NOTICE: This opinion is subject to
formal revision before publication in the preliminary print of the
United States Reports. Readers are requested to notify the Reporter
of Decisions, Supreme Court of the United States, Washington,
D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print
goes to press.

															SUPREME COURT OF THE UNITED STATES

															_________________

															No. 19–896

															_________________

															TAE D. JOHNSON, ACTING DIRECTOR OF U. S.
IMMIGRATION AND CUSTOMS ENFORCE- MENT, et al., PETITIONERS v. ANTONIO ARTEAGA-MARTINEZ

															on writ of certiorari to the united states
court of appeals for the third circuit

															[June 13, 2022]

															Justice Sotomayor delivered the opinion of the
Court.

															Section 241(a) of the Immigration and
Nationality Act (INA), codified at 8 U. S. C. §1231(a),
authorizes the detention of noncitizens who have been ordered
removed from the United States. See 110Stat. 3009–598. In
particular, §1231(a)(6) provides that after a 90-day “removal
period,” a noncitizen “may be detained” or may be released under
terms of supervision. This Court recently held that §1231(a)
applies to individuals who are removed and who then reenter without
authorization and apply for withholding of removal based on a fear
that they will be persecuted or tortured if returned to their
countries of origin. See Johnson v. Guzman Chavez ,
594 U. S. ___, ___ (2021) (slip op., at 1). The issue in this
case is whether the text of §1231(a)(6) requires the Government to
offer detained noncitizens bond hearings after six months of
detention in which the Government bears the burden of proving by
clear and convincing evidence that a noncitizen poses a flight risk
or a danger to the community. It does not.

															I

															Respondent Antonio Arteaga-Martinez is a
citizen of Mexico. He admits that he has entered the United States
without inspection four times. He first entered in March 2001 and
was detained at the border and removed; he reentered in April of
that year. Ten years later, in 2011, he left the country to care
for his sick mother, reentering in July of the following year. The
Government again detained him at the border, determined he was
inadmissible, and removed him.

															Arteaga-Martinez represents that, after
returning to Mexico, he was beaten violently by members of a
criminal street gang. Fearing that he would be persecuted or
tortured again with the acquiescence of government officials, he
reentered the United States in September 2012.

															In May 2018, U. S. Immigration and Customs
Enforcement (ICE) issued a warrant for Arteaga-Martinez’s arrest.
By then, he had been living and working in the United States for
nearly six years and was expecting the birth of his first child. He
had no criminal record aside from minor traffic violations. ICE
detained Arteaga-Martinez without any opportunity for bond and
reinstated his earlier removal order.

															Arteaga-Martinez applied for withholding of
removal under §1231(b)(3), as well as relief under regulations
implementing the Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S.
Treaty Doc. No. 100–20, 1465 U. N. T. S. 113. The
Department of Homeland Security (DHS) referred Arteaga-Martinez to
an asylum officer, who found that Arteaga-Martinez’s testimony was
credible and that he had established a reasonable fear of
persecution or torture. As a result, DHS referred
Arteaga-Martinez’s claims for adjudication by an immigration judge
in what we have called “withholding-only proceedings.” Guzman
Chavez , 594 U. S., at ___ (slip op., at 6). Pending these
proceedings, however, the Government continued to detain
Arteaga-Martinez pursuant to §1231(a)(6).[ 1 ]

															In September 2018, after he had been detained
for four months without a hearing, Arteaga-Martinez filed a
petition for a writ of habeas corpus in the U. S. District
Court for the Middle District of Pennsylvania. His petition
challenged his continued detention without a bond hearing on both
statutory and constitutional grounds. Shortly thereafter, in a
separate case, the Third Circuit held that a noncitizen facing
prolonged detention under §1231(a)(6) is entitled by statute to a
bond hearing before an immigration judge and must be released from
detention unless the Government establishes, by clear and
convincing evidence, that the noncitizen poses a risk of flight or
a danger to the community. See Guerrero-Sanchez v. Warden
York County Prison , 905 F.3d 208, 224, and n. 12
(2018).

															The Government conceded that under Guerrero-Sanchez , Arteaga-Martinez would be entitled to a
bond hearing pursuant to §1231(a)(6) as of November 4, 2018, six
months after the start of his detention. See App. to Pet. for Cert.
4a. Once Arteaga-Martinez’s time in detention had reached nearly
six months, a Magistrate Judge recommended that the District Court
grant a writ of habeas corpus on Arteaga-Martinez’s statutory claim
and order the Government to provide him an individualized bond
hearing before an immigration judge. Id. , at 4a–5a. The
District Court adopted the report and recommendation and ordered a
bond hearing. Id. , at 3a.

															The Government appealed. The Court of Appeals
summarily affirmed, citing its earlier decision in Guerrero-Sanchez . See App. to Pet. for Cert. 1a–2a.
Arteaga-Martinez received a bond hearing at which an Immigration
Judge, considering Arteaga-Martinez’s flight risk and
dangerousness, authorized his release on bond. Arteaga-Martinez
posted bond and was released pending a final determination on his
application for withholding of removal, which, as of today, the
Immigration Judge has yet to make. Pet. for Cert. 6; Brief for
Respondent 10–11.

															This Court granted certiorari. 594 U. S.
___ (2021).[ 2 ]

															II

															A

															The INA establishes procedures for the
Government to use when removing certain noncitizens from the United
States and, in some cases, detaining them. The section at issue
here, 8 U. S. C. §1231(a), governs the detention,
release, and removal of individuals “ordered removed.” This Court
has held that §1231(a) applies to individuals with pending
withholding-only proceedings. See Guzman Chavez , 594
U. S., at ___–___ (slip op., at 7–8).

															After the entry of a final order of removal
against a noncitizen, the Government generally must secure the
noncitizen’s removal during a 90-day “ ‘removal
period.’ ” §1231(a)(1)(A). The statute provides that the
Government “shall” detain noncitizens during the statutory removal
period. §1231(a)(2). After the removal period expires, the
Government “may” detain only four categories of people:
(1) those who are “inadmissible” on certain specified grounds;
(2) those who are “removable” on certain specified grounds; (3)
those it determines “to be a risk to the community”; and (4) those
it determines to be “unlikely to comply with the order of removal.”
§1231(a)(6). Individuals released after the removal period remain
subject to terms of supervision. Ibid. Section 1231(a)(6) does not expressly specify
how long detention past the 90-day removal period may continue for
those who fall within the four designated statutory categories. In Zadvydas v. Davis , 533 U.S.
678 (2001), the Court observed that the statute’s use of the
term “may” introduces some ambiguity and “does not necessarily
suggest unlimited discretion.” Id. , at 697. The Court
explained that “[a] statute permitting indefinite detention of an
alien would raise a serious constitutional problem,” noting that it
had upheld noncriminal detention as consistent with the Due Process
Clause of the Fifth Amendment only under certain narrow
circumstances. Id. , at 690. Accordingly, the Court applied
the canon of constitutional avoidance and determined that “read in
light of the Constitution’s demands,” §1231(a)(6) “does not permit
indefinite detention” but instead “limits an alien’s
post-removal-period detention to a period reasonably necessary to
bring about that alien’s removal from the United States.” Id. , at 689.

															Subsequently, in Jennings v. Rodriguez , 583 U. S. ___ (2018), this Court considered
the text of other provisions of the INA that authorize detention.
One such provision was §1226(a), which governs the detention of
certain noncitizens present in the country who were inadmissible at
the time of entry or who have been convicted of certain criminal
offenses since they were admitted. Id. , at ___ (slip op., at
4). Section 1226(a) provides that the attorney general “may” detain
these noncitizens pending their removal proceedings and “may
release” such individuals on “bond . . . or conditional
parole.” 8 U. S. C. §§1226(a)(1), (2). Noncitizens
detained under §1226(a) receive bond hearings after the Government
initially detains them. See 8 CFR §§236.1(d)(1), 1236.1(d)(1)
(2021). Relying on Zadvydas , the Ninth Circuit had
interpreted §1226(a) to require additional, periodic bond hearings
every six months, with the burden on the Government to prove by
clear and convincing evidence that further detention was justified. Jennings , 583 U. S., at ___–___ (slip op., at 22–23).
The Court in Jennings disagreed. It held that “the meaning
of the relevant statutory provisio[n] is clear” and that it did not
support a periodic bond hearing requirement. Id. , at ___
(slip op., at 23).

