1 15

‐ 504

‐ cv

Guerra v. Shanahan et al.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term, 2015

(Argued: February 18, 2016 Decided: July 29, 2016)

Docket No. 15

‐ 504

‐ cv

D EYLI N OE G UERRA

, AKA D EYLI N OE G UERRA C ANTORIAL

,

Petitioner

‐ Appellee

,

‐ v. ‐

C HRISTOPHER S HANAHAN

, F IELD O FFICE D IRECTOR

, N EW Y ORK O FFICE

, U.S.

I MMIGRATIONS AND C USTOMS E NFORCEMENT

, DHS, J EH J OHNSON

, S ECRETARY OF

D EPARTMENT OF H OMELAND S ECURITY

, K ENNETH D ECKER

, O RANGE C OUNTY

C ORRECTIONAL F ACILITY

, U NITED S TATES D EPARTMENT OF H OMELAND S ECURITY

,

Respondents

‐ Appellants

.2 Before:

W INTER

, H ALL

, and D RONEY

, Circuit Judges

.

Appeal from a judgment of the United States District Court for the

Southern District of New York (Wood

, J. ) granting Petitioner

‐ Appellee

Deyli Noe Guerra’s petition for a writ of habeas corpus and ordering

a bond hearing before an immigration judge. Respondents argue that

(1) Guerra had no right to a bond hearing because his detention was

authorized by 8 U.S.C. § 1231(a) and (2) his continued detention

would not violate due process because his removal is reasonably

foreseeable. Guerra’s detention was authorized by 8 U.S.C. § 1226(a),

not § 1231(a), and accordingly he was eligible to be released on bond.

AFFIRMED.

C HRISTOPHER C ONNOLLY

, B ENJAMIN H. T ORRANCE

, Assistant U.S. Attorneys, U.S. Attorney’s

Office for the Southern District of New

York, New York, NY, for Respondents

‐ Appellants

.

J ULIE A

. G OLDBERG

, Goldberg & Associates, Bronx, NY, for

Petitioner

‐ Appellee

.

Mark R. Barr, Lichter Immigration, Melissa

Crow, American Immigration Council, and

Matthew Guadagno, for amici curiae

American Immigration Council and American

Immigration Lawyers Association

.3 H ALL

, Circuit Judge : 1

2

Respondents appeal from a December 23, 2014 judgment entered in 3

the United States District Court for the Southern District of New York 4

(Wood, J .) granting Petitioner

‐ Appellee Deyli Noe Guerra’s petition for a 5

writ of habeas corpus and ordering that Guerra be granted an individual 6

bond hearing before an immigration judge. The district court found that 7

Guerra’s detention was governed by 8 U.S.C. § 1226(a) and he was, 8

therefore, entitled to a bond hearing. On appeal Respondents argue that 9

Guerra’s detention was authorized by 8 U.S.C. § 1231(a), so he was not 10

entitled to a bond hearing; they further argue that his continued detention 11

would not violate due process because his removal is reasonably 12

foreseeable. For the reasons stated below, we affirm the district court’s 13

decision. 14

15

I. BACKGROUND 16

17

Guerra, a native and citizen of Guatