Victory! Supreme Court Upholds Finality of Removal Orders

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June 29, 2021

Agreeing with IRLI, Court maintains clarity in immigration law

WASHINGTON—Today the U.S. Supreme Court reached a decision clarifying the meaning of key terms in immigration law—terms that affect whether detained aliens may be let out into the United States on bail—and in so doing refused to weaken the finality of final orders of removal. The Immigration Reform Law Institute (IRLI) had filed a friend-of-the-court brief in the case urging the result the Court reached.

Immigration law states that if an alien is issued a final order of removal from the country, the alien may be eligible for “withholding of removal.” Under one view of the law urged before the Court, if an alien applies for withholding of removal, his final order of removal is not final until his application for withholding of removal is decided. Under another view, his final order of removal remains final even while his application for withholding is pending. If the first view is correct, the alien is eligible for getting out of detention on bail. If the second view is correct, the alien is not so eligible.

In its brief, IRLI showed why the second view is correct. Withholding of removal, even if granted, only means that an alien may not be deported to a particular country where he faces a likelihood of torture. Such an alien may still be deported to some other country—and that can only be true if his final order of removal is, indeed, final. Today, the Supreme Court agreed, finding that the withholding of removal proceeding is about whether an alien may or may not be removed to a specific country, not whether he is to be removed from the United States, and thus his attempt to gain withholding of removal does not change the finality of his removal order.

“Words have meaning, and in immigration law, their meaning often is carefully calibrated,” said Dale L. Wilcox, executive director and general counsel of IRLI. “The purpose of the humanitarian provision of withholding of removal was not to make the status of an alien who has been issued a final order of removal murky by casting the finality of his removal order into doubt. Applying for withholding of removal is not an appeal from a final order of removal, but a separate immigration benefit having to do with a single country. We are pleased that the Supreme Court recognized this, and resolved this case in the direction of clarity and certainty in our immigration system.”

The case is Johnson v. Guzman Chavez, No. 19-897 (Supreme Court).

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