(Slip Opinion) OCTOBER TERM, 2020 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is 

being done in connection with this case, at the time the opinion is issued. 

The syllabus constitutes no part of the opinion of the Court but has been 

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

JOHNSON, ACTING DIRECTOR OF U. S. 

IMMIGRATION AND CUSTOMS ENFORCEMENT, ET 

AL. v. GUZMAN CHAVEZ ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE FOURTH CIRCUIT 

No. 19–897. Argued January 11, 2021—Decided June 29, 2021 

Federal immigration law establishes procedures for removing aliens living unlawfully in the United States as well as for determining whether 

such persons are detained during removal proceedings. The Department of Homeland Security (DHS) may arrest and detain an alien 

“pending a decision on whether the alien is to be removed from the 

United States.” 8 U. S. C. §1226(a). An alien detained under §1226(a) 

may generally apply for release on bond or conditional parole. 

§1226(a)(2). If an alien is ordered removed and the order becomes “administratively final,” detention becomes mandatory. §§1231(a)(1)(A)– 

(B), (a)(2). If an alien removed under this process reenters the country

without authorization, that person faces reinstatement of “the prior

order of removal from its original date.” §1231(a)(5). That order “is 

not subject to being reopened or reviewed,” and the alien “shall be removed under the prior order at any time after reentry.” Ibid. 

Respondents are aliens who were removed from the United States

and later reentered without authorization. When DHS reinstated 

their prior removal orders, each respondent sought withholding-only

relief to prevent DHS from executing those orders based on fear of returning to their home country as designated in the removal orders. 

While respondents’ withholding-only proceedings were pending, DHS

detained respondents, and respondents sought release on bond, which 

was initially denied. The Government opposed their release, maintaining that because respondents were detained under §1231, not 

§1226, they were not entitled to bond hearings. Respondents filed habeas proceedings in District Court, seeking a declaration that §1226 
 

 

 

 

 

2 JOHNSON v. GUZMAN CHAVEZ 

Syllabus 

governs their detention, as well as an injunction ordering the Government to grant them individualized bond hearings consistent with 

§1226. The District Court entered summary judgment for respondents, and the Fourth Circuit affirmed. 

Held: Section §1231, not §1226, governs the detention of aliens subject to

reinstated orders of removal. Pp. 8–22.

(a) Section 1231 authorizes detention “when an alien is ordered removed” and enters the “removal period,” which begins, as relevant 

here, on “[t]he date the order of removal becomes administratively final.” It is undisputed that each respondent was previously “ordered

removed” pursuant to a valid order of removal and that those orders 

were “reinstated from [their] original date[s]” under §1231(a)(5).

Those reinstated removal orders were also “administratively final.” By

inserting the word “administratively,” Congress made clear that DHS 

need not wait for the alien to seek or exhaust judicial review of that 

order. Respondents contend that even if §1231 normally governs in 

such cases, it ceases to apply when the alien pursues withholding-only 

relief. Respondents’ arguments cannot overcome the statute’s plain 

text. Pp. 8–18. 

(1) Respondents misunderstand the nature of withholding-only 

proceedings when they argue that because an immigration judge or

the Board of Immigration Appeals (BIA) might determine that DHS 

cannot remove an alien to the specific country designated in the removal order, the question whether the alien is “to be removed” remains 

“pending” and is therefore governed by §1226. If an immigration judge 

grants an application for withholding of removal, DHS is prohibited

from removing the alien to that particular country, not from the United 

States. The removal order remains in full force, and DHS retains the 

authority to remove the alien to any other authorized country. This 

Court and the BIA have long understood the nature of withholdingonly relief this way. See, e.g., INS v. Aguirre-Aguirre, 526 U. S. 415, 

419. Pp. 11–14. 

(2) Respondents next argue that a removal order does not become 

“administratively final” until the withholding-only proceedings conclude. A reinstated removal order, they contend, loses its prior finality 

when the alien initiates withholding-only proceedings. This argument 

ignores that removal orders and withholding-only proceedings address

two distinct questions and end in two separate orders. See Nasrallah 

v. Barr, 590 U. S. ___, ___. Because the validity of removal orders is

not affected by the grant of withholding-only relief, an alien’s initiation

of withholding-only proceedings does not render non-final an otherwise

“administratively final” reinstated order of removal. Pp. 14–16.

(3) Respondents submit that the “except as otherwise provided in 

this section” language in the opening clause of §1231(a)(1)(A)—which 
 

Cite as: 594 U. S. ____ (2021) 3 

Syllabus 

sets the default for the length of the removal period at 90 days—places

a limit on when the removal period is triggered. The most natural 

reading of that phrase, however, is that the Government must remove 

an alien within 90 days unless another section of §1231 specifically 

contemplates that the removal period can exceed 90 days. The presence of specific statutory provisions in §1231 that relate to the length

of the removal period leads to the conclusion that the opening clause 

of §1231(a)(1)(A) refers to them and not the withholding-only provision, which does not mention the length of the removal period and does 

not stand in the way of removal to a third country. Pp. 16–17. 

(b) Statutory structure confirms this Court’s textual reading. Every 

provision applicable to respondents is located in §1231. It would thus 

be odd if the provision governing their detention was located in §1226,

rather than §1231, which contains its own detention provision. Moreover, the inclusion of the statutory withholding provision in §1231,

grouped with other provisions that relate to where DHS may remove 

an alien, illustrates how withholding-only relief fits within the removal process generally. The order of the applicable Immigration and

Nationality Act provisions provides further context for interpreting 

the proper application of §1226 and §1231. Section 1226 applies before

an alien proceeds through the removal proceedings and obtains a decision; §1231 applies after. Pp. 18–19. 

(c) Respondents’ contrary reading would also undermine Congress’s 

judgment regarding the detention of different groups of aliens who 

posed different flight risks. Aliens who have not been ordered removed 

are less likely to abscond because they have a chance of being found 

admissible, while aliens who have already been ordered removed are 

generally inadmissible, see §1182(a)(9)(C)(ii), and have already

demonstrated a willingness to violate the terms of a removal order, see

§1231(a)(6). Congress had obvious reasons to treat these two groups 

differently. P. 20. 

(d) Respondents remaining arguments are that withholding-only 

proceedings are a legal impediment that, like the three triggers to the 

start of the removal period listed in §1231(a)(1)(B), must be eliminated

before the removal period begins and that Congress could not have intended §1231 to apply to an alien in withholding-only proceedings because withholding-only proceedings often take longer than 90 days. 

Neither argument is persuasive. Pp. 20–22. 

940 F. 3d 867, reversed. 

ALITO, J., delivered the opinion of the Court, except as to footnote 4. 

ROBERTS, C. J., and KAVANAUGH and BARRETT, JJ., joined that opinion in 

full. THOMAS, J., filed an opinion concurring except for footnote 4 and 

concurring in the judgment, in which GORSUCH, J., joined. BREYER, J., 

filed a dissenting opinion, in which SOTOMAYOR and KAGAN, JJ., joined. 
 

 

 

_________________ 

_________________ 

Cite as: 594 U. S. ____ (2021) 1 

Opinion of the Court 

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. 19–897 

TAE D. JOHNSON, ACTING DIRECTOR OF U. S. IMMIGRATION AND CUSTOMS ENFORCEMENT, 

ET AL., PETITIONERS v. MARIA ANGELICA 

GUZMAN CHAVEZ, ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE FOURTH CIRCUIT 

[June 29, 2021] 

JUSTICE ALITO delivered the opinion of the Court, except 

as to footnote 4. 

Federal immigration law contains various provisions authorizing the Government to detain aliens during the removal process. This case concerns two of them: 8 U. S. C. 

§1226 and 8 U. S. C. §1231. We are asked to decide which 

of those provisions applies to aliens who were removed from

the United States but later reentered without authorization, were subject to reinstated orders of removal, and then 

sought withholding of removal based on fear of persecution 

in the particular countries designated by their removal orders. If the answer is §1226, which applies “pending a decision on whether the alien is to be removed from the United 

States,” then the alien may receive a bond hearing before

an immigration judge. If the answer is §1231, which applies after the alien is “ordered removed,” then the alien is

not entitled to a bond hearing. We conclude that §1231, not 

§1226, governs the detention of aliens subject to reinstated 

orders of removal, meaning those aliens are not entitled to 
 

2 JOHNSON v. GUZMAN CHAVEZ 

Opinion of the Court 

a bond hearing while they pursue withholding of removal. 

