Rafael Guerrero-Sanchez v. Warden York County Prison , 905 F.3d 208 ( 2018 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
Nos. 16-4134 & 17-1390
_____________
RAFAEL IGNACIO GUERRERO-SANCHEZ
v.
WARDEN YORK COUNTY PRISON;
DISTRICT DIRECTOR PHILADELPHIA FIELD OFFICE;
JACQUELINE OSTERLIND; THOMAS S.
WINKOWASKI;
SECRETARY UNITED STATES DEPARTMENT OF
HOMELAND SECURITY,
Appellants
______________
APPEAL FROM THE UNITED STATES DISTRICT
COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
(D.C. Civ. Action No. 1:15-cv-02423)
District Judge: Honorable William W. Caldwell
______________
Argued April 18, 2018
______________
Before: GREENAWAY, JR., RENDELL, and FUENTES,
Circuit Judges.
(Opinion Filed: September 26, 2018)
______________
OPINION
______________
Chad A. Readler
William C. Peachey
Sarah Fabian
Joseph A. Darrow [Argued]
United States Department of Justice
Office of Immigration Litigation
District Court Section
P.O. Box 868, Ben Franklin Station
Washington, D.C. 20044
Counsel for Appellants
Daniel B. Conklin [Argued]
The Shagin Law Group
120 South Street
Harrisburg, PA 17101
Counsel for Appellee
Witold J. Walczak
247 Ft. Pitt Blvd.
2nd Floor
Pittsburgh, PA 1522
Counsel for Amici Appellee, American Civil Liberties
Union of Pennsylvania
2
Golnaz Fakhimi
P.O. Box 60173
Philadelphia, PA 19102
Counsel for Amici Appellee, American Civil Liberties
Union of Pennsylvania
Michael Tan
Judy Rabinovitz
125 Broad Street
18th Floor
New York, NY 10004
Counsel for Amici Appellee, American Civil Liberties
Union Foundation Immigrants’ Rights Project
Farrin R. Anello
Edward Barocas
Jeanne LoCicero
89 Market Street’
7th floor
P.O. Box 32159
Newark, NJ 07102
Counsel for Amici Appellee, American Civil Liberties
Union of New Jersey Foundation
Trina Realmuto
100 Summer Street
23rd Floor
Boston, MA 02110
Counsel for Amici Appellee, American Immigration
Counsel
3
Mark R. Barr
Lichter Immigration
1601 Vine Street
Denver, CO 80206
Counsel for Amici Appellee, American Immigration
Lawyers Association
GREENAWAY, JR., Circuit Judge.
Rafael Guerrero-Sanchez, a native and citizen of
Mexico whose original removal order was reinstated pursuant
to 8 U.S.C. § 1231(a)(5), was detained by Immigration and
Customs Enforcement (“ICE”) from May 2015 to February
2017 while he awaited the Immigration Court’s decision on
whether he would be afforded country-specific protection from
removal. The District Court determined that his detention was
governed by the pre-removal detention provision of the
Immigration and Nationality Act (“INA”), 8 U.S.C. § 1226(a),
which affords aliens a right to a bond hearing before an
immigration judge to determine if the alien’s detention is
necessary while he or she awaits immigration proceedings. At
the hearing, the District Court determined that Guerrero-
Sanchez posed neither a flight risk nor a danger to society, and
therefore released him on bail after 637 days in civil
confinement.
The Government appeals solely the District Court’s
determination of the source of Guerrero-Sanchez’s detention,
which it contends is 8 U.S.C. § 1231(a), the post-removal
detention authority provision of the INA. In stark contrast to
§ 1226(a), the text of § 1231(a) does not explicitly authorize a
bond hearing. Guerrero-Sanchez, however, contends that his
detention raises constitutional concerns even under § 1231(a),
4
and therefore that Congress implicitly intended for that
provision to compel a bond hearing after prolonged detention.
Thus, in Guerrero-Sanchez’s estimation, he was owed a bond
hearing regardless of the statutory source of his detention.
Accordingly, this case requires us to decide a novel
question of immigration law in this Circuit: is the detention of
an alien, such as Guerrero-Sanchez, who has a reinstated order
of removal but is also pursuing withholding-only relief
governed by § 1226(a) or § 1231(a)? If the former, then such
aliens are statutorily permitted to a bond hearing. But if we
find that § 1231(a) controls, then we must answer a second
question: does § 1231(a)(6) compel an implicit bond hearing
requirement after prolonged detention?
For the reasons discussed below, we hold that § 1231(a)
governs Guerrero-Sanchez’s detention and that § 1231(a)(6)
affords a bond hearing after prolonged detention to any alien
who falls within the ambit of that provision. We will therefore
affirm on alternative grounds the District Court’s decision to
afford Guerrero-Sanchez a bond hearing.
I.FACTS
Guerrero-Sanchez attempted to unlawfully enter the
United States from Mexico on January 24, 1998 by presenting
a fraudulent birth certificate. U.S. Customs and Border
Protection determined that he was inadmissible for having
sought admission by fraud or misrepresentation, in violation of
8 U.S.C. § 1182(a)(6)(C)(ii). An expedited order of removal
was entered against him, see 8 U.S.C. § 1225(b)(1)(A)(i), and
he was immediately removed back to Mexico.
5
At an unknown date thereafter, Guerrero-Sanchez re-
entered the United States without inspection. In April 2012, he
was arrested for his role in an Idaho-based drug trafficking
organization. Guerrero-Sanchez pled guilty to one count of
conspiracy to distribute more than fifty grams of
methamphetamine, in violation of 21 U.S.C. §§ 846 and
841(a)(1), and he was sentenced to forty-two months of
imprisonment. While Guerrero-Sanchez was serving that
sentence, ICE reinstated his original order of removal from
1998, pursuant to 8 U.S.C. § 1231(a)(5). On April 9, 2015,
Guerrero-Sanchez filed before this Court a petition for review
and motion for stay of the reinstated removal order, which were
denied.
On May 19, 2015, the date that Guerrero-Sanchez
completed his sentence, he was transferred to ICE custody
pending his removal. An asylum officer subsequently
conducted a reasonable-fear interview at Guerrero-Sanchez’s
request, see 8 C.F.R. § 241.8(e), where Guerrero-Sanchez
contended that he would be tortured by a drug cartel if removed
to Mexico. The officer concluded that Guerrero-Sanchez’s
fear of persecution was reasonable and referred the matter to
an immigration judge. See 8 C.F.R. § 1208.31(e).
Guerrero-Sanchez subsequently initiated withholding-
only proceedings before the Immigration Court, seeking an
order either withholding his removal to Mexico pursuant to 8
U.S.C. § 1231(b)(3) or, in the alternative, deferring his removal
under the Convention Against Torture (“CAT”). The
Immigration Judge denied both claims, finding that he was
ineligible for relief under § 1231(b)(3) because he committed
a “particularly serious crime,” see § 1231(b)(3)(B)(ii), and that
he did not qualify for CAT relief because he did “not [meet]
his burden of establishing by a preponderance of the evidence
6
that the Mexican Government would consent to or be willfully
blind to [his] hypothetical torture . . . .” App. 120. Guerrero-
Sanchez appealed the denial of his CAT claim to the Board of
Immigration Appeals (“BIA”), which affirmed the
Immigration Judge. He then petitioned this Court for review
of the BIA’s order, and we stayed his removal pending the
disposition of his appeal.
We granted the petition of review, finding that “the BIA
erred by failing to consider whether the record evidence of the
violence caused by the [drug] cartel and corruption of law
enforcement officials demonstrated that it is more likely than
not that Guerrero will be tortured ‘by or at the instigation of or
with the consent or acquiescence of a public official or other
person acting in an official capacity.’” Guerrero v. Attorney
Gen., 672 F. App’x 188, 191 (3d Cir. 2016) (quoting 8 C.F.R.
§ 1208.18(a)(1)). We therefore vacated the BIA’s order and
remanded for further consideration.
On December 17, 2015, while his case remained
pending before the BIA, Guerrero-Sanchez filed a petition for
a writ of habeas corpus before the District Court, challenging
his detention by ICE while he waits for a determination on
whether he will be afforded country-specific protection from
removal. To date, his withholding-only proceeding is not
scheduled until September 5, 2019, which is fifty-three months
from the date that he was originally detained by ICE. On
September 19, 2016, the District Court granted the petition,
finding that Guerrero-Sanchez was statutorily permitted to a
bond hearing because his detention was governed by the pre-
removal order detention statute, 8 U.S.C. § 1226(a), rather
than the post-removal statute, 8 U.S.C. § 1231(a). The District
Court therefore ordered that the Immigration Judge afford
Guerrero-Sanchez a hearing within twenty-one days.