															The Jennings Court also rejected the
lower court’s application of the canon of constitutional avoidance.
Earlier in its opinion, the Court explained that “[t]he canon of
constitutional avoidance ‘comes into play only when, after the
application of ordinary textual analysis, the statute is found to
be susceptible of more than one construction.’ ” Id. ,
at ___ (slip op., at 12) (quoting Clark v. Martinez , 543 U.S.
371 , 385 (2005)). “In the absence of more than one plausible
construction, the canon simply has no application. ” Jennings , 583 U. S., at ___ (slip op., at 12) (internal
quotation marks omitted). Applying this reasoning to §1226(a), the
Court concluded that the canon was inapposite because “[n]othing in
§1226(a)’s text . . . even remotely supports the
imposition of either of th[e] requirements” the Ninth Circuit had
imposed. Id. , at ___ (slip op., at 23).

															B

															The question presented is whether §1231(a)(6)
requires bond hearings before immigration judges after six months
of detention in which the Government bears the burden of proving by
clear and convincing evidence that a noncitizen poses a flight risk
or a danger to the community. Section 1231(a)(6) provides that
certain noncitizens who have been ordered removed “may be detained
beyond the removal period and, if released, shall be subject to
[certain] terms of supervision.” This text, which does not address
or “even hin[t]” at the requirements imposed below, directs that we
answer this question in the negative. Id. , at ___ (slip op.,
at 14).

															The Jennings Court emphasized that the
canon of constitutional avoidance is only applicable where a
statute has “more than one plausible construction.” Id. , at
___ (slip op., at 12). Here, there is no plausible construction of
the text of §1231(a)(6) that requires the Government to provide
bond hearings before immigration judges after six months of
detention, with the Government bearing the burden of proving by
clear and convincing evidence that a detained noncitizen poses a
flight risk or a danger to the community. Section 1231(a)(6)
provides only that a noncitizen ordered removed “may be detained
beyond the removal period” and if released, “shall be subject to
[certain] terms of supervision.” On its face, the statute says
nothing about bond hearings before immigration judges or burdens of
proof, nor does it provide any other indication that such
procedures are required. Faithfully applying our precedent, the
Court can no more discern such requirements from the text of
§1231(a)(6) than a periodic bond hearing requirement from the text
of §1226(a). See id. , at ___ (slip op., at 23). Section
1231(a)(6) therefore cannot be read to incorporate the procedures
imposed by the courts below as a matter of textual command.

															Arteaga-Martinez responds that §1231(a)(6)’s
references to flight risk, dangerousness, and “ ‘terms of
supervision’ ” support the relief ordered below. Brief for
Respondent 29–30. Similarly, respondents in the companion case
analogize the text of §1231(a)(6) to that of §1226(a), and they
note that noncitizens detained under §1226(a) have long received
bond hearings at the outset of detention. Brief for Respondents in Garland v. Gonzalez , O. T. 2021, No. 20–322,
pp. 22–24. However, assuming without deciding that an express
statutory reference to “bond” (as in §1226(a)) might be read to
require an initial bond hearing, §1231(a)(6) contains no such
reference. A more oblique reference to terms of supervision does
not suffice.

															Respondents in the companion case also emphasize
that regulations offer custody hearings before immigration judges
for noncitizens the Government detains under §1231(a)(6) because it
deems them “specially dangerous.” See 8 CFR §241.14; Brief for
Respondents in No. 20–322, at 16, 25–26. They argue that if the
statute can allow custody hearings for these individuals, it
requires such hearings for those in Arteaga-Martinez’s situation as
well. Federal agencies, however, “are free to grant additional
procedural rights in the exercise of their discretion.” Vermont
Yankee Nuclear Power Corp. v. Natural Resources Defense
Council , Inc. , 435 U.S.
519 , 524 (1978). “[R]eviewing courts,” on the other hand, “are
generally not free to impose them if the agencies have not chosen
to grant them.” Ibid. The parties do not dispute that the
Government possesses discretion to provide bond hearings under
§1231(a)(6), see Brief for Petitioners 15, but this Court cannot
say, consistent with Jennings , that the statutory text
requires them.

