MARIA ANGELICA GUZMAN CHAVEZ; DANIS FAUSTINO CASTRO CASTRO; JOSE ALFONSO SERRANO COLOCHO, Petitioners - Appellees,
RUSSELL HOTT, Field Office Director, U.S. Immigration and Customs Enforcement; DOJ EXECUTIVE OFFICE FOR IMMIGRATION REVIEW; RONALD D. VITIELLO, Acting Director, U.S. Immigration and Customs Enforcement; WILLIAM P. BARR, Attorney General, Respondents - Appellants, and CHRISTIAN FLORES ROMERO; WILBER A. RODRIGUEZ ZOMETA, Petitioners, and BRENDA COOK, Court Administrator, Executive Office for Immigration Review, Baltimore Immigration Court, Respondent. AMERICAN IMMIGRATION COUNCIL; AMERICAN IMMIGRATION LAWYERS ASSOCIATION, Amici Supporting Appellees. ROGELIO AMILCAR CABRERA DIAZ; JENNRY FRANCISCO MORAN BARRERA; RODOLFO EDUARDO RIVERA FLAMENCO, on behalf of themselves and all others similarly situated, Petitioners - Appellees,
RUSSELL HOTT, Field Office Director, U.S. Immigration and Customs Enforcement; WILLIAM P. BARR, Attorney General, Respondents - Appellants. AMERICAN IMMIGRATION COUNCIL; AMERICAN IMMIGRATION LAWYERS ASSOCIATION, Amici Supporting Appellees.
Argued: March 21, 2019
from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema,
District Judge. Nos.1:17-cv-00754-LMB-JFA,
Grant Stewart, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellants.
Whitfield Hughes, III, MAYER BROWN LLP, Washington, D.C., for
A. Readler, Acting Assistant Attorney General, William C.
Peachey, Director, Gisela A. Westwater, Assistant Director,
Brian C. Ward, Senior Litigation Counsel, Lauren E. Fascett,
Ari Nazarov, Civil Division, Office of Immigration
Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellants.
Yehuda Sandoval-Moshenberg, Rachel Colleen McFarland, LEGAL
AID JUSTICE CENTER, Falls Church, Virginia; Mark Stevens,
MURRAY OSORIO PLLC, Fairfax, Virginia; Adam Hudes, MAYER
BROWN LLP, Washington, D.C., for Appellees.
Realmuto, Boston, Massachusetts, Karolina J. Walters,
AMERICAN IMMIGRATION COUNCIL, Washington, D.C., for Amici
FLOYD, HARRIS, and RICHARDSON, Circuit Judges.
by published opinion. Judge Harris wrote the opinion, in
which Judge Floyd joined. Judge Richardson wrote a dissenting
HARRIS, CIRCUIT JUDGE.
petitioners in this case are a class of noncitizens subject
to reinstated removal orders, which generally are not open to
challenge. The petitioners may, however, pursue withholding
of removal if they have a reasonable fear of persecution or
torture in the countries designated in their removal orders.
Availing themselves of that right, these petitioners sought
withholding of removal, and they are being detained by the
government while they await the outcome of their
"withholding-only" proceedings. The question before
us is whether they have the right to individualized bond
hearings that could lead to their release during those
that question requires that we determine the statutory
authority under which the government detains noncitizens who
seek withholding of removal after a prior removal order has
been reinstated. The petitioners argue that their detention
is governed by 8 U.S.C. § 1226, which authorizes
detention "pending a decision on whether the alien is to
be removed," and would allow them to seek release on
bond and to make their case before an immigration judge. The
government, on the other hand, points to 8 U.S.C. §
1231, which applies "when an alien is ordered
removed" - as the petitioners were, the government says,
by virtue of their reinstated removal orders - and makes that
detention mandatory during a 90-day "removal
district court granted summary judgment to the petitioners,
holding that they are detained under § 1226 because a
decision on removal remains "pending" until their
withholding-only proceedings are complete. We agree with the
district court's careful analysis of the relevant
statutes and affirm its judgment.
context, we begin with a brief description of the law
governing reinstated removal orders and withholding-only
proceedings under the Immigration and Nationality Act
("INA"), 8 U.S.C. § 1101 et seq.
