F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

RA U L P A D I L L

A -R A M I R E Z , Plaintiff-Appellant
,

v

.

D A N I E L A

. B I B L E ; J E H C H A R L E S J O H N S ON ; J E F F E R S ON B

. S E S S I ON S I I I , Attorney

General; RI C K L A

Y H E R , Defendants-Appellees. N o. 16-35385

D.C. No. 1:16-cv-00127- B L W

OPI NI ON

Appeal from the United States District Court

f or the District of I daho B

. L y nn W inmill, Chief J udg e, Presiding

Arg ued and Submitted March 13, 2017 San F rancisco, California

F iled J uly 6, 2017

B efore: J . Clifford W allace, M. Marg aret McKeown,

and J ay S. B y bee, Circuit J udg es.

Opinion by

J udg e W allaceP A D I L L A -R A M I R E Z V

. B I B L E 2

SUMMARY *

Im m igration / Habeas Corpus

The panel affirmed the district court’s judg ment denying R aul Padilla-Ramirez ’s habeas corpus petition, in which he
soug h t a custody redetermination as h e awaits the outcome o f administrative p r o c e eding s to determine whether he has a reasonable fear of returning to his native country o f El Salvador.

8 U.S.C. § 1226(a) g rants the Attorney General discretion
to detain an alien pending a decisi o n on whether the alien is
to be removed from the Un i ted States, and permits the Attorney General to release the alien o n bond or conditional parole. Pursuant to 8 C.F .R. § 236.1(d)(1), an initial c ustody determination under section 1226(a) is made by the d i s t rict director, but the detainee may request an add i t i onal bond hearing before an immig ration judg e

. 8 U.S.C. § 1231(a) provides f

or mandatory detention during a n i nety -day removal period, a

n d d i s c retionary d etention bey ond the removal period, but the bond hearing authori z e d under 8 C.F .R. § 236.1(d)(1) does not a pply to d etentions authoriz ed under section 1231(a).

Pa d illa-Ramirez ’s entitlement to a b ond hearing h ing ed

on w hether he is d et ained pursuant to section 1226(a) o r section 1231(a). Th e p a n e l held that reinstated removal orders are administratively final, and that the detention o f aliens subject to reinstated remov al o rders is g overned b y

* T h is su m m ary co n stitu

tes n o p art o f th e o pin io n o f th e co urt. It h as b eenp rep ared b y

co urt staf

f f o r th e co n v en i en ce o f

th e read er.P A D I L L A -R A M I R E Z V

. B I B L E 3

section 1231(a), rather than section 1226(a). Padilla-Ramirez was therefore not entitled to a bond hearing

.

The panel noted that it s d e c i sion 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 (arg

u ed), B enjamin E. Stein (arg u ed), a nd Christine M. Meeuwsen, A ndrade L e g al, B oise, I daho, for Plaintiff-Appellant.

B rian C. W ard (arg

ued), T r ial A ttorney ; E liz abeth J

. Stevens, Assistant Director; W illiam C. Peachey , Director; B e njamin C. Miz er, Principal D eputy Assistant Attorney General; District Court Section, Office of I mmig ratio n L itig ation, United States Department of J ustice, Washing ton, D.C.; for Defendants-Appellees.

OP INION

W A L L ACE, Circuit J udg e :

Raul Padil la-Ramirez appeals f rom the d istrict court’s judg ment denying his habeas corpus petition, in which he seeks a custody

redetermination as he awaits the outcome o f administrative proceeding s to d e t e r mine whether he has a reasonable fear of returning to his native country o f El Salvador. W e h ave jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.P A D I L L A -R A M I R E Z V

. B I B L E 4

I

.

W e review the district court’s denial of Padilla-Ramirez ’s habeas petition d e novo. Singh v. H older
, 638 F .3d 1196, 1202 (9th Cir. 2011). W e a l s o r eview questions o f statutory constructi o n de novo. See Hing Sum v. Holder
, 602 F .3d 1092, 1095 (9th Cir. 2010).

I I

.

