FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RAUL PADILLA-RAMIREZ,

Plaintiff-Appellant,

v.

DANIEL A. BIBLE; JEH CHARLES

JOHNSON; JEFFERSON B. SESSIONS

III, Attorney General; RICK LAYHER,

Defendants-Appellees.

No. 16-35385

D.C. No.

1:16-cv-00127-

BLW

OPINION

Appeal from the United States District Court

for the District of Idaho

B. Lynn Winmill, Chief Judge, Presiding

Argued and Submitted March 13, 2017

San Francisco, California

Filed July 6, 2017

Before: J. Clifford Wallace, M. Margaret McKeown,

and Jay S. Bybee, Circuit Judges.

Opinion by Judge Wallace
2 PADILLA-RAMIREZ V. BIBLE

SUMMARY*

Immigration / Habeas Corpus

The panel affirmed the district court’s judgment denying

Raul Padilla-Ramirez’s habeas corpus petition, in which he

sought a custody redetermination as he awaits the outcome of

administrative proceedings to determine whether he has a

reasonable fear of returning to his native country of El

Salvador.

8 U.S.C. § 1226(a) grants the Attorney General discretion

to detain an alien pending a decision on whether the alien is

to be removed from the United States, and permits the

Attorney General to release the alien on bond or conditional

parole. Pursuant to 8 C.F.R. § 236.1(d)(1), an initial custody

determination under section 1226(a) is made by the district

director, but the detainee may request an additional bond

hearing before an immigration judge. 8 U.S.C. § 1231(a)

provides for mandatory detention during a ninety-day

removal period, and discretionary detention beyond the

removal period, but the bond hearing authorized under

8 C.F.R. § 236.1(d)(1) does not apply to detentions

authorized under section 1231(a).

Padilla-Ramirez’s entitlement to a bond hearing hinged

on whether he is detained pursuant to section 1226(a) or

section 1231(a). The panel held that reinstated removal

orders are administratively final, and that the detention of

aliens subject to reinstated removal orders is governed by

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
PADILLA-RAMIREZ V. BIBLE 3

section 1231(a), rather than section 1226(a). Padilla-Ramirez

was therefore not entitled to a bond hearing.

The panel noted that its decision creates a circuit split

with the Second Circuit’s decision in Guerra v. Shanahan,

831 F.3d 59 (2d Cir. 2016).

COUNSEL

Maria E. Andrade (argued), Benjamin E. Stein (argued), and

Christine M. Meeuwsen, Andrade Legal, Boise, Idaho, for

Plaintiff-Appellant.

Brian C. Ward (argued), Trial Attorney; Elizabeth J. Stevens,

Assistant Director; William C. Peachey, Director; Benjamin

C. Mizer, Principal Deputy Assistant Attorney General;

District Court Section, Office of Immigration Litigation,

United States Department of Justice, Washington, D.C.; for

Defendants-Appellees.

OPINION

WALLACE, Circuit Judge:

Raul Padilla-Ramirez appeals from the district court’s

judgment denying his habeas corpus petition, in which he

seeks a custody redetermination as he awaits the outcome of

administrative proceedings to determine whether he has a

reasonable fear of returning to his native country of El

Salvador. We have jurisdiction pursuant to 28 U.S.C. § 1291,

and we affirm.
4 PADILLA-RAMIREZ V. BIBLE

I.

We review the district court’s denial of Padilla-Ramirez’s

habeas petition de novo. Singh v. Holder, 638 F.3d 1196,

1202 (9th Cir. 2011). We also review questions of statutory

construction de novo. See Hing Sum v. Holder, 602 F.3d

1092, 1095 (9th Cir. 2010).

II.

The facts of this case are undisputed. In 1999, PadillaRamirez unlawfully entered the United States without

applying for admission or parole. When Immigration and

Customs Enforcement (ICE) initiated removal proceedings

against himin 2006, Padilla-Ramirez sought to avoid removal

by applying for asylum, withholding of removal, and relief

under the Convention Against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment

(Convention). These applications were denied, but the

immigration judge (IJ) allowed Padilla-Ramirez to depart the

country voluntarily. In the event that Padilla-Ramirez failed

to depart timely, the order of voluntary departure would

become an order of removal.