noncitizen who has been ordered removed from the United
States reenters the country without authorization, the
"prior order of removal is reinstated from its original
date." Id. § 1231(a)(5). That reinstated
order "is not subject to being reopened or
reviewed," and the noncitizen "may not apply for
any relief" but instead "shall be removed under the
prior order." Id. Implementing regulations
track the statute, providing that a noncitizen who unlawfully
reenters after a prior removal order "shall be removed
from the United States by reinstating the prior order"
without any right to a hearing before an immigration judge. 8
C.F.R. § 241.8(a). In the great majority of cases, this
process plays out exactly as contemplated, and a noncitizen
facing a reinstated removal order is removed from the country
without further legal proceedings.
there is an exception to that rule, which produces the issue
we face today. Consistent with our country's obligations
under international law, Congress has provided that a
noncitizen may not be removed to a country where she would be
persecuted - that is, her "life or freedom . . .
threatened" based on a protected ground, such as race or
religion, 8 U.S.C. § 1231(b)(3)(A) - or tortured,
see 8 U.S.C. § 1231 note (United States Policy
With Respect to Involuntary Return of Persons in Danger of
Subjection to Torture); see also 8 C.F.R.
§ 208.16(c) (implementing regulations). Where an
individual meets the high standard for showing that she will
face persecution or torture in a given country, relief is
mandatory, and the government must withhold removal to that
country. See Salgado-Sosa v. Sessions, 882 F.3d 451,
456 (4th Cir. 2018); Dankam v. Gonzales, 495 F.3d
113, 115- 16 (4th Cir. 2007).
as the district court explained, although a noncitizen
"cannot otherwise challenge a reinstated removal order,
he can seek protection from having that order executed to a
particular country by initiating a withholding-only
proceeding." Romero v. Evans, 280 F.Supp.3d
835, 843 (E.D. Va. 2017); see Fernandez-Vargas v.
Gonzales, 548 U.S. 30, 35 n.4 (2006) ("[E]ven an
alien subject to [a reinstated removal order] may seek
withholding of removal."). Those proceedings ensure that
removal complies with the limited statutory restrictions
outlined above; if a claim is successful, it bars the
government from removing an individual only to the specific
country designated in the removal order. See 8
C.F.R. § 208.31. A grant of withholding of removal with
respect to one country does not preclude the government from
removing a noncitizen to a third country, see id.
§ 208.16(f), nor affect a noncitizen's status as a
removable individual, see id. § 208.2(c)(2)-
process works as follows. When a noncitizen subject to a
reinstated removal order expresses a fear of persecution or
torture in the country designated on the order, an asylum
officer conducts a screening interview to make a
"reasonable fear" determination. Id.
§ 208.31(b). If the asylum officer identifies a
"reasonable possibility" of torture or persecution
in the designated country, then the noncitizen is permitted
to apply for withholding of removal. See id. §
208.31(c), (e). At that point, the case goes to an
immigration judge for an administrative hearing to determine
whether the noncitizen can meet her burden of establishing
eligibility for withholding of removal. Id. §
208.31(e). The noncitizen may appeal the immigration
judge's determination to the Board of Immigration
Appeals, id., and the Board's decision is
subject to judicial review, 8 U.S.C. § 1252(a)(1),
(a)(4). Throughout, the only issue that may be raised is
eligibility for withholding of removal; the underlying (and
now reinstated) removal order is not subject to collateral
attack during these "withholding-only" proceedings.
See 8 C.F.R. § 208.2(c)(3)(i).
now to the facts underlying this appeal, which are similar
for each petitioner and may be sketched out briefly. Each
petitioner was removed from the United States pursuant to an
order of removal. On their return to their designated
countries of removal, the petitioners allege, they were
confronted with persecution or torture, or threats of
persecution or torture that in several cases included death
threats. Fearing for their safety, the petitioners returned
to the United States, reentering without authorization and
despite their prior removal orders.
the government discovered the petitioners' presence,
their original removal orders were reinstated under 8 U.S.C.
§ 1231(a)(5). As noted above, those orders are "not
subject to being reopened or reviewed," id., so
the petitioners could not challenge their underlying
removability. But they did initiate the withholding-only
process by expressing fear of persecution or torture in their
native countries, designated as their countries of removal.
