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ImmIGRATION AUGUST 13, 2021 | The Indian Eye 44

The Fight for Immigration Justice Is not Over:

SCOTuS rules Mandatory detention of Certain

Immigrants Seeking Safety in the united States : part-II

SOphIa GEnOvESE al if it is not practicable majority seeks to justify §1231(a) is not the appro- administration continues

he majority cites or proper; or if the non- its holding and prohibi- priate governing statute to follow the unlawful
citizen is inadmissible, tion of bond hearings for for the detention of with- practice of expelling mi-
to §1231(a) in ren- removable as a result of noncitizens in withhold- holding-only applicants. grants and asylum seek-
Tdering its decision. certain violations, or is a ing-only proceedings by Id. The dissent reasons ers under the supposed
The Court explained that risk to the community. §§ commenting “[nonciti- that the removal period authority of Title 42, re-
the 90-day removal peri- 1231(a)(1)(C), 1231(c) zens] who reentered the for withholding-only ap- sulting in thousands of
od in §1231(a)(1)(A) be- (2)(A), 1231(a)(6). By country illegally after re- plicants cannot begin un- asylum seekers being
gins on the latest of three taking a plain reading moval have demonstrat- til their proceedings have forcibly denied entry into
dates (1) the date the or- of the statute, the Court ed a willingness to violate concluded – that is, “the the United States. Be-
der of removal becomes states, the reinstated re- the terms of a removal order is not ‘final’ until cause asylum seekers still
“administratively final,” moval orders have long order, and they therefore the immigration judge face the same dangers
(2) the date of the final been final, and “there is may be less likely to com- and the BIA finally deter- they fled, they are forced
order of any court that nothing left for the BIA ply with the reinstated or- mine whether the restric- to seek irregular entry
entered a stay of removal, to do with respect to the der.” Id. at 20. tion on removal applies into the United States;
or (3) the date on which removal order other than Agreeing with the and prohibits removal.” and, depending on their
the alien is released from to execute it.” 594 U.S. Fourth and Second Cir- Id. at 7. By adopting the individual situation and
non-immigration de- at 10. The majority side- cuits, the dissent argues majority’s rationale that whether they have a pri-
tention or confinement. steps any analysis under that §1226(a) governs the reinstated remov- or removal order, may
§1231(a)(1)(B). During Chevron or Auer, and the detention of nonciti- al order is final as of the be subjected to withhold-
the removal period, de- resorts to a pseudo-tex- zens in withholding-only date it was originally ex- ing-only proceedings.
tention is mandatory. tual interpretation of the proceedings where there ecuted, it creates uncer- Now in the United
§1231(a)(2). The remov- INA, continuing a trend is a pending decision on tainty around how, if it States a second or third
al period may be extend- also observed in Sanchez whether the noncitizen is all, the removal period time after previously be-
ed in certain conditions, v. Mayorkas, 593 U.S. to be removed from the can apply to withhold- ing unfairly removed,
including: if the nonciti- ___ (2021), where the United States. The dis- ing-only applicants. these individuals are only
zen takes actions which Supreme Court similar- sent also finds that the eligible for withholding
prevent their removal; ly refused to engage in reinstated removal order of removal or protection
if DHS stays the remov- a Chevron analysis. The is not final while with- who Is affected by under CAT, which do not
holding-only proceedings This decision? lead to permanent law-
are pending. The dissent As examined in our ful status. Withholding
remarks that withhold- previous articles (here, of removal and protec-
ing-only proceedings in- here, and here), the tion under CAT are also
volve a full hearing before Trump administration both extremely difficult
the immigration court, eviscerated asylum pro- protections to achieve –
may be appealed to the tections in the United far more difficult than
Board of Immigration States. Under this and winning asylum. And in
Appeals (BIA) and seek other flawed case law light of Johnson v. Guz-
judicial review thereaf- and policies, thousands man Chavez, noncitizens
ter, which can take well of asylum seekers were in withholding-only pro-
over two years before deported despite having ceedings will have to fight
the case is resolved. Guz- very real fears of violence for these narrow protec-
man Chavez, 594 U.S. in their countries of or- tions from the confines
at 5 (Breyer, J., dissent- igin. Upon returning to of immigration deten-
ing). The dissent ques- their home countries, tion, where they are at
tions whether Congress and facing the exact vi- high risk of contracting
intended to deny bond olence they anticipated, COVID-19, likely to ex-
hearings “to individuals noncitizens return to the perience difficulties in
who reasonably fear per- United States again seek- accessing evidence they
m of secution or torture, and ing safety. need for their cases, as
Although the Biden
well as less likely to find
who, as a result, face pro-
CYRUS D. MEHTA & PARTNERS PLLC ceedings that may last for administration has taken competent counsel.
many months or years.” important steps to undo Strategies for Noncit-

some of the most egre-
Id. at 6. izens in Withholding-On-

  The dissent also finds gious Trump-era policies ly Proceedings Seeking
   
­ (such as restoring asylum
€
‚   that §1231(a)(1)(A)’s Release From Immigra-
language, “except as oth- eligibility for survivors of tion Detention
Although
Guzman
erwise provided in this domestic violence and Chavez prevents noncit-
family units, and empow-
section,” and the later
2 6th Floor restriction-on-removal ering judges to manage izens in withholding-only

    provision indicate that their own dockets), the proceedings from seek-

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