially granted su-

pervised release, all were ultimately detained by DHS.

Ibid. They then sought release on bond while their with-

holding-only proceedings were pending. The Government

opposed release, maintaining that because respondents

were detained under 8 U. S. C. §1231, not §1226, they were

not entitled to bond hearings.

Respondents filed two habeas proceedings in the Eastern

District of Virginia seeking a declaration that §1226 rather

than §1231 governs their detention, as well as an injunction

ordering the Government to grant them individualized

8 JOHNSON v. GUZMAN CHAVEZ

Opinion of the Court

bond hearings consistent with §1226.3 In both cases, the

District Court entered summary judgment in favor of re-

spondents, concluding that §1226 governs their detention.

See Romero v. Evans, 280 F. Supp. 3d 835, 849 (2017); Diaz

v. Hott, 297 F. Supp. 3d 618, 623, 628 (2018). The Govern-

ment appealed both decisions, and the Fourth Circuit af-

firmed, over a dissent by Judge Richardson. See 940 F. 3d,

at 882. In doing so, the Fourth Circuit joined the Second

Circuit but departed from the Third, Sixth, and Ninth Cir-

cuits. Compare Guerra v. Shanahan, 831 F. 3d 59, 64 (CA2

2016), with Martinez v. LaRose, 968 F. 3d 555, 559 (CA6

2020); Guerrero-Sanchez v. Warden York County Prison,

905 F. 3d 208, 213 (CA3 2018); Padilla-Ramirez v. Bible,

882 F. 3d 826, 832 (CA9 2017). We granted certiorari to re-

solve the split. Albence v. Guzman Chavez, 590 U. S. ___

(2020). We conclude that §1231, not §1226, governs re-

spondents’ detention and now reverse the judgment of the

Fourth Circuit.4

II

A

We turn first to the statutory text. Section 1226 provides

that “an alien may be arrested and detained pending a de-

cision on whether the alien is to be removed from the United

States.” §1226(a). Section 1231, by contrast, authorizes de-

tention “when an alien is ordered removed” and enters the

“removal period,” which begins on “[t]he date the order of

removal becomes administratively final.” §§1231(a)(1)(A)–

——————

3 In one of the proceedings, the District Court certified a Virginia-wide

class of aliens detained during withholding-only proceedings. 940 F. 3d,

at 871. The Government did not challenge below, and does not challenge

in this Court, the District Court’s decision to certify the class, and we do

not address that decision here.

4 We have jurisdiction to review the decision below. See Jennings v.

Rodriguez, 583 U. S. ___, ___–___ (2018) (plurality opinion) (slip op., at

8–11).

Cite as: 594 U. S. ____ (2021) 9

Opinion of the Court

(B), (2).5 It further provides that when an alien reenters

the country after having already been removed, “the prior

order of removal is reinstated from its original date and is

not subject to being reopened or reviewed.” §1231(a)(5). In

that scenario, “the alien is not eligible and may not apply

for any relief under this chapter” and “shall be removed un-

der the prior order at any time after the reentry.” Ibid.

The parties agree that §1226 governs the detention of al-

iens until §1231’s “removal period” begins. As relevant

here, the removal period begins when an alien is “ordered

removed,” and the removal order becomes “administra-

tively final.” To resolve this case, we therefore must decide

two questions: whether respondents were “ordered re-

moved” and whether their reinstated removal orders were

“administratively final.” The answer to both questions is

yes.

First, respondents have been “ordered removed.” It is un-

disputed that each respondent was previously removed pur-

suant to a valid order of removal. And after respondents

later reentered the United States without authorization,

those prior orders were “reinstated from [their] original

date[s]” under §1231(a)(5). Those reinstated orders are not

subject to reopening or review, nor are respondents eligible

for discretionary relief under the INA. Instead, they “shall

be removed under the prior order at any time after the

reentry.” Ibid. Accordingly, respondents’ prior orders, re-

instated under §1231(a)(5), show that respondents were or-

dered removed.

Second, respondents’ reinstated removal orders are “ad-

ministratively final.” Although that phrase is not defined

in the statute, its meaning is clear. By using the word “ad-

ministratively,” Congress focused our attention on the

——————

5 The other two triggers for the removal period—a court order lifting a

stay and the release from non-immigration detention or confinement—

do not apply here. See §§1231(a)(1)(B)(ii)–(iii).

10 JOHNSON v. GUZMAN CHAVEZ

Opinion of the Court

agency’s review proceedings, separate and apart from any

judicial review proceedings that may occur in a court. Con-

text confirms this interpretation. Recall that under

§1231(a)(1)(B), the removal period begins “on the latest of ”

three events: (1) “[t]he date the order of removal becomes

administratively final”; (2) “[i]f the removal order is judi-

cially reviewed and if a court orders a stay of the removal

of the alien, the date of the court’s final order”; and (3) “[i]f

the alien is detained or confined” outside the immigration

process, the date of the alien’s release. Reading the first

two provisions together, it is clear that DHS need not wait

for the alien to seek, and a court to complete, judicial review

of the removal order before executing it. Rather, once the

BIA has reviewed the order (or the time for seeking the

BIA’s review has expired), DHS is free to remove the alien

unless a court issues a stay. That reinforces why Congress

included “administratively” before the word “final” in the

first provision.

Respondents do not contest that their prior removal or-

ders have long been “administratively final,” as we under-

stand the term. See Brief for Respondents 8, 20–21, 24–26.6

Each had the opportunity to seek review in the BIA after

the initial removal order was entered, and §1231(a)(5) ex-

plicitly prohibits them from seeking review or relief from

the order after it is reinstated following unlawful reentry.

In other words, there is nothing left for the BIA to do with

respect to the removal order other than to execute it. Thus,

respondents’ orders are administratively final.

——————

6 Respondents do argue, however, that some lower courts’ interpreta-

tion of the phrase “final order of removal” as it is used in 8 U. S. C.

§1252(b)(1) requires that this Court adopt respondents’ interpretation of

§1231 here. Brief for Respondents 24–26, and n. 8. We express no view

on whether the lower courts are correct in their interpretation of §1252,

which uses different language than §1231 and relates to judicial review

of removal orders rather than detention.