In every case, the asylum officer, after an initial screening
interview, found that the petitioner had a "reasonable
fear" of persecution or torture. Accordingly, the
petitioners were placed in withholding-only proceedings
before immigration judges.
some of the petitioners initially were granted supervised
release, all ultimately were detained by the government.
case arose out of a dispute over whether the petitioners
could seek release on bond - and do so in hearings before
immigration judges - while their withholding-only proceedings
were pending. The government took the position that they
could not, because they were subject to mandatory detention
under 8 U.S.C. § 1231, and bond hearings were denied.
sets of petitioners then filed habeas petitions in the same
district court in Virginia. Each sought a declaration that 8
U.S.C. § 1226, rather than 8 U.S.C. § 1231, governs
their detention, and an injunction ordering individualized
bond hearings consistent with § 1226. The second set of
petitioners also moved to certify a Virginia-wide class of
individuals detained during withholding-only proceedings. The
district court certified the class, and that decision is
unchallenged on appeal.
November 2017, the district court entered summary judgment in
favor of the first set of petitioners and ordered the
requested relief. See Romero v. Evans, 280 F.Supp.3d
835 (E.D. Va. 2017). The district court began its merits
analysis by identifying the statutory issue at the heart of
this case. According to the petitioners, they were being
detained under 8 U.S.C. § 1226, which provides for
detention "pending a decision on whether the alien is to
be removed from the United States" and, critically,
allows for discretionary release on bond. 8 U.S.C. §
1226(a). But the government pointed to a different statute -
8 U.S.C. § 1231 - which applies "when an alien is
ordered removed" and provides for mandatory
detention during a 90-day "removal period" within
which the noncitizen "shall" be removed. 8 U.S.C.
§ 1231(a)(1)(A), (a)(2). So the "deceptively simple
question" in this case, the court explained, is this:
Are the petitioners - subject to reinstated removal orders,
but with pending claims for withholding of removal -
"detained under 8 U.S.C. § 1226 or under 8 U.S.C.
§ 1231?" Romero, 280 F.Supp.3d at 846.
answer, the district court concluded, is § 1226, which
by plain terms covers detention when a "decision on
whether the alien is to be removed from the United
States" is "pending." Id. (quoting 8
U.S.C. § 1226(a)). "[T]his text governs
petitioners' detention because until withholding-only
proceedings are complete, a decision has not been made on
whether they will in fact be removed from the United
States." Id. The court recognized that by
virtue of their reinstated removal orders, the
petitioners' "removability" already had been
determined. Id. But the text of § 1226 is
concerned with the "more concrete determination of
whether petitioners will actually be removed," the court
reasoned, and that decision "remains
'pending'" during withholding-only proceedings
and "until the government determines that there is a
country to which [the] petitioners can legally be
removed." Id. (quoting 8 U.S.C. §
conclusion, the court went on, is reinforced by the structure
of § 1231 - the provision mandating detention during a
90-day "removal period." Under § 1231, the
"removal period" begins on the latest of three
dates: the date a removal order becomes
"administratively final," the date any judicial
stay of a removal order is lifted, or the date on which a
noncitizen is released from non-immigration detention. 8
U.S.C. § 1231(a)(1)(B)(i)-(iii); see also
Romero, 280 F.Supp.3d at 846. Each of those triggers,
the court explained, relates to "a different legal
impediment to actual removal": the administrative
process is not complete, or a judicial stay prevents removal,
or a noncitizen is in criminal custody and so cannot be
removed. Romero, 280 F.Supp.3d at 846. Under §
1231, in other words, it is not enough that the agency
"may have already determined that the noncitizen is,
like petitioners here, removable." Id. Instead,
§ 1231 does not come into play until the government has
"the present and final legal authority to actually
execute that order of removal." Id.
reading, the court determined, also makes sense of the
standard 90-day removal period during which the government
"shall" remove a noncitizen from the country, 8
U.S.C. § 1231(a)(1)(A) ("Except as otherwise
provided . . . when an alien is ordered removed, the Attorney
General shall remove the alien from the United States within
a period of 90 days."). Limiting that period to 90 days
is reasonable if § 1231 is intended to "govern only
the final logistical period, in which the government has
actual authority to remove the alien and need only schedule
and execute the deportation." Romero, 280
F.Supp.3d at 846. Noncitizens like the petitioners in this
case, on the other hand, are detained during withholding-only
proceedings that "typically far exceed 90 days."
