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

______________
2

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.

2

nd Floor

Pittsburgh, PA 1522

Counsel for Amici Appellee, American Civil Liberties

 Union of Pennsylvania
3

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’

7

th 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
4

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 GuerreroSanchez 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), 
5

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.
6

At an unknown date thereafter, Guerrero-Sanchez reentered 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 withholdingonly 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 
7

that the Mexican Government would consent to or be willfully 

blind to [his] hypothetical torture . . . .” App. 120. GuerreroSanchez 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 preremoval 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. 
8

At the hearing, the Immigration Judge denied GuerreroSanchez 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-
9

Sanchez had remained in ICE detention for 637 days without a 

bond hearing.

1

II.THE AUTHORITY GOVERNING GUERREROSANCHEZ’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 postremoval 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 
10

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 witnessprotection purposes.” Jennings, 138 S. Ct. at 847 (quoting 8 

U.S.C. § 1226(c)).
11

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 
12

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 GuerreroSanchez, 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’ 
13

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 withholdingonly 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)).
14

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 GuerreroSanchez’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 
15

removal are “not eligible and may not apply for any relief” 

under Chapter 12 of the INA, id., they may seek withholdingonly 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.” PadillaRamirez, 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).
16

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.” PadillaRamirez, 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 
17

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 GuerreroSanchez’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-
18

 

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 fortytwo 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 GuerreroSanchez’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 
19

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 withholdingonly 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))).
20

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 withholdingonly 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 
21

purposes of judicial review of his withholdingonly 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 withholdingonly 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 
22

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 OrtizAlfaro “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 
23

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.
24

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 
25

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 GuerreroSanchez “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 GuerreroSanchez without a bond hearing while he pursues his bona fide 

withholding-only claim “would effectively punish [him] for 
26

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 HernandezCarrera 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)). 
27

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.”). 
28

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 GuerreroSanchez’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. 
29

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 
30

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. 
31

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 
32

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 GuerreroSanchez’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 
33

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 GuerreroSanchez’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 
34

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).
35

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.
36

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 sixmonth 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 
37

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))).
38

§ 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.
39

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. 
40

§ 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 postremoval 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). 
41

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-
42

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. 
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.
2

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 
3

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. 
4

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.