7
At the hearing, the Immigration Judge denied Guerrero-
Sanchez release on bond, finding that he represented a flight
risk and/or danger to the community. Following the bond
hearing before the Immigration Judge, Guerrero-Sanchez filed
a motion to reconsider and “to enforce” the District Court’s
order, claiming that the bond hearing had been legally deficient
and requesting that the District Court conduct the hearing
itself. The District Court granted the motion in part on
December 23, 2016, finding that the bond hearing was legally
insufficient because it was not individualized, did not account
for the evidence of rehabilitation that Guerrero-Sanchez
provided, and that it was “doubtful” that the Government
carried its burden of proof that he is a flight risk or a danger to
the community. App. 40.
The District Court then, in February 2017, held a bond
hearing itself. It found that Guerrero-Sanchez did not pose a
danger to the community because of “the absence of any
criminal history beyond his drug conspiracy conviction,
acceptance of responsibility for his criminal conduct, extensive
evidence of rehabilitation and good conduct while incarcerated
and detained, multiple offers of support from family and
employers if he were to be released, and numerous sworn
statements attesting to [his] good character.” App. 19. The
District Court also determined that Guerrero-Sanchez was not
a flight risk because he has a wife and daughter living in Las
Vegas, Nevada, that he was pursuing a bona fide withholding
of removal claim before the Immigration Court, and that the
conditions of release would assure that he appeared at future
immigration proceedings. It therefore ordered his immediate
release subject to conditions of supervision. In total, Guerrero-
8
Sanchez had remained in ICE detention for 637 days without a
bond hearing.1
II.THE AUTHORITY GOVERNING GUERRERO-
SANCHEZ’S DETENTION
The Government originally appealed the District
Court’s order holding that 8 U.S.C. § 1226(a) governs
Guerrero-Sanchez’s detention, as well as the orders mandating
a de novo hearing in federal court and releasing him on bond.
It then withdrew its appeals of the latter two determinations.
Thus, the Government now contests only the statutory basis of
Guerrero-Sanchez’s detention. In the Government’s view, it
is not the pre-removal detention provision, 8 U.S.C. § 1226(a),
that controls in Guerrero-Sanchez’s case, but rather, the post-
removal detention provision, 8 U.S.C. § 1231(a). Because
§ 1231(a) contains no explicit bond hearing requirement, the
Government argues that such a hearing should have never been
held, and that the Government should have the authority to
detain Guerrero-Sanchez again.2 For his part, Guerrero-
1
The District Court had jurisdiction over this case
pursuant to 28 U.S.C. § 2241, and we have jurisdiction under
28 U.S.C. §§ 1291 and 2253.
2
In the alternative, the Government argues that, should
§ 1226 govern, then a different subsection of the provision—
§ 1226(c)—applies. That subsection “carves out a statutory
category of aliens who may not be released under § 1226(a).”
Jennings v. Rodriguez, 138 S. Ct. 830, 837 (2018). It provides
that the “Attorney General shall take into custody any alien,”
who commits one of various enumerated categories of criminal
and terrorist offenses, 8 U.S.C. § 1226(c), including a violation
of “any law or regulation of a State, the United States, or a
9
Sanchez contends that the District Court was correct in
concluding that § 1226(a) applies, but that even if § 1231(a)
governs, he was still entitled to a bond hearing because
§ 1231(a)(6) implicitly requires a bond hearing after prolonged
detention. Thus, according to Guerrero-Sanchez, he was
entitled to a bond hearing irrespective of the statutory authority
for his detention, and he should remain released subject to the
conditions of supervision already in place.
With all of this in mind, we must first decide whether
Guerrero-Sanchez’s detention is governed by § 1226(a) or
§ 1231(a). Because this question is an issue of statutory
interpretation, it is subject to de novo review. Fair Hous.
Rights Ctr. in Se. Pa. v. Post Goldtex GP, LLC, 823 F.3d 209,
213 (3d Cir. 2016). For the reasons discussed below, we hold
that § 1231(a), the post-removal provision, controls. We will
then proceed to address Guerrero-Sanchez’s alternative
argument, that is, whether § 1231(a)(6) implicitly requires that
he be afforded a bond hearing after prolonged detention.
A. Legal Framework
We begin by examining the text of both provisions. See,
e.g., United States v. Thornhill, 759 F.3d 299, 307 (3d Cir.
2014) (“Statutory interpretation requires that we begin with a
foreign country relating to a controlled substance,” id.
§ 1227(a)(2)(B)(i). If an alien falls within the ambit of
§ 1226(c), then no bond hearing is provided and the alien’s
“detention may end prior to the conclusion of removal
proceedings ‘only if’ the alien is released for witness-
protection purposes.” Jennings, 138 S. Ct. at 847 (quoting 8
U.S.C. § 1226(c)).
10
careful reading of the text.” (quoting Zimmerman v. Norfolk S.
Corp., 706 F.3d 170, 177 (3d Cir. 2013))). Section 1226 is the
pre-removal provision of the INA and “generally governs the
process of arresting and detaining . . . aliens pending their
removal.” Jennings v. Rodriguez, 138 S. Ct. 830, 837 (2018).
It provides that “an alien may be arrested and detained pending
a decision on whether the alien is to be removed from the
United States.” 8 U.S.C. § 1226(a). Critical for the purposes
of this case, an alien detained under § 1226(a) must be afforded
a bond hearing before an immigration judge to determine if the
alien’s detention is necessary while he or she awaits
immigration proceedings. See Jennings, 138 S. Ct. at 837
(“[T]he Attorney General ‘may release’ an alien detained
under § 1226(a) ‘on bond . . . or conditional parole.’” (quoting
8 U.S.C. § 1226(a))); 8 C.F.R. § 236.1(d)(1) (“[T]he
immigration judge is authorized to exercise the authority . . . to
detain the alien in custody, release the alien, and determine the
amount of bond.”).
Section 1231(a) is the post-removal detention provision
of the INA and applies to aliens who are subject to a final order
of removal. It provides that “when an alien is ordered
removed, the Attorney General shall remove the alien from the
United States within a period of 90 days.” 8 U.S.C.
§ 1231(a)(1)(A). The provision requires that the alien be
detained during this 90-day timeframe, see 8 U.S.C.
§ 1231(a)(2), which is “referred to as the ‘removal period.’”
8 U.S.C. § 1231(a)(1)(A). “If the alien does not leave or is not
removed within the removal period,” then he is normally
subject to supervised release. 8 U.S.C. § 1231(a)(3). Section
1231(a)(6), however, authorizes the continued detention of
certain classes of aliens “beyond the removal period,” 8 U.S.C.
§ 1231(a)(6), for a timeframe “reasonably necessary to bring
11
about that alien’s removal from the United States,” Zadvydas
v. Davis, 533 U.S. 678, 689 (2001); see also id. at 701 (“[A]n
alien may be held in confinement until it has been determined
that there is no significant likelihood of removal in the
reasonably foreseeable future.”). The categories of aliens
covered by § 1231(a)(6) include those who, like Guerrero-
Sanchez, are inadmissible under 8 U.S.C. § 1182.3
Critically, unlike § 1226(a), the text of § 1231(a)(6)
does not explicitly authorize a bond hearing. Therefore, at least
according to the Government, whether Guerrero-Sanchez is
entitled to a bond hearing turns on whether § 1226(a) or
§ 1231(a) authorizes his detention. We note at the outset that
this is a question that has divided our sister circuits. Compare
Padilla-Ramirez, 882 F.3d 826, 832 (9th Cir. 2017) (holding
that § 1231(a) governs), with Guerra v. Shanahan, 831 F.3d
59, 64 (2d Cir. 2016) (holding that § 1226(a) governs).
B. Chevron Deference
As a threshold matter, the Government contends that a
regulation issued by the Department of Homeland Security, 8
C.F.R. § 241.8(f), is owed Chevron deference because it
allegedly provides that § 1231(a) applies to aliens with
reinstated orders of removal.4 We disagree. That regulation
3
The other classes of aliens covered by § 1231(a)(6) are
those removable under § 8 U.S.C. 1227(a)(1)(C), 1227(a)(2),
or 1227(a)(4), and those who have “been determined by the
Attorney General to be a risk to the community or unlikely to
comply with the order of removal,” 8 U.S.C. § 1231(a)(6).
4
“Under the familiar two-step Chevron inquiry, first, if
the statute is clear we must give effect to Congress’
12
states that “[e]xecution of the reinstated order of removal and
detention of the alien shall be administered in accordance with”
Part 241 of the Code of Federal Regulations, which contains
the regulations implementing 8 U.S.C. § 1231. 8 C.F.R.