The f a cts of this case are undisputed. I n 1999, PadillaRamirez unlawfully e ntered the United S t ates without apply ing for admission or parole. W hen I mmig ration a nd Customs Enforceme n t (I CE) initiated removal proceeding s ag ainst h i m in 2 006, Padilla-Ramirez soug ht to avoid removal by applying for asylum, withholding of rem o val, and relief under the Convention A g a inst Torture and Other Cruel, I n h u m a n o r D e g r a d i n g T r e a t m e n t o r P u n i s h m e n t ( C o nvention). These applications were denied, but the immig ration judg e ( I J ) allowed Padilla-Ramirez to depart the country voluntarily

. I n the event that P a dilla-Ramirez failed
to depart timely
, the order of voluntary departu r e w o uld become an order of removal.

Padilla-Ramirez a p pealed unsuccessfully the I J ’s orders
to the B oard of I mmig ration Appeals (B oard). He manag ed to obtain a six ty -day ex tension of his voluntary departure period, but failed to d epart by the deadline

. As a result, the voluntary departure order was converted into a removal order that became effe c t i ve on J anuary 2 5, 2009. I CE removed Padilla-Ramirez to El Salvador in F ebruary 2010.

I n December 2015, I CE discovered that Padilla-Ramirez had re-entered the country illeg ally a nd was being d etained inP A D I L L A -R A M I R E Z V

. B I B L E 5

I d a h o in connection with a state criminal prosecution. I C E promptly reinstated Padilla-Ramirez ’ s orig inal removal order pursuant to 8 U.S.C. § 1 231(a)(5) a nd, foll o w i n g the dismissal of h is state charg es, took custody of Pa d i l laRamirez in F ebruary 2 016. Padilla-Ramirez then asserted that he feared returning to El S a l v ador and was referred to an asylum officer for a reasonable fear determination pursuant to 8 C.F

. R. § 2 08.31. 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 I J
to determine whether h e is elig ible for withh o l d ing o f removal or protection under the C onvention. These “withholding -only ” proceeding s are ong oing

.

Padilla-Ramirez f

iled the instant habeas petition after the I J d e n i e d h is request for a bond hearing on g r ounds that she lacked jurisdiction to consider the request. The district court denied the petition o n substantially the s ame g rounds, concluding that Padilla-Ramirez is det a i n ed pursuant to a provision of the I mmig ration and Nation ality Act (Act) that does not allow for bond hearing s. Padilla-Ramirez appeals.

I I I

.

O ur task in this case is to determine which provision o f the Act g o v e r

n s P a d i l l a

- R a

m i r e z’ s d e t e ntion. Padilla-Ramirez
argues that he is detained purs u a n t to 8 U.S.C. § 1226(a), which g r ants the Attorney General discretion to detain an alien “pending a decision o n w hether t h e a l i en is to be removed from the United States.” 8 U.S.C. § 1226(a)(1). That section also permits the A ttorney G eneral to r elease the

a lien on bond or conditional parole. Id. § 1226(a)( 2 ). Pursuant to regulations, an initial c ustody determin ation under section 1226(a) is made by the district director, but theP A D I L L A -R A M I R E Z V

. B I B L E 6

detainee may request an additional bond hearing before an I J

. 8 C.F .R. § 236.1(d)(1). As stated, Padilla-Ramirez requested such a bond hearing , but the I J denied his request.

Conversely
, t h e g overnment contends that PadillaRamirez is detained pursuant to 8 U.S.C. § 1231(a). Section 1231(a) p rovides for mandatory detention during a n inety -day “removal period,” id. § 1231(a)(2), and discretionary detention “beyond the r emoval period,” id. § 1231(a)(6). The bond hearing authoriz ed under 8 C.F .R. § 236.1(d)(1) does
not a pply to d etentions author i z ed under section 1231(a). Thus, Padilla-Ramirez ’s e n titlement to a bond hearing hing e s

on w hether he is deta i n e d pursuant to section 1226(a) o r section 1231(a).