Cite as: 594 U. S. ____ (2021) 11

Opinion of the Court

For these reasons, §1231’s detention provisions are a nat-

ural fit for aliens subject to reinstated orders of removal.

Respondents and the dissent appear to accept this much

but nevertheless contend that even if §1231 normally gov-

erns aliens in this posture, it ceases to apply when such an

alien pursues withholding-only relief. See post, at 6–7

(opinion of BREYER, J.). Each of the arguments on this score

fails.

1

Respondents first argue that because an immigration

judge or the BIA might determine that DHS cannot remove

an alien to the specific country designated in the removal

order, the question whether the alien is “to be removed” re-

mains “pending” and is therefore governed by §1226. Re-

spondents misunderstand the nature of withholding-only

proceedings. When an alien applies for withholding-only

relief, he does so as to a particular country. See 8 CFR

§§208.31(a), 1208.31(a). The proceedings that result from

such an application are “limited to a determination of

whether the alien is eligible for withholding or deferral of

removal,” and “all parties are prohibited from raising or

considering any other issues, including but not limited to

issues of admissibility, deportability, eligibility for waivers,

and eligibility for any other form of relief.” §§208.2(c)(3)(i),

1208.2(c)(3)(i). If an immigration judge grants an applica-

tion for withholding of removal, he prohibits DHS from re-

moving the alien to that particular country, not from the

United States. The removal order is not vacated or other-

wise set aside. It remains in full force, and DHS retains the

authority to remove the alien to any other country author-

ized by the statute. See §§208.16(f ), 1208.16(f ), 1240.12(d).

And the statute provides numerous options: a country des-

ignated by the alien; the alien’s country of citizenship; the

alien’s previous country of residence; the alien’s country of

birth; the country from which the alien departed for the

12 JOHNSON v. GUZMAN CHAVEZ

Opinion of the Court

United States; and finally, any country willing to accept the

alien. Brief for Petitioners 3 (citing 8 U. S. C. §1231(b)(2)).

In short, withholding-only relief is country-specific. It re-

lates to where an alien may be removed. It says nothing,

however, about the antecedent question whether an alien is

to be removed from the United States.

This Court and the BIA have long understood the nature

of withholding-only relief this way. In INS v. Aguirre-

Aguirre, 526 U. S. 415, 419 (1999), we distinguished with-

holding-only relief from asylum, noting that “a grant of asy-

lum permits an alien to remain in the United States and to

apply for permanent residency after one year,” while “with-

holding only bars deporting an alien to a particular country

or countries.” (Emphasis added.) And in Matter of I–S &

C–S, 24 I. & N. Dec. 432, 434 (BIA 2008), the BIA made

clear that withholding-only relief “does not afford [an alien]

any permanent right to remain in the United States.” Ra-

ther, as the “regulations make clear,” a grant of withholding

“does not prevent the DHS from removing an alien to a

country other than the one to which removal has been with-

held.” Ibid. Indeed, just last Term, we affirmed that a

grant of withholding-only relief “means only that, notwith-

standing the order of removal, the noncitizen may not be

removed to the designated country of removal, at least until

conditions change in that country,” and that “the noncitizen

still may be removed at any time to another country.”

Nasrallah v. Barr, 590 U. S. ___, ___ (2020) (slip op., at 8)

(internal quotation marks omitted).

Respondents counter that, as a practical matter, the ques-

tions “whether” an alien may be removed and “where” he

may be removed to are indistinguishable because DHS often

does not remove an alien to an alternative country if with-

holding relief is granted. They point to one source claiming

that in 2017, only 1.6% of aliens who were granted withhold-

ing of removal were actually removed to an alternative coun-

Cite as: 594 U. S. ____ (2021) 13

Opinion of the Court

try. See Brief for Respondents 6, 30–31 (citing American Im-

migration Council & National Immigrant Justice Center,

The Difference Between Asylum and Withholding of Re-

moval 7 (Oct. 2020), www.americanimmigrationcouncil

.org/sites/default/files/research/the_difference_between_

asylum_and_withholding_of_removal.pdf ). But the fact

that alternative-country removal is rare does not make it

statutorily unauthorized. Here, the statute makes clear

that removability and withholding relief are distinct, and

we decline to ignore the plain import of the statutory text

in favor of on-the-ground statistics about the feasibility of

removal to a third country.

Indeed, respondents’ argument—that the decision about

whether an alien “is to be removed” remains “pending” for

purposes of §1226 until DHS is certain that it will be able

to carry out that removal—is at odds with the statutory text

of §1231 and our decision in Zadvydas. To begin, it is not

plausible that an alien is detained under §1226 instead of

§1231 while DHS resolves any practical problems associ-

ated with the execution of a removal order because §1231,

not §1226, is the part of the INA that anticipates and ad-

dresses those problems. For example, §1231(a)(1)(C) ex-

tends the removal period if the alien fails to timely apply

for travel documents and therefore cannot be removed to

the relevant country. Section 1231(c)(2)(A) authorizes DHS

to stay the immediate removal of certain aliens if it decides

that immediate removal “is not practicable or proper.” And

§1231(a)(3) allows for supervised release after the 90-day

removal period expires “[i]f the alien does not leave or is not

removed” during that time period. Those provisions would

be unnecessary if questions of how and where an alien is to

be removed were bound up in whether the alien was remov-

able at all under §1226.

Our decision in Zadvydas confirms this distinction be-

tween whether an alien is to be removed and where an alien

is to be sent. In that case, we addressed claims raised by

14 JOHNSON v. GUZMAN CHAVEZ

Opinion of the Court

two aliens who, due to the Government’s inability to locate

a country of removal, had been detained for prolonged peri-

ods of time under §1231. See 533 U. S., at 684–686. But

rather than holding that these aliens should not have been

detained under §1231 at all because the decision about

whether they were to be removed remained “pending,” the

Court set out certain procedural mechanisms to allow al-

iens to seek release from §1231 detention if there was no

significant likelihood of removal in the reasonably foresee-

able future. Id., at 701. That holding would make little

sense if DHS had to conclusively resolve the question of

“where” an alien was to be removed before resolving

“whether” the alien was to be removed under §1226.7

2

Respondents next argue that a removal order does not be-

come “administratively final” until the withholding-only

proceedings conclude. That is so, they say, even if a rein-

stated order of removal is “administratively final” at the

time of its reinstatement; according to their submission,

when the alien initiates withholding-only proceedings, the

reinstated order loses its prior finality. See Brief for Re-

spondents 24–25. In a similar vein, the dissent contends

that respondents’ removal orders are not “administratively

——————

7 Respondents attempt to distinguish our approach in Zadvydas v. Da-

vis, 533 U. S. 678 (2001), by arguing that there is a difference between

the Government’s inability to remove an alien due to the grant of with-

holding-only relief and its inability to remove an alien because of the ge-

opolitical and practical concerns that prevented removal in that case.