§ 241.8(f). The relevant provisions of Part 241, however,
apply to aliens who are subject to reinstated removal orders
but, unlike Guerrero-Sanchez, have either not expressed a fear
of removal, or have already been granted withholding but are
still subject to detention. See id. §§ 241.3, 241.4(b)(3),
241.8(f). Conspicuously absent from these regulations is any
mention of aliens, who like Guerrero-Sanchez, have reinstated
removal orders but are still pursuing bona fide withholding-
only relief. Chevron deference is inapplicable, then, because
§ 241.8(f) does not resolve the question of whether § 1226(a)
or § 1231(a) governs Guerrero-Sanchez’s detention. See
Padilla-Ramirez v. Bible, 882 F.3d at 831 (declining to defer
to 8 C.F.R. § 241.8(f) “because the regulation does not answer
the question presented”); Guerra, 831 F.3d at 63 (“Chevron
deference is inapplicable because [Part 241] do[es] not answer
the question of which provision governs Guerra’s detention.”).
We must therefore conduct our own scrutiny of the statutory
provisions.
unambiguous intent, and, second, if the statute is silent or
ambiguous with respect to a specific issue, we defer to an
implementing agency’s reasonable interpretation of that
statute.” De Leon-Ochoa v. Att’y Gen., 622 F.3d 341, 348 (3d
Cir. 2010) (citing Chevron, U.S.A., Inc. v. Natural Res. Def.
Council, Inc., 467 U.S. 837, 842–43 (1984)).
13
C. Authorization of Detention
To determine whether Guerrero-Sanchez was entitled to
a bond hearing, we must ascertain the source of authority for
his detention. The authorization for an alien’s detention shifts
from § 1226(a) to § 1231(a)—that is, from the pre-removal
phase to the post-removal phase—at the point that the alien’s
order of removal becomes administratively final and removal
is therefore certain. See 8 U.S.C. § 1231(a)(1)(B). Thus,
which provision governs here depends on whether the removal
order entered against Guerrero-Sanchez is administratively
final: if it is final, then § 1231(a) applies; otherwise, § 1226(a)
controls.
Crucial to this determination is the fact that Guerrero-
Sanchez’s removal order was reinstated “from its original date
and is not subject to being reopened or reviewed.” 8 U.S.C.
§ 1231(a)(5).5 Although aliens with reinstated orders of
5
Section 1231(a)(5) provides in its entirety:
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
14
removal are “not eligible and may not apply for any relief”
under Chapter 12 of the INA, id., they may seek withholding-
only remedies, see Cazun v. Attorney Gen. United States, 856
F.3d 249, 255-56 (3d Cir. 2017) (“[P]recedent and the Attorney
General’s own interpretation clarify that withholding from
removal and CAT protection—both forms of relief—are
actually still available to individuals in reinstatement
proceedings.” (citing Fernandez-Vargas v. Gonzales, 548 U.S.
30, 35 n.4 (2006); 8 C.F.R. §§ 1208.31(e), 1208.16(c)(4))).
Accordingly, in order to resolve this case, we must decide
whether a reinstated order of removal against an alien who, like
Guerrero-Sanchez, is pursuing bona fide withholding-only
relief is administratively final.
With this framing of the issue in mind, we find that
§ 1231(a), the post-removal provision, is the more logical
source of authority for Guerrero-Sanchez’s detention. A
removal order is unquestionably final when it is first entered.
See 8 C.F.R. § 241.1. When such an order is subsequently
reinstated, as happened here in Guerrero-Sanchez’s case, “it
stands to reason that it retains the same administrative finality
because section 1231(a)(5) proscribes any challenge that might
affect the status of the underlying removal order.” Padilla-
Ramirez, 882 F.3d at 831. Indeed, when a reinstated order of
removal is in place, withholding-only proceedings do not
disturb the underlying order of removal; rather, they only
potentially impede the order’s execution with respect to a
specific country. See § 1208.2(c)(3)(i). If Guerrero-Sanchez
were to ultimately prevail on either his withholding or CAT
any time after the reentry.
8 U.S.C. § 1231(a)(5).
15
claim, the resulting remedy would prohibit only his removal to
the country of risk: Mexico. It would not prohibit his removal
from the United States to an alternative, non-risk country. See,
e.g., Lanza v. Ashcroft, 389 F.3d 917, 933 (9th Cir. 2004)
(stating that a grant of withholding “only prohibits removal of
the petitioner to the country of risk, but does not prohibit
removal to a non-risk country” (quoting Castellano-Chacon v.
INS, 341 F.3d 533, 545 (6th Cir. 2003), holding modified by
Almuhtaseb v. Gonzales, 453 F.3d 743, 748 (6th Cir. 2006))).
Thus, “[t]he removal order itself . . . is not at issue in the
withholding-only proceedings, meaning that those proceedings
cannot diminish or otherwise affect its finality.” Padilla-
Ramirez, 882 F.3d at 832.
Furthermore, the placement of § 1231(a)(5), which
governs reinstated orders of removal, within the post-removal
provision itself evidences Congress’s intent that § 1231(a)
governs the detention of aliens with reinstated orders of
removal, even when they pursue withholding-only
proceedings. See id.; see also, e.g., Cipollone v. Liggett Grp.,
Inc., 505 U.S. 504, 516 (1992) (“Congress’ intent may be
‘explicitly stated in the statute’s language or implicitly
contained in its structure’” (quoting Jones v. Rath Packing Co.,
430 U.S. 519, 525 (1977))). The Ninth Circuit, which held that
such detentions were authorized by § 1231(a), did so in part on
this basis. Padilla-Ramirez, 882 F.3d at 832 (“The fact that the
reinstatement provision appears among section 1231(a)’s
detention and supervision provisions further bolsters this
inference.”).
Conversely, we are compelled to find that the plain text
of the pre-removal provision, § 1226(a), forecloses its
application to reinstated removal orders. Critically, for that
provision to apply there must be a decision “pending” before
16
an immigration judge as to “whether the alien is to be removed
from the United States.” 8 U.S.C. § 1226(a) (emphasis added).
No such decision is pending here. As discussed above, the
decision that was before the Immigration Judge was not
whether Guerrero-Sanchez should be removed “from the
United States”—as is required to trigger § 1226(a)—but rather,
whether he may be removed to Mexico, i.e., to where he should
be removed. “This narrow question of to where an alien may
be removed is distinct from the broader question of whether the
alien may be removed; indeed, the former inquiry requires that
the latter already have been resolved in the affirmative.”
Padilla-Ramirez, 882 F.3d at 832. Because Guerrero-
Sanchez’s CAT claim casts no doubt on his removal from the
United States, it does not implicate § 1226(a). See id. (“The
fact that [an alien] may seek further withholding relief if he
prevails on his present application does not change this
conclusion since the pending decision in such hypothetical
proceedings always will be whether he can be removed to a
particular country, which does not implicate section
1226(a).”).
Accordingly, we hold that a reinstated order of removal
against an alien who has initiated withholding-only
proceedings is administratively final.6 Therefore, just as we
6
It is worth noting that if § 1226 applied, there would
be merit to the Government’s argument that § 1226(c) would
nonetheless—as a statutory matter—prohibit a bond hearing in
Guerrero-Sanchez’s case. As discussed supra note 2,
§ 1226(c) applies to the detention of aliens that have been
convicted of certain qualifying offenses and does not afford a
bond hearing unless the alien is released for witness protection
purposes. See Jennings, 138 S. Ct. at 847. Here, Guerrero-
17
Sanchez pled guilty and was convicted under 21 U.S.C. §§ 846
and 841(a)(1) for conspiracy to distribute more than fifty grams
of methamphetamine and was sentenced in April 2013 to forty-
two months’ imprisonment. That offense is a qualifying
criminal conviction under § 1226(c), which provides that
“[t]he Attorney General shall take into custody any alien who
. . . is deportable by reason of having committed any offense
covered in section 1227(a)(2)(A)(ii), (A)(iii), (B) . . . of this
title.” 8 U.S.C. § 1226(c)(1)(B). Relevant for Guerrero-
Sanchez’s case is § 1227(a)(2)(B)(i), which provides:
Any alien who at any time after
admission has been convicted of a
violation of (or a conspiracy or
attempt to violate) any law or
regulation of a State, the United
States, or a foreign country
relating to a controlled substance
(as defined in section 802 of Title
21), other than a single offense
involving possession for one’s
own use of 30 grams or less of
marijuana, is deportable.
8 U.S.C. § 1227(a)(2)(B)(i). Because Guerrero-Sanchez’s
conviction related to more than fifty grams of
methamphetamine, his detention would fall within the confines
of § 1226(c). Since he offers no evidence that his release is
pursuant to a witness protection purpose, he would be
statutorily foreclosed from being afforded a bond hearing
altogether if § 1226 applied. Whether Guerrero-Sanchez
would be constitutionally entitled to a bond hearing under the
18
elect to follow Padilla-Ramirez, we concurrently decline to
follow Guerra. In Guerra, the Second Circuit found that
§ 1226(a) governs because, although an alien subject to a
reinstated removal order is clearly removable, the “purpose of
withholding-only proceedings is to determine precisely
whether ‘the alien is to be removed from the United States.’”