															Finally, Arteaga-Martinez argues that Zadvydas , which identified ambiguity in §1231(a)(6)’s
permissive language, supports a view that §1231(a)(6) implicitly
incorporates the specific bond hearing requirements and procedures
enumerated by the Court of Appeals. In Jennings , however,
this Court faulted the Ninth Circuit for going significantly
further than Zadvydas . 583 U. S., at ___ (slip op., at
15). Jennings did not overrule or abrogate Zadvydas .
But the detailed procedural requirements imposed by the Court of
Appeals below reach substantially beyond the limitation on
detention authority recognized in Zadvydas . Zadvydas does not require, and Jennings does not permit, the Third
Circuit’s application of the canon of constitutional
avoidance.[ 3 ]

															C

															Separately from his statutory claims,
Arteaga-Martinez contends that reading §1231(a)(6) not to require
bond hearings when detention becomes prolonged “raises serious due
process concerns.” Brief for Respondent 24. He points out that
outside of the national-security context, this Court has never
“authorized prolonged detention without an individualized hearing,
before a neutral adjudicator, at which the detainee has a
meaningful opportunity to participate.” Ibid. (collecting
cases). He asserts that the Government’s interest in denying bond
hearings is minimal because such hearings do not require release. Id. , at 26 (citing Zadvydas , 533 U. S., at 696).
And he argues that his status as an individual with a reinstated
removal order “ ‘bears no relation to [his]
dangerousness,’ ” as evidenced by the fact that an Immigration
Judge authorized his release on bond. Brief for Respondent 26–27
(quoting Zadvydas , 533 U. S., at 692). The Government
responds that regulations directing ICE officials to conduct
administrative custody reviews for individuals in ICE detention
provide adequate process, “at least as a general matter.” Brief for
Petitioners 18–19. The Government contends that these
regulations—which generally require a custody review at the end of
the 90-day removal period, a second review by a panel at ICE
headquarters after six months of detention, and subsequent annual
reviews—provide constitutionally sufficient substantive and
procedural protections for noncitizens whose detention is
prolonged. Id., at 18. The Government also notes that
as-applied constitutional challenges remain available to address
“exceptional” cases. Id., at 21.

															“[W]e are a court of review, not of first view.” Cutter v. Wilkinson , 544 U.S.
709 , 718, n. 7 (2005). The courts below did not reach
Arteaga-Martinez’s constitutional claims because they agreed with
him that the statute required a bond hearing. We leave them for the
lower courts to consider in the first instance. See Jennings , 583 U. S., at ___ (slip op., at 29).

															Arteaga-Martinez also advances an alternative
theory that he is presumptively entitled to release under Zadvydas because, in view of the length of time that
withholding-only proceedings tend to take, his removal is not
reasonably foreseeable. See Brief for Respondent 19–22. The
Government disagrees on the merits and adds that the issue is not
properly before this Court because it would alter the scope of the
judgment below, which granted Arteaga-Martinez a bond hearing, not
release. See Reply Brief 11–12 (citing Trans World Airlines , Inc. v. Thurston , 469 U.S.
111 , 119, n. 14 (1985)). Again, we decline to reach this
claim in the first instance. See Cutter , 544 U. S., at
718, n. 7.

															*  *  *

															The judgment of the Court of Appeals for the
Third Circuit is reversed, and the case is remanded for further
proceedings consistent with this opinion.

															It is so ordered. Notes 1 Arteaga-Martinez
represents, and the Government does not dispute, that the
Government conducted an administrative review of his dangerousness
and flight risk in August 2018 and denied him release without
interviewing him or providing a hearing. See 8 CFR §241.4(h)(1)
(2021). 2 The Court also granted
certiorari in a companion case presenting the same question. See Garland v. Gonzalez , 594 U. S. ___
(2021). 3 Because the text of 8
U. S. C. §1231(a)(6) does not require the relief ordered
below, the Court does not address the parties’ disagreements over
whether that relief contravened §1231(h) or impermissibly
reallocated executive authority. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 19–896

															_________________

															TAE D. JOHNSON, ACTING DIRECTOR OF U. S.
IMMIGRATION AND CUSTOMS ENFORCE- MENT, et al., PETITIONERS v. ANTONIO ARTEAGA-MARTINEZ

															on writ of certiorari to the united states
court of appeals for the third circuit

															[June 13, 2022]

															Justice Thomas, with whom Justice Gorsuch
joins as to Part I, concurring.