I 

A 

The Immigration and Nationality Act (INA) establishes 

procedures for removing aliens living unlawfully in the

United States. In the ordinary course, if the Department of 

Homeland Security (DHS)1 discovers that an alien is living 

in the United States without authorization, it may initiate

removal proceedings against the alien by sending him a “notice to appear.” 110 Stat. 3009–587, as added and amended, 

8 U. S. C. §1229(a). That notice informs the alien of, among 

other things, the charges against him and the time and 

place of the hearing at which an immigration judge will determine whether the alien is to be removed. 

§§1229(a)(1)(D), (G)(i).

The INA further provides that DHS may arrest and detain the alien “pending a decision on whether the alien is to 

be removed from the United States.” §1226(a). Aliens who 

are arrested and detained may generally apply for release 

on bond or conditional parole. §1226(a)(2).2 To secure release, the alien must show that he does not pose a danger 

to the community and that he is likely to appear for future 

proceedings. 8 CFR §§236.1(c)(8), 1236.1(c)(8) (2020); In re 

Adeniji, 22 I. & N. Dec. 1102, 1113 (BIA 1999). If DHS denies the alien’s request, the alien may request a bond hearing in front of an immigration judge by filing an application 

—————— 1Although many of the provisions at issue in this case refer to the Attorney General, Congress has also empowered the Secretary of Homeland Security to enforce the Immigration and Nationality Act. See Nielsen v. Preap, 586 U. S. ___, ___ n. 2 (2019) (slip op., at 3, n. 2); see also 

Brief for Petitioners 2–3, and n. 1; Brief for Respondents 7, and n. 2. 2There is one exception. For certain criminal aliens and aliens who 

have connections to terrorism, detention is mandatory and release is permitted in very limited circumstances. See 8 U. S. C. §1226(c); Nielsen, 

586 U. S., at ___–___, ___–___ (slip op., at 3–4, 23–24). That exception

does not apply here. 
 

 

 

Cite as: 594 U. S. ____ (2021) 3 

Opinion of the Court 

for a change in the alien’s detention conditions. See 

§§236.1(d)(1), 1003.19(a), 1236.1(d)(1). Either the alien or 

DHS may appeal the immigration judge’s decision to the 

Board of Immigration Appeals (BIA). See §§236.1(d)(3)(i), 

1003.19(f ), 1236.1(d)(3)(i). 

At some point, the alien will also have the abovementioned hearing before an immigration judge to determine whether he is inadmissible or deportable, and therefore subject to removal. 8 U. S. C. §1229a(a)(1). The alien 

may seek various forms of relief or protection from removal, 

such as asylum or withholding of removal. See 

§1229a(c)(4)(A); 8 CFR §§1208.4(b)(3)(i), 1240.11(c), (e). If 

the immigration judge decides that the alien is inadmissible 

or deportable and that the alien is not entitled to any of the 

relief or protection that he requested, the immigration 

judge will issue an order of removal. 8 U. S. C. §1229a(c)(5). 

If the immigration judge issues an order of removal, the alien may file a motion to reconsider, a motion to reopen, an

appeal to the BIA, and a petition for review in federal court.

§§1229a(c)(5)–(7), 1252(b); 8 CFR §1240.15.

Once an alien is ordered removed, DHS must physically 

remove him from the United States within a 90-day “removal period.” 8 U. S. C. §1231(a)(1)(A). The removal period begins on the latest of three dates: (1) the date the order of removal becomes “administratively final,” (2) the 

date of the final order of any court that entered a stay of 

removal, or (3) the date on which the alien is released from 

non-immigration detention or confinement. §1231(a)(1)(B).

During the removal period, detention is mandatory.

§1231(a)(2).

Under §1231, the removal period may be extended in at

least three circumstances, such that an alien remains detained after 90 days have passed. First, the removal period

may be extended if the alien fails to make a timely application for travel documents or acts to prevent his removal. 
 

 

4 JOHNSON v. GUZMAN CHAVEZ 

Opinion of the Court 

§1231(a)(1)(C). Second, DHS may stay the immediate removal of certain aliens if it decides that such removal is not 

practicable or proper, or if the alien is needed to testify in a

pending prosecution. §1231(c)(2)(A). And finally, the statute provides that an alien may be detained beyond the removal period or released under supervision if he is (1) inadmissible, (2) removable as a result of violations of status 

requirements, entry conditions, or the criminal law, or for 

national security or foreign policy reasons, or (3) a risk to 

the community or unlikely to comply with the removal order. §1231(a)(6); see also 8 CFR §241.4 (setting out procedures DHS must follow to impose continued detention). 

Continued detention under this provision creates the “postremoval-period.”

Although the statute does not specify a time limit on how 

long DHS may detain an alien in the post-removal period,

this Court has “read an implicit limitation” into the statute

“in light of the Constitution’s demands,” and has held that 

an alien may be detained only for “a period reasonably necessary to bring about that alien’s removal from the United 

States.” Zadvydas v. Davis, 533 U. S. 678, 689 (2001). And 

according to the Court, a period reasonably necessary to 

bring about the alien’s removal from the United States is

presumptively six months. Id., at 701. After that point, if

the alien “provides good reason to believe that there is no

significant likelihood of removal in the reasonably foreseeable future,” the Government must either rebut that showing or release the alien. Ibid.; see also 8 CFR §241.13 (setting out the Zadvydas procedures).

If no exception applies, an alien who is not removed 

within the 90-day removal period will be released subject to 

supervision. See 8 U. S. C. §1231(a)(3); see also 8 CFR 

§241.5. 

B 

In addition to the removal procedures outlined above, 
 

Cite as: 594 U. S. ____ (2021) 5 

Opinion of the Court 

Congress has created an expedited process for aliens who

reenter the United States without authorization after having already been removed. The relevant statutory provision 

states: 

“If the Attorney General finds that an alien has reentered the United States illegally after having been removed or having departed voluntarily, under an order 

of removal, the prior order of removal is reinstated from

its original date and is not subject to being reopened or 

reviewed, the alien is not eligible and may not apply for 

any relief under this chapter, and the alien shall be removed under the prior order at any time after the 

reentry.” §1231(a)(5). 

DHS’s regulations set out the process for reinstating an order of removal. In short, the agency obtains the alien’s prior 

order of removal, confirms the alien’s identity, determines

whether the alien’s reentry was unauthorized, provides the 

alien with written notice of its determination, allows the alien to contest that determination, and then reinstates the 

order. See 8 CFR §§241.8(a)–(c), 1241.8(a)–(c).

Title 8 U. S. C. §1231(a)(5) applies to “all illegal reentrants,” and it “explicitly insulates the removal orders from 

review,” while also “generally foreclos[ing] discretionary relief from the terms of the reinstated order.” Fernandez-Vargas v. Gonzales, 548 U. S. 30, 35 (2006). It does not, however, preclude an alien from pursuing withholding-only 

relief to prevent DHS from executing his removal to the particular country designated in his reinstated removal order. 

Ibid., n. 4; see also §1231(b)(3)(A). 

C 

Much of this case turns on the nature of withholding-only

proceedings. There are two paths for seeking withholding 

of removal. First, the alien may seek statutory withholding 

under §1231(b)(3)(A), which provides that “the Attorney 
 

 

6 JOHNSON v. GUZMAN CHAVEZ 

Opinion of the Court 

General may not remove an alien to a country if the Attorney General decides that the alien’s life or freedom would 

be threatened in that country because of the alien’s race, 

religion, nationality, membership in a particular social

group, or political opinion.” Second, the alien may seek 

withholding under regulations implementing the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), Dec. 10, 1984, S. 

Treaty Doc. No. 100–20, 1465 U. N. T. S. 113, which prohibits removal of an alien to a country where the alien is likely 

to be tortured. See 8 CFR §§208.16–208.17, 1208.16– 

1208.17. 