But the premise of respondents’ argument is that a decision about

whether an alien “is to be removed” remains pending during withhold-

ing-only proceedings because it is not certain that the Government will

actually be able to remove the alien from the country. The same lack of

certainty existed in Zadvydas, where the Government’s attempt to re-

turn an alien to the country listed in the removal order was rebuffed for

geopolitical or practical reasons, and the Government had to search for

an alternative.

Cite as: 594 U. S. ____ (2021) 15

Opinion of the Court

final” because, by seeking withholding-only relief, respond-

ents are “in effect” seeking “a modification of, a change in,

or a withholding of, the ‘prior order of removal.’ ” Post, at 9.

These related arguments suffer from the same flaw as the

one just discussed: They ignore that removal orders and

withholding-only proceedings address two distinct ques-

tions. As a result, they end in two separate orders, and the

finality of the order of removal does not depend in any way

on the outcome of the withholding-only proceedings.

Case law makes this clear. In Matter of I–S & C–S, two

aliens asserted that they were entitled to withholding of re-

moval during their initial removal proceedings. The Immi-

gration Judge concluded that they were removable but

agreed that they were entitled to withholding relief. As a

result, the Immigration Judge did not issue an order of re-

moval but instead simply granted the aliens’ withholding

applications. 24 I. & N. Dec., at 432–433. DHS appealed,

arguing that it was error for the Immigration Judge not to

issue the order of removal. Id., at 433. The BIA agreed. It

stated that “[a]lthough entering an order of removal prior

to granting withholding may appear to be a technicality,” it

is “axiomatic that in order to withhold removal there must

first be an order of removal that can be withheld.” Ibid.

(emphasis added). In other words, the order of removal is

separate from and antecedent to a grant of withholding of

removal. Every Member of this Court approved that read-

ing just last Term. In Nasrallah v. Barr, the majority ex-

plained that the grant of withholding relief under CAT

“does not disturb the final order of removal,” “affect the va-

lidity of the final order of removal,” or otherwise “merge into

the final order of removal.” 590 U. S., at ___ (slip op., at 8).

The dissent acknowledged the same. See id., at ___ (opinion

of THOMAS, J.) (slip op., at 5) (“The majority correctly notes

that a CAT order does not fall within” the statute’s defini-

tion of an order of removal); id., at ___–___ (slip op., at 6–7)

(“[S]tatutory withholding seeks to prevent removability and

16 JOHNSON v. GUZMAN CHAVEZ

Opinion of the Court

is considered after the alien has been deemed removable.

Thus, statutory withholding claims also do not affect the

validity of the underlying removal order” (citation omit-

ted)). Because the validity of removal orders is not affected

by the grant of withholding-only relief, an alien’s initiation

of withholding-only proceedings does not render non-final

an otherwise “administratively final” reinstated order of re-

moval.

3

At oral argument, respondents offered a new textual ar-

gument in support of their position that §1231 does not gov-

ern their detention. They point to the opening clause of

§1231(a)(1)(A), which states in full: “Except as otherwise

provided in this section, when an alien is ordered removed,

the Attorney General shall remove the alien from the

United States within a period of 90 days.” (Emphasis

added.) Respondents submit that because withholding-only

relief is provided for in §1231, DHS cannot remove an alien

who seeks such relief, and the removal period cannot begin

under §1231(a)(1)(B). Tr. of Oral Arg. 33–34, 45. Stated

differently, respondents read the “[e]xcept as” language as

another limit on when the removal period is triggered, a

reading that the dissent endorses. See post, at 7–9.

Even assuming that respondents did not forfeit this ar-

gument by failing to raise it in their brief, it fails on the

merits. Section 1231(a)(1)(A) relates to the length of the

removal period, and it sets the default for that period at 90

days. It does not, as respondents suggest, serve as the

“gateway” for when the removal period begins. Tr. of Oral

Arg. 45. Those triggers appear in §1231(a)(1)(B). Nor does

it simply offer “basic operative language” regarding what

DHS must do. Post, at 8. The provision’s focus is the length

of time that DHS has to remove an alien once the alien is

ordered removed. And the most natural reading of the “ex-

Cite as: 594 U. S. ____ (2021) 17

Opinion of the Court

cept as otherwise provided” clause is that DHS must re-

move an alien within 90 days unless another subsection of

§1231 specifically contemplates that the removal period can

exceed 90 days. That aligns with the rest of §1231, which

contains specific provisions mandating or authorizing DHS

to extend detention beyond 90 days. See, e.g.,

§1231(a)(1)(C) (requiring the extension of the 90-day period

and permitting continued detention “if the alien fails or re-

fuses to make timely application in good faith for travel or

other documents necessary to the alien’s departure or con-

spires or acts to prevent the alien’s removal subject to an

order of removal”); §1231(c)(2)(A) (permitting DHS to stay

immediate removal of certain aliens if such “removal is not

practicable or proper” or the alien is needed to testify in a

criminal case); §1231(a)(6) (permitting DHS to detain cer-

tain groups of aliens “beyond the removal period”).8 Given

the presence of specific statutory provisions in §1231 under

which DHS is not required to remove the alien within 90

days, we have little trouble concluding that the opening

clause of §1231(a)(1)(A) refers to them and not the with-

holding-only provision, which does not mention the length

of the removal period and does not stand in the way of re-

moval to a third country.