															I join the Court’s opinion because it correctly
decides that 8 U. S. C. §1231(a)(6) does not require
periodic, 6-month bond hearings. I write separately to make three
points.

															I

															First, we lack jurisdiction to hear this case.
Under 8 U. S. C. §1252(b)(9), a federal court has
jurisdiction to review “questions of law and fact . . .
arising from any action taken or proceeding brought to remove an
alien . . . only” in two circumstances: (1) when the
court reviews a “final order” of removal, or (2) when §1252
otherwise grants jurisdiction. See, e.g., Johnson v. Guzman Chavez , 594 U. S. ___, ___ (2021) (Thomas, J.,
concurring in part and concurring in judgment) (slip op., at 1); Jennings v. Rodriguez , 583 U. S. ___, ___–___
(2018) (same) (slip op., at 3–4). This jurisdictional zipper clause
“cover[s] all claims related to removal proceedings,” including
detention-related “withholding-of-removal claims.” Guzman
Chavez, 594 U. S., at ___ (slip op., at 2) (internal
quotation marks omitted); see also Jennings , 583 U. S.,
at ___–___ (slip op., at 4–7).

															Because Arteaga-Martinez does not seek review of
a final removal order or otherwise invoke §1252, and because his
claim “aris[es] from” his removal proceedings, I would vacate and
remand with instructions to dismiss for lack of jurisdiction.
Nonetheless, “because the Court has held that we have jurisdiction
in cases like these, and the Court’s opinion is otherwise correct,”
I join it in full. Guzman Chavez , 594 U. S., at ___
(slip op., at 2) (internal quotation marks omitted).

															II

															Second, as I have explained elsewhere, there
is considerable historical evidence that the Due Process Clause
does not “apply to laws governing the removal of aliens.” Sessions v. Dimaya , 584 U. S. ___, ___ (2018)
(dissenting opinion) (slip op., at 6). But even assuming the Due
Process Clause extends to some aliens contesting their
removability, it does not protect from detention an alien who, like
Arteaga-Martinez, does not challenge his final removal order.
Illegal aliens deemed removable have no “right of release into this
country.” Zadvydas v. Davis , 533
U.S. 678 , 703 (2001) (Scalia, J., dissenting). Although the
Court properly declines to decide Arteaga-Martinez’s due process
claim, see ante, at 9, we should revisit whether the Due
Process Clause applies at all in this context.

															III

															Third, this case illustrates why we should
overrule Zadvydas at the earliest opportunity. There, the
Court held that §1231(a)(6) “would raise a serious constitutional
problem” under the Fifth Amendment if it permitted “indefinite
detention of an alien.” Id. , at 690. To avoid that supposed
“problem,” the Court deemed “ambiguous” the statutory authorization
that a removable alien “may be detained beyond the removal period,”
and then, clothed in constitutional garb, invoked that manufactured
ambiguity to graft a made-up rule onto §1231(a)(6). Id., at
697. Namely, the Court decided that immigration authorities can
detain an alien only long enough to accomplish the “basic purpose
[of] effectuating an alien’s removal” and must release him “once
removal is no longer reasonably foreseeable.” Id., at 697,
699. The “presumptively reasonable” detention period, the Court
declared, was six months. Id., at 701. The Court offered no
textual support for that (or any) length of time. See ibid. As we later implied in Jennings , the
constitutional-avoidance canon cannot justify adoption of such an
implausible construction of §1231(a)(6). See 583 U. S., at ___
(slip op., at 12). And, until we overrule Zadvydas , it will
continue to invite nothing but mischief. An ill-defined, quasi-
constitutional command of “reasonableness” inevitably encourages
courts to fashion procedural rules with no basis in statutory text.
We confronted that mischief in Jennings , see 583 U. S.,
at ___ (slip op., at 14) (reversing the Ninth Circuit for “all but
ignor[ing] the statutory text” and instead “reading Zadvydas . . . as essentially granting a license to graft a time
limit onto the text of §1225(b)”), and we do so again today,
compare ante, at 8, with Guerrero-Sanchez v. Warden York County Prison , 905 F.3d 208, 223 (CA3 2018). We
will be forced to engage in this jurisprudential whack-a-mole until
we recognize that Zadvydas was wrong the day it was decided
and thus does not warrant “ stare decisis effect.” Clark v. Martinez , 543 U.S.
371 , 401 (2005) (Thomas, J., dissenting); see also Gamble v. United States , 587 U. S. ___, ___
(2019) (Thomas, J., concurring) (slip op., at 17) (“[W]e should not
invoke stare decisis to uphold precedents that are
demonstrably erroneous”).