The process for applying for withholding of removal depends on whether the alien is subject to the standard removal proceedings or a reinstated order of removal. As 

mentioned above, an alien subject to the standard removal

process typically applies for withholding during the course

of his removal proceedings. See supra, at 3. But because 

an alien subject to a reinstated order of removal will not 

have any removal proceedings, the process begins for him 

only if he expresses a fear to DHS of returning to the country of removal. See §§208.31(a), 1208.31(a). At that point,

DHS will refer him to an asylum officer for a reasonable

fear determination, which will normally be conducted 

within 10 days of the referral. §§208.31(b), 1208.31(b). If 

the asylum officer concludes that the alien has a reasonable 

fear, he will refer the matter to an immigration judge for 

initiation of withholding-only proceedings. §§208.31(e),

1208.31(e). Those proceedings are “limited to a determination of whether the alien is eligible for withholding or deferral of removal,” and as such, “all parties are prohibited from

raising or considering any other issues, including but not 

limited to issues of admissibility, deportability, eligibility 

for waivers, and eligibility for any other form of relief.” 

§§208.2(c)(3)(i), 1208.2(c)(3)(i). The immigration judge’s final decision as to withholding can be appealed to the BIA. 
 

 

 

 

 

 

Cite as: 594 U. S. ____ (2021) 7 

Opinion of the Court 

§§208.31(e), 1208.31(e).

If an alien is granted withholding-only relief, DHS may 

not remove the alien to the country designated in the removal order unless the order of withholding is terminated.

§§208.22, 1208.22. But because withholding of removal is

a form of “‘country specific’” relief, INS v. Cardoza-Fonseca, 

480 U. S. 421, 428, n. 6 (1987), nothing prevents DHS “from

removing [the] alien to a third country other than the country to which removal has been withheld or deferred,”

§§208.16(f ), 1208.16(f ); see also §§208.17(b)(2), 

1208.17(b)(2). 

D 

Respondents are aliens who were removed from the 

United States and later reentered without authorization. 

Guzman Chavez v. Hott, 940 F. 3d 867, 870 (CA4 2019).

When DHS discovered their presence, it reinstated their 

prior removal orders. Id., at 870–871. Each respondent expressed a fear of returning to his or her home country and 

was referred to an asylum officer for a reasonable fear interview. Id., at 871. In each case, the asylum officer determined that the respondent had a reasonable fear of persecution or torture and referred the respondent to an

immigration judge for withholding-only proceedings. Ibid. 

Although some of the respondents were initially granted supervised release, all were ultimately detained by DHS. 

Ibid. They then sought release on bond while their withholding-only proceedings were pending. The Government 

opposed release, maintaining that because respondents

were detained under 8 U. S. C. §1231, not §1226, they were 

not entitled to bond hearings.

Respondents filed two habeas proceedings in the Eastern

District of Virginia seeking a declaration that §1226 rather 

than §1231 governs their detention, as well as an injunction 

ordering the Government to grant them individualized 
 

 

8 JOHNSON v. GUZMAN CHAVEZ 

Opinion of the Court 

bond hearings consistent with §1226.3 In both cases, the 

District Court entered summary judgment in favor of respondents, concluding that §1226 governs their detention.

See Romero v. Evans, 280 F. Supp. 3d 835, 849 (2017); Diaz 

v. Hott, 297 F. Supp. 3d 618, 623, 628 (2018). The Government appealed both decisions, and the Fourth Circuit affirmed, over a dissent by Judge Richardson. See 940 F. 3d, 

at 882. In doing so, the Fourth Circuit joined the Second 

Circuit but departed from the Third, Sixth, and Ninth Circuits. Compare Guerra v. Shanahan, 831 F. 3d 59, 64 (CA2 

2016), with Martinez v. LaRose, 968 F. 3d 555, 559 (CA6 

2020); Guerrero-Sanchez v. Warden York County Prison, 

905 F. 3d 208, 213 (CA3 2018); Padilla-Ramirez v. Bible, 

882 F. 3d 826, 832 (CA9 2017). We granted certiorari to resolve the split. Albence v. Guzman Chavez, 590 U. S. ___ 

(2020). We conclude that §1231, not §1226, governs respondents’ detention and now reverse the judgment of the

Fourth Circuit.4 

II 

A 

We turn first to the statutory text. Section 1226 provides

that “an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United 

States.” §1226(a). Section 1231, by contrast, authorizes detention “when an alien is ordered removed” and enters the 

“removal period,” which begins on “[t]he date the order of

removal becomes administratively final.” §§1231(a)(1)(A)– 

—————— 3 In one of the proceedings, the District Court certified a Virginia-wide 

class of aliens detained during withholding-only proceedings. 940 F. 3d, 

at 871. The Government did not challenge below, and does not challenge

in this Court, the District Court’s decision to certify the class, and we do

not address that decision here. 4We have jurisdiction to review the decision below. See Jennings v. 

Rodriguez, 583 U. S. ___, ___–___ (2018) (plurality opinion) (slip op., at 

8–11). 
Cite as: 594 U. S. ____ (2021) 9 

Opinion of the Court 

(B), (2).5 It further provides that when an alien reenters

the country after having already been removed, “the prior

order of removal is reinstated from its original date and is

not subject to being reopened or reviewed.” §1231(a)(5). In 

that scenario, “the alien is not eligible and may not apply 

for any relief under this chapter” and “shall be removed under the prior order at any time after the reentry.” Ibid. 

The parties agree that §1226 governs the detention of aliens until §1231’s “removal period” begins. As relevant 

here, the removal period begins when an alien is “ordered

removed,” and the removal order becomes “administratively final.” To resolve this case, we therefore must decide 

two questions: whether respondents were “ordered removed” and whether their reinstated removal orders were 

“administratively final.” The answer to both questions is 

yes.

First, respondents have been “ordered removed.” It is undisputed that each respondent was previously removed pursuant to a valid order of removal. And after respondents

later reentered the United States without authorization, 

those prior orders were “reinstated from [their] original

date[s]” under §1231(a)(5). Those reinstated orders are not 

subject to reopening or review, nor are respondents eligible 

for discretionary relief under the INA. Instead, they “shall

be removed under the prior order at any time after the 

reentry.” Ibid. Accordingly, respondents’ prior orders, reinstated under §1231(a)(5), show that respondents were ordered removed. 

Second, respondents’ reinstated removal orders are “administratively final.” Although that phrase is not defined

in the statute, its meaning is clear. By using the word “administratively,” Congress focused our attention on the 

—————— 5The other two triggers for the removal period—a court order lifting a 

stay and the release from non-immigration detention or confinement—

do not apply here. See §§1231(a)(1)(B)(ii)–(iii). 
 

 

 

 

10 JOHNSON v. GUZMAN CHAVEZ 

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agency’s review proceedings, separate and apart from any 

judicial review proceedings that may occur in a court. Context confirms this interpretation. Recall that under 

§1231(a)(1)(B), the removal period begins “on the latest of ” 

three events: (1) “[t]he date the order of removal becomes 

administratively final”; (2) “[i]f the removal order is judicially reviewed and if a court orders a stay of the removal

of the alien, the date of the court’s final order”; and (3) “[i]f

the alien is detained or confined” outside the immigration 

process, the date of the alien’s release. Reading the first

two provisions together, it is clear that DHS need not wait

for the alien to seek, and a court to complete, judicial review

of the removal order before executing it. Rather, once the 

BIA has reviewed the order (or the time for seeking the

BIA’s review has expired), DHS is free to remove the alien 

unless a court issues a stay. That reinforces why Congress

included “administratively” before the word “final” in the 

first provision.

Respondents do not contest that their prior removal orders have long been “administratively final,” as we understand the term. See Brief for Respondents 8, 20–21, 24–26.6 

Each had the opportunity to seek review in the BIA after 

the initial removal order was entered, and §1231(a)(5) explicitly prohibits them from seeking review or relief from 

the order after it is reinstated following unlawful reentry.

In other words, there is nothing left for the BIA to do with 

respect to the removal order other than to execute it. Thus, 

respondents’ orders are administratively final. 

—————— 6Respondents do argue, however, that some lower courts’ interpretation of the phrase “final order of removal” as it is used in 8 U. S. C. 

§1252(b)(1) requires that this Court adopt respondents’ interpretation of

§1231 here. Brief for Respondents 24–26, and n. 8. We express no view

on whether the lower courts are correct in their interpretation of §1252,

which uses different language than §1231 and relates to judicial review 

of removal orders rather than detention. 
 

 

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Opinion of the Court 

For these reasons, §1231’s detention provisions are a natural fit for aliens subject to reinstated orders of removal.

Respondents and the dissent appear to accept this much

but nevertheless contend that even if §1231 normally governs aliens in this posture, it ceases to apply when such an 

alien pursues withholding-only relief. See post, at 6–7 

(opinion of BREYER, J.). Each of the arguments on this score

fails. 