Id. at 847.
court rejected the government's argument that a
reinstated removal order, because it is "not subject to
being reopened or reviewed," 8 U.S.C. § 1231(a)(5),
is an "administratively final" order of removal
that triggers § 1231's 90-day removal period and
mandatory detention provision, see id. §
1231(a)(1)(B)(i) (listing "date the order of removal
becomes administratively final" as potential start of
removal period). For purposes of judicial review, the court
explained, it is widely accepted that a reinstated removal
order is not final and reviewable until after the
adjudication of any withholding applications. The court found
no reason to adopt a "bifurcated definition of
finality" that would render the same orders
"administratively final" under § 1231
before withholding-only proceedings conclude.
Romero, 280 F.Supp.3d at 847 (internal quotation
marks omitted). Nor are the petitioners' removal orders
"final" under general administrative law
principles, the court reasoned, because the agency's
"decisionmaking process" has yet to be consummated
while withholding-only proceedings are pending before an
immigration court. Id.
concluded that § 1226, rather than § 1231, provides
the statutory authority for the petitioners' detention,
the court granted the petitioners' requested relief in
two separate decisions, ordering the government to provide
individualized bond hearings under § 1226. The
government timely appealed both cases, which we consolidated
for purposes of appeal.
appeal requires that we resolve a single question of
statutory interpretation: whether § 1226 or § 1231
governs the petitioners' detention and, specifically,
their entitlement to individualized bond hearings. We review
that legal question de novo. Stone v. Instrumentation
Lab. Co., 591 F.3d 239, 242-43 (4th Cir. 2009).
courts of appeals are divided on this question. Compare
Guerra v. Shanahan, 831 F.3d 59 (2d Cir. 2016) (holding
that § 1226 applies), with Guerrero-Sanchez v.
Warden York Cty. Prison, 905 F.3d 208 (3d Cir. 2018),
and Padilla-Ramirez v. Bible, 882 F.3d 826 (9th Cir.
2017) (both holding that § 1231 applies). "The
statutory scheme governing the [petitioners'] detention .
. . is not a model of clarity," Prieto-Romero v.
Clark, 534 F.3d 1053, 1058 (9th Cir. 2008) (analyzing
same provisions), and as the district court recognized, there
are arguments of at least "some force" on both
sides of the issue, Romero, 280 F.Supp.3d at 846.
But reading the two provisions together, we conclude, like
the district court and the Second Circuit, that it is §
1226 that governs the petitioners' detention, entitling
them to bond hearings. Section 1231's "removal
period" - and with it, the requirement of mandatory
detention - begins only when the government acquires the
"present and final legal authority" to execute a
removal order, id., and so long as withholding-only
proceedings are pending, the government lacks that authority.
begin with a description of the two statutory sections at
issue and, in particular, their provisions regarding release
on bond. Like the parties and the district court, we have
used general terms in framing the question as whether §
1226 or § 1231 applies to the petitioners. But that is
shorthand for the parties' more specific dispute: whether
the petitioners are entitled to individualized bond hearings
before immigration judges, which might lead to their release
during the pendency of their withholding-only proceedings.
Our focus here is on the provisions bearing directly on that
1226, as noted above, authorizes the arrest and detention of
noncitizens "pending a decision on whether the alien is
to be removed from the United States." 8 U.S.C. §
1226(a). For certain individuals with criminal histories,
that detention is mandatory. See id. § 1226(c)
(providing, with limited exceptions, for mandatory detention
of noncitizens who have committed specified criminal
offenses). But for all other noncitizens, detention under
§ 1226 is not mandatory; instead, § 1226 permits
discretionary release on bond or conditional parole.
Id. § 1226(a)(1)-(2).
regulations set out the procedures governing discretionary
release under § 1226. See 8 C.F.R. §
236.1. Most important here, a noncitizen detained under
§ 1226 is entitled to an individualized hearing before
an immigration judge to determine whether continued detention
is necessary while immigration proceedings continue. See
id. § 236.1(d)(1). At that hearing, the noncitizen
bears the burden of showing that her release would pose no
danger to the public and that she is likely to appear for
future proceedings. Id. § ...