Our decision only a ddresses Padilla-Ramirez ’s entitlement to an initial bond hearing under 8 C.F

. R. § 236.1. W e do not address Padilla-Ramirez ’s entitlement to a bond hearing a fter prolong ed detention. W e p r e v i ously have h eld that “individuals detained under § 1231(a)(6) a r e e ntitled to the same procedural safeg uards ag ains t prolong ed detention

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

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

A.

Our analy sis beg ins with the tex t of the p r ovisio n s at issue. Am. Tobacco Co. v. P atterson , 456 U.S. 63, 68 (1982). Section 1226( a )’s detention a uthority applies “pending a decision on w hether the a lien is to be rem o v e d from the United States.” 8 U

. S.C. § 1226(a). B y contrast, section 1 231(a) a pplies during an alien’s “ removal period,” i d

. § 1231(a)(2), which beg in s o n the latest of three d ates: (1) “[ t] he date the order o f removal becomes administrativelyP A D I L L A -R A M I R E Z V

. B I B L E 7

final”; (2) “[ i] f the removal o rder is j u d icially reviewed a nd if a court orders a stay o f the removal of the alien, the date o f
t h e c o urt’s final order”; or (3) “[ i] f the alien is detained o r confined (ex cept under an immig ration process), the date the alien is r eleased from detention o r confinement,” id. § 1231(a)(1)(B )(i)–(iii).

W e a r e concerned here only with the date o f ad m inistrative finality

. See id. § 1231(a)(i)(B )(i). Althoug h Padilla-Ramirez may seek judicial r evi e w of a n adverse decision in h is withholding -only proceeding s, A ndradeGarcia v. Lynch
, 8 2 8 F .3d 829, 833 (9th Cir. 2 016), that

r e v i ew would be confined to the order relating to his

a p p l i cation for withholding ; the court would not review t h e 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 tex t 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 immig r ation p r o cess” is the only basis for Padilla-Ramirez ’s d etention. 8 U .S.C. § 1231(a)(1)(B )(iii).

The question before us, then, is whether PadillaRamirez ’ s reinstated removal order is administratively final. I f it i s , then section 1231(a) controls. I f not, then section 1226(a) provides the only authority for detaininghim.

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

. . . a determination by the B o ard

. . . affirming such order . . . or the ex piration of the period in which the alien is permitted to seek review of such order by the B o ard

. ” I d

. § 1101(a)(47)(B )(i)–(ii). This definition has limited utility in the contex t of reinstated r emoval orders because such ordersP A D I L L A -R A M I R E Z V

. B I B L E 8

cannot be r eopened or r eviewed. Id. § 1231(a)(5). I ndeed, we previously h ave concluded that “this statutory definition o f finality does not dic t a t e a clear answer here because there is
no way to appeal the reinstatement of a removal order to the [ B oard] .” Ortiz-Alfaro v

. Holder
, 694 F .3d 955, 958 (9th Cir. 2012). According ly
, we must look elsewhere to determine the statute’s meaning

. The g o vernment urg es us to d efer to a federal regulation which, it co n tends, answers the question before us. That

re gulation reads: “Ex ecution of the reinstated order o f

remo v a l and detention of the alien shall be administered in accordance w ith this part.” 8 C.F .R. § 241.8(f). “[ T ]his part”

r efers to Part 241, which c ontains regulations implementi n g section 1231. On its face, this regul at i on 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 a lien like Padilla-Ramire z s i mply states that “[ o] nce the removal period defined in section 241(a)(1) o f the Act beg ins, an alien in the United States w i l l b e taken into custody pursuant to the warrant of re m o v al.” Id. § 241.3(a). This regulation therefore does not answer the question o f when the r emoval p eriod beg ins, unless one assumes that the removal period commences automatically when a r emoval order is reinstat e d and is not d isturbed b y withholding -only proceeding s. B ut these assumptions beg the very questions at issue. B ecause the regu lation does not answer the question presented, we will conduct our own review of the statute.