In short, the statutory text makes clear that §1231, not

——————

8 The dissent contends that the second of these provisions,

§1231(c)(2)(A), is “beside the point” because another provision in that

subsection and a regulation provide that DHS has the authority to re-

lease on bond an alien for whom it had previously stayed immediate re-

moval so that the alien could testify in a prosecution. See post, at 8. But

DHS’s ability to release certain aliens on bond tells us nothing about the

meaning of the phrase “[e]xcept as otherwise provided” in §1231(a)(1)(A).

The point is that other provisions in §1231 contemplate situations in

which DHS is not required to remove an alien in less than 90 days. The

dissent otherwise dismisses the remaining two provisions as “unlike the

restriction-on-removal provision” in that they “sugges[t] . . . an extension

of the removal period beyond ninety days.” Post, at 8. But that is the

very feature that makes these provisions relevant to §1231(a)(1)(A).

18 JOHNSON v. GUZMAN CHAVEZ

Opinion of the Court

§1226, governs respondents’ detention, and none of re-

spondents’ counterarguments can overcome that plain text.

B

The statutory structure confirms the textual reading.

Consider first the structure of §1231 itself, which is titled

“Detention and removal of aliens ordered removed.” Every

provision applicable to respondents is located in §1231. Re-

spondents’ orders of removal are reinstated against them

under §1231(a)(5). The bar on reopening or reviewing those

removal orders, as well as the requirement that DHS re-

move aliens subject to reinstated orders, also appears in

§1231(a)(5). And the provision allowing respondents to

seek withholding-only relief comes from §1231(b)(3)(A). It

would thus be odd if the provision governing respondents’

detention was located in §1226, rather than §1231, which

contains its own detention provision. See 940 F. 3d, at 887

(Richardson, J., dissenting).

Moreover, the inclusion of the statutory-withholding pro-

vision in §1231, grouped with other provisions that relate

to where DHS may remove an alien, illustrates how with-

holding-only relief fits within the removal process gener-

ally. Section 1231(b) is entitled “Countries to which aliens

may be removed.” Paragraph (1) lists all of the countries to

which an alien “arriving at the United States” may be re-

moved. Paragraph (2) lists all of the countries to which

“[o]ther aliens” may be removed. And paragraph (3)(A)—

the statutory-withholding provision—states that “[n]ot-

withstanding paragraphs (1) and (2), the Attorney General

may not remove an alien to a country if the Attorney Gen-

eral decides that the alien’s life or freedom would be threat-

ened in that country because of the alien’s race, religion,

nationality, membership in a particular social group, or po-

litical opinion.” The placement of the statutory-withhold-

ing provision in §1231 is therefore strong evidence that

Cite as: 594 U. S. ____ (2021) 19

Opinion of the Court

withholding-only proceedings are relevant to where an al-

ien will be removed (and therefore detention under §1231),

not whether the alien will be removed at all (and therefore

detention under §1226).

The general structure of the INA provides further sup-

port. Sections 1226 and 1231 both appear in Part IV of Title

8, chapter 12, of the United States Code, entitled “Inspec-

tion, Apprehension, Examination, Exclusion, and Re-

moval.” The sections within that part proceed largely in the

sequential steps of the removal process. Sections 1221 to

1224 address the arrival of aliens. Section 1225 provides

instructions for inspecting aliens, expediting the removal of

some, and referring others for a removal hearing. Section

1226 authorizes the arrest and detention of aliens pending

a decision on whether they are to be removed. Section 1227

explains which aliens are deportable. Section 1228 author-

izes the expedited removal of some of those deportable al-

iens. Sections 1229, 1229a, and 1229b set out the process

for initiating and conducting removal proceedings, and they

specify the types of relief that an alien can request during

those proceedings, such as cancellation of removal. Section

1229c addresses voluntary departure. Section 1230 ex-

plains what to do if an alien is admitted. And §1231 ex-

plains what to do if the alien is ordered removed.

The order of the sections in Part IV provides helpful con-

text for interpreting the proper application of §1226 and

§1231. See 940 F. 3d, at 887–888 (Richardson, J., dissent-

ing). Section 1226 applies before an alien proceeds through

the removal proceedings and obtains a decision; §1231 ap-

plies after. Once an alien has been ordered removed from

the United States in a removal proceeding under §1229a

and that order has been reinstated under §1231(a)(5), “the

alien cannot go back in time, so to speak, to §1226.” Id., at

888.

20 JOHNSON v. GUZMAN CHAVEZ

Opinion of the Court

C

Respondents’ contrary reading would undermine Con-

gress’s judgment regarding the detention of different

groups of aliens who posed different risks of flight: aliens

detained under §1226 before having been ordered removed

and those held under §1231 after already having been or-

dered removed.

Aliens who have not been ordered removed are less likely

to abscond because they have a chance of being found ad-

missible, but aliens who have already been ordered re-

moved are generally inadmissible. See 8 U. S. C.

§1182(a)(9)(C). The only apparent relief they can hope to

obtain is a grant of withholding-only relief, and they would

seem to still have a chance to get that relief if they ab-

sconded and were again apprehended. In addition, aliens

who reentered the country illegally after removal have

demonstrated a willingness to violate the terms of a re-

moval order, and they therefore may be less likely to comply

with the reinstated order. See §1231(a)(6). Congress had

obvious reasons to treat these two groups differently.

III

Respondents’ remaining arguments are unpersuasive.

They primarily argue that §1226 governs whenever the INA

does not “authorize” DHS to remove an alien. Brief for Re-

spondents 16. Respondents rely on §1231(a)(1)(B), which,

again, provides that the removal period begins on the latest

of three dates: (1) the date the order of removal becomes

“administratively final,” (2) the date of the final order of any

court that entered a stay of removal, or (3) the date on

which the alien is released from non-immigration detention

or confinement. Respondents contend that those triggers

constitute various legal impediments to removal, and those

legal impediments show that §1231 detention applies only

if DHS has secured full and complete legal authority to re-

move an alien. In other words, to detain an alien under

Cite as: 594 U. S. ____ (2021) 21

Opinion of the Court

§1231, DHS must eliminate all legal impediments to re-

moval. Otherwise, §1226 applies. Like the three legal im-

pediments listed in §1231(a)(1)(B), respondents say, with-

holding-only proceedings are another impediment that

deprives DHS of the full legal authority required to remove.