Padilla-Ramirez appealed unsuccessfully the IJ’s orders

to the Board of Immigration Appeals (Board). He managed to

obtain a sixty-day extension of his voluntary departure

period, but failed to depart by the deadline. As a result, the

voluntary departure order was converted into a removal order

that became effective on January 25, 2009. ICE removed

Padilla-Ramirez to El Salvador in February 2010.

In December 2015, ICE discovered that Padilla-Ramirez

had re-entered the country illegally and was being detained in
PADILLA-RAMIREZ V. BIBLE 5

Idaho in connection with a state criminal prosecution. ICE

promptly reinstated Padilla-Ramirez’s original removal order

pursuant to 8 U.S.C. § 1231(a)(5) and, following the

dismissal of his state charges, took custody of PadillaRamirez in February2016. Padilla-Ramirez then asserted that

he feared returning to El Salvador and was referred to an

asylum officer for a reasonable fear determination pursuant

to 8 C.F.R. § 208.31. The asylum officer found that PadillaRamirez had stated a reasonable fear of persecution or torture

if he were removed to El Salvador and referred him to an IJ

to determine whether he is eligible for withholding of

removal or protection under the Convention. These

“withholding-only” proceedings are ongoing.

Padilla-Ramirez filed the instant habeas petition after the

IJ denied his request for a bond hearing on grounds that she

lacked jurisdiction to consider the request. The district court

denied the petition on substantially the same grounds,

concluding that Padilla-Ramirez is detained pursuant to a

provision of the Immigration and Nationality Act (Act) that

does not allow for bond hearings. Padilla-Ramirez appeals.

III.

Our task in this case is to determine which provision of

the Act governs Padilla-Ramirez’s detention. Padilla-Ramirez

argues that he is detained pursuant to 8 U.S.C. § 1226(a),

which grants the Attorney General discretion to detain an

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

removed from the United States.” 8 U.S.C. § 1226(a)(1).

That section also permits the Attorney General to release the

alien on bond or conditional parole. Id. § 1226(a)(2).

Pursuant to regulations, an initial custody determination

under section 1226(a) is made by the district director, but the
6 PADILLA-RAMIREZ V. BIBLE

detainee may request an additional bond hearing before an IJ.

8 C.F.R. § 236.1(d)(1). As stated, Padilla-Ramirez requested

such a bond hearing, but the IJ denied his request.

Conversely, the government contends that PadillaRamirez is detained pursuant to 8 U.S.C. § 1231(a). Section

1231(a) provides for mandatorydetention during a ninety-day

“removal period,” id. § 1231(a)(2), and discretionary

detention “beyond the removal period,” id. § 1231(a)(6). The

bond hearing authorized under 8 C.F.R. § 236.1(d)(1) does

not apply to detentions authorized under section 1231(a).

Thus, Padilla-Ramirez’s entitlement to a bond hearing hinges

on whether he is detained pursuant to section 1226(a) or

section 1231(a).

Our decision only addresses Padilla-Ramirez’s

entitlement to an initial bond hearing under 8 C.F.R. § 236.1.

We do not address Padilla-Ramirez’s entitlement to a bond

hearing after prolonged detention. We previously have held

that “individuals detained under § 1231(a)(6) are entitled to

the same procedural safeguards against prolonged detention

as individuals detained under § 1226(a).” Diouf v.

Napolitano, 634 F.3d 1081, 1084 (9th Cir. 2011).

A.

Our analysis begins with the text of the provisions at

issue. Am. Tobacco Co. v. Patterson, 456 U.S. 63, 68 (1982).

Section 1226(a)’s detention authority applies “pending a

decision on whether the alien is to be removed from the

United States.” 8 U.S.C. § 1226(a). By contrast, section

1231(a) applies during an alien’s “removal period,” id.

§ 1231(a)(2), which begins on the latest of three dates:

(1) “[t]he date the order of removal becomes administratively
PADILLA-RAMIREZ V. BIBLE 7

final”; (2) “[i]f the removal order is judicially reviewed and

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

the court’s final order”; or (3) “[i]f the alien is detained or

confined (except under an immigration process), the date the

alien is released from detention or confinement,” id.