Reinstatement of a removal order is g overned by section 1231(a)(5), which reads as follows:

I f the Attorney General finds that an alien has reentered the U nited St ates illeg ally a fterP A D I L L A -R A M I R E Z V

. B I B L E 9

having been r emoved or having departed

v o l untarily
, under an o rder of r emoval, t h e prior order of r emoval is r einstated f r o m its orig inal date and i s not subject to being reopened or reviewed, the a lien is not elig ible and may not apply for any re l i e f 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 way s, that a reinstated removal order is administratively final. F irst,

a removal order undoubtedly is a dministrativel y f i n al when it first is e x e cuted; if it is reinstated from its orig inal date, it stands to reason that it retains the same administrative finality because section 1231(a)(5) proscribes any challeng e that mig ht affect that status. Second, the reinstatement provision is loca t ed in the same section of the Act, telling ly entitled “Detention and removal of aliens ordered removed,” id. § 1231 (emphasis added), as the detention autho r i t y t h at the
g overnment claims in this case. This placement sug g ests that Cong r ess meant for t he detention of aliens subject to reinstated removal orders to be g overned b y that section, which would require that such orders be administratively final. The f

act that the reinstatement provision appears among section 1 2 3 1 ( a ) ’ s d e t e n t i o n a n d supervision provisions f urther bolsters this inference. Id. § 1231(a)(2)–(3), (6).

N o twithstanding section 1 231(a)(5)’s mandato r y lang uag e, it offers some leeway with respect to withholding

only proceeding s. A n drade-Garcia
, 828 F .3d a t 8 31. Such proceeding s are an ex ception to the g eneral p rohibition
ag ainst seeking relief from r emoval pursua n t t o a reinstated order. See 8 C.F .R. § 241.8(e). F urthermore, the Department of Homeland Security lik e l y “ cannot ex ecute the reinstatedP A D I L L A -R A M I R E Z V

. B I B L E 10

r e moval order until the reasonable fear and withholding o f removal proceeding s are complete.” Luna-Garcia v. H older
, 777 F .3d 1182, 1 1 8 3 ( 10th Cir. 2015), citing 8 C.F .R. §§ 2 0 8 .1(a), 208.5(a). This removal moratorium would override section 1231(a)( 5 ) ’ s command that “ the alien shall be removed u n d er the prior order at any time after the reentry .” 8 U.S.C. § 1231(a)(5) (emphasis added ). I t is thus clear that some a spects of section 1231(a)(5) do n o t a pply with full force to an a lien involved in withholding -only proceeding s.

W ithholding -only proceeding s do not, however, p urport to override secti o n 1231(a)(5)’s prohibition on reopening o r

r eviewing a reinstated order. See Ortiz-Alfaro
, 694 F

. 3d at 958 (stating that a g rant or denial of withholding would “have

no effect on the reinstatement of [ the] removal order” at issue in that case). At most, a g rant of withholding will only inhibit the order’s e x ecution with respect to a parti c u l ar country

. Even if Padilla-Ramirez were to prevail on his application, he still w ould be subject to removal pursuant t o t he reinstated order—the g overnment simply would have to seek an alternate country to receive h im

. S e e 8 U.S.C. § 1231(b)(2); Lan z a v

. Ashcroft
, 389 F .3d 917, 933 (9th Cir. 2 004) (acknowledg ing that withhold ing relief “only prohibits removal of the [ alien] to the country of risk, but does not prohibit r e moval to a non-risk country ” (quoting CastellanoChacon v. INS
, 341 F .3d 533
, 5 4 5 (6th Cir. 2003))). The removal order itself therefor e i s n ot at issue in the

w i t h h o l d i n g

- o n l y p r o c e e d i n g s , m e a n i n g t h a t t h o s e proceeding s cannot diminish o r otherwi s e affect its finality

. B ecause Padilla-Ramirez ’s reinstated removal order remains administratively final, he i s detained pursuant to section 1231(a).P A D I L L A -R A M I R E Z V