831 F.3d at 62 (quoting 8 U.S.C. § 1226(a)). However, as
discussed supra, we respectfully disagree with the Second
Circuit’s interpretation—the purpose of withholding-only
proceedings is to determine the narrow question of where an
alien will be removed to, but has no bearing on whether the
alien will ultimately “be removed from the United States.”
8 U.S.C. § 1226(a) (emphasis added). We agree with the Ninth
Circuit that “[i]n concluding that the ‘purpose of withholding-
only proceedings is to determine precisely whether the alien is
to be removed from the United States,’ the [Second Circuit] did
not paint with a fine enough brush.” Padilla-Ramirez, 882
F.3d at 835 (citations and internal quotation marks omitted)
(quoting Guerra, 831 F.3d at 62).
Guerra also reasoned that the reinstated removal order
was not final because an alien could appeal a denial of a
withholding application to a federal court of appeals. 831 F.3d
at 63. On the basis that the conception of finality pertaining to
judicial review must be the same as that which pertains to the
Due Process Clause is an entirely different question—a
question that we need not resolve today because we hold that
his detention is governed by § 1231(a). See Jennings, 138 S.
Ct. at 847 (declining to decide whether the Due Process Clause
requires a pre-removal bond hearing because the Supreme
Court is “a court of review, not of first view” (quoting Cutter
v. Wilkinson, 544 U.S. 709, 718 n.7 (2005))).
19
administrative finality of his removal order for detention
purposes, the Second Circuit reasoned that a “bifurcated
definition of finality” would “run[] counter to principles of
administrative law which counsel that to be final, an agency
action must ‘mark the consummation of the agency’s
decisionmaking process.’” Id. (quoting U.S. Army Corps of
Eng’rs v. Hawkes Co., 136 S. Ct. 1807, 1813 (2016)).
However, we disagree—as the Ninth Circuit aptly explained,
the application of § 1231(a) here does not vitiate the
administrative legal principles that the Second Circuit relies
on:
The Second Circuit is correct that only an agency
action marking “the consummation of the
agency’s decisionmaking process” qualifies as
final agency action. But its conclusion that no
such consummation exists while withholding-
only proceedings are ongoing again
misunderstands the decision at stake in those
proceedings. The agency already decided that
Padilla–Ramirez “is to be removed from the
United States,” 8 U.S.C. § 1226(a), and a
different, more limited decision is now pending
in his withholding-only proceedings—namely,
whether he may be removed to El Salvador. The
agency has consummated its decision-making
regarding the first issue, but not the second. It
therefore is consonant with settled administrative
legal principles to hold that Padilla–Ramirez’s
reinstated removal order (i.e., the agency’s
decision that he “is to be removed from the
United States,” id.) is final for detention
purposes even though it lacks finality for
20
purposes of judicial review of his withholding-
only claim.
Padilla-Ramirez, 882 F.3d at 836 (citations omitted); see also
Ponta-Garcia v. Att’y Gen., 557 F.3d 158, 162 (3d Cir. 2009)
(“[A]liens subject to reinstatement have already been ordered
removed, and thus have already been provided with the
requisite procedures and review.”).
In a similar vein, amici the American Immigration
Council and the American Immigration Lawyers Association
(collectively “AIC”) contend that “[e]very circuit to have
addressed the question [of finality] has agreed that a
reinstatement order where the individual has articulated a fear
of return is not final until reasonable fear or the withholding-
only proceedings have been concluded.” AIC Br. at 17-18
(citing Ponce-Osorio v. Johnson, 824 F.3d 502 (5th Cir. 2016);
Jimenez-Morales v. Att’y Gen., 821 F.3d 1307 (11th Cir. 2016),
cert. denied sub nom. Jimenez-Morales v. Lynch, 137 S. Ct. 685
(2017); Luna-Garcia v. Holder, 777 F.3d 1182, 1183 (10th Cir.
2015); Ortiz-Alfaro v. Holder, 694 F.3d 955 (9th Cir. 2012)).
However, none of these cases address the finality of reinstated
deportation orders for the purposes of removal. Rather, they
address whether such orders are final “for the purposes of
timely petitioning for judicial review” of orders denying relief
in a reasonable fear or withholding-only proceeding. See, e.g.,
Ortiz-Alfaro, 694 F.3d at 958 (noting that validity of “the
underlying prior removal order” was not before the court).7
7
See also Ponce-Osorio, 824 F.3d at 507 (“The
reinstatement order is thus non-final, and we lack jurisdiction
over Ponce-Osorio’s petition for review.”); Luna-Garcia, 777
F.3d at 1185 (describing the issue as determining “the point at
which a reinstated removal order becomes final for purposes of
21
These cases are therefore inapposite. AIC relies on the
incorrect assumption that “the finality of a reinstatement order
is identical for purposes of judicial review and detention.” AIC
Br. at 20. Indeed, it is telling that neither Padilla-Ramirez nor
Guerra—both of which were decided after Ponce-Osorio,
Jimenez-Morales, Luna-Garcia, and Ortiz-Alfaro—rely on
any of these cases for support; to the contrary, they distinguish
them.8
calculating the time to petition for review”); Jimenez-Morales,
821 F.3d at 1308 (“DHS’ reinstatement of the 2011 order of
removal was not final because the reasonable fear proceeding
was ongoing. That presents a jurisdictional problem because
the Immigration and Nationality Act vests circuit courts with
jurisdiction to review only ‘final’ orders of removal.”).
8
In Guerra, when discussing that the court was deciding
an issue of first impression, it stated “[t]he Ninth and Tenth
Circuits have held that they lack jurisdiction over petitions for
review filed while withholding-only proceedings are ongoing”
but that “[n]either court, however, answered the question of
which section authorized detention for aliens in Guerra’s
position.” 831 F.3d at 62 n.1 (citing Ortiz-Alfaro, 694 F.3d at
958; Luna-Garcia, 777 F.3d at 1184).
In Padilla-Ramirez, the Ninth Circuit held that Ortiz-
Alfaro “is readily distinguishable because its holding rested on
the canon of constitutional avoidance.” 882 F.3d at 833.
Conversely, “[h]olding that Padilla-Ramirez’s reinstated order
is administratively final for detention purposes poses no such
constitutional difficulty, so the avoidance canon need not
dictate the outcome here.” Id. Thus, “Ortiz-Alfaro . . . does
22
To summarize, Guerrero-Sanchez’s detention is
governed by § 1231(a). A reinstated removal order is
administratively final for the purposes of removal because it
provides that an alien “shall be removed” from the United
States, and that determination is “not subject to being reopened
or reviewed.” 8 U.S.C. § 1231(a)(5). An alien with a
reinstated order of removal therefore cannot have a decision
“pending” before an immigration judge on “whether the alien
is to be removed from the United States.” 8 U.S.C. § 1226(a)
(emphasis added). As a result, such aliens cannot fulfill the
necessary predicate to implicate § 1226(a), and they cannot
rely on that provision to obtain a bond hearing.
III. THE IMPLICIT BOND HEARING REQUIREMENT
OF § 1231(a)(6)
Because § 1231(a) governs Guerrero-Sanchez’s
detention, we must next reach his alternative argument that he
is still entitled to a bond hearing because that provision
implicitly requires a bond hearing after prolonged detention.
not control the outcome of this case.” Id. at 834. Notably,
Guerrero-Sanchez relies on Ortiz-Alfaro for the proposition
that a holding that the reinstated removal order is final would
make it impossible for him to timely petition for review of an
immigration judge’s decision denying him relief. However,
this portion of his case does not invoke the canon of
constitutional avoidance because “the text and structure of the
[INA] indicate that Congress intended for section 1231(a) to
govern detention of aliens subject to reinstated removal
orders.” Padilla-Ramirez, 882 F.3d at 834. Ortiz-Alfaro is
therefore inapposite.
23
For the reasons below, we agree and will affirm the District
Court’s order on this basis.
A. Zadvydas v. Davis
As discussed supra, when an alien has been found to be
unlawfully present in the United States and a final order of
removal has been entered, the Government ordinarily secures
the alien’s removal during a subsequent 90-day statutory
“removal period,” during which time the alien normally is held
in custody. 8 U.S.C. § 1231(a)(1)(A). However, since
Guerrero-Sanchez’s detention lasted longer than 90 days, it
was governed by § 1231(a)(6), which authorizes detention
beyond the 90 days under certain circumstances. It provides:
An alien ordered removed [1] who is
inadmissible . . . [2] [or] removable [as a result
of violations of status requirements or entry
conditions, violations of criminal law, or reasons
of security or foreign policy] or [3] who has been
determined by the Attorney General to be a risk
to the community or unlikely to comply with the
order of removal, may be detained beyond the
removal period and, if released, shall be subject
to [certain] terms of supervision . . . .
8 U.S.C. § 1231(a)(6). Noticeably, unlike § 1226(a), the text
of § 1231(a)(6) does not explicitly authorize a bond hearing for
aliens that are encompassed within its ambit. Nor does
§ 1231(a)(6) contain any express limit on the duration of an
alien’s detention under the provision.
