In Johnson v. Arteaga-Martinez, the Supreme Court ruled 8–1 that federal immigration law does not require the government to give noncitizens a bond hearing after six months of detention following a final order of removal. The 2022 decision interpreted 8 U.S.C. § 1231(a)(6) narrowly: because the statute says nothing about bond hearings, judges cannot read them into it. People detained under that provision must now look elsewhere for release, primarily by filing a habeas corpus petition arguing that their deportation is not reasonably foreseeable.
The Holding and the Vote
The case reached the Court from the Third Circuit, which had ordered the government to provide Antonio Arteaga-Martinez a bond hearing where the government would bear the burden of proving he was a flight risk or a danger to the community. Arteaga-Martinez, a Mexican citizen, had a reinstated removal order and had been detained for months.
Justice Sotomayor wrote for the majority. She found no plausible reading of § 1231(a)(6) that imposes bond hearing requirements. The text says nothing about bond hearings, immigration judges, or burdens of proof, and because it is silent on those procedures, federal courts cannot graft them onto the law.1Legal Information Institute. Johnson v. Arteaga-Martinez The Court also rejected the constitutional avoidance doctrine as a basis for reading in the requirement, holding that neither Zadvydas v. Davis nor Jennings v. Rodriguez supported that move.2Justia U.S. Supreme Court Center. Johnson v. Arteaga-Martinez, 596 US ___ (2022)
Justice Breyer concurred in part and dissented in part, raising concerns about indefinite detention without judicial review. Justice Thomas filed a concurrence, joined in part by Justice Gorsuch, arguing for an even more restrictive reading of what the government must do. The Court decided Garland v. Gonzalez the same day, reaching the same result on the same question and resolving a circuit split.
The Statute at the Center of the Case
Section 1231 sets up a two-stage framework for what happens after a removal order becomes final. In the first stage, the government has 90 days to deport the person, and detention during that window is mandatory. Certain categories, including those found inadmissible on criminal or national security grounds, cannot be released at all during this period.3Office of the Law Revision Counsel. 8 USC 1231 – Detention and Removal of Aliens Ordered Removed
If removal doesn’t happen in 90 days, subsection (a)(6) kicks in. It identifies four categories of people who “may be detained beyond the removal period”: those who are inadmissible, those removable for certain criminal or security-related grounds, those the Attorney General has determined are a risk to the community, and those considered unlikely to comply with the removal order.4Office of the Law Revision Counsel. 8 USC 1231 – Detention and Removal of Aliens Ordered Removed The word “may” gives the government discretion to keep holding someone, but the statute does not say for how long, under what procedures, or with what review.
That silence drove the outcome. Because § 1231(a)(6) authorizes continued detention without specifying safeguards, the Court concluded it requires none.
What Still Limits Detention: The Zadvydas Standard
The ruling does not authorize indefinite detention. The outer limit comes from Zadvydas v. Davis, a 2001 decision reading § 1231(a)(6) as implicitly limiting detention to a period “reasonably necessary” to carry out removal. If removal is not reasonably foreseeable, continued detention is no longer authorized.5Legal Information Institute. Zadvydas v. Davis
Zadvydas set six months as the presumptively reasonable detention period. After that, if a detained person provides good reason to believe there is no significant likelihood of removal in the reasonably foreseeable future, the burden shifts to the government to prove otherwise.5Legal Information Institute. Zadvydas v. Davis
This is a narrower inquiry than a bond hearing. A bond hearing asks whether someone is dangerous or likely to flee, weighing community ties and personal circumstances. The Zadvydas question is different: can the government actually deport this person anytime soon? After Johnson v. Arteaga-Martinez, that narrower question is the one detained noncitizens can still put before a court.
Filing a Habeas Corpus Petition
With statutory bond hearings off the table, habeas corpus is the main tool left for challenging prolonged post-order detention. A habeas petition asks a federal judge to decide whether the government has legal authority to keep holding someone. It must be filed in the federal district court where the person is physically detained.
The petition is a written filing that identifies the detainee, names the person or agency holding them, and explains why the detention is unlawful. There is a $5 filing fee, with a waiver available for those who cannot afford it. The government typically has 20 to 60 days to respond, depending on the court.