1 

Respondents first argue that because an immigration

judge or the BIA might determine that DHS cannot remove 

an alien to the specific country designated in the removal 

order, the question whether the alien is “to be removed” remains “pending” and is therefore governed by §1226. Respondents misunderstand the nature of withholding-only 

proceedings. When an alien applies for withholding-only 

relief, he does so as to a particular country. See 8 CFR 

§§208.31(a), 1208.31(a). The proceedings that result from

such an application are “limited to a determination of 

whether the alien is eligible for withholding or deferral of 

removal,” and “all parties are prohibited from raising or

considering any other issues, including but not limited to

issues of admissibility, deportability, eligibility for waivers, 

and eligibility for any other form of relief.” §§208.2(c)(3)(i),

1208.2(c)(3)(i). If an immigration judge grants an application for withholding of removal, he prohibits DHS from removing the alien to that particular country, not from the 

United States. The removal order is not vacated or otherwise set aside. It remains in full force, and DHS retains the 

authority to remove the alien to any other country authorized by the statute. See §§208.16(f ), 1208.16(f ), 1240.12(d).

And the statute provides numerous options: a country designated by the alien; the alien’s country of citizenship; the 

alien’s previous country of residence; the alien’s country of 

birth; the country from which the alien departed for the 
 

 

 

 

 

12 JOHNSON v. GUZMAN CHAVEZ 

Opinion of the Court 

United States; and finally, any country willing to accept the

alien. Brief for Petitioners 3 (citing 8 U. S. C. §1231(b)(2)). 

In short, withholding-only relief is country-specific. It relates to where an alien may be removed. It says nothing, 

however, about the antecedent question whether an alien is 

to be removed from the United States. 

This Court and the BIA have long understood the nature

of withholding-only relief this way. In INS v. AguirreAguirre, 526 U. S. 415, 419 (1999), we distinguished withholding-only relief from asylum, noting that “a grant of asylum permits an alien to remain in the United States and to 

apply for permanent residency after one year,” while “withholding only bars deporting an alien to a particular country 

or countries.” (Emphasis added.) And in Matter of I–S & 

C–S, 24 I. & N. Dec. 432, 434 (BIA 2008), the BIA made 

clear that withholding-only relief “does not afford [an alien]

any permanent right to remain in the United States.” Rather, as the “regulations make clear,” a grant of withholding

“does not prevent the DHS from removing an alien to a 

country other than the one to which removal has been withheld.” Ibid. Indeed, just last Term, we affirmed that a 

grant of withholding-only relief “means only that, notwithstanding the order of removal, the noncitizen may not be 

removed to the designated country of removal, at least until

conditions change in that country,” and that “the noncitizen 

still may be removed at any time to another country.” 

Nasrallah v. Barr, 590 U. S. ___, ___ (2020) (slip op., at 8) 

(internal quotation marks omitted).

Respondents counter that, as a practical matter, the questions “whether” an alien may be removed and “where” he 

may be removed to are indistinguishable because DHS often

does not remove an alien to an alternative country if withholding relief is granted. They point to one source claiming 

that in 2017, only 1.6% of aliens who were granted withholding of removal were actually removed to an alternative coun-
Cite as: 594 U. S. ____ (2021) 13 

Opinion of the Court 

try. See Brief for Respondents 6, 30–31 (citing American Immigration Council & National Immigrant Justice Center, 

The Difference Between Asylum and Withholding of Removal 7 (Oct. 2020), www.americanimmigrationcouncil

.org/sites/default/files/research/the_difference_between_

asylum_and_withholding_of_removal.pdf ). But the fact 

that alternative-country removal is rare does not make it 

statutorily unauthorized. Here, the statute makes clear 

that removability and withholding relief are distinct, and 

we decline to ignore the plain import of the statutory text

in favor of on-the-ground statistics about the feasibility of 

removal to a third country.

Indeed, respondents’ argument—that the decision about 

whether an alien “is to be removed” remains “pending” for 

purposes of §1226 until DHS is certain that it will be able 

to carry out that removal—is at odds with the statutory text

of §1231 and our decision in Zadvydas. To begin, it is not 

plausible that an alien is detained under §1226 instead of

§1231 while DHS resolves any practical problems associated with the execution of a removal order because §1231, 

not §1226, is the part of the INA that anticipates and addresses those problems. For example, §1231(a)(1)(C) extends the removal period if the alien fails to timely apply

for travel documents and therefore cannot be removed to 

the relevant country. Section 1231(c)(2)(A) authorizes DHS 

to stay the immediate removal of certain aliens if it decides 

that immediate removal “is not practicable or proper.” And 

§1231(a)(3) allows for supervised release after the 90-day

removal period expires “[i]f the alien does not leave or is not

removed” during that time period. Those provisions would 

be unnecessary if questions of how and where an alien is to

be removed were bound up in whether the alien was removable at all under §1226. 

Our decision in Zadvydas confirms this distinction between whether an alien is to be removed and where an alien 

is to be sent. In that case, we addressed claims raised by 
 

 

14 JOHNSON v. GUZMAN CHAVEZ 

Opinion of the Court 

two aliens who, due to the Government’s inability to locate

a country of removal, had been detained for prolonged periods of time under §1231. See 533 U. S., at 684–686. But 

rather than holding that these aliens should not have been

detained under §1231 at all because the decision about 

whether they were to be removed remained “pending,” the 

Court set out certain procedural mechanisms to allow aliens to seek release from §1231 detention if there was no 

significant likelihood of removal in the reasonably foreseeable future. Id., at 701. That holding would make little

sense if DHS had to conclusively resolve the question of 

“where” an alien was to be removed before resolving

“whether” the alien was to be removed under §1226.7 

2 

Respondents next argue that a removal order does not become “administratively final” until the withholding-only

proceedings conclude. That is so, they say, even if a reinstated order of removal is “administratively final” at the 

time of its reinstatement; according to their submission, 

when the alien initiates withholding-only proceedings, the 

reinstated order loses its prior finality. See Brief for Respondents 24–25. In a similar vein, the dissent contends 

that respondents’ removal orders are not “administratively 

—————— 7Respondents attempt to distinguish our approach in Zadvydas v. Davis, 533 U. S. 678 (2001), by arguing that there is a difference between 

the Government’s inability to remove an alien due to the grant of withholding-only relief and its inability to remove an alien because of the geopolitical and practical concerns that prevented removal in that case.

But the premise of respondents’ argument is that a decision about 

whether an alien “is to be removed” remains pending during withholding-only proceedings because it is not certain that the Government will

actually be able to remove the alien from the country. The same lack of 

certainty existed in Zadvydas, where the Government’s attempt to return an alien to the country listed in the removal order was rebuffed for

geopolitical or practical reasons, and the Government had to search for 

an alternative. 
Cite as: 594 U. S. ____ (2021) 15 

Opinion of the Court 

final” because, by seeking withholding-only relief, respondents are “in effect” seeking “a modification of, a change in, 

or a withholding of, the ‘prior order of removal.’” Post, at 9. 

These related arguments suffer from the same flaw as the 

one just discussed: They ignore that removal orders and 

withholding-only proceedings address two distinct questions. As a result, they end in two separate orders, and the 

finality of the order of removal does not depend in any way 

on the outcome of the withholding-only proceedings. 

Case law makes this clear. In Matter of I–S & C–S, two 

aliens asserted that they were entitled to withholding of removal during their initial removal proceedings. The Immigration Judge concluded that they were removable but 

agreed that they were entitled to withholding relief. As a 

result, the Immigration Judge did not issue an order of removal but instead simply granted the aliens’ withholding 

applications. 24 I. & N. Dec., at 432–433. DHS appealed,

arguing that it was error for the Immigration Judge not to 

issue the order of removal. Id., at 433. The BIA agreed. It 

stated that “[a]lthough entering an order of removal prior 

to granting withholding may appear to be a technicality,” it

is “axiomatic that in order to withhold removal there must 

first be an order of removal that can be withheld.” Ibid. 

(emphasis added). In other words, the order of removal is 

separate from and antecedent to a grant of withholding of 

removal. Every Member of this Court approved that reading just last Term. In Nasrallah v. Barr, the majority explained that the grant of withholding relief under CAT

“does not disturb the final order of removal,” “affect the validity of the final order of removal,” or otherwise “merge into

the final order of removal.” 590 U. S., at ___ (slip op., at 8). 