Respondents’ argument fails on multiple levels. First,

even if §1231(a)(1)(b) imposes three “legal impediments” to

removal, that does not mean that all legal impediments

must be eliminated before the removal period begins. In-

deed, the text of §1231(a)(1)(B) suggests the opposite. It

enumerates three specific triggers for the removal period

but nowhere includes “the completion of withholding-only

proceedings.” See NLRB v. SW General, Inc., 580 U. S. ___,

___ (2017) (slip op., at 11) (“[E]xpressing one item of an as-

sociated group or series excludes another left unmentioned”

(brackets and internal quotation marks omitted)). Nor does

it otherwise include a catchall provision that might support

respondents’ position, such as “or the date on which DHS

obtains final legal authority to remove the alien.” Second,

even if we accepted that there is an implicit requirement

that DHS have full “legal authority” before the removal pe-

riod begins, withholding-only proceedings have nothing to

do with that authority. As explained above, DHS retains

its authority during withholding-only proceedings to re-

move the alien to any country other than the country that

is the subject of those proceedings.

Respondents next turn to the 90-day removal require-

ment in §1231(a)(1)(A). They contend that Congress could

not have intended §1231 to apply to an alien in withholding-

only proceedings because the removal period contemplated

by §1231(a)(1)(A) is only 90 days, and withholding-only pro-

ceedings take much longer than that. Brief for Respondents

22, 26–27. In respondents’ view, the removal period’s short

duration proves that it is meant to apply only during the

final period during which DHS takes steps to put an alien

22 JOHNSON v. GUZMAN CHAVEZ

Opinion of the Court

on an outbound plane. Id., at 22. Even assuming respond-

ents are correct that withholding-only proceedings are not

usually completed in 90 days, it does not follow that §1231

is inapplicable to aliens who initiate them. In addition to

setting out a 90-day removal period, §1231 expressly au-

thorizes DHS to release under supervision or continue the

detention of aliens if removal cannot be effectuated within

the 90 days. See §§1231(a)(3), (6). There is no reason why

DHS cannot detain aliens in withholding-only proceedings

under those same post-removal-period provisions. As ex-

plained above, DHS routinely holds aliens under these pro-

visions when geopolitical or practical problems prevent it

from removing an alien within the 90-day period. See, e.g.,

Zadvydas, 533 U. S., at 684–686.

Relatedly, respondents suggest that because

§1231(a)(1)(A) says DHS “shall” remove the alien within

the 90-day removal period, and it would be practically im-

possible to do that in most cases involving withholding-

only proceedings, §1231 must not apply when withholding-

only proceedings are pending. See Brief for Respondents

26. But this argument overlooks the rest of §1231’s di-

rective, which states that DHS “shall” remove the alien

within 90 days “[e]xcept as otherwise provided in this sec-

tion.” §1231(a)(1)(A). And, as noted above, “this section”

provides for post-removal detention and supervised re-

lease in the event an alien cannot be removed within the

90-day removal period, §§1231(a)(3), (6). Interpreting

§1231 to apply even if withholding-only proceedings re-

main pending longer than 90 days thus does not “mak[e]

it structurally impossible” for DHS “to satisfy its statutory

obligation,” as respondents argue. Brief for Respondents

26.9

——————

9 The parties offer two other arguments, neither of which we need ad-

dress. The Government asks that we apply deference under Chevron

Cite as: 594 U. S. ____ (2021) 23

Opinion of the Court

* * *

We reverse the judgment of the U. S. Court of Appeals for

the Fourth Circuit.

It is so ordered.

——————

U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837

(1984), to its interpretation of §1231. But Chevron deference does not

apply where the statute is clear. For their part, respondents argue that

the canon of constitutional avoidance favors application of §1226, not

§1231, to their detention. But that canon “comes into play only when,

after the application of ordinary textual analysis, the statute is found to

be susceptible of more than one construction.” Jennings, 583 U. S., at

___ (slip op., at 12) (internal quotation marks omitted). As already ex-

plained, the text makes plain that §1231, not §1226, governs.

Cite as: 594 U. S. ____ (2021) 1

THOMAS, J., concurring

SUPREME COURT OF THE UNITED STATES

_________________

No. 19–897

_________________

TAE D. JOHNSON, ACTING DIRECTOR OF U. S. IMMI-

GRATION AND CUSTOMS ENFORCEMENT,

ET AL., PETITIONERS v. MARIA ANGELICA

GUZMAN CHAVEZ, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT

[June 29, 2021]

JUSTICE THOMAS, with whom JUSTICE GORSUCH joins,

concurring except for footnote 4 and concurring in the judg-

ment.

This Court has an “independent obligation” to assess

whether it has jurisdiction. Arbaugh v. Y & H Corp., 546

U. S. 500, 514 (2006). We do not have it here.

Congress has restricted our jurisdiction in removal cases.

See 8 U. S. C. §1252(b)(9); Jennings v. Rodriguez, 583 U. S.

___, ___ (2018) (THOMAS, J., concurring in part and concur-

ring in judgment) (slip op., at 3). Under §1252(b)(9), we can

exercise judicial review of “questions of law and fact . . .

arising from any action taken or proceeding brought to re-

move an alien” in only two circumstances. One is to review

a final order of removal. §1252(b)(9). The other is to exer-

cise an express grant of jurisdiction elsewhere in §1252.

Ibid.; Jennings, 583 U. S., at ___ (slip op., at 3). Neither

circumstance is present here.

Therefore, if respondents’ claims “aris[e] from any action

taken or proceeding brought to remove an alien,” the juris-

dictional bar in §1252(b)(9) applies. And for all the reasons

I discussed in Jennings, challenges to detention during the

removal process, such as this one, “fall within the heartland

of §1252(b)(9).” Id., at ___ (slip op., at 5).

2 JOHNSON v. GUZMAN CHAVEZ

THOMAS, J., concurring

Although Jennings concerned aliens whom the Govern-

ment had not yet ordered removed whereas the aliens here

have removal orders reinstated against them, the result

does not change. Section 1252(b)(9) “cover[s] all claims re-

lated to removal proceedings.” Nasrallah v. Barr, 590 U. S.