. B I B L E 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 d e c i s ion is not pending in Padilla-Ramirez ’s wit h h o lding -only proceeding s. T h e decision to be made in those proceeding s is not whether he is to b e removed from the United States, but merely wh et h er h e may be removed to El Salvador. This narrow question o f to where an al i e n may be removed is distinct from the broader question of whether the alien may be removed; indeed, t h e former inquiry requires
t hat the latter already have been resolved in the affirm a t i v e. The fact tha t the g overnment may still remove PadillaRamirez
, albeit to an alternate count r y , even if he is g ranted wi t h holding c onfirms that the decision identified in section 1226(a) has already b een made—he i s “to be removed from the United States .” Id. (emphasis add e d). T h at decision therefore is not pending
, meaning that section 1226(a) cannot apply

. The fact that Padilla-Ramirez may seek f urther withholding relief if he prevails o n h i s p r esent a pplication does not chang e this conclusion since the pending decision in such hy pothetical proceeding s alway s will be w hether he can be removed to a p articular country , which does not implicate section 1226(a).

I n this r e spect, Zadvydas v. D avis
, 533 U.S. 678 (2001), is instructive. T h e r e , an alien (Z advy das) had been ordered removed and w as detained p ursuant to section 123 1 ( a). See id. at 683–84. As it turned out, none of the available countries of rem o val were willing to accept him. I d. at 684. Z advy das then challeng ed his continuing detention, which appeared at that point to b e potentia l l y p er manent. Id. at 684–85. The Supreme Court, r elying on the c a n o n of constitutionalP A D I L L A -R A M I R E Z V

. B I B L E 12

avoidance, h eld that t he g overnment’s detention authority under section 1231(a) terminates “once r emoval is no long er reasonably forese e a b l e

. ” I d. at 699. B ut even in such a circumstance, section 1231(a) still controls: a lthoug h the
g overnment cannot d etain t h e a lien, the alien is subject to supervision under section 1231(a)(3). See id. at 696.

L ike Z advy das, Padilla-Ramirez is subject to an order o f removal that is, by all appearances, a dministratively final. L ike Z a dvy d as, the only obstacles to P ad i l la-Ramirez ’s removal f r o m the United States are potential individualiz ed determinations that he cannot be remov e d to specific countries. There is an obvious d istinction between the two

cases in that those d eterminations may be ma d e i n domestic administrative p r o c e eding s in Padilla-Ramirez ’s c ase, whereas Z advy das was made unremovable by virtue of other countries’ refusals to accept him. H owever, the touchstone o f 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 r emoval order may be ex ecuted with r espect to particular countries. The fact that Z advy d as was detained pursuant to section 1231(a) even w hile the g overnment c y cled throug h the list of p o ssible removal countries indicates that such country -specific determinations a re not “decision[ s] on whether the alien is t o b e r e moved from the U nited States.” 8 U.S.C. § 1226(a). A ccordi n gl y , section 1226(a) has no application here.

C.

Padilla-Ramirez argu es that we a r e foreclosed from holding that sect i o n 1231(a) g overns his detention because we have already decided that reinstated removal orders are notP A D I L L A -R A M I R E Z V

. B I B L E 13

f inal during the p endency of withholding -only proceeding s

. I n Ortiz-Alfaro v. H

older
, an alie n s u b

ject to a reinstated removal order soug ht to challeng e a federal regulation
g overning withholding

- only p r o c e e d i n g s b e c ause it prevented him from applying for asylum. 694 F .3d at 956. A t the t ime he filed his petition f

o r r e view, however, his withholding

only proceeding s were still ong oing

. Id. at 957. W e h e ld that

we lacked jurisdiction to r e v iew the p etition because the reinstated remova l 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 proceeding s concluded. Id. at 957–58.

At first blush, Ortiz-Alfaro appears to support PadillaR amirez ’s p osition. B ut the case is readily disting uis h a b l e because its holding rested on the c an o n o f constitutional avoidance. W e acknowledg ed that there were “compelling
arguments in favor o f finding that [ the alien ’ s ] reinstated removal ord e r [ wa] s final,” but observed that such a conclusion “would make it impossible for [ the al i e n ] to timely petition for review of any I J d e ci s i ons d enying him relief or finding

that he does not have a reasonable fear.” Id.
at 958. B ecause this “could r aise serious constitut i o nal concerns,” we decided that the reinstated o r d e r w ould not become final f

or judicial r eview purposes until the conclusion of the alien’s withholding -only proceeding s. I

d.