§ 1231(a)(1)(B)(i)–(iii).

We are concerned here only with the date of

administrative finality. See id. § 1231(a)(i)(B)(i). Although

Padilla-Ramirez may seek judicial review of an adverse

decision in his withholding-only proceedings, AndradeGarcia v. Lynch, 828 F.3d 829, 833 (9th Cir. 2016), that

review would be confined to the order relating to his

application for withholding; the court would not review the

reinstated removal order itself. See 8 U.S.C. § 1231(a)(5).

Section 1231(a)(1)(B)(ii) therefore is inapplicable. Diouf v.

Mukasey, 542 F.3d 1222, 1230 (9th Cir. 2008) (holding that

“the plain text of” section 1231(a)(1)(B)(ii) “entail[s] judicial

review of a removal order”). Section 1231(a)(1)(B)(iii) does

not apply either because “an immigration process” is the

only basis for Padilla-Ramirez’s detention. 8 U.S.C.

§ 1231(a)(1)(B)(iii).

The question before us, then, is whether PadillaRamirez’s reinstated removal order is administratively final.

If it is, then section 1231(a) controls. If not, then section

1226(a) provides the only authority for detaining him.

Under the Act, a removal order becomes final “upon the

earlier of . . . a determination by the Board . . . affirming such

order . . . or the expiration of the period in which the alien is

permitted to seek review of such order by the Board.” Id.

§ 1101(a)(47)(B)(i)–(ii). This definition has limited utility in

the context of reinstated removal orders because such orders
8 PADILLA-RAMIREZ V. BIBLE

cannot be reopened or reviewed. Id. § 1231(a)(5). Indeed, we

previously have concluded that “this statutory definition of

finality does not dictate a clear answer here because there is

no way to appeal the reinstatement of a removal order to the

[Board].” Ortiz-Alfaro v. Holder, 694 F.3d 955, 958 (9th Cir.

2012). Accordingly, we must look elsewhere to determine the

statute’s meaning.

The government urges us to defer to a federal regulation

which, it contends, answers the question before us. That

regulation reads: “Execution of the reinstated order of

removal and detention of the alien shall be administered in

accordance with this part.” 8 C.F.R. § 241.8(f). “[T]his part”

refers to Part 241, which contains regulations implementing

section 1231. On its face, this regulation appears to indicate

that Padilla-Ramirez is detained pursuant to that section.

However, the only detention regulation in Part 241 that could

apply to an alien like Padilla-Ramirez simply states that

“[o]nce the removal period defined in section 241(a)(1) of the

Act begins, an alien in the United States will be taken into

custody pursuant to the warrant of removal.” Id. § 241.3(a).

This regulation therefore does not answer the question of

when the removal period begins, unless one assumes that the

removal period commences automatically when a removal

order is reinstated and is not disturbed by withholding-only

proceedings. But these assumptions beg the very questions at

issue. Because the regulation does not answer the question

presented, we will conduct our own review of the statute.

Reinstatement of a removal order is governed by section

1231(a)(5), which reads as follows:

If the Attorney General finds that an alien has

reentered the United States illegally after
PADILLA-RAMIREZ V. BIBLE 9

having been removed or having departed

voluntarily, under an order of removal, the

prior order of removal is reinstated from its

original date and is not subject to being

reopened or reviewed, the alien is not eligible

and may not apply for any relief under this

chapter, and the alien shall be removed under

the prior order at any time after the reentry.

8 U.S.C. § 1231(a)(5). This provision indicates, in two ways,

that a reinstated removal order is administratively final. First,

a removal order undoubtedly is administratively final when

it first is executed; if it is reinstated from its original date, it

stands to reason that it retains the same administrative finality

because section 1231(a)(5) proscribes any challenge that

might affect that status. Second, the reinstatement provision

is located in the same section of the Act, tellingly entitled

“Detention and removal of aliens ordered removed,” id.

