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Chavez v. Hott

United States Court of Appeals, Fourth Circuit

October 10, 2019

MARIA ANGELICA GUZMAN CHAVEZ; DANIS FAUSTINO CASTRO CASTRO; JOSE ALFONSO SERRANO COLOCHO, Petitioners - Appellees,
v.
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,
v.
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

          Appeal 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, 1:17-cv-01405-LMB-MSN

         ARGUED:

          Scott Grant Stewart, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellants.

          Paul Whitfield Hughes, III, MAYER BROWN LLP, Washington, D.C., for Appellees.

         ON BRIEF:

          Chad 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.

          Simon 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.

          Trina Realmuto, Boston, Massachusetts, Karolina J. Walters, AMERICAN IMMIGRATION COUNCIL, Washington, D.C., for Amici Curiae.

          Before FLOYD, HARRIS, and RICHARDSON, Circuit Judges.

         Affirmed by published opinion. Judge Harris wrote the opinion, in which Judge Floyd joined. Judge Richardson wrote a dissenting opinion.

          PAMELA HARRIS, CIRCUIT JUDGE.

         The 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 proceedings.

         Answering 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 period."

         The 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.

         I.

         A.

         For 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.

         When a 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.

         But 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).

         Thus, 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)- (3).

         The 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).[1]

         B.

         1.

         We turn 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.

         When 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.

         Although some of the petitioners initially were granted supervised release, all ultimately were detained by the government.

         2.

         This 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.

         Two 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.

         In 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).[2] 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.

         The 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. § 1226(a)).

         That 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.

         That 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.

         The 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.

         Having 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.

         II.

         This 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).

         The 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.

         A.

         We 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 question.

         Section 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).[3]

         Agency 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. ยง ...


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