Holding that Padilla-R amirez ’s reinstated order is administrati v e l y final for d etention purposes poses no such constitutional difficulty
, s o t h e avoidance canon need not dictate the outcome here. I n such a situation, the normal presumption that a particu l a r w ord has the same meaning in different parts o f a s t atute can g ive way if the provision at issue p oints toward a different meaning

. See Sun v. Ashcroft
,P A D I L L A -R A M I R E Z V

. B I B L E 14

370 F .3d 932, 939–40 ( 9 t h C ir. 2004). As ex plained above, the tex t and structure of the Act indicate t h a t C o ng ress intended for section 1231(a) to g overn detention of ali ens

su b j ect to reinstated removal o rders. Ortiz-Alfaro therefore does not control the outcome of this case.

Our r ecent decision in Ayala v

. Sessi o ns , 855 F .3d 1012 (9th Cir. 2017), i s n o different. That case came to us in a somewhat problematic p rocedural postu re. A fter the
g overnment reinstated the alien’s ex pedited order of removal, she ex pressed a fear of ret u r n i n g to Guatemala. Id. at 1016. A n asylum officer determined that she had not stated a reasonable fear o f persecution or t o rt u r e, and an I J affirmed the officer’s conclusion. Id. T h e alien then moved to r eopen and reconsider that decision, which the I J denied. I d. at 1017. The denial order indicated that it was final unless appealed to the B oard within thirty

day s. I d. So the alien appealed to the B oard, but the B oard lacked jurisdiction to review the appeal and dismissed it on that basis. Id. The alien then pet itioned for review in this court. Id.

W e faced a jurisdictional dilemma. Althoug h the petition had been filed within four day s o f t he B oard’s dismissal o f the alien’s appeal, more than thirty day s had elapsed since the I J ’s denial of the motion to reopen. I d. Thus, whether we h ad jurisdiction depended o n which o f the two orders constituted

a “ f i nal order” for purposes of judicial review. See 8 U.S. C

. § 1252(b)(1). W e held that the Bo ard’s d ismissal of the alien’s appeal was the final order for three reasons, two o f which are relevant here. First, because the I J ’s denial o f the motion to reopen e f

f e c tively (and misleading ly) instructed her
to appeal to the B oard, ad m i n i strative proceeding s did not conclude until the B o ard issued its order. Ayala , 855 F .3d at 1019. Second, holding that the I J ’s denial was the final orderP A D I L L A -R A M I R E Z V

. B I B L E 15

would have cost the alien her o n ly op p o r t u nity for judicial review of the adverse reasonable fear determ i nation. Id. Citing Ortiz-Alfaro
, we reiterated that we ge n e r ally will not “apply [] rules in a manner that e ffects such a total deprivation of judicial review.” Id. (The third reason involved a practical

concern about delay s caused by appeals that t h e B oard undisputably lacks jurisdiction to r eview, which does not bear on this case. I

d. at 1019–20.)

Ayala tracks Ortiz-Alfaro in a ll important respects, a s both cases addressed the finality o f reinstated o r d e r s for
purposes o f judicial review a nd w ere decided in larg e p art to preserve the peti t i o n e r s’ ability to obtain such review. Our
statement in Ay a l a that “a removal order is considered final only w hen ‘all administrative p roceeding s have concluded,’” id. at 1019, quoting A bdisalan v. Holder
, 774 F .3d 517, 526 (9th Cir. 2014) (en banc), as amended (J an. 6, 2 0 1 5 )
, b r o ke

no new g round. Ortiz-Al f aro stands for the same proposition—that a reinstated removal order is not “final” for judicial-review p urposes until the rel e vant administrative proceeding s conclude. The question in A yala was simply at what point those proceeding s had ended. According ly
, A y ala offers no more support than Ortiz-Alfaro for adopting PadillaRamirez ’ s preferred interpretation of finality in the detention
contex t.

D.