§ 1231 (emphasis added), as the detention authority that the

government claims in this case. This placement suggests that

Congress meant for the detention of aliens subject to

reinstated removal orders to be governed by that section,

which would require that such orders be administratively

final. The fact that the reinstatement provision appears among

section 1231(a)’s detention and supervision provisions further

bolsters this inference. Id. § 1231(a)(2)–(3), (6).

Notwithstanding section 1231(a)(5)’s mandatory

language, it offers some leeway with respect to withholdingonly proceedings. Andrade-Garcia, 828 F.3d at 831. Such

proceedings are an exception to the general prohibition

against seeking relief from removal pursuant to a reinstated

order. See 8 C.F.R. § 241.8(e). Furthermore, the Department

of Homeland Security likely “cannot execute the reinstated
10 PADILLA-RAMIREZ V. BIBLE

removal order until the reasonable fear and withholding of

removal proceedings are complete.” Luna-Garcia v. Holder,

777 F.3d 1182, 1183 (10th Cir. 2015), citing 8 C.F.R.

§§ 208.1(a), 208.5(a). This removal moratorium would

override section 1231(a)(5)’s command that “the alien shall

be removed under the prior order at any time after the

reentry.” 8 U.S.C. § 1231(a)(5) (emphasis added). It is thus

clear that some aspects of section 1231(a)(5) do not apply

with full force to an alien involved in withholding-only

proceedings.

Withholding-only proceedings do not, however, purport

to override section 1231(a)(5)’s prohibition on reopening or

reviewing a reinstated order. See Ortiz-Alfaro, 694 F.3d at

958 (stating that a grant or denial of withholding would “have

no effect on the reinstatement of [the] removal order” at issue

in that case). At most, a grant of withholding will only inhibit

the order’s execution with respect to a particular country.

Even if Padilla-Ramirez were to prevail on his application, he

still would be subject to removal pursuant to the reinstated

order—the government simply would have to seek an

alternate country to receive him. See 8 U.S.C. § 1231(b)(2);

Lanza v. Ashcroft, 389 F.3d 917, 933 (9th Cir. 2004)

(acknowledging that withholding relief “only prohibits

removal of the [alien] to the country of risk, but does not

prohibit removal to a non-risk country” (quoting CastellanoChacon v. INS, 341 F.3d 533, 545 (6th Cir. 2003))). The

removal order itself therefore is not at issue in the

withholding-only proceedings, meaning that those

proceedings cannot diminish or otherwise affect its finality.

Because Padilla-Ramirez’s reinstated removal order remains

administratively final, he is detained pursuant to section

1231(a).
PADILLA-RAMIREZ V. BIBLE 11

B.

Section 1226(a), which applies only while “a decision on

whether the alien is to be removed from the United States” is

“pending,” 8 U.S.C. § 1226(a), is not to the contrary because

such a decision is not pending in Padilla-Ramirez’s

withholding-only proceedings. The decision to be made in

those proceedings is not whether he is to be removed from the

United States, but merely whether he may be removed to El

Salvador. 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.

The fact that the government may still remove PadillaRamirez, albeit to an alternate country, even if he is granted

withholding confirms that the decision identified in section

1226(a) has already been made—he is “to be removed from

the United States.” Id. (emphasis added). That decision

therefore is not pending, meaning that section 1226(a) cannot

apply. The fact that Padilla-Ramirez 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).

In this respect, Zadvydas v. Davis, 533 U.S. 678 (2001),

is instructive. There, an alien (Zadvydas) had been ordered

removed and was detained pursuant to section 1231(a). See

id. at 683–84. As it turned out, none of the available countries

of removal were willing to accept him. Id. at 684. Zadvydas

then challenged his continuing detention, which appeared at

that point to be potentially permanent. Id. at 684–85. The

Supreme Court, relying on the canon of constitutional
12 PADILLA-RAMIREZ V. BIBLE

avoidance, held that the government’s detention authority

under section 1231(a) terminates “once removal is no longer

reasonably foreseeable.” Id. at 699. But even in such a

circumstance, section 1231(a) still controls: although the

government cannot detain the alien, the alien is subject to

supervision under section 1231(a)(3). See id. at 696.

Like Zadvydas, Padilla-Ramirez is subject to an order of

removal that is, by all appearances, administratively final.