In Zadvydas v. Davis, 533 U.S. 678 (2001), however,
the Supreme Court interpreted § 1231(a)(6) to authorize the
24
detention of aliens “only as long as ‘reasonably necessary’ to
remove them from the country.” Clark v. Martinez, 543 U.S.
371, 377 (2005) (quoting Zadvydas, 533 U.S. at 689, 699).
Such an interpretation was required to avoid the “‘serious
constitutional threat’ . . . posed by the indefinite detention of
aliens who had been admitted to the country.” Id. (quoting
Zadvydas, 533 U.S. at 699). According to the Court, the
provision’s use of the word “may” was ambiguous because it
“‘suggests discretion,’ but ‘not necessarily . . . unlimited
discretion.” Id. (quoting Zadvydas, 533 U.S. at 699). Here, the
Government argues that Zadvydas resolves the only ambiguity
in the text of § 1231(a)(6) and makes clear that Guerrero-
Sanchez “may be held in confinement until it has been
determined that there is no significant likelihood of removal in
the reasonably foreseeable future.” Appellant Br. at 15
(quoting Zadvydas, 533 U.S. at 701).
We disagree. Zadvydas had no occasion to address the
due process concerns posed by prolonged detention of
someone in Guerrero-Sanchez’s situation who is still seeking
withholding-only relief. Rather, Zadvydas addressed only the
detention of noncitizens who—unlike Guerrero-Sanchez—
have exhausted all administrative and judicial challenges to
removal, including applications for relief from removal, and
are only waiting for their removal to be effectuated. See
Demore v. Kim, 538 U.S. 510, 527 (2003) (distinguishing
Zadvydas on the basis that “in Zadvydas, the aliens challenging
their detention following final orders of deportation were ones
for whom removal was ‘no longer practically attainable’”
(quoting Zadvydas, 533 U.S. at 690)).
This distinction is material because detaining Guerrero-
Sanchez without a bond hearing while he pursues his bona fide
withholding-only claim “would effectively punish [him] for
25
pursuing applicable legal remedies.”9 Leslie v. Attorney Gen.
of U.S., 678 F.3d 265, 271 (3d Cir. 2012) (internal quotation
marks omitted), abrogated in part and on other grounds by
Jennings, 138 S. Ct. at 847. Thus, Zadvydas’ focus on the
foreseeability of removal—and its limiting construction of
§ 1231(a)(6) as authorizing detention only when removal is
reasonably foreseeable—does not address or settle the due
process concerns raised by the prolonged detention of an alien
like Guerrero-Sanchez, who is still pursuing a bona fide
withholding-only claim that could take years to resolve.
More importantly, Zadvydas narrowed the scope of the
detention that § 1231(a)(6) authorizes. See Hernandez-
Carrera v. Carlson, 547 F.3d 1237, 1248 (10th Cir. 2008)
(“The Supreme Court [in Zadvydas], confronted with a very
broad statute, narrowed its scope to avoid unconstitutionality”
(quoting Thai v. Ashcroft, 389 F.3d 967, 971 (9th Cir. 2004)
(Kozinski, J., dissenting from denial of en banc))). It did not,
however, provide that the Court’s limiting construction of
§ 1231(a)(6) is the sole constraint on detention that the Due
9
The Government contends that Guerrero-Sanchez’s
confinement is not “‘punishment’ for pursuing withholding or
deferral of removal to Mexico” because such detention is
“nonpunitive in purpose and effect.” Government Reply Br. at
18 (quoting Zadvydas, 533 U.S. at 690). However, “the reality
[is] that merely calling a confinement ‘civil detention’ does
not, of itself, meaningfully differentiate it from penal
measures.” Chavez-Alvarez v. Warden York Cty. Prison, 783
F.3d 469, 478 (3d Cir. 2015) (citing Kansas v. Hendricks, 521
U.S. 346, 361 (1997); Application of Gault, 387 U.S. 1, 27
(1967)).
26
Process Clause requires.10 See id. at 1249 (“In Zadvydas, the
Supreme Court did not purport to ‘resolve’ the statutory
ambiguity in § 1231(a)(6) once and for all. . . . In no way, . . .
did the Court signal that its interpretation was the only
reasonable construction of § 1231(a)(6).”); id. at 1248 (“[T]he
Court’s method of narrowing [§ 1231(a)(6) in Zadvydas] is not
the only permissible one.” (quoting Thai, 389 F.3d at 971
(Kozinski, J., dissenting from denial of en banc))). Indeed, a
detention could still raise constitutional concerns even if it is
ostensibly authorized by statute. See Diouf v. Napolitano, 634
F.3d 1081, 1084 (9th Cir. 2011) (invoking canon of
constitutional avoidance to interpret § 1231(a)(6) after
determining “that [the alien’s] detention was authorized by
statute”); Prieto-Romero v. Clark, 534 F.3d 1053, 1065 (9th
Cir. 2008) (“Even if [an alien’s] continued detention is
permitted by statute, however, due process requires ‘adequate
procedural protections’ to ensure that the government’s
asserted justification for physical confinement ‘outweighs the
individual’s constitutionally protected interest in avoiding
physical restraint.’” (quoting Zadvydas, 533 U.S. at 690-91)).
While Zadvydas limited the substantive scope of § 1231(a)(6),
10
To the contrary, Zadvydas provides that, even where
detention is not indefinite, it still must bear a “reasonable
relation” to the Government’s interests in preventing flight and
danger to the community and be accompanied by adequate
procedures to determine if detention is necessary. 533 U.S. at
690 (quoting Jackson v. Indiana, 406 U.S. 715, 738 (1972));
see also id. at 700 (“[I]f removal is reasonably foreseeable, the
habeas court should consider the risk of the alien’s committing
further crimes as a factor potentially justifying confinement
within that reasonable removal period.”).
27
it did not explicitly preclude courts from construing
§ 1231(a)(6) to include additional procedural protections
during the statutorily authorized detention period, should those
protections be necessary to avoid detention that could raise
different constitutional concerns. See Diouf, 634 F.3d at 1084
(holding that “individuals detained under § 1231(a)(6) are
entitled to the same procedural safeguards against prolonged
detention as individuals detained under § 1226(a)”).
B. The Due Process Concerns Associated with Guerrero-
Sanchez’s Detention
Guerrero-Sanchez’s detention without bond—which
had spanned 637 days before his hearing—pending the
resolution of his withholding-only proceedings raises serious
due process concerns. See Diouf, 634 F.3d at 1086
(“[P]rolonged detention under § 1231(a)(6), without adequate
procedural protections, would raise ‘serious constitutional
concerns.’” (quoting Casas-Castrillon v. Dep’t of Homeland
Sec., 535 F.3d 942, 950 (9th Cir. 2008)); Chavez-Alvarez v.
Warden York Cty. Prison, 783 F.3d 469, 471 (3d Cir. 2015)
(“The total number of days that Chavez–Alvarez has been held
in civil detention since his arrest, of itself, gives us reason for
pause.”), abrogated in part and on other grounds by Jennings,
138 S. Ct. at 847.
We have already recognized in the pre-removal context
that “when detention becomes unreasonable, the Due Process
Clause demands a hearing, at which the Government bears the
burden of proving that continued detention is necessary to
fulfill the purposes of the detention statute.” Diop v.
ICE/Homeland Sec., 656 F.3d 221, 233 (3d Cir. 2011),
abrogated in part and on other grounds by Jennings, 138 S.
28
Ct. at 847.11 In those cases, “due process requires us to
recognize that, at a certain point—which may differ case
11
In Diop, applying the canon of constitutional
avoidance, we construed § 1226(c) to contain an implicit
“reasonable” time limit on the period for which detention
without a bond hearing was statutorily authorized. 656 F.3d at
231. This statutory holding has been abrogated by Jennings,
where the Court held that the text of § 1226(c) is clear and that
“detention [under § 1226(c)] may end prior to the conclusion
of removal proceedings ‘only if’ the alien is released for
witness-protection purposes.” Jennings, 138 S. Ct. at 847
(quoting 8 U.S.C. § 1226(c)).
Diop, however, also reached a constitutional holding
and found that “when detention becomes unreasonable, the
Due Process Clause demands a hearing, at which the
Government bears the burden of proving that continued
detention is necessary to fulfill the purposes of the detention
statute.” 656 F.3d at 233 (emphasis added); see also id. at 223
(“[T]he Due Process Clause of the Fifth Amendment to the
Constitution requires that the Government establish that
continued detention is necessary to further the purposes of
[§ 1226(c)].”); id. at 235 (holding that Diop’s detention
constituted “a violation of the Due Process Clause”). We
reasoned, inter alia, that “[t]he constitutionality of [mandatory
detention] is a function of the length of the detention” and that
“[a]t a certain point, continued detention . . . becomes
unconstitutional unless the Government has justified its actions
at a hearing inquiring into whether continued detention is
consistent with the law’s purpose of preventing flight and
dangers to the community.” Id. at 232 (emphasis added).