W e are not the first federal appellate court to consider this issue. I n Guerra v. Shanahan
, 8 31 F .3d 5 9 (2d Cir. 2016), the Second Circuit, g uided by the tex t of section 1226(a) a nd circuit p recedents, held that an alien subject to a reinstated removal order is detained pursuant to section 1226(a) during withholding -only proceeding s. Id. at 62–64. This holding
, o fP A D I L L A -R A M I R E Z V

. B I B L E 16

c o u rse, is contrary to our conclusion that section 1231(a ) applies to aliens like Padilla-Ramirez

. Althoug h we are w ary to create a circuit split, we must part company with our sister circuit here.

F or the reasons already ex plained, we resp ectfully disag ree with the Second Circuit’s r eading of section 1226(a). I n concluding that “ the purpose o f withholding -only proceeding s is to determine precisely whether ‘the alien is to be removed f

rom the United St a tes,’” id. at 62, quoting 8 U.S.C. § 1 226(a), the court d i d not p aint with a fine enoug h brush. The purpose of such proceeding s i nstead is to determine whether the alien is to be removed to a particular

c ountry (in Padilla-Ramirez ’s case, El Salvador). No judge
, ag ency , or c ourt wi l l be called upon to d ecide whether Padilla-Ramirez may b e “removed from the United States.” 8 U.S.C. § 1226(a) (emphasis added). Even if the c umulative effect of the g o vernment’s removal efforts is that h e c annot be removed from the country —which is entirely

speculative
at this point—he would b e no different than the alien in Zadvydas

.

The cases cited by the Second Circuit do not convince us otherwise. F irst, the court attempted to draw an analog y to asylum-only p roceeding s, w hereby an alien obtains entry to the country b y waiving his rig h t to challeng e removal e x cept by applying f

o r asylum. Guerra
, 831 F .3d at 63 & n.2, citing Kanacevic v. INS
, 448 F .3d 129 (2d Cir. 2006). I n Kanacevic
, t h e Second Circuit held that it had jurisdiction to revie w a denial of asylum notwithstanding the absence of a “final order of removal,” 8 U. S .C. § 1252(a)(1), because such a den ial “is the functional equivalent of a removal order” in

as y l u m

- only proceeding s, Kanacevic
, 448 F .3d at 134–35. The implication in Guerra is that the denial o f withholding inP A D I L L A -R A M I R E Z V

. B I B L E 17

withholding -only proceeding s is likewise t he “functional equivalent” of a final removal order.

F ar from supporting the Second Circuit’s an a l o g y , Kanacevic underscores a critical d istinction between asylumonly proceeding s and with h olding -only proceeding s: in the f o r mer, the denial of asylum is the order of removal

. Conseque n t l y , there can be n o removal order, final o r otherwise, until the alien’s c laim for relief is resolved. Not so in w ithholding -only proceeding s, where a final removal order has b een not only entered b u t e x ecuted by the time a withholding -only claim is made. A lso, i n contrast to withholding -only p roceeding s, the removal order itself is at issue in asylum-only proceeding s, as evidenc e d b y the fact that the order (i.e., denial of asylu m ) is subject to judicial review. See id. F inally
, Kanacevic
, like Ortiz-Alfaro a nd Ayala
, a ddressed finality for judicial-re v i e w purposes a nd

was motiva t e d
, a t least in part, to ensure the availability o f such r eview. I

d. at 135 (“W ere we to

. . . hold[ ] that the disposition of asy lum-only proceeding s does not function as

a final order of r emoval

. . . , we w o u l d c r eate uncertainty

over ex actly what procedure a Visa W aiver a p plicant could
pursue in o rder to obtain review of h is or her asylum proceeding s in the Courts of Appeals”). Kanacevic therefore is a poor fit in helping to decide this case.