___, ___, n. 2 (2020) (THOMAS, J., dissenting) (slip op., at 4,

n. 2) (internal quotation marks omitted). That includes

claims arising after final orders of removal are issued, such

as withholding-of-removal claims. See id., at ___–___ (slip

op., at 3–4). And it includes claims like the ones here, which

involve a part “of the deportation process that necessarily

serve[s] the purpose of ensuring an alien’s removal.” Jen-

nings, 583 U. S., at ___ (slip op., at 5).

In light of this jurisdictional problem, the Court should

vacate and remand with instructions to dismiss for lack of

jurisdiction. But “because the Court has held that we have

jurisdiction in cases like these” and the Court’s opinion is

otherwise correct, I join it except for footnote four. See Niel-

sen v. Preap, 586 U. S. ___, ___ (2019) (THOMAS, J., concur-

ring in part and concurring in judgment) (slip op., at 1).

Cite as: 594 U. S. ____ (2021) 1

BREYER, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 19–897

_________________

TAE D. JOHNSON, ACTING DIRECTOR OF U. S. IMMI-

GRATION AND CUSTOMS ENFORCEMENT,

ET AL., PETITIONERS v. MARIA ANGELICA

GUZMAN CHAVEZ, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT

[June 29, 2021]

JUSTICE BREYER, with whom JUSTICE SOTOMAYOR and

JUSTICE KAGAN join, dissenting.

Respondents in this case are noncitizens previously or-

dered removed from the United States. After leaving the

United States, each of them later returned (illegally). The

Government then reinstated their original removal orders.

See 8 U. S. C. §1231(a)(5). Each of the respondents argued

to immigration authorities that the Government could not

remove them because they reasonably feared persecution or

torture in the country to which the Government sought to

send them. And pursuant to the United States’ interna-

tional commitments, the immigration authorities began the

process of determining whether the Government should

grant withholding-only relief (the withholding or deferral of

removal). See §1231(b)(3)(A); 8 CFR §§208.16–208.18,

208.31, 241.8(e), 1208.16–1208.18, 1208.31, 1241.8(e)

(2020).

The question in this case is whether respondents are en-

titled to a bond hearing while immigration authorities en-

gage in the lengthy process of determining whether re-

spondents have the legal right (because of their fear of

persecution or torture) to have their removal withheld. The

Court points to two statutory provisions that might answer

2 JOHNSON v. GUZMAN CHAVEZ

BREYER, J., dissenting

that question. The first, §1226, is a more general provision

governing detention, and favors respondents. It says that

“pending a decision on whether the alien is to be removed

from the United States,” 8 U. S. C. §1226(a), the Govern-

ment “may release the alien on . . . bond” or “conditional pa-

role.” §§1226(a)(2)(A), (B); see also 8 CFR §§236.1(c)(8),

1236.1(c)(8) (authorizing parole where the alien has demon-

strated that “such release would not pose a danger to prop-

erty or persons” and he or she “is likely to appear for any

future proceeding”). The second, §1231, is a provision that

more specifically applies to “aliens ordered removed,” and

can be read to favor the Government because it does not

expressly provide for a bond hearing during what it calls

the 90-day “removal period.” 8 U. S. C. §1231(a)(2); see also

8 CFR §241.13(b)(2)(ii). The Government claims that §1231

applies to respondents and allows the Government to deny

them bond hearings while their withholding-only relief pro-

ceedings take place.

The Court agrees with the Government. In its view, re-

spondents’ circumstances fall within the scope of what

§1231 calls a “removal period.” §§1231(a)(1)(A)–(B). And it

believes that section implicitly allows the Government to

deny bond hearings during the 90-day removal period. See

ante, at 7–8; §1231(a)(2). I agree that we have jurisdiction

to review the decision below. See ante, at 8, n. 4; see also

Jennings v. Rodriguez, 583 U. S. ___, ___–___ (2018)

(BREYER, J., dissenting) (slip op., at 30–31). In my view,

however, respondents do not fall within the scope of §1231.

Hence, §1231 does not apply. Rather, respondents’ circum-

stances are governed by the more general section that con-

cerns the conditions of detention pending a final determi-

nation on removal. See §1226. And they are entitled to the

bond hearings for which that general section provides. See

§1226(a)(2).

Cite as: 594 U. S. ____ (2021) 3

BREYER, J., dissenting

I

Readers should keep in mind two subsections of §1231’s

relevant statutory text. The first subsection at issue makes

clear what §1231 is about, namely, a “removal period.” It

then sets forth a general rule. It says:

“(1) Removal period

“(A) In general

“Except as otherwise provided in this section, when

an alien is ordered removed, the Attorney General shall

remove the alien from the United States within a pe-

riod of 90 days (in this section referred to as the ‘re-

moval period’).” 8 U. S. C. §1231(a)(1)(A).

(Readers should also note that while many of the provi-

sions at issue here refer to the “Attorney General,” Con-

gress has elsewhere transferred enforcement of some of

those provisions to the Secretary of Homeland Security.

See Nielsen v. Preap, 586 U. S. ___, ___, n. 2 (2019) (slip op.,

at 3, n. 2).) The second subsection sets forth a restriction

on removal (the restriction-on-removal provision), an excep-

tion to the general rule. It says:

“(3) Restriction on removal to a country where

alien’s life or freedom would be threatened

“(A) In general

“[T]he Attorney General may not remove an alien to

a country if the Attorney General decides that the al-

ien’s life or freedom would be threatened in that coun-

try because of the alien’s race, religion, nationality,

membership in a particular social group, or political

opinion.” §1231(b)(3)(A).

This restriction on removal when an alien fears persecu-

tion or torture embodies an important international legal

obligation that the United States has undertaken. See Ref-

ugee Act of 1980, 94 Stat. 107, codified in part at 8 U. S. C.