Since we hold that Guerrero-Sanchez’s detention is governed
29
by case—the burden to an alien’s liberty outweighs a mere
presumption that the alien will flee and/or is dangerous.”
Chavez-Alvarez, 783 F.3d at 474–75 (footnote omitted); see
also Diop, 656 F.3d at 232 (“At a certain point, continued
detention becomes . . . unconstitutional unless the Government
has justified its actions at a hearing inquiring into whether
continued detention is consistent with the law’s purposes of
preventing flight and dangers to the community.”).
by § 1231(a)(6) and not § 1226(c), we have no occasion to
determine here whether Diop’s constitutional holding survives
Jennings.
However, the constitutional concerns that Diop
identified with mandatory detention in the pre-removal context
are similar to those in the post-removal context. See Diouf, 634
F.3d at 1087 (“Regardless of the stage of the proceedings, the
same important interest is at stake—freedom from prolonged
detention.”). And we need not determine that those concerns
rise to the level of an outright constitutional violation in order
to employ the canon of constitutional avoidance. Indeed, the
entire purpose of the canon is to avoid reaching the merits of
the constitutional issue. See, e.g., Santana Prod., Inc. v.
Bobrick Washroom Equip., Inc., 401 F.3d 123, 130–31 (3d Cir.
2005) (“[I]t is well established that courts have a duty to avoid
passing upon a constitutional question if the case may be
disposed of on some other ground.” (quoting Spicer v. Hilton,
618 F.2d 232, 239 (3d Cir. 1980))). Accordingly, because we
conclude that—unlike § 1226(c)—§ 1231(a)(6) is ambiguous,
we will interpret the provision in a manner that does not raise
the constitutional concerns that Diop identified.
30
We see no substantial distinction between the liberty
interests of aliens detained under § 1226(a) and § 1231(a)(6)
because “[r]egardless of the stage of the proceedings, the same
important interest is at stake—freedom from prolonged
detention”—accordingly, “[t]he liberty interests of persons
detained under § 1231(a)(6) are comparable to those of persons
detained under § 1226(a).” Diouf, 634 F.3d at 1087. The
Government contends that individuals like Guerrero-Sanchez
have a lesser liberty interest because they each have a prior
removal order already in place. However, Guerrero-Sanchez’s
status is not appreciably different from that of the alien in Diop,
who had a final removal order at the time we decided his case
and was subjected to prolonged detention while pursuing—
precisely like Guerrero-Sanchez—CAT relief, as well as
withholding of removal. See 656 F.3d at 226 (explaining that
the alien in Diop argued before the Immigration Court “that the
vacatur of his conviction meant that he was eligible for
withholding of removal” and that he made a “claim of a right
to relief under the Convention Against Torture”).
As to the Government’s interest in detaining aliens in
the post-removal context, we agree with the Ninth Circuit that
“[t]he distinctions between § 1226(a) and § 1231(a)(6) . . . are
not substantial enough to justify denying a bond hearing to all
aliens subject to extended detention under § 1231(a)(6).”
Diouf, 634 F.3d at 1087. As the Ninth Circuit aptly explained:
First, the government has an interest in ensuring
that aliens are available for removal if their legal
challenges do not succeed whether they are
detained under § 1226(a) or § 1231(a)(6).
Second, in either circumstance, the
government’s interest in the prompt removal of
aliens who have exhausted their legal challenges
31
is served by the bond hearing process itself. If the
alien poses a flight risk, [continued] detention is
permitted.
Third, the same concerns about prolonged
detention arise irrespective of whether an alien
has petitioned for review of an order of removal
(direct review) or an order denying a motion to
reopen (collateral review). In both situations, it
may take years for the petitions for review to be
resolved.
Id. at 1087-88. We therefore find that it may be the case that
the Due Process Clause prohibits prolonged detention under
§ 1231(a)(6) without a bond hearing.
A. Canon of Constitutional Avoidance and Our
Construction of § 1231(a)(6)
Despite the constitutional concerns raised by Guerrero-
Sanchez’s detention under § 1231(a)(6), we decline to decide
whether his continued confinement violated the Due Process
Clause. “As a first inquiry, we must avoid deciding a
constitutional question if the case may be disposed of on some
other basis.” Doe v. Pa. Bd. of Prob. & Parole, 513 F.3d 95,
102 (3d Cir. 2008). We assume that Congress does not intend
to pass unconstitutional laws—accordingly, “it is a cardinal
principle of statutory interpretation . . . that when an Act of
Congress raises a serious doubt as to its constitutionality, . . .
[courts] will first ascertain whether a construction of the statute
is fairly possible by which the question may be avoided.”
Diop, 656 F.3d at 231 (quoting Zadvydas, 533 U.S. at 689).
We therefore invoke the canon of constitutional avoidance so
long as “the statute is found to be susceptible of more than one
32
construction.” Jennings, 138 S. Ct. at 842 (quoting Clark, 543
U.S. at 385).
The Supreme Court has already determined that the text
of § 1231(a)(6) is ambiguous as to the due process protections
that it provides. See Zadvydas, 533 U.S. at 697 (holding that
§ 1231(a)(6) is ambiguous). This is the case because
§ 1231(a)(6), unlike other provisions in the INA, does not
provide for detention for a specified period of time, uses the
word “may” to describe the detention authority rather than
“shall,” and lacks an express exception to detention provided
for in the provision. See Jennings, 138 S. Ct. at 844. The plain
text of § 1231(a)(6) therefore invites us to apply the canon of
constitutional avoidance in order to avoid the question of
whether Guerrero-Sanchez’s continued detention under that
provision violates the Due Process Clause. See Demore, 538
U.S. at 523 (“It is well established that the Fifth Amendment
entitles aliens to due process of law in deportation
proceedings.” (quoting Reno v. Flores, 507 U.S. 292, 306
(1993)).
In order to avoid determining whether Guerrero-
Sanchez’s detention violates the Due Process Clause, we adopt
the Ninth Circuit’s limiting construction of § 1231(a)(6) that
“an alien facing prolonged detention under [that provision] is
entitled to a bond hearing before an immigration judge and is
entitled to be released from detention unless the government
establishes that the alien poses a risk of flight or a danger to the
community.”12 Diouf, 634 F.3d at 1092. Critically, our
12
The Government must meet its burden in such bond
hearings by clear and convincing evidence. See Singh v.
Holder, 638 F.3d 1196, 1203-04 (9th Cir. 2011) (“Because it
is improper to ask the [alien] to ‘share equally with society the
33
holding today necessarily applies to all aliens detained under
§ 1231(a)(6), not just those, like Guerrero-Sanchez, who have
reinstated removal orders under § 1231(a)(5) and are pursuing
withholding-only relief. This is because “statutory language
given a limiting construction in one context must be interpreted
consistently in other contexts, ‘even though other of the
statute’s applications, standing alone, would not support the
same limitation.’” Spector v. Norwegian Cruise Line Ltd., 545
U.S. 119, 140 (2005) (quoting Clark, 543 U.S. at 380).
Here, there is no basis in § 1231(a)(6) to fashion a class
of aliens that is not explicitly enumerated in the provision—if
we were to hold that only aliens like Guerrero-Sanchez were
entitled to bond hearings, then we would be acknowledging
and distinguishing a specific class of aliens that is not
ostensibly recognized anywhere in the text or legislative
history of the INA. See Clark, 543 U.S. at 378 (“To give [the
words ‘may be detained beyond the removal period,’ in
§ 1231(a)(6)] a different meaning for each category [of aliens]
would be to invent a statute rather than interpret one.”). Such
a reading of § 1231(a)(6) would be implausible, and would
therefore constitute an inappropriate application of the canon
risk of error when the possible injury to the individual’—
deprivation of liberty—is so significant, a clear and convincing
evidence standard of proof provides the appropriate level of
procedural protection.” (quoting Addington v. Texas, 441 U.S.
418, 427 (1979))); Lora v. Shanahan, 804 F.3d 601, 616 (2d
Cir. 2015) (“[W]e also hold that the detainee must be admitted
to bail unless the government establishes by clear and
convincing evidence that the immigrant poses a risk of flight
or a risk of danger to the community.”), cert. granted,
judgement vacated on other grounds, 138 S. Ct. 1260 (2018).
34
of constitutional avoidance. See Jennings, 138 S. Ct. at 843
(“Spotting a constitutional issue does not give a court the
authority to rewrite a statute as it pleases. Instead, the canon
permits a court to ‘choos[e] between competing plausible
interpretations of a statutory text.’” (quoting Clark, 543 U.S. at
381)). Accordingly, our interpretation applies to all classes of
aliens that are enumerated in § 1231(a)(6)—i.e., aliens who are
inadmissible under 8 U.S.C. § 1182, removable under 8 U.S.C.