For a Zadvydas-based petition, the argument usually rests on some combination of facts: six months have passed, no country will accept the person, travel documents have not been issued, or diplomatic negotiations have stalled. The detainee carries the initial burden of showing good reason to believe removal is not foreseeable. If they meet it, the government must come forward with evidence that removal is still likely.
The practical gap left by the ruling shows up here. A bond hearing would happen in immigration court, where the detainee is already appearing. Habeas requires a separate federal court, an attorney willing to take the case, and months of waiting. Many people in immigration detention have no lawyer at all, which makes the habeas route hard to use without help.
Who Feels the Ruling Most
The decision hits hardest for people whose deportation is unlikely to happen soon but whose removal order still authorizes their detention.
Withholding-Only Cases
Some noncitizens have a final removal order but have also won protection under withholding of removal or the Convention Against Torture. The government cannot send them to the country where they fear persecution or torture, but it can try to deport them to a willing third country. Third countries rarely say yes. These individuals sit under § 1231(a)(6) detention with a legal bar against removal to the most likely destination,6Congressional Research Service. Johnson v. Chavez – Aliens With Reinstated Removal Orders May Be Detained Without Bond Hearings and immigration judges have no jurisdiction over their custody decisions.7United States Department of Justice. OCIJ Immigration Court Practice Manual – 6.4 – Limited Proceedings
Reinstated Removal Orders
People who were previously deported and re-entered without authorization face a streamlined process. Their original removal order is reinstated from its original date, triggering mandatory detention under § 1231(a)(2). If they pass a “reasonable fear” screening, they enter withholding-only proceedings, but their detention status stays under the stricter § 1231 framework rather than the more permissive rules that apply to people in ordinary removal proceedings, where bond hearings are available.6Congressional Research Service. Johnson v. Chavez – Aliens With Reinstated Removal Orders May Be Detained Without Bond Hearings
Stateless People and Uncooperative Countries
The hardest situation involves people with nowhere to go. Stateless individuals have citizenship in no country, so no government is obligated to accept them. Others have citizenship in a country that refuses to issue travel documents or receive deportees. When a home country will not cooperate, the government cannot carry out removal regardless of how long it detains someone. Zadvydas was designed for exactly this situation, but getting a federal court ruling still takes time, and the person stays detained until it comes.
Life After Release: Orders of Supervision
Release under the Zadvydas framework does not restore a normal life. Released individuals are placed on an Order of Supervision with strict conditions:
- In-person check-ins at ICE on a set schedule and whenever requested
- Advance approval for travel outside a designated area for more than 48 hours
- Reporting any change of address or employment at least 48 hours in advance
- Possible enrollment in an Alternatives to Detention program, including GPS ankle bracelets and curfews
- Continued cooperation with ICE in obtaining travel documents for eventual removal
Violating these conditions can lead to re-arrest, fines, or criminal prosecution. Tampering with a GPS ankle bracelet is a federal crime carrying up to ten years in prison.8U.S. Immigration and Customs Enforcement. Order of Supervision Form I-220B Release beats indefinite detention, but it leaves people in prolonged legal limbo, usually unable to work legally, unable to adjust status, and always one missed check-in away from being locked up again.
The Constitutional Question Still Open
Johnson v. Arteaga-Martinez answered a statutory question only. It did not decide whether the Fifth Amendment’s due process protections independently require some form of hearing when detention becomes prolonged. The Court left that question for another day.
Lower courts continue to work through it. Before the Supreme Court ruled, the Ninth Circuit had held that detention beyond six months was “constitutionally suspect” and required individualized bond hearings. That specific framework did not survive Jennings v. Rodriguez, but the underlying due process argument remains available, and several federal circuits are actively considering cases that raise it.
The constitutional argument operates on a separate track from statutory interpretation. Even a statute that authorizes detention without hearings could run into a Fifth Amendment limit once detention becomes unreasonably long. Until the Supreme Court addresses that question, the answer depends on which circuit the detained person is in, and for people with no realistic prospect of deportation, it is the last remaining argument for judicial review of their confinement.