The dissent acknowledged the same. See id., at ___ (opinion 

of THOMAS, J.) (slip op., at 5) (“The majority correctly notes 

that a CAT order does not fall within” the statute’s definition of an order of removal); id., at ___–___ (slip op., at 6–7) 

(“[S]tatutory withholding seeks to prevent removability and 
 

16 JOHNSON v. GUZMAN CHAVEZ 

Opinion of the Court 

is considered after the alien has been deemed removable. 

Thus, statutory withholding claims also do not affect the 

validity of the underlying removal order” (citation omitted)). Because the validity of removal orders is not affected 

by the grant of withholding-only relief, an alien’s initiation

of withholding-only proceedings does not render non-final

an otherwise “administratively final” reinstated order of removal. 

3 

At oral argument, respondents offered a new textual argument in support of their position that §1231 does not govern their detention. They point to the opening clause of 

§1231(a)(1)(A), which states in full: “Except as otherwise 

provided in this section, when an alien is ordered removed, 

the Attorney General shall remove the alien from the 

United States within a period of 90 days.” (Emphasis 

added.) Respondents submit that because withholding-only

relief is provided for in §1231, DHS cannot remove an alien 

who seeks such relief, and the removal period cannot begin 

under §1231(a)(1)(B). Tr. of Oral Arg. 33–34, 45. Stated 

differently, respondents read the “[e]xcept as” language as

another limit on when the removal period is triggered, a 

reading that the dissent endorses. See post, at 7–9. 

Even assuming that respondents did not forfeit this argument by failing to raise it in their brief, it fails on the 

merits. Section 1231(a)(1)(A) relates to the length of the 

removal period, and it sets the default for that period at 90

days. It does not, as respondents suggest, serve as the

“gateway” for when the removal period begins. Tr. of Oral 

Arg. 45. Those triggers appear in §1231(a)(1)(B). Nor does 

it simply offer “basic operative language” regarding what 

DHS must do. Post, at 8. The provision’s focus is the length

of time that DHS has to remove an alien once the alien is 

ordered removed. And the most natural reading of the “ex-
 

Cite as: 594 U. S. ____ (2021) 17 

Opinion of the Court 

cept as otherwise provided” clause is that DHS must remove an alien within 90 days unless another subsection of 

§1231 specifically contemplates that the removal period can 

exceed 90 days. That aligns with the rest of §1231, which

contains specific provisions mandating or authorizing DHS 

to extend detention beyond 90 days. See, e.g.,

§1231(a)(1)(C) (requiring the extension of the 90-day period

and permitting continued detention “if the alien fails or refuses to make timely application in good faith for travel or

other documents necessary to the alien’s departure or conspires or acts to prevent the alien’s removal subject to an

order of removal”); §1231(c)(2)(A) (permitting DHS to stay 

immediate removal of certain aliens if such “removal is not 

practicable or proper” or the alien is needed to testify in a

criminal case); §1231(a)(6) (permitting DHS to detain certain groups of aliens “beyond the removal period”).8 Given 

the presence of specific statutory provisions in §1231 under 

which DHS is not required to remove the alien within 90

days, we have little trouble concluding that the opening 

clause of §1231(a)(1)(A) refers to them and not the withholding-only provision, which does not mention the length 

of the removal period and does not stand in the way of removal to a third country. 

In short, the statutory text makes clear that §1231, not 

—————— 8The dissent contends that the second of these provisions,

§1231(c)(2)(A), is “beside the point” because another provision in that 

subsection and a regulation provide that DHS has the authority to release on bond an alien for whom it had previously stayed immediate removal so that the alien could testify in a prosecution. See post, at 8. But 

DHS’s ability to release certain aliens on bond tells us nothing about the 

meaning of the phrase “[e]xcept as otherwise provided” in §1231(a)(1)(A). 

The point is that other provisions in §1231 contemplate situations in 

which DHS is not required to remove an alien in less than 90 days. The 

dissent otherwise dismisses the remaining two provisions as “unlike the 

restriction-on-removal provision” in that they “sugges[t] . . . an extension 

of the removal period beyond ninety days.” Post, at 8. But that is the 

very feature that makes these provisions relevant to §1231(a)(1)(A). 
 

18 JOHNSON v. GUZMAN CHAVEZ 

Opinion of the Court 

§1226, governs respondents’ detention, and none of respondents’ counterarguments can overcome that plain text. 

B 

The statutory structure confirms the textual reading. 

Consider first the structure of §1231 itself, which is titled

“Detention and removal of aliens ordered removed.” Every 

provision applicable to respondents is located in §1231. Respondents’ orders of removal are reinstated against them

under §1231(a)(5). The bar on reopening or reviewing those

removal orders, as well as the requirement that DHS remove aliens subject to reinstated orders, also appears in

§1231(a)(5). And the provision allowing respondents to

seek withholding-only relief comes from §1231(b)(3)(A). It 

would thus be odd if the provision governing respondents’ 

detention was located in §1226, rather than §1231, which

contains its own detention provision. See 940 F. 3d, at 887 

(Richardson, J., dissenting). 

Moreover, the inclusion of the statutory-withholding provision in §1231, grouped with other provisions that relate 

to where DHS may remove an alien, illustrates how withholding-only relief fits within the removal process generally. Section 1231(b) is entitled “Countries to which aliens

may be removed.” Paragraph (1) lists all of the countries to 

which an alien “arriving at the United States” may be removed. Paragraph (2) lists all of the countries to which

“[o]ther aliens” may be removed. And paragraph (3)(A)—

the statutory-withholding provision—states that “[n]otwithstanding paragraphs (1) and (2), the Attorney General 

may not remove an alien to a country if the Attorney General decides that the alien’s life or freedom would be threatened in that country because of the alien’s race, religion,

nationality, membership in a particular social group, or political opinion.” The placement of the statutory-withholding provision in §1231 is therefore strong evidence that 
Cite as: 594 U. S. ____ (2021) 19 

Opinion of the Court 

withholding-only proceedings are relevant to where an alien will be removed (and therefore detention under §1231),

not whether the alien will be removed at all (and therefore

detention under §1226).

The general structure of the INA provides further support. Sections 1226 and 1231 both appear in Part IV of Title 

8, chapter 12, of the United States Code, entitled “Inspection, Apprehension, Examination, Exclusion, and Removal.” The sections within that part proceed largely in the

sequential steps of the removal process. Sections 1221 to 

1224 address the arrival of aliens. Section 1225 provides 

instructions for inspecting aliens, expediting the removal of 

some, and referring others for a removal hearing. Section 

1226 authorizes the arrest and detention of aliens pending 

a decision on whether they are to be removed. Section 1227 

explains which aliens are deportable. Section 1228 authorizes the expedited removal of some of those deportable aliens. Sections 1229, 1229a, and 1229b set out the process 

for initiating and conducting removal proceedings, and they 

specify the types of relief that an alien can request during 

those proceedings, such as cancellation of removal. Section 

1229c addresses voluntary departure. Section 1230 explains what to do if an alien is admitted. And §1231 explains what to do if the alien is ordered removed. 

The order of the sections in Part IV provides helpful context for interpreting the proper application of §1226 and 

§1231. See 940 F. 3d, at 887–888 (Richardson, J., dissenting). Section 1226 applies before an alien proceeds through

the removal proceedings and obtains a decision; §1231 applies after. Once an alien has been ordered removed from 

the United States in a removal proceeding under §1229a

and that order has been reinstated under §1231(a)(5), “the

alien cannot go back in time, so to speak, to §1226.” Id., at 

888. 
 

20 JOHNSON v. GUZMAN CHAVEZ 

Opinion of the Court 

C 

Respondents’ contrary reading would undermine Congress’s judgment regarding the detention of different 

groups of aliens who posed different risks of flight: aliens

detained under §1226 before having been ordered removed 

and those held under §1231 after already having been ordered removed. 

Aliens who have not been ordered removed are less likely 

to abscond because they have a chance of being found admissible, but aliens who have already been ordered removed are generally inadmissible. See 8 U. S. C. 

§1182(a)(9)(C). The only apparent relief they can hope to 

obtain is a grant of withholding-only relief, and they would 

seem to still have a chance to get that relief if they absconded and were again apprehended. In addition, aliens 

who reentered the country illegally after removal have

demonstrated a willingness to violate the terms of a removal order, and they therefore may be less likely to comply 

with the reinstated order. See §1231(a)(6). Congress had

obvious reasons to treat these two groups differently. 