§ 1227(a)(1)(C), (a)(2), or (a)(4), or who have “been
determined by the Attorney General to be a risk to the
community or unlikely to comply with the order of removal,”
8 U.S.C. § 1231(a)(6)—because “[t]he operative language of
§ 1231(a)(6), ‘may be detained beyond the removal period,’
applies without differentiation to all three categories of aliens
that are its subject.” Clark, 543 U.S. at 378 (quoting 8 U.S.C.
§ 1231(a)(6)).
We emphasize, however, that aliens detained under
§ 1231(a)(6) are only entitled to a bond hearing after prolonged
detention.13 We therefore must determine when a detention
becomes prolonged. In order to identify “the specific dictates
13
Put differently, our decision today does not hold that
Congress intended for § 1231(a)(6) to contain an immediate
bond hearing at the instant that an alien’s removal order
becomes final. See Diouf, 634 F.3d at 1091 (“Our focus here .
. . is on prolonged detention.”). Furthermore, we emphasize
that aliens are not necessarily entitled to release after
prolonged detention. Rather, they are owed only a bond
hearing before an immigration judge to determine if they pose
either a flight risk or a danger to the community. An alien will
be released only if the immigration judge answers both
inquiries in the negative.
35
of due process” in this context, we apply the three-part test that
the Supreme Court enunciated in Mathews v. Eldridge, 424
U.S. 319, 355 (1976). That test provides that we weigh three
factors:
First, the private interest that will be affected by
the official action; second, the risk of an
erroneous deprivation of such interest through
the procedures used, and the probable value, if
any, of additional or substitute procedural
safeguards; and finally, the Government’s
interest, including the function involved and the
fiscal and administrative burdens that the
additional or substitute procedural requirement
would entail.
Id. Under § 1231(a)(6), “[w]hen detention crosses the six-
month threshold and release or removal is not imminent, the
private interests at stake are profound” and “the risk of an
erroneous deprivation of liberty in the absence of a hearing
before a neutral decisionmaker is substantial.” Diouf, 634 F.3d
at 1091-92; id. at 1092 n.13 (“As a general matter, detention is
prolonged [under § 1231(a)(6)] when it has lasted six months
and is expected to continue more than minimally beyond six
months.”). This is because “the constitutional case for
continued detention without inquiry into its necessity becomes
more and more suspect as detention continues . . . .” Diop, 656
F.3d at 234; see also Zadvydas, 533 U.S. at 701 (providing that
due process analysis is altered as “the period of . . .
confinement grows”).
Correspondingly, the fiscal and administrative burden
on the Government of requiring a bond hearing before an
immigration judge is diminished in light of our estimation that
36
the incidence of these hearings will be manageable since the
vast majority of removal orders are executed well before six
months.14 As such, “[t]he burden imposed on the
[G]overnment by requiring hearings before an immigration
judge at [the post-removal] stage of the proceedings is . . . a
reasonable one.” Diouf, 634 F.3d at 1092. Indeed, in
Zadvydas, the Supreme Court, while interpreting § 1231(a)(6)
in a related context, adopted a presumption that aliens could be
reasonably detained without a hearing for six months because
there is “reason to believe . . . that Congress previously
doubted the constitutionality of detention for more than six
months.” 533 U.S. 678, 701 (citing Juris. Statement in United
States v. Witkovich, O.T.1956, No. 295, pp. 8-9). We therefore
adopt a six-month rule here—that is, an alien detained under
14
See, e.g., United States v. Castro-Verdugo, 750 F.3d
1065, 1074 (9th Cir. 2014) (“[T]he median time spent by
defendants in immigration custody prior to a removal in Fall of
2012 (including people who did not concede removability) was
10 days, with 40 percent of aliens spending three days or less
in immigration detention prior to their removal.” (citing Legal
Noncitizens Receive Longest ICE Detention, Transactional
Records Access Clearinghouse (June 3, 2013), Table 3:
Statistics on Detention Time by Detailed “Book-out” Reason,
http://trac.syr.edu/immigration/reports/321/ (finding that, in
November and December 2012, ninety-eight percent of
detainees were removed within six-months after removal order
was entered, and that post-removal median detention length
was ten days and average detention length was twenty-seven
days))).
37
§ 1231(a)(6) is generally entitled to a bond hearing after six
months (i.e., 180 days) of custody.15
B. Chevron Deference
In interpreting § 1231(a)(6) to avoid the serious due
process concerns identified above, we recognize that we are
declining to defer to relevant DHS regulations. When a statute
is ambiguous, we “normally apply Chevron deference to the
agency’s interpretation of the statute, so long as that
construction was reasonable.” Romanishyn v. Attorney Gen. of
U.S., 455 F.3d 175, 183 (3d Cir. 2006). However, although we
consider the canon of constitutional avoidance to “defin[e] the
scope of a congressional delegation in light of an agency’s
actual interpretation,” Am. Farm Bureau Fed’n v. U.S. E.P.A.,
792 F.3d 281, 301 (3d Cir. 2015), we do not defer to an
agency’s interpretation of a statute that raise serious
constitutional doubts. See Miller v. Johnson, 515 U.S. 900,
15
However, we agree with the Ninth Circuit that “[i]f
the 180-day threshold has been crossed, but the alien’s release
or removal is imminent . . . [then] the government [is not]
required to afford the alien a [bond] hearing before an
immigration judge.” Diouf, 634 F.3d at 1092 n.13. We do so
to ensure the uniform and national administration of bond
hearings pursuant to § 1231(a)(6). See, e.g., Kahn v. INS, 36
F.3d 1412, 1414 (9th Cir. 1994) (“The INA ‘was designed to
implement a uniform federal policy,’ and the meaning of
concepts important to its application . . . ‘require[ ] a uniform
federal definition.’” (quoting Rosario v. INS, 962 F.3d 1412,
1414 (9th Cir. 1994))). We emphasize that this exception is
narrow, and that it applies only in instances where detention
“is expected to continue more than minimally beyond six
months.” Diouf, 634 F.3d at 1092 n.13.
38
923 (1995) (“[W]e think it inappropriate for a court engaged in
constitutional scrutiny to accord deference to [an agency’s]
interpretation of [a statute].”); Rust v. Sullivan, 500 U.S. 173,
207 (1991) (“It is thus implausible that, after Chevron, agency
interpretations of ambiguous statutes will prevail even if the
consequence of those interpretations is to . . . raise
serious constitutional doubts” (quoting Cass R. Sunstein, Law
and Administration After Chevron, 90 COLUM L. REV. 2071,
2113 (1990))); Solid Waste Agency of N. Cook Cty. v. U.S.
Army Corps of Eng’rs, 531 U.S. 159, 173-74 (2001) (refusing
to apply Chevron deference where “significant constitutional
questions [are] raised”); Hernandez-Carrera, 547 F.3d at 1249
(“It is well established that the canon of constitutional
avoidance does constrain an agency’s discretion to interpret
statutory ambiguities, even when Chevron deference would
otherwise be due.”); Nat’l Mining Ass’n v. Kempthorne, 512
F.3d 702, 711 (D.C. Cir. 2008) (“This canon of constitutional
avoidance trumps Chevron deference, and we will not submit
to an agency’s interpretation of a statute if it ‘presents serious
constitutional difficulties.’” (quoting Chamber of Commerce v.
FEC, 69 F.3d 600, 605 (D.C. Cir. 1995)) (citation omitted));
Kim Ho Ma v. Ashcroft, 257 F.3d 1095, 1105 n.15 (9th Cir.
2001) (“Chevron principles are not applicable where a
substantial constitutional question is raised by an agency’s
interpretation of a statute it is authorized to construe.” (citation
omitted)).
Such is the case here. The DHS regulations that
implement the Government’s detention authority under
§ 1231(a)(6) themselves “raise serious constitutional
concerns.” Diouf, 634 F.3d at 1091. These regulations—
8 C.F.R. §§ 241.4 and 241.13—provide administrative custody
reviews after 90 days, 180 days, and 18 months, see 8 C.F.R.
39
§ 241.4(k)(2)(ii)-(iii), by DHS employees who are not
ostensibly neutral decision makers such as immigration judges.
Importantly, the regulations also place the burden on the alien,
rather than the Government, to prove that he or she is not a
flight risk or a danger to the society, see 8 C.F.R. § 241.4(d)(1),
and “there is no appeal from [DHS’s] . . . decision.” 8 C.F.R.
§ 241.4(d); see also 8 C.F.R. § 241.13(g)(2).16
This procedure fails to account for the Supreme Court’s
admonition that “the Constitution may well preclude granting
‘an administrative body the unreviewable authority to make
determinations implicating fundamental rights.’” Zadvydas,
533 U.S. at 692 (quoting Superintendent, Mass. Corr. Inst. at
Walpole v. Hill, 472 U.S. 445, 450 (1985)). We therefore
decline to apply Chevron deference to the Government’s
interpretation of § 1231(a)(6). See Diouf, 634 F.3d at 1091
(declining to defer to DHS regulations that implement post-
removal detention).