4 JOHNSON v. GUZMAN CHAVEZ

BREYER, J., dissenting

§1231(b)(3); see also Protocol Relating to the Status of Ref-

ugees, Art. 1, §1, Jan. 31, 1967, 19 U. S. T. 6223, 6225,

T. I. A. S. No. 6577 (United States acceding to Articles 2

through 34 of the Convention Relating to the Status of Ref-

ugees, Art. 33(1), July 28, 1951, 189 U. N. T. S. 150). The

United States also follows a policy that withholds or defers

removal “of any person to a country in which there are sub-

stantial grounds for believing the person would be in dan-

ger of being subjected to torture.” §2242, 112 Stat. 2681–

822, note following 8 U. S. C. §1231, p. 844; 8 CFR

§§208.16–208.18 (implementing the Convention Against

Torture and Other Cruel, Inhuman or Degrading Treat-

ment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100–

20, 1465 U. N. T. S. 85). These policy commitments, embod-

ied in §1231’s restriction-on-removal provision, apply to any

alien ordered removed, including respondents, who are en-

titled to ask for withholding-only relief. See Fernandez-

Vargas v. Gonzales, 548 U. S. 30, 35, n. 4 (2006); 8 CFR

§§208.31, 241.8(e), 1208.31, 1241.8(e).

A

The procedures to determine whether an alien qualifies

for withholding-only relief are complex. Any alien, includ-

ing one “whose removal is reinstated” under 8 U. S. C.

§1231(a)(5), must be afforded the opportunity to “expres[s]

a fear of returning to the country of removal” specified in

the order of removal. 8 CFR §208.31(a) (boldface omitted).

An asylum officer will then interview the individual to de-

termine whether that individual “has a reasonable fear of

persecution or torture.” §208.31(c). (Asylum officers found

that each respondent here has a “reasonable fear.” Romero

v. Evans, 280 F. Supp. 3d 835, 837 (ED Va. 2017).) If so, an

immigration judge will “full[y] conside[r] . . . the request for

withholding of removal only.” §§208.31(e); 1208.31(e). If

the immigration judge denies the claim, the alien can ap-

Cite as: 594 U. S. ____ (2021) 5

BREYER, J., dissenting

peal to the Board of Immigration Appeals (BIA) and, as ap-

plicable, seek judicial review. §§208.31(e), (g), 1208.31(e),

(g); 8 U. S. C. §§1252(a)(1), (4).

Studies have found that this procedure often takes over a

year, with some proceedings lasting well over two years be-

fore eligibility for withholding-only relief is resolved. See

Hausman, ACLU Immigrants’ Rights Project, Fact-Sheet:

Withholding-Only Cases and Detention 2 (Apr.

19, 2015), https://www.aclu.org/sites/default/files/field_doc-

ument/withholding_only_fact_sheet_-_final.pdf (finding an

average length of detention of 114 days when neither party

appealed the immigration judge’s final decision, 301 days

when at least one party appealed and the BIA rendered a

final decision, and 447 days when the BIA remanded the

case and the immigration judge made a final decision); see

also, e.g., Martinez v. Larose, 968 F. 3d 555, 558 (CA6 2020)

(alien detained for over 28 months while awaiting withhold-

ing-only relief eligibility determination).

Studies have also found that, once withholding-only relief

is granted, the alien is ordinarily not sent to another, less

dangerous country. Rather, the alien typically remains in

the United States for the foreseeable future. See Brief for

Respondents 6 (noting only 1.6% of noncitizens granted

withholding-only relief were ever actually removed to an al-

ternative country (citing American Immigration Council &

National Immigrant Justice Center, The Difference Between

Asylum and Withholding of Removal 7 (Oct. 2020),

https://www.americanimmigrationcouncil.org/sites/de-

fault/files/research/the_difference_between_asy-

lum_and_withholding_of_removal.pdf )).

These figures—particularly the length of time needed to

complete the related administrative proceedings—raise an

obvious question. Typically, Congress permits aliens ini-

tially placed in removal proceedings to apply for bond (while

such proceedings transpire). See 8 U. S. C. §1226(a)(2).

That makes sense. A bond hearing does not mean an alien

6 JOHNSON v. GUZMAN CHAVEZ

BREYER, J., dissenting

will run away. Bond is normally granted only if the immi-

gration judge has assurance that the alien will not abscond

and is instead “likely to appear for any future proceeding.”

8 CFR §§236.1(c)(8), 1236.1(c)(8). And an alien’s release

from detention during such proceedings may have collateral

effects. See Katzmann, When Legal Representation Is De-

ficient: The Challenge of Immigration Cases for the Courts,

143 Daedalus 37, 43–44 (2014) (describing how those de-

tained during removal proceedings are less likely to achieve

the outcomes they seek).

I can understand why Congress might not want to grant

a bond hearing to an alien whose circumstances fall within

the removal period. That period, after all, should normally

be brief. The statute says “90 days.” 8 U. S. C.

§1231(a)(1)(A). But why would Congress want to deny a

bond hearing to individuals who reasonably fear persecu-

tion or torture, and who, as a result, face proceedings that

may last for many months or years (while their withhold-

ing-only proceedings wend their way toward completion)? I

can find no satisfactory answer to this question.

B

Does the statutory provision’s language nonetheless re-

quire the majority’s result? In my view, it does not. Reread

the first seven words of that provision’s general rule. They

say that the provision’s removal rules apply “[e]xcept as oth-

erwise provided in this section.” §1231(a)(1)(A) (emphasis

added). And later in the same section, following that “ex-

cept clause,” the restriction-on-removal provision says that

“the Attorney General may not remove” an alien who falls

within its terms. §1231(b)(3)(A) (emphasis added); see also

note following §1231, at 884. Why does that provision, then,

not count as what the general statutory rule calls an “ex-

cept[ion]?”

Read on. Following the “general” terms governing the re-

moval period rule, §1231 says:

Cite as: 594 U. S. ____ (2021) 7

BREYER, J., dissenting

“(B) Beginning of Period

“The removal period begins on the latest of the fol-

lowing:

“(i) The date the order of removal becomes adminis-

tratively final.

“(ii) If the removal order is judicially reviewed and if

a court orders a stay of the removal of the alien, the

date of the court’s final order.

“(iii) If the alien is detained or confined . . . , the date

the alien is released from detention or confinement.”

§1231(a)(1) (emphasis added).

