Indefinite Migrant Detention Without Review Is Kafkaesque

By César García Hernández | February 3, 2022, 6:26 PM EST ·

César García Hernández
Despite the freighted politics of immigration, Democrats and Republicans generally agree that detaining migrants is a necessary component of a functional immigration law system.

Bipartisan majorities of Congress, always with the support of presidents regardless of political affiliation, have expanded the federal government's power to detain migrants.

Under Democrats and Republicans, federal immigration authorities created a massive detention network, which U.S. Immigration and Customs Enforcement now runs to carry out this task.

For courts, the difficult question is not whether migrants can be detained. Instead, courts are regularly asked to decipher the constraints that executive officials operate under and who should impose those constraints. 

In a pair of cases argued in January, Johnson v. Arteaga-Martinez and Garland v. Aleman Gonzalez, the U.S. Supreme Court is considering whether ICE can detain some migrants indefinitely as they wait for immigration authorities to decide whether they will be allowed to remain in the U.S., even though they have already been detained for at least six months. Both cases involve migrants who were previously removed from the United States, only to return.

Back in the U.S., Antonio Arteaga-Martinez and Esteban Aleman Gonzalez separately expressed fear of persecution if forcibly returned to Mexico, their country of citizenship, and are requesting withholding from removal.

Like asylum, withholding of removal is available only to people who are likely to suffer grave harm if removed. But unlike asylum, withholding of removal doesn't provide permanent protection. If the government can find another country to accept a migrant, or conditions change, removal is permissible.

Preliminary stages of their requests for safe harbor have gone in their favor, but a final decision has yet to come and may not for quite some time. Neither is scheduled for their next hearing before an immigration judge until sometime in 2023.

Immigration judges are housed within the U.S. Department of Justice rather than the federal court system. Despite being part of the executive branch, courts treat immigration judges as independent of U.S. Department of Homeland Security.

The federal government's position is that only a DHS official can review the Arteaga-Martinez and Aleman Gonzalez cases. Challenging this, Arteaga-Martinez and Aleman Gonzalez insisted on the opportunity to ask an immigration judge to contemplate release pending their hearings and force the government to explain why release was unwise.

The U.S. Court of Appeals for the Third Circuit and the U.S. Court of Appeals for the Ninth Circuit agreed, granting Arteaga-Martinez and Aleman Gonzalez, respectively, the opportunity to stand before an immigration judge and request release from ICE confinement. There, the lower courts concluded, it is up to ICE lawyers to show that continued detention is necessary.

The government sought Supreme Court review of both cases under during the Trump administration, but the cases did not make it onto the court's calendar until now. Because the cases present similar legal issues, the Supreme Court heard one after the other.

The Biden administration has taken the position that Congress wanted people like Arteaga-Martinez and Aleman Gonzalez, who seek withholding of removal for fear of persecution, to be held in ICE prisons while immigration courts determine their fates.

During oral argument, the government argued that the Immigration and Nationality Act allows ICE to detain migrants who return to the U.S. without permission, even if they have legal claims pending before the immigration courts, and that review by ICE officials of a request to be released while waiting for a hearing before an immigration judge is sufficient.

Obviously concerned about the implications of a statute that allows indefinite detention without the involvement of either a federal judge or an immigration judge, Justice Stephen Breyer commented during arguments in Arteaga-Martinez: "I can't find an analogy for such a thing in habeas corpus law or in bail law or in any other detention law."[1]

In a brief submitted in support of its petition for a writ of certiorari, the government argued that requiring ICE to bring such individuals before immigration judges empowered to determine whether continued detention is required to ensure the migrant appears for court dates and keeps out of problems — as the Third Circuit held in Arteaga-Martinez — would undermine "the government's overriding interest in protecting the territorial sovereignty of the United States" and "impermissibly intrudes on the responsibility of the political Branches" of the federal government.[2]

The U.S. Constitution also has no say, the government contends. During the Aleman Gonzalez oral argument, the government said "Congress can make rules for noncitizens that it can't for citizens and ... detention during removal proceedings is constitutionally permissible."[3]

Putting the burden on the government to show that detention is required is commonplace in the U.S. legal tradition. In criminal cases, the government always carries the burden of showing that a deprivation of liberty is needed to promote public safety or compliance with court requirements. Police usually don't get to arrest people without a prosecutor soon having to explain to a judge why confinement is necessary.