IV. CONCLUSION
As we have discussed throughout our decision, our
holding today is in line with that of the Ninth Circuit, the sole
16
In the narrow circumstances that an alien is
determined to have “no significant likelihood of removal in the
reasonably foreseeable future,” 8 C.F.R. § 241.14(a)(1), and if
ICE determines that he or she is “specially dangerous,” then it
refers that ruling to an immigration judge for review, who must
conduct a “reasonable cause hearing” before making a merits
determination, id. § 241.14(g). The immigration judge’s
determination on the merits may be appealed by either party to
the BIA. Id. § 241.14(i)(4).
40
court of appeals to have also addressed this issue. See Diouf,
634 F.3d at 1082. Diouf is not controlling on us, yet it is
instructive. We are also “reluctant to create [a] circuit split[],”
and only do so “where a ‘compelling basis exists.’” Parker v.
Montgomery Cty. Corr. Facility/Bus. Office Manager, 870
F.3d 144, 152 (3d Cir. 2017) (quoting Karlo v. Pittsburgh
Glass Works, LLC, 849 F.3d 61, 75 n.7 (3d Cir. 2017)). This
reluctance is especially acute “where the rules at issue ‘are best
applied uniformly.’” Padilla-Ramirez, 882 F.3d at 836
(quoting Kelton Arms Condo. Owners Ass’n, Inc. v. Homestead
Ins. Co., 346 F.3d 1190, 1192 (9th Cir. 2003)). Here, the INA
“certainly falls into this category” because it is “a
comprehensive federal scheme that requires a nationally
unified administration program.” Id.; see also Arizona v.
United States, 567 U.S. 387, 401 (2012) (describing federal
immigration law as “a comprehensive and unified system”).
Our decision today aligns this Court’s law with that of our
sister circuit, and therefore effectuates Congress’s directive
that “the immigration laws of the United States should be
enforced vigorously and uniformly.” Immigration Reform and
Control Act of 1986, Pub.L. 99-603, § 115, 100 Stat. 3384
(emphasis added).
Here, Guerrero-Sanchez was detained by ICE from May
2015 to February 2017, and he was provided a bond hearing
only after 637 days in civil detention. Pursuant to our limiting
construction of § 1231(a)(6), he was owed a hearing because
he was detained well beyond six months. According to the
Government, Guerrero-Sanchez should not have received a
bond hearing at any point before his withholding-only
proceeding takes place, which is not scheduled until September
5, 2019. The Government contends that it may detain
Guerrero-Sanchez under § 1231(a)(6) for, at a minimum, fifty-
41
three months without inquiry into the necessity of his
detention. For all of the reasons discussed supra, we find to
the contrary and hold that Guerrero-Sanchez’s detention was
unquestionably prolonged. We will therefore affirm on
alternative grounds the District Court’s decision to afford
Guerrero-Sanchez a bond hearing.17
17
Because we conclude that a bond hearing was
statutorily required, and the Government withdrew its appeal
of the District Court’s determination at the bond hearing to
release Guerrero-Sanchez subject to certain conditions, the
District Court’s order pertaining to Guerrero-Sanchez’s release
will be left undisturbed.
42
Rafael Ignacio Guerrero-Sanchez
Nos. 16-4134 and 17-1390
RENDELL, Circuit Judge, concurring:
I concur in the majority’s reasoning and result but
believe that neither 8 U.S.C. § 1226(a) nor § 1231(a) clearly
addresses the detention of one whose removal order has been
reinstated but who has filed for withholding of removal. The
majority chooses to apply § 1231(a)(6) because, given the
finality of a reinstated removal order, a decision as to whether
Guerrero-Sanchez is to be removed from the United States is
not “pending.” While § 1226(a) may be intended to apply
before a removal order is entered, the provision for bond
hearings under § 1226(a) may be better suited to the instant
situation, since withholding proceedings are protracted, and
can remain pending for years. Two other Courts of Appeals
have considered this issue, each reasoning thoughtfully to a
different conclusion.1 Thus, I submit that legislative
1
In Padilla-Ramirez v. Bible, 882 F.3d 826 (9th Cir. 2017),
the court found a reinstated removal order to be
administratively final for the purpose of detention, despite the
detainee’s ongoing withholding proceedings, and thus found
detention to be appropriate under § 1231(a). In Guerra v.
Shanahan, 831 F.3d 59 (2d Cir. 2016), the court reasoned that
proceedings were not administratively final until the
detainee’s withholding proceedings had been adjudicated, and
thus found § 1226(a) to apply.
clarification is needed in order to addresses the specific
detention issue before us.2
Section 1231(a) anticipates that removal is certain, yet
Guerrero-Sanchez’s reinstated removal order is not
administratively final, as his withholding proceedings are
ongoing. C.f. Majority Opinion at 17. Indeed, nearly every
Court of Appeals to have considered the issue of finality of a
reinstated removal order has held that there is no
administrative finality until the agency has adjudicated the
request for withholding of removal. See Guerra v. Shanahan,
831 F.3d 59, 63–64 (2d Cir. 2016); Jimenez-Morales v. Att’y
Gen., 821 F.3d 1307, 1308 (11th Cir. 2016), cert. denied sub
nom. Jimenez-Morales v. Lynch, 137 S. Ct. 685 (2017);
Ponce-Osorio v. Johnson, 824 F.3d 502, 506–07 (5th Cir.
2016); Luna-Garcia v. Holder, 777 F.3d 1182, 1185–86 (10th
Cir. 2015); Ortiz-Alfaro v. Holder, 694 F.3d 955, 958 (9th
Cir. 2012); but see Padilla-Ramirez v. Bible, 882 F.3d 826,
832 (9th Cir. 2017). See also Shehu v. Att’y Gen., 482 F.3d
652, 656 (3d Cir. 2007) (holding that an order is final when
the alien is entitled to “no further process” before they are
removed). Granted, Guerrero-Sanchez’s removal order has
been reinstated, and thus not subject to appeal. Nonetheless, it
is not final in the true sense of the word.3
2
Although we have construed § 1231(a)(6) to require a bond
hearing after prolonged detention, § 1226(a) requires such a
hearing at the outset to determine whether an alien can be
detained, so the application of one section versus the other
has significant ramifications.
3
First, an alien subject to a reinstated removal order may not
be removed from the United States until withholding
proceedings have concluded and administrative proceedings
2
As the Majority notes, Guerrero-Sanchez was detained
under § 1231(a)(6) for 637 days (approximately 21 months)
while his withholding proceedings remained, and continue to
remain, pending. Guerrero-Sanchez was detained by ICE in
May of 2015 and his withholding-only proceedings are
scheduled for September 5, 2019, after which it may take
months for a final decision to be issued, subject to further
appeals. Thus, Guerrero-Sanchez would potentially have been
detained for over four years absent a bond hearing and grant
are truly final. Second, practically speaking, if an alien is
granted withholding of removal to the designated country, he
may never be removed at all, and thus removal contemplated
by § 1231(a) is even less certain. Here, if Guerrero-Sanchez is
granted withholding of removal to Mexico based on his
reasonable fear of future persecution or his CAT claim, he
may never be removed from the United States. Although
prevailing on a withholding or CAT claim “would not
prohibit [Guerrero-Sanchez’s] removal from the United States
to an alternative, non-risk country,” Majority Opinion at 16,
actual removal to a third, alternate country is rare. To do so,
the U.S. Government must show a tie between the alien and
the third country to satisfy the requirements of 8 U.S.C.
§§ 1231(b)(2)(D) and (E), and that country must also be
willing to accept the alien. See, e.g., Himri v. Ashcroft, 378
F.3d 932, 936–38 (9th Cir. 2004) (the government did not
carry its burden of showing that petitioners, Palestinians who
lived in Kuwait but had Jordanian passports, who were
entitled to withholding of removal to Kuwait, were removable
to Jordan, nor did the government show that Jordan would be
willing to accept petitioners). Often, no such alternate country
exists, and the alien who is granted withholding of removal
remains in the United States indefinitely.
3
of release. Alternatively, an initial bond hearing under §
1226(a) would release those aliens who should not be
detained—those who neither pose a risk of flight nor danger
to their communities—without detaining them for over 6
months before they can raise a due process challenge to the
prolonged nature of their detention.4 See Majority Opinion at
35-38.
Thus, I urge that legislative action is needed to clarify
whether someone in Guerrero-Sanchez’s position is
statutorily entitled to a bond hearing.
4
Although I recognize that the application of § 1226 to
Guerrero-Sanchez would not automatically afford him a bond
hearing due to his criminal conviction, see Majority Opinion
at 17 n.6, mandatory detention under either section for many
months, even years, could raise serious due process concerns.
4