III 

Respondents’ remaining arguments are unpersuasive. 

They primarily argue that §1226 governs whenever the INA 

does not “authorize” DHS to remove an alien. Brief for Respondents 16. Respondents rely on §1231(a)(1)(B), which, 

again, provides that the removal period begins on the latest 

of three dates: (1) the date the order of removal becomes 

“administratively final,” (2) the date of the final order of any

court that entered a stay of removal, or (3) the date on 

which the alien is released from non-immigration detention 

or confinement. Respondents contend that those triggers

constitute various legal impediments to removal, and those 

legal impediments show that §1231 detention applies only 

if DHS has secured full and complete legal authority to remove an alien. In other words, to detain an alien under 
Cite as: 594 U. S. ____ (2021) 21 

Opinion of the Court 

§1231, DHS must eliminate all legal impediments to removal. Otherwise, §1226 applies. Like the three legal impediments listed in §1231(a)(1)(B), respondents say, withholding-only proceedings are another impediment that

deprives DHS of the full legal authority required to remove. 

Respondents’ argument fails on multiple levels. First, 

even if §1231(a)(1)(b) imposes three “legal impediments” to 

removal, that does not mean that all legal impediments 

must be eliminated before the removal period begins. Indeed, the text of §1231(a)(1)(B) suggests the opposite. It 

enumerates three specific triggers for the removal period

but nowhere includes “the completion of withholding-only 

proceedings.” See NLRB v. SW General, Inc., 580 U. S. ___, 

___ (2017) (slip op., at 11) (“[E]xpressing one item of an associated group or series excludes another left unmentioned” 

(brackets and internal quotation marks omitted)). Nor does 

it otherwise include a catchall provision that might support

respondents’ position, such as “or the date on which DHS

obtains final legal authority to remove the alien.” Second, 

even if we accepted that there is an implicit requirement 

that DHS have full “legal authority” before the removal period begins, withholding-only proceedings have nothing to 

do with that authority. As explained above, DHS retains 

its authority during withholding-only proceedings to remove the alien to any country other than the country that

is the subject of those proceedings. 

Respondents next turn to the 90-day removal requirement in §1231(a)(1)(A). They contend that Congress could 

not have intended §1231 to apply to an alien in withholdingonly proceedings because the removal period contemplated 

by §1231(a)(1)(A) is only 90 days, and withholding-only proceedings take much longer than that. Brief for Respondents 

22, 26–27. In respondents’ view, the removal period’s short 

duration proves that it is meant to apply only during the 

final period during which DHS takes steps to put an alien 
 

 

22 JOHNSON v. GUZMAN CHAVEZ 

Opinion of the Court 

on an outbound plane. Id., at 22. Even assuming respondents are correct that withholding-only proceedings are not 

usually completed in 90 days, it does not follow that §1231

is inapplicable to aliens who initiate them. In addition to 

setting out a 90-day removal period, §1231 expressly authorizes DHS to release under supervision or continue the 

detention of aliens if removal cannot be effectuated within 

the 90 days. See §§1231(a)(3), (6). There is no reason why

DHS cannot detain aliens in withholding-only proceedings

under those same post-removal-period provisions. As explained above, DHS routinely holds aliens under these provisions when geopolitical or practical problems prevent it 

from removing an alien within the 90-day period. See, e.g., 

Zadvydas, 533 U. S., at 684–686. 

Relatedly, respondents suggest that because 

§1231(a)(1)(A) says DHS “shall” remove the alien within 

the 90-day removal period, and it would be practically impossible to do that in most cases involving withholdingonly proceedings, §1231 must not apply when withholdingonly proceedings are pending. See Brief for Respondents 

26. But this argument overlooks the rest of §1231’s directive, which states that DHS “shall” remove the alien 

within 90 days “[e]xcept as otherwise provided in this section.” §1231(a)(1)(A). And, as noted above, “this section” 

provides for post-removal detention and supervised release in the event an alien cannot be removed within the 

90-day removal period, §§1231(a)(3), (6). Interpreting 

§1231 to apply even if withholding-only proceedings remain pending longer than 90 days thus does not “mak[e]

it structurally impossible” for DHS “to satisfy its statutory

obligation,” as respondents argue. Brief for Respondents 

26.9 

—————— 9The parties offer two other arguments, neither of which we need address. The Government asks that we apply deference under Chevron 
Cite as: 594 U. S. ____ (2021) 23 

Opinion of the Court 

* * * 

We reverse the judgment of the U. S. Court of Appeals for 

the Fourth Circuit. 

It is so ordered. 

—————— 

U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 

(1984), to its interpretation of §1231. But Chevron deference does not 

apply where the statute is clear. For their part, respondents argue that 

the canon of constitutional avoidance favors application of §1226, not 

§1231, to their detention. But that canon “comes into play only when, 

after the application of ordinary textual analysis, the statute is found to

be susceptible of more than one construction.” Jennings, 583 U. S., at 

___ (slip op., at 12) (internal quotation marks omitted). As already explained, the text makes plain that §1231, not §1226, governs. 
 

_________________ 

_________________ 

Cite as: 594 U. S. ____ (2021) 1 

THOMAS, J., concurring 

SUPREME COURT OF THE UNITED STATES 

No. 19–897 

TAE D. JOHNSON, ACTING DIRECTOR OF U. S. IMMIGRATION AND CUSTOMS ENFORCEMENT, 

ET AL., PETITIONERS v. MARIA ANGELICA 

GUZMAN CHAVEZ, ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE FOURTH CIRCUIT 

[June 29, 2021] 

JUSTICE THOMAS, with whom JUSTICE GORSUCH joins,

concurring except for footnote 4 and concurring in the judgment. 

This Court has an “independent obligation” to assess

whether it has jurisdiction. Arbaugh v. Y & H Corp., 546 

U. S. 500, 514 (2006). We do not have it here. 

Congress has restricted our jurisdiction in removal cases.

See 8 U. S. C. §1252(b)(9); Jennings v. Rodriguez, 583 U. S. 

___, ___ (2018) (THOMAS, J., concurring in part and concurring in judgment) (slip op., at 3). Under §1252(b)(9), we can

exercise judicial review of “questions of law and fact . . . 

arising from any action taken or proceeding brought to remove an alien” in only two circumstances. One is to review 

a final order of removal. §1252(b)(9). The other is to exercise an express grant of jurisdiction elsewhere in §1252. 

Ibid.; Jennings, 583 U. S., at ___ (slip op., at 3). Neither 

circumstance is present here. 

Therefore, if respondents’ claims “aris[e] from any action

taken or proceeding brought to remove an alien,” the jurisdictional bar in §1252(b)(9) applies. And for all the reasons 

I discussed in Jennings, challenges to detention during the

removal process, such as this one, “fall within the heartland

of §1252(b)(9).” Id., at ___ (slip op., at 5). 
 

2 JOHNSON v. GUZMAN CHAVEZ 

THOMAS, J., concurring 

Although Jennings concerned aliens whom the Government had not yet ordered removed whereas the aliens here

have removal orders reinstated against them, the result 

does not change. Section 1252(b)(9) “cover[s] all claims related to removal proceedings.” Nasrallah v. Barr, 590 U. S. 

___, ___, n. 2 (2020) (THOMAS, J., dissenting) (slip op., at 4,

n. 2) (internal quotation marks omitted). That includes 

claims arising after final orders of removal are issued, such

as withholding-of-removal claims. See id., at ___–___ (slip 

op., at 3–4). And it includes claims like the ones here, which 

involve a part “of the deportation process that necessarily

serve[s] the purpose of ensuring an alien’s removal.” Jennings, 583 U. S., at ___ (slip op., at 5). 

In light of this jurisdictional problem, the Court should 

vacate and remand with instructions to dismiss for lack of 

jurisdiction. But “because the Court has held that we have 

jurisdiction in cases like these” and the Court’s opinion is

otherwise correct, I join it except for footnote four. See Nielsen v. Preap, 586 U. S. ___, ___ (2019) (THOMAS, J., concurring in part and concurring in judgment) (slip op., at 1). 
_________________ 

_________________ 

Cite as: 594 U. S. ____ (2021) 1 

BREYER, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 19–897 

TAE D. JOHNSON, ACTING DIRECTOR OF U. S. IMMIGRATION AND CUSTOMS ENFORCEMENT, 

ET AL., PETITIONERS v. MARIA ANGELICA 

GUZMAN CHAVEZ, ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE FOURTH CIRCUIT 

[June 29, 2021] 

JUSTICE BREYER, with whom JUSTICE SOTOMAYOR and 

JUSTICE KAGAN join, dissenting. 

