Document Type

Supreme Court Commentaries

Publication Date



Immigration, Detention, Removal

Subject Category

Constitutional Law | Law


Under the Immigration and Nationality Act (the "INA"), codified in part at 8 U.S.C. § 1231, the federal government generally has ninety days to successfully deport a detained noncitizen who has reentered illegally after being removed once before. While exceptions to this time limit exist, the United States Supreme Court determined in 2001 that detention under Section 1231 cannot be indefinite.[1]

Now, more than two decades later, the Court must elaborate further. In Johnson v. Arteaga-Martinez, the Court must decide how long a detainment can last beyond the ninety-day statutory limit while a detainee seeks relief from deportation through a procedure called a 'withholding of removal' (also known as "withholding-only relief"). An immigration judge determines the outcome of a withholding of removal claim, and if granted, withholding-only relief provides that a person cannot be deported to their home country.[2] To secure withholding-only relief, a noncitizen must establish a fear of violence in their home country. Once established, the United States government cannot deport the noncitizen to their home country without violating the United Nations Convention against Torture.

[1]. Zadvydas v. Davis, 533 U.S. 678, 690 (2001).

[2]. American Immigration Counsel and National Immigrant Justice Center, The Difference Between Asylum and Withholding of Removal 2 (2020).