Like Zadvydas, the only obstacles to Padilla-Ramirez’s

removal from the United States are potential individualized

determinations that he cannot be removed to specific

countries. There is an obvious distinction between the two

cases in that those determinations may be made in domestic

administrative proceedings in Padilla-Ramirez’s case,

whereas Zadvydas was made unremovable by virtue of other

countries’ refusals to accept him. However, the touchstone of

section 1226 is the nature of the decision to be made, not the

identity of the decision-maker, and the decision to be made in

this case is the same as in Zadvydas: whether PadillaRamirez’s removal order may be executed with respect to

particular countries. The fact that Zadvydas was detained

pursuant to section 1231(a) even while the government cycled

through the list of possible removal countries indicates that

such country-specific determinations are not “decision[s] on

whether the alien is to be removed from the United States.”

8 U.S.C. § 1226(a). Accordingly, section 1226(a) has no

application here.

C.

Padilla-Ramirez argues that we are foreclosed from

holding that section 1231(a) governs his detention because we

have already decided that reinstated removal orders are not
PADILLA-RAMIREZ V. BIBLE 13

final during the pendency of withholding-only proceedings.

In Ortiz-Alfaro v. Holder, an alien subject to a reinstated

removal order sought to challenge a federal regulation

governingwithholding-onlyproceedings because it prevented

him from applying for asylum. 694 F.3d at 956. At the time

he filed his petition for review, however, his withholdingonly proceedings were still ongoing. Id. at 957. We held that

we lacked jurisdiction to review the petition because the

reinstated removal order would not become “final” for

purposes of judicial review pursuant to 8 U.S.C. § 1252(a)(1)

until the alien’s withholding-only proceedings concluded. Id.

at 957–58.

At first blush, Ortiz-Alfaro appears to support PadillaRamirez’s position. But the case is readily distinguishable

because its holding rested on the canon of constitutional

avoidance. We acknowledged that there were “compelling

arguments in favor of finding that [the alien’s] reinstated

removal order [wa]s final,” but observed that such a

conclusion “would make it impossible for [the alien] to

timely petition for review of any IJ decisions denying him

relief or finding that he does not have a reasonable fear.” Id.

at 958. Because this “could raise serious constitutional

concerns,” we decided that the reinstated order would not

become final for judicial review purposes until the conclusion

of the alien’s withholding-only proceedings. Id.

Holding 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. In such a situation, the normal

presumption that a particular word has the same meaning in

different parts of a statute can give way if the provision at

issue points toward a different meaning. See Sun v. Ashcroft,
14 PADILLA-RAMIREZ V. BIBLE

370 F.3d 932, 939–40 (9th Cir. 2004). As explained above,

the text and structure of the Act indicate that Congress

intended for section 1231(a) to govern detention of aliens

subject to reinstated removal orders. Ortiz-Alfaro therefore

does not control the outcome of this case.

Our recent decision in Ayala v. Sessions, 855 F.3d 1012

(9th Cir. 2017), is no different. That case came to us in a

somewhat problematic procedural posture. After the

government reinstated the alien’s expedited order of removal,

she expressed a fear of returning to Guatemala. Id. at 1016.

An asylum officer determined that she had not stated a

reasonable fear of persecution or torture, and an IJ affirmed

the officer’s conclusion. Id. The alien then moved to reopen

and reconsider that decision, which the IJ denied. Id. at 1017.

The denial order indicated that it was final unless appealed to

the Board within thirty days. Id. So the alien appealed to the

Board, but the Board lacked jurisdiction to review the appeal

and dismissed it on that basis. Id. The alien then petitioned

for review in this court. Id.

We faced a jurisdictional dilemma. Although the petition

had been filed within four days of the Board’s dismissal of

the alien’s appeal, more than thirty days had elapsed since the

IJ’s denial of the motion to reopen. Id. Thus, whether we had

jurisdiction depended on which of the two orders constituted

a “final order” for purposes of judicial review. See 8 U.S.C.

§ 1252(b)(1). We held that the Board’s dismissal of the

alien’s appeal was the final order for three reasons, two of

which are relevant here. First, because the IJ’s denial of the

motion to reopen effectively(and misleadingly) instructed her

to appeal to the Board, administrative proceedings did not

conclude until the Board issued its order. Ayala, 855 F.3d at

1019. Second, holding that the IJ’s denial was the final order
PADILLA-RAMIREZ V. BIBLE 15

would have cost the alien her only opportunity for judicial

review of the adverse reasonable fear determination. Id.

Citing Ortiz-Alfaro, we reiterated that we generally will not

“apply[] rules in a manner that effects such a total deprivation

of judicial review.” Id. (The third reason involved a practical

concern about delays caused by appeals that the Board

undisputably lacks jurisdiction to review, which does not bear

on this case. Id. at 1019–20.)

Ayala tracks Ortiz-Alfaro in all important respects, as

both cases addressed the finality of reinstated orders for

purposes of judicial review and were decided in large part to

preserve the petitioners’ ability to obtain such review. Our

statement in Ayala that “a removal order is considered final

only when ‘all administrative proceedings have concluded,’”

id. at 1019, quoting Abdisalan v. Holder, 774 F.3d 517, 526

(9th Cir. 2014) (en banc), as amended (Jan. 6, 2015), broke

no new ground. Ortiz-Alfaro stands for the same

proposition—that a reinstated removal order is not “final” for

judicial-review purposes until the relevant administrative

proceedings conclude. The question in Ayala was simply at

what point those proceedings had ended. Accordingly, Ayala

offers no more support than Ortiz-Alfaro for adopting PadillaRamirez’s preferred interpretation of finality in the detention

context.

D.

We are not the first federal appellate court to consider this

issue. In Guerra v. Shanahan, 831 F.3d 59 (2d Cir. 2016), the

Second Circuit, guided by the text of section 1226(a) and

circuit precedents, held that an alien subject to a reinstated

removal order is detained pursuant to section 1226(a) during

withholding-only proceedings. Id. at 62–64. This holding, of
16 PADILLA-RAMIREZ V. BIBLE

course, is contrary to our conclusion that section 1231(a)

applies to aliens like Padilla-Ramirez. Although we are wary

to create a circuit split, we must part company with our sister

circuit here.

For the reasons already explained, we respectfully

disagree with the Second Circuit’s reading of section 1226(a).

In concluding that “the purpose of withholding-only

proceedings is to determine precisely whether ‘the alien is to

be removed from the United States,’” id. at 62, quoting 8

U.S.C. § 1226(a), the court did not paint with a fine enough

brush. The purpose of such proceedings instead is to

determine whether the alien is to be removed to a particular

country (in Padilla-Ramirez’s case, El Salvador). No judge,

agency, or court will be called upon to decide whether

Padilla-Ramirez may be “removed from the United States.”

8 U.S.C. § 1226(a) (emphasis added). Even if the cumulative

effect of the government’s removal efforts is that he cannot

be removed from the country—which is entirely speculative

at this point—he would be no different than the alien in

Zadvydas.

The cases cited by the Second Circuit do not convince us

otherwise. First, the court attempted to draw an analogy to

asylum-only proceedings, whereby an alien obtains entry to

the country by waiving his right to challenge removal except

by applying for asylum. Guerra, 831 F.3d at 63 & n.2, citing

Kanacevic v. INS, 448 F.3d 129 (2d Cir. 2006). In Kanacevic,

the Second Circuit held that it had jurisdiction to review a

denial of asylum notwithstanding the absence of a “final

order of removal,” 8 U.S.C. § 1252(a)(1), because such a

denial “is the functional equivalent of a removal order” in

asylum-only proceedings, Kanacevic, 448 F.3d at 134–35.

The implication in Guerra is that the denial of withholding in
PADILLA-RAMIREZ V. BIBLE 17

withholding-only proceedings is likewise the “functional

equivalent” of a final removal order.

Far from supporting the Second Circuit’s analogy,

Kanacevic underscores a critical distinction between asylumonly proceedings and withholding-only proceedings: in the

former, the denial of asylum is the order of removal.