But what is commonplace in most matters is the exception in immigration proceedings. Immigration law, as the government alluded in Aleman Gonzalez, gives ICE extraordinary powers to confine.

Congress, for example, bars ICE officials and immigration judges from considering entire categories of people for release, including most people who have a criminal record, a practice that the Supreme Court's 2003 decision in Demore v. Kim upheld.

Despite persistent challenges by migrants' advocates, the Supreme Court has repeatedly permitted expansive immigration detention practices.

More recently, the Supreme Court's 2018 Jennings v. Rodriguez decision allowed ICE to hold migrants subject to mandatory detention for prolonged periods without an opportunity for review by an immigration judge as long as immigration proceedings were ongoing.

When immigration court proceedings end with an immigration judge ordering a migrant's removal from the U.S., the Supreme Court's 2001 decision in Zadvydas v. Davis gives the government at least six months during which they may detain a migrant pending removal, before an immigration judge or federal court can intervene by considering their release.

The irony of barring review by neutral third parties like immigration judges or federal courts, as the Biden administration seeks, is displayed in Franz Kafka's "Before the Law." The parable, first published as a short story around 1915, brings an unnamed man from the country to a similarly anonymous, but much more powerful, doorkeeper.

The newcomer "prays for admittance to the Law," only to be denied entry "at the moment." But the moment for admittance never comes. For weeks and years, he waits, confused about his experience accessing the law.

"The Law, he thinks, should surely be accessible at all times and to everyone," Kafka writes. And so, the newcomer clings to his imagined sense that he ought to be heard by the law, even in the face of his experience with the law's doorkeeper. Thanks to the doorkeeper's enforcement authority — "I am powerful," the doorkeeper warns the newcomer — the law remains in the distance.

Like Kafka's doorkeeper, Biden administration officials seem intent on rationing access to the law. Government attorneys in both cases told the justices that migrants can't demand access to an immigration judge to seek review of their confinement, as the lower courts declared, but they can always request review from a federal district court through a writ of habeas corpus.

However, like the doorway through which Kafka's doorkeeper invites the newcomer to peer "into the interior," pointing to a habeas petition presents the illusion of access to a hearing before a neutral fact-finder, without creating much risk of interference with the prerogatives of executive branch officials. For most migrants, habeas petitions are not a realistic option.

As Justice Sonia Sotomayor told the government during the Arteaga-Martinez argument,

Most of these noncitizens are overwhelmingly nonlawyers. And for virtually all of them, English is not a first language. Most of them are impoverished.

Plus, she added, "they're unlikely to be represented by lawyers," so "how are these aliens, without the help of courts and lawyers, supposed to protect their rights?"

Instead of answering, the attorney pivoted in a way that lawyers are taught to do when defending a client — by noting that Justice Sotomayor's worry is irrelevant because the migrants here are not challenging immigration law's long-standing willingness to reach high-stakes outcomes in proceedings in which migrants are not represented by counsel.

It is always difficult to predict how the justices will decide a case, but long-standing legal doctrine and recent history suggest the court is likely to allow the government to continue its expansive detention practices. If so, Democrats in the Biden administration will have to decide how to exercise that power.

In the year since President Joe Biden inherited an immigration-detention population that had plummeted to a pandemic-induced low of about 14,000 people held on an average day, ICE has returned to much more familiar territory, detaining more than 20,000 migrants per day in recent months.[4]

If the justices side with the federal government in Arteaga-Martinez and Aleman Gonzalez, there is little reason to expect ICE to hold fewer people.

César Cuauhtémoc García Hernández is the Gregory Williams chair in civil rights and civil liberties at Ohio State University. He is the author of the books "Migrating to Prison: America's Obsession with Locking Up Immigrants" (2019), and "Crimmigration Law" (2015).

"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the organization, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.




[4]; ICE Average Daily Population by Arresting Agency, Month and Criminality: FY2022,

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