The second case r e lied o n by the Second Circuit, Chupina

v. Holder
, 5 70 F .3d 99 (2d Cir

. 2 009), stands only for the unremarka

b l e proposition that a r emoval order does not become final f

or purposes of judicial review until a ll o f an alien’s claims for relief m a d e d uring his orig inal removal proceeding s a r e 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 t h e question of what effect aP A D I L L A -R A M I R E Z V

. B I B L E 18

new claim for relief has after a final removal o rder has been entered, e x ecuted, and immuniz e d from r eopening or review. See 8 U.S.C. § 1231(a)(5). I ndeed, Chupina ’s holding—that

a denial of asylum was not a final removal order because the B oard had remanded the alien’s o t h e r claims for relief—rested larg ely on t h e court’s recognition that the orig inal removal order would be in flux until the I J and B oard resolved the remanded claims. 570 F .3d at 103. As d iscussed above, a g rant of withholding in Padilla-Ramirez ’s case will “in no way i mplicate[ ] the underlying

. . . removal order.” Ayala
, 855 F .3d a t 1018. Chupina ’s reliance on the Act’s defi n i t i o n of a final removal o rder, 570 F .3d at 103, which “does n ot dictate a clear answer” in the reinstatement contex t, Ortiz-Alfaro
, 694 F .3d at 958, further distances that case from the one before us. As a r esult, Chupina cannot bear the weig ht that the Second Circuit has placed on it.

F inally
, the Second Circuit fell back o n “principles o f

a d m inistrative law” to reject the “tiers of finality ” that the
g overnment urg es in this case. Guerra
, 8 31 F .3d at 63 (internal quotation marks omitted). T he S econd Circuit is
correct that o n l y an ag e ncy action marking “the

con summation o f the ag ency ’s decisionmaking process” qualifies as final ag ency a ction. I d.
, quoting U.S. Army Corps

o f E n g ’ rs v. Hawkes Co.
, — U .S. —, 136 S. Ct. 1807, 1813 (2016). B ut its conclusion that no such c onsummation ex ists while withholding -only proceeding s are ong oing a ga in misunderstands the d ecision at s t a k e in those proceeding s. The ag ency already d ecided that Padilla-Ramirez “ i s to be removed from the United Stat e s,” 8 U.S.C. § 1226(a), and a different, more limited d e c i s ion is now pending in his withholding -only proceeding s—n a m e ly
, whether he may be removed to El Salvador. The ag ency has consummated its decision-making reg arding the first issue, but not the second.P A D I L L A -R A M I R E Z V

. B I B L E 19

I t therefore is consonant with settle d ad ministrative leg al principles t o hold that Padilla-Ramirez ’ s reinstated removal order ( i

. e

. , t h e ag ency ’s decision that he “is to be removed from the United States,” id. ) is fina l f o r detention purposes

even thoug h it lacks finality f or purposes of

judicial review o f his withholding -only claim.

I V.

As a g eneral ru l e , “we decline to create a circuit split unless there is a compelling reason to d o so.” K e l t o n Arms Condo. Owners Ass’n, Inc. v. H o m estead Ins. Co.
, 346 F .3d 1190, 1192 (9th Cir. 2003). This is especially true where the rules at issue “are best applied uniformly .” I d. The I mmig r ation and Nationality A c t, a c omprehensive federal scheme that r equires a nationa l l y unified administration
prog r am, certainly f

alls into th i s categ ory

. W hile this consideration ordinarily would counsel in favor of adopting the Second Circuit’s resolution of the i s sue before us, we believe that the leg islative intent on this p oi n t is in clear opposition to that resolution. B y its terms, section 1231(a)(5) inoculates reinstated removal ord er s ag ainst any challeng e , and withholding -only p roceeding s do n o t override that proscription. Our own decisions in Ortiz-Alfaro and Ayala
, which addressed finality for judicial-review purposes a nd
turn e d p r incipally on avoiding a c onstruction that would severely inhibit or eliminate that review, are not co n t r o lling in the detention contex t. N or are we persuaded by the Second Circuit’s analy sis in reaching the opposite conc l u sion in Guerra

. So e v en thoug h it may create discord in our imm i gr at ion sy stem, we must g ive effect to Cong ress’s
purpose as we understand it. The judg ment of the district
court is a ffirmed. I f uniformity is required, we are content toP A D I L L A -R A M I R E Z V

. B I B L E 20

leave it to the Supreme Court to harmoniz e the resulting split of authority

.

AF F IRMED.