No one here claims that §1231 authorizes detention with-

out a bond hearing before the removal period begins. And

the most natural reading of the italicized language should

lead to the conclusion that the removal period has not yet

begun. The removal period does not commence until the

administrative proceedings are over, i.e., until “the order of

removal” is “administratively final.” And the order is not

“final” until the immigration judge and the BIA finally de-

termine whether the restriction on removal applies and pro-

hibits removal (unless and until the Government can iden-

tify a willing alternative receiving country).

II

A

The majority believes we must read the statute differ-

ently. It reads the “except clause” as serving only to extend

the “length of the removal period,” ante, at 16–17, not to

exempt the removal procedures altogether. In its view, the

time during which respondents seek administrative relief

from the order of removal due to a reasonable fear of perse-

cution or torture nevertheless remains within the “removal

period,” which the restriction-on-removal provision simply

extends. (And, as I said, the majority assumes that §1231

allows the Government to deny bond hearings during the

90-day “removal period.”)

8 JOHNSON v. GUZMAN CHAVEZ

BREYER, J., dissenting

While this is a possible reading, it is not what the statute

actually says. The statute begins with the phrase “except

as otherwise provided in this section,” and it follows that

clause with basic operative language, namely, “the Attor-

ney General shall remove the alien.” §1231(a)(1)(A). It does

not say, “within a period of 90 days except if this section pro-

vides for a longer period.” The majority’s interpretation is

an awkward way to read that sentence.

The majority then points to three statutory phrases to

which it believes the “except clause” applies. Those

phrases, it says, are evidence that the “except clause”

simply instructs that “the removal period may be extended”

for three reasons. Ante, at 3. The first provision, plainly

titled “Suspension of period,” “extend[s]” the “removal pe-

riod . . . beyond a period of 90 days” if the alien, for example,

fails to seek appropriate travel documents. §1231(a)(1)(C)

(boldface omitted). A second provision allows the Govern-

ment to “detai[n ] beyond the removal period” individuals

who have committed certain serious crimes or pose “a risk

to the community or [are] unlikely to comply with the order

of removal.” §1231(a)(6). And a third allows the Govern-

ment to “stay the removal of an alien” if “immediate re-

moval is not practicable or proper” or the alien is “needed

to testify” in a prosecution. §§1231(c)(2)(A)(i), (ii).

The third example, however, is beside the point, for it

comes equipped with its own bond and supervised released

possibility, staying (rather than extending) the removal pe-

riod. See §1231(c)(2)(C); 8 CFR §241.6(a). The first two ex-

amples are unlike the restriction-on-removal provision in

that their language simply suggests, not invalidation of the

removal order’s identified country of removal, but an exten-

sion of the removal period beyond 90 days. See 8 U. S. C.

§1231(a)(1)(C) (“exten[d] beyond a period of 90 days”);

§1231(a)(6) (“detai[n] beyond the removal period”). The re-

striction-on-removal provision contains no such language.

I add that the majority’s exceptions, unlike the restriction-

Cite as: 594 U. S. ____ (2021) 9

BREYER, J., dissenting

on-removal provision, typically do not entail proceedings

that last (and keep the alien in the United States) for many

months or years. Nor do they call into question whether the

removal order will ultimately be implemented. These in-

consistencies suggest the “except clause” does more than

merely extend the 90-day limit.

B

The majority’s interpretation of the words “administra-

tively final” is no more convincing. The majority says that

these words apply only to the finality of the original re-

moval orders, i.e., the orders issued before respondents left

the country and returned, as of the time those orders were

first issued. After all, the majority adds, see ante, at 9–10,

a further subsection of §1231 says that “the prior order of

removal is reinstated from its original date and is not sub-

ject to being reopened or reviewed, [and] the alien . . . may

not apply for any relief under this chapter.” §1231(a)(5).

This last mentioned provision, however, is not relevant

here. It cannot prevent an alien from seeking what is in

effect a modification of, a change in, or a withholding of, the

“prior order of removal” for reasons of fear of persecution or

torture. After all, §1231(b)(3)(A) says the contrary. Gov-

ernment practice is also to the contrary. See note following

§1231, at 884; 8 CFR §§208.31, 241.8(e), 1208.31, 1241.8(e).

And all here agree that the aliens are legally entitled to

seek that withholding-only relief. See Fernandez-Vargas,

548 U. S., at 35, n. 4.

Now consider the temporal problem. The time when the

majority says the reinstated removal order became “admin-

istratively final” is the time at which the original order of

removal became final. But to take the words “administra-

tively final” as referring only to that time would lead to a

very peculiar statute. It means that most reinstated re-

moval orders will have become administratively final many

10 JOHNSON v. GUZMAN CHAVEZ

BREYER, J., dissenting

years before the proceedings during which they are rein-

stated. Recall that in most instances the 90-day removal

period begins when the removal order becomes administra-

tively final. If the majority is right, in the case of most re-

spondents, the 90-day removal period began long before the

aliens left the country, let alone returned. Did the 90-day

removal period begin to run at that earlier time? Did it run

and then terminate? Is there now no removal period? Read

as the majority does, the 90-day limit that governs all of

§1231 would not apply at all to aliens in respondents’ cir-

cumstances.

For this reason, I believe the better reading of those

words would be to apply them to any removal orders, rein-

stated or not, that are not yet “administratively final.” And

here, the orders are not final until the administrative pro-

ceedings (concerning eligibility for withholding-only relief

on account of fear of persecution or torture) are complete.

Cf. Bennett v. Spear, 520 U. S. 154, 178 (1997) (agency ac-

tion is not “final” until, inter alia, all “rights or obligations

have been determined . . . from which legal consequences

will flow” (internal quotation marks omitted)).

* * *

In sum, I can find no good reason why Congress would

have wanted categorically to deny bond hearings to those

who, like respondents, seek to have removal withheld or de-

ferred due to a reasonable fear of persecution or torture.

And I do not agree with the majority’s reading of the stat-

ute’s language as denying them that opportunity. If, as I

believe, §1231 does not apply to the withholding-only relief

proceedings before us, then, as the majority concedes, see

ante, at 1, §1226 applies, and grants them bond hearings. I

would apply that provision and afford respondents bond

hearings.

With respect, I dissent.