															*  *  *

															These three points notwithstanding, the
Court’s opinion correctly interprets §1231(a)(6). Accordingly, I
concur. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 19–896

															_________________

															TAE D. JOHNSON, ACTING DIRECTOR OF U. S.
IMMIGRATION AND CUSTOMS ENFORCE- MENT, et al., PETITIONERS v. ANTONIO ARTEAGA-MARTINEZ

															on writ of certiorari to the united states
court of appeals for the third circuit

															[June 13, 2022]

															Justice Breyer, concurring in part and
dissenting in part.

															The Government can normally detain persons
unlawfully present in, and ordered removed from, the United States
for a 90-day statutory “removal period.” 8 U. S. C.
§1231(a). However, §1231(a)(6) provides that the Attorney General
may sometimes hold such a person in custody for a longer period. It
says:

															“An alien ordered removed [1] who is
inadmissible [2] [or] removable [as a result of violations of
status requirements or entry conditions, certain violations of
criminal law, or reasons of security or foreign policy] or [3] who
has been determined by the Attorney General to be a risk to the
community or unlikely to comply with the order of removal, may be
detained beyond the removal period . . . .”

															In Zadvydas v. Davis , 533 U.S.
678 , 689 (2001), “we read an implicit limitation into” this
provision. Because a “statute permitting indefinite detention of an
alien would raise a serious constitutional problem,” we held that
the “statute, read in light of the Constitution’s demands, limits
an alien’s post-removal-period detention to a period reasonably
necessary to bring about that alien’s removal from the United
States. It does not permit indefinite detention.” Id., at
689–690; see also id., at 690–696 (explaining potential
constitutional concerns presented by indefinite detention under
§1231(a)(6)).

															We also held that the period reasonably
necessary to effect removal was presumptively six months. Id., at 701. “[W]e recognize[d] that period” “for the
sake of uniform administration in the federal courts.” Ibid. But “[a]fter this 6-month period, once the alien provides good
reason to believe that there is no significant likelihood of
removal in the reasonably foreseeable future, the Government must
respond with evidence sufficient to rebut that showing. And for
detention to remain reasonable, as the period of prior postremoval
confinement grows, what counts as the ‘reasonably foreseeable
future’ conversely would have to shrink.” Ibid. In my view, Zadvydas controls the outcome
here. The statutory language is identical, which is not surprising,
for this case concerns the same statutory provision. There are two
conceivable differences between this case and Zadvydas , but
both argue in favor of applying Zadvydas ’ holding here.

															First, the respondent here, Antonio
Arteaga-Martinez, has been ordered removed, and is therefore
subject to §1231(a), for a different reason than the persons whose
cases we considered in Zadvydas . Kestutis Zadvydas and Kim
Ho Ma were ordered removed because they had been convicted of
serious crimes. Id., at 684–685. Zadvydas had committed drug
crimes, attempted robbery, attempted burglary, and theft; Ma was
involved in a gang-related shooting and convicted of manslaughter. Ibid. Arteaga-Martinez’s only crime (besides minor traffic
violations) is entering the United States without inspection. Ante, at 2. The Government seeks to detain him while an
immigration judge considers his claim that he will be persecuted or
tortured if he is returned to Mexico. Ante, at 2–3. There is
less reason, not more, to detain Arteaga-Martinez without bail.

															Second, Zadvydas provided for outright
release, 533 U. S., at 699–700; this case involves a bail
hearing. Again, the Government has less reason to detain a person
when the alternative is a bail hearing (where the Government has an
opportunity to show that that person might pose a danger to the
community or a flight risk) than when the alternative is simply
release.

															The Government argues that a later case, Jennings v. Rodriguez , 583 U. S. ___ (2018),
dictates the result here, rather than Zadvydas . Not at all.
That later case involved detention under statutes other than the
one at issue here and in Zadvydas . Jennings , 583
U. S., at ___ (slip op., at 5) (“The primary issue is the
proper interpretation of §§1225(b), 1226(a), and 1226(c)”). The
Court in Jennings did not modify or overrule Zadvydas , but rather explicitly distinguished that case. Jennings , 583 U. S., at ___ (slip op., at 17). It did
so on multiple grounds, including the fact that almost all of the
statutes at issue in Jennings used words that mandated
detention, such as “shall,” rather than words of discretion, such
as “may.” Id., at ___, ___ (slip op., at 16, 19). In Zadvydas , the word “may” created ambiguity that permitted
the Court to interpret §1231(a)(6) (the statute before us) in a
manner that avoided the constitutional problem that indefinite
detention could have created. 533 U. S., at 697. The majority
in Jennings held that the statutory provisions at issue
there were not similarly ambiguous, and therefore did not permit
the Court to reach a similar interpretation. 583 U. S., at
___, ___–___ (slip op., at 17, 22–23).

															It is true that one of the statutes interpreted
in Jennings , §1226(a), said that the Attorney General “may
. . . arres[t] and detai[n an alien] pending a decision
on whether the alien is to be removed,” or “may release the alien
on . . . bond . . . or . . .
conditional parole.” Why did this statute not give the Court the
textual leeway needed to permit a bail hearing (given the
constitutional problem posed by potentially indefinite detention)?
Here is the Court’s answer to that question in its entirety:

															“The Court of Appeals ordered the
Government to provide procedural protections that go well beyond
the initial bond hearing established by existing
regulations—namely, periodic bond hearings every six
months in which the Attorney General must prove by clear and
convincing evidence that the alien’s continued detention is
necessary. Nothing in §1226(a)’s text—which says only that the
Attorney General ‘may release’ the alien ‘on . . .
bond’—even remotely supports the imposition of either of those
requirements. Nor does §1226(a)’s text even hint that the length of
detention prior to a bond hearing must specifically be considered
in determining whether the alien should be released.” Jennings , 583 U. S., at ___–___ (slip op., at 22–23)
(emphasis added).

															The court below did not order periodic bond
hearings, but it did require the Government to satisfy a “clear and
convincing evidence” standard. Ante, at 3. I agree that Jennings forecloses this latter requirement. Otherwise, I
would find the lower courts’ bail hearing requirements reasonable
implementations of the Zadvydas standard, which is
applicable here.

															Since the Court remands this case for further
proceedings, I would add that, in my view, Zadvydas applies
(the Court does not hold to the contrary), and the parties are free
to argue about the proper way to implement Zadvydas ’
standard in this context, and, if necessary, to consider the
underlying constitutional question, a matter that this Court has
not decided.

Summary:
The case, Johnson v. Arteaga-Martinez, concerns the detention of non-citizens who have been ordered to be removed from the United States under the Immigration and Nationality Act (INA). The specific issue is whether the government must provide bond hearings for detained non-citizens after six months, during which the government must prove that they pose a flight risk or danger.

The Court's opinion, delivered by Justice Sotomayor, states that the text of the INA does not require the government to offer these bond hearings. The Court's interpretation focuses on the discretionary language of the statute, which states that a non-citizen "may be detained" or released under supervision after the removal period. This discretion is granted to the government without any mention of mandatory bond hearings.

Justice Breyer's concurrence emphasizes the distinction between this case and Jennings v. Rodriguez, where the Court interpreted a different provision of the INA and found that the statute did not permit the same interpretation as in Zadvydas v. Davis, a case concerning indefinite detention. He agrees that Jennings forecloses the lower court's requirement for clear and convincing evidence but suggests that Zadvydas remains applicable, allowing for reasonable bail hearing requirements.

In summary, the Court's decision in Johnson v. Arteaga-Martinez holds that the INA does not require the government to provide bond hearings for detained non-citizens after six months, and Justice Breyer's concurrence highlights the potential for further arguments regarding the implementation of Zadvydas' standard and the underlying constitutional question.