Respondents in this case are noncitizens previously ordered removed from the United States. After leaving the 

United States, each of them later returned (illegally). The 

Government then reinstated their original removal orders. 

See 8 U. S. C. §1231(a)(5). Each of the respondents argued

to immigration authorities that the Government could not 

remove them because they reasonably feared persecution or 

torture in the country to which the Government sought to

send them. And pursuant to the United States’ international commitments, the immigration authorities began the 

process of determining whether the Government should

grant withholding-only relief (the withholding or deferral of 

removal). See §1231(b)(3)(A); 8 CFR §§208.16–208.18, 

208.31, 241.8(e), 1208.16–1208.18, 1208.31, 1241.8(e)

(2020).

The question in this case is whether respondents are entitled to a bond hearing while immigration authorities engage in the lengthy process of determining whether respondents have the legal right (because of their fear of 

persecution or torture) to have their removal withheld. The 

Court points to two statutory provisions that might answer 
 

 

2 JOHNSON v. GUZMAN CHAVEZ 

BREYER, J., dissenting 

that question. The first, §1226, is a more general provision

governing detention, and favors respondents. It says that 

“pending a decision on whether the alien is to be removed

from the United States,” 8 U. S. C. §1226(a), the Government “may release the alien on . . . bond” or “conditional parole.” §§1226(a)(2)(A), (B); see also 8 CFR §§236.1(c)(8),

1236.1(c)(8) (authorizing parole where the alien has demonstrated that “such release would not pose a danger to property or persons” and he or she “is likely to appear for any

future proceeding”). The second, §1231, is a provision that

more specifically applies to “aliens ordered removed,” and 

can be read to favor the Government because it does not 

expressly provide for a bond hearing during what it calls 

the 90-day “removal period.” 8 U. S. C. §1231(a)(2); see also 

8 CFR §241.13(b)(2)(ii). The Government claims that §1231 

applies to respondents and allows the Government to deny

them bond hearings while their withholding-only relief proceedings take place. 

The Court agrees with the Government. In its view, respondents’ circumstances fall within the scope of what

§1231 calls a “removal period.” §§1231(a)(1)(A)–(B). And it 

believes that section implicitly allows the Government to 

deny bond hearings during the 90-day removal period. See 

ante, at 7–8; §1231(a)(2). I agree that we have jurisdiction

to review the decision below. See ante, at 8, n. 4; see also 

Jennings v. Rodriguez, 583 U. S. ___, ___–___ (2018) 

(BREYER, J., dissenting) (slip op., at 30–31). In my view,

however, respondents do not fall within the scope of §1231.

Hence, §1231 does not apply. Rather, respondents’ circumstances are governed by the more general section that concerns the conditions of detention pending a final determination on removal. See §1226. And they are entitled to the 

bond hearings for which that general section provides. See 

§1226(a)(2). 
 

Cite as: 594 U. S. ____ (2021) 3 

BREYER, J., dissenting 

I 

Readers should keep in mind two subsections of §1231’s 

relevant statutory text. The first subsection at issue makes 

clear what §1231 is about, namely, a “removal period.” It 

then sets forth a general rule. It says: 

“(1) Removal period 

“(A) In general 

“Except as otherwise provided in this section, when 

an alien is ordered removed, the Attorney General shall 

remove the alien from the United States within a period of 90 days (in this section referred to as the ‘removal period’).” 8 U. S. C. §1231(a)(1)(A). 

(Readers should also note that while many of the provisions at issue here refer to the “Attorney General,” Congress has elsewhere transferred enforcement of some of

those provisions to the Secretary of Homeland Security. 

See Nielsen v. Preap, 586 U. S. ___, ___, n. 2 (2019) (slip op., 

at 3, n. 2).) The second subsection sets forth a restriction 

on removal (the restriction-on-removal provision), an exception to the general rule. It says: 

“(3) Restriction on removal to a country where 

alien’s life or freedom would be threatened 

“(A) In general 

“[T]he Attorney General may not remove an alien to 

a country if the Attorney General decides that the alien’s life or freedom would be threatened in that country because of the alien’s race, religion, nationality,

membership in a particular social group, or political 

opinion.” §1231(b)(3)(A). 

This restriction on removal when an alien fears persecution or torture embodies an important international legal

obligation that the United States has undertaken. See Refugee Act of 1980, 94 Stat. 107, codified in part at 8 U. S. C. 
 

 

4 JOHNSON v. GUZMAN CHAVEZ 

BREYER, J., dissenting 

§1231(b)(3); see also Protocol Relating to the Status of Refugees, Art. 1, §1, Jan. 31, 1967, 19 U. S. T. 6223, 6225, 

T. I. A. S. No. 6577 (United States acceding to Articles 2

through 34 of the Convention Relating to the Status of Refugees, Art. 33(1), July 28, 1951, 189 U. N. T. S. 150). The 

United States also follows a policy that withholds or defers 

removal “of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture.” §2242, 112 Stat. 2681– 

822, note following 8 U. S. C. §1231, p. 844; 8 CFR 

§§208.16–208.18 (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. 85). These policy commitments, embodied in §1231’s restriction-on-removal provision, apply to any 

alien ordered removed, including respondents, who are entitled to ask for withholding-only relief. See FernandezVargas v. Gonzales, 548 U. S. 30, 35, n. 4 (2006); 8 CFR 

§§208.31, 241.8(e), 1208.31, 1241.8(e). 

A 

The procedures to determine whether an alien qualifies

for withholding-only relief are complex. Any alien, including one “whose removal is reinstated” under 8 U. S. C. 

§1231(a)(5), must be afforded the opportunity to “expres[s]

a fear of returning to the country of removal” specified in

the order of removal. 8 CFR §208.31(a) (boldface omitted).

An asylum officer will then interview the individual to determine whether that individual “has a reasonable fear of 

persecution or torture.” §208.31(c). (Asylum officers found 

that each respondent here has a “reasonable fear.” Romero 

v. Evans, 280 F. Supp. 3d 835, 837 (ED Va. 2017).) If so, an 

immigration judge will “full[y] conside[r] . . . the request for

withholding of removal only.” §§208.31(e); 1208.31(e). If 

the immigration judge denies the claim, the alien can ap-
 

 

Cite as: 594 U. S. ____ (2021) 5 

BREYER, J., dissenting 

peal to the Board of Immigration Appeals (BIA) and, as applicable, seek judicial review. §§208.31(e), (g), 1208.31(e), 

(g); 8 U. S. C. §§1252(a)(1), (4). 

Studies have found that this procedure often takes over a 

year, with some proceedings lasting well over two years before eligibility for withholding-only relief is resolved. See 

Hausman, ACLU Immigrants’ Rights Project, Fact-Sheet: 

Withholding-Only Cases and Detention 2 (Apr.

19, 2015), https://www.aclu.org/sites/default/files/field_document/withholding_only_fact_sheet_-_final.pdf (finding an

average length of detention of 114 days when neither party 

appealed the immigration judge’s final decision, 301 days

when at least one party appealed and the BIA rendered a 

final decision, and 447 days when the BIA remanded the 

case and the immigration judge made a final decision); see 

also, e.g., Martinez v. Larose, 968 F. 3d 555, 558 (CA6 2020) 

(alien detained for over 28 months while awaiting withholding-only relief eligibility determination). 

Studies have also found that, once withholding-only relief 

is granted, the alien is ordinarily not sent to another, less

dangerous country. Rather, the alien typically remains in

the United States for the foreseeable future. See Brief for 

Respondents 6 (noting only 1.6% of noncitizens granted

withholding-only relief were ever actually removed to an alternative country (citing American Immigration Council & 

National Immigrant Justice Center, The Difference Between 

Asylum and Withholding of Removal 7 (Oct. 2020),

https://www.americanimmigrationcouncil.org/sites/default/files/research/the_difference_between_asylum_and_withholding_of_removal.pdf )). 

These figures—particularly the length of time needed to 

complete the related administrative proceedings—raise an 

obvious question. Typically, Congress permits aliens initially placed in removal proceedings to apply for bond (while 

such proceedings transpire). See 8 U. S. C. §1226(a)(2). 