Consequently, there can be no removal order, final or

otherwise, until the alien’s claim for relief is resolved. Not so

in withholding-only proceedings, where a final removal order

has been not only entered but executed by the time a

withholding-only claim is made. Also, in contrast to

withholding-only proceedings, the removal order itself is at

issue in asylum-only proceedings, as evidenced by the fact

that the order (i.e., denial of asylum) is subject to judicial

review. See id. Finally, Kanacevic, like Ortiz-Alfaro and

Ayala, addressed finality for judicial-review purposes and

was motivated, at least in part, to ensure the availability of

such review. Id. at 135 (“Were we to . . . hold[] that the

disposition of asylum-only proceedings does not function as

a final order of removal . . . , we would create uncertainty

over exactly what procedure a Visa Waiver applicant could

pursue in order to obtain review of his or her asylum

proceedings in the Courts of Appeals”). Kanacevic therefore

is a poor fit in helping to decide this case.

The second case relied on by the Second Circuit, Chupina

v. Holder, 570 F.3d 99 (2d Cir. 2009), stands only for the

unremarkable proposition that a removal order does not

become final for purposes of judicial review until all of an

alien’s claims for relief made during his original removal

proceedings are resolved. Id. at 103, citing 8 U.S.C.

§ 1101(a)(47)(B)(i), (ii); see also Abdisalan, 774 F.3d at 526.

That principle does not answer the question of what effect a
18 PADILLA-RAMIREZ V. BIBLE

new claim for relief has after a final removal order has been

entered, executed, and immunized from reopening or review.

See 8 U.S.C. § 1231(a)(5). Indeed, Chupina’s holding—that

a denial of asylum was not a final removal order because the

Board had remanded the alien’s other claims for

relief—rested largely on the court’s recognition that the

original removal order would be in flux until the IJ and Board

resolved the remanded claims. 570 F.3d at 103. As discussed

above, a grant of withholding in Padilla-Ramirez’s case will

“in no way implicate[] the underlying . . . removal order.”

Ayala, 855 F.3d at 1018. Chupina’s reliance on the Act’s

definition of a final removal order, 570 F.3d at 103, which

“does not dictate a clear answer” in the reinstatement context,

Ortiz-Alfaro, 694 F.3d at 958, further distances that case from

the one before us. As a result, Chupina cannot bear the

weight that the Second Circuit has placed on it.

Finally, the Second Circuit fell back on “principles of

administrative law” to reject the “tiers of finality” that the

government urges in this case. Guerra, 831 F.3d at 63

(internal quotation marks omitted). The Second Circuit is

correct that only an agency action marking “the

consummation of the agency’s decisionmaking process”

qualifies as final agency action. Id., quoting U.S. Army Corps

of Eng’rs v. Hawkes Co., — U.S. —, 136 S. Ct. 1807, 1813

(2016). 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.
PADILLA-RAMIREZ V. BIBLE 19

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 purposes of judicial review of

his withholding-only claim.

IV.

As a general rule, “we decline to create a circuit split

unless there is a compelling reason to do so.” Kelton Arms

Condo. Owners Ass’n, Inc. v. Homestead Ins. Co., 346 F.3d

1190, 1192 (9th Cir. 2003). This is especially true where the

rules at issue “are best applied uniformly.” Id. The

Immigration and Nationality Act, a comprehensive federal

scheme that requires a nationally unified administration

program, certainly falls into this category. While this

consideration ordinarily would counsel in favor of adopting

the Second Circuit’s resolution of the issue before us, we

believe that the legislative intent on this point is in clear

opposition to that resolution. By its terms, section 1231(a)(5)

inoculates reinstated removal orders against any challenge,

and withholding-only proceedings do not override that

proscription. Our own decisions in Ortiz-Alfaro and Ayala,

which addressed finality for judicial-review purposes and

turned principally on avoiding a construction that would

severely inhibit or eliminate that review, are not controlling

in the detention context. Nor are we persuaded by the Second

Circuit’s analysis in reaching the opposite conclusion in

Guerra. So even though it may create discord in our

immigration system, we must give effect to Congress’s

purpose as we understand it. The judgment of the district

court is affirmed. If uniformity is required, we are content to
20 PADILLA-RAMIREZ V. BIBLE

leave it to the Supreme Court to harmonize the resulting split

of authority.

AFFIRMED.