That makes sense. A bond hearing does not mean an alien 
 

6 JOHNSON v. GUZMAN CHAVEZ 

BREYER, J., dissenting 

will run away. Bond is normally granted only if the immigration judge has assurance that the alien will not abscond 

and is instead “likely to appear for any future proceeding.” 

8 CFR §§236.1(c)(8), 1236.1(c)(8). And an alien’s release 

from detention during such proceedings may have collateral 

effects. See Katzmann, When Legal Representation Is Deficient: The Challenge of Immigration Cases for the Courts, 

143 Daedalus 37, 43–44 (2014) (describing how those detained during removal proceedings are less likely to achieve

the outcomes they seek).

I can understand why Congress might not want to grant 

a bond hearing to an alien whose circumstances fall within 

the removal period. That period, after all, should normally 

be brief. The statute says “90 days.” 8 U. S. C. 

§1231(a)(1)(A). But why would Congress want to deny a

bond hearing to individuals who reasonably fear persecution or torture, and who, as a result, face proceedings that 

may last for many months or years (while their withholding-only proceedings wend their way toward completion)? I 

can find no satisfactory answer to this question. 

B 

Does the statutory provision’s language nonetheless require the majority’s result? In my view, it does not. Reread 

the first seven words of that provision’s general rule. They

say that the provision’s removal rules apply “[e]xcept as otherwise provided in this section.” §1231(a)(1)(A) (emphasis 

added). And later in the same section, following that “except clause,” the restriction-on-removal provision says that

“the Attorney General may not remove” an alien who falls 

within its terms. §1231(b)(3)(A) (emphasis added); see also 

note following §1231, at 884. Why does that provision, then, 

not count as what the general statutory rule calls an “except[ion]?”

Read on. Following the “general” terms governing the removal period rule, §1231 says: 
Cite as: 594 U. S. ____ (2021) 7 

BREYER, J., dissenting 

“(B) Beginning of Period 

“The removal period begins on the latest of the following:

“(i) The date the order of removal becomes administratively final. 

“(ii) If the removal order is judicially reviewed and if

a court orders a stay of the removal of the alien, the 

date of the court’s final order. 

“(iii) If the alien is detained or confined . . . , the date 

the alien is released from detention or confinement.” 

§1231(a)(1) (emphasis added). 

No one here claims that §1231 authorizes detention without a bond hearing before the removal period begins. And 

the most natural reading of the italicized language should 

lead to the conclusion that the removal period has not yet 

begun. The removal period does not commence until the 

administrative proceedings are over, i.e., until “the order of 

removal” is “administratively final.” And the order is not 

“final” until the immigration judge and the BIA finally determine whether the restriction on removal applies and prohibits removal (unless and until the Government can identify a willing alternative receiving country). 

II 

A 

The majority believes we must read the statute differently. It reads the “except clause” as serving only to extend

the “length of the removal period,” ante, at 16–17, not to 

exempt the removal procedures altogether. In its view, the 

time during which respondents seek administrative relief 

from the order of removal due to a reasonable fear of persecution or torture nevertheless remains within the “removal 

period,” which the restriction-on-removal provision simply 

extends. (And, as I said, the majority assumes that §1231

allows the Government to deny bond hearings during the 

90-day “removal period.”) 
 

8 JOHNSON v. GUZMAN CHAVEZ 

BREYER, J., dissenting 

While this is a possible reading, it is not what the statute

actually says. The statute begins with the phrase “except

as otherwise provided in this section,” and it follows that 

clause with basic operative language, namely, “the Attorney General shall remove the alien.” §1231(a)(1)(A). It does 

not say, “within a period of 90 days except if this section provides for a longer period.” The majority’s interpretation is

an awkward way to read that sentence. 

The majority then points to three statutory phrases to 

which it believes the “except clause” applies. Those 

phrases, it says, are evidence that the “except clause”

simply instructs that “the removal period may be extended”

for three reasons. Ante, at 3. The first provision, plainly 

titled “Suspension of period,” “extend[s]” the “removal period . . . beyond a period of 90 days” if the alien, for example, 

fails to seek appropriate travel documents. §1231(a)(1)(C)

(boldface omitted). A second provision allows the Government to “detai[n] beyond the removal period” individuals

who have committed certain serious crimes or pose “a risk

to the community or [are] unlikely to comply with the order

of removal.” §1231(a)(6). And a third allows the Government to “stay the removal of an alien” if “immediate removal is not practicable or proper” or the alien is “needed 

to testify” in a prosecution. §§1231(c)(2)(A)(i), (ii). 

The third example, however, is beside the point, for it 

comes equipped with its own bond and supervised released 

possibility, staying (rather than extending) the removal period. See §1231(c)(2)(C); 8 CFR §241.6(a). The first two examples are unlike the restriction-on-removal provision in

that their language simply suggests, not invalidation of the 

removal order’s identified country of removal, but an extension of the removal period beyond 90 days. See 8 U. S. C. 

§1231(a)(1)(C) (“exten[d] beyond a period of 90 days”);

§1231(a)(6) (“detai[n] beyond the removal period”). The restriction-on-removal provision contains no such language. 

I add that the majority’s exceptions, unlike the restriction-
Cite as: 594 U. S. ____ (2021) 9 

BREYER, J., dissenting 

on-removal provision, typically do not entail proceedings

that last (and keep the alien in the United States) for many 

months or years. Nor do they call into question whether the

removal order will ultimately be implemented. These inconsistencies suggest the “except clause” does more than

merely extend the 90-day limit. 

B 

The majority’s interpretation of the words “administratively final” is no more convincing. The majority says that

these words apply only to the finality of the original removal orders, i.e., the orders issued before respondents left

the country and returned, as of the time those orders were 

first issued. After all, the majority adds, see ante, at 9–10, 

a further subsection of §1231 says that “the prior order of

removal is reinstated from its original date and is not subject to being reopened or reviewed, [and] the alien . . . may 

not apply for any relief under this chapter.” §1231(a)(5).

This last mentioned provision, however, is not relevant 

here. It cannot prevent an alien from seeking what is in

effect a modification of, a change in, or a withholding of, the 

“prior order of removal” for reasons of fear of persecution or 

torture. After all, §1231(b)(3)(A) says the contrary. Government practice is also to the contrary. See note following

§1231, at 884; 8 CFR §§208.31, 241.8(e), 1208.31, 1241.8(e). 

And all here agree that the aliens are legally entitled to 

seek that withholding-only relief. See Fernandez-Vargas, 

548 U. S., at 35, n. 4. 

Now consider the temporal problem. The time when the 

majority says the reinstated removal order became “administratively final” is the time at which the original order of 

removal became final. But to take the words “administratively final” as referring only to that time would lead to a

very peculiar statute. It means that most reinstated removal orders will have become administratively final many 
 

10 JOHNSON v. GUZMAN CHAVEZ 

BREYER, J., dissenting 

years before the proceedings during which they are reinstated. Recall that in most instances the 90-day removal 

period begins when the removal order becomes administratively final. If the majority is right, in the case of most respondents, the 90-day removal period began long before the

aliens left the country, let alone returned. Did the 90-day

removal period begin to run at that earlier time? Did it run 

and then terminate? Is there now no removal period? Read 

as the majority does, the 90-day limit that governs all of

§1231 would not apply at all to aliens in respondents’ circumstances. 

For this reason, I believe the better reading of those 

words would be to apply them to any removal orders, reinstated or not, that are not yet “administratively final.” And 

here, the orders are not final until the administrative proceedings (concerning eligibility for withholding-only relief

on account of fear of persecution or torture) are complete. 

Cf. Bennett v. Spear, 520 U. S. 154, 178 (1997) (agency action is not “final” until, inter alia, all “rights or obligations 

have been determined . . . from which legal consequences

will flow” (internal quotation marks omitted)). 

* * * 

In sum, I can find no good reason why Congress would 

have wanted categorically to deny bond hearings to those

who, like respondents, seek to have removal withheld or deferred due to a reasonable fear of persecution or torture. 

And I do not agree with the majority’s reading of the statute’s language as denying them that opportunity. If, as I 

believe, §1231 does not apply to the withholding-only relief 

proceedings before us, then, as the majority concedes, see 

ante, at 1, §1226 applies, and grants them bond hearings. I 

would apply that provision and afford respondents bond 

hearings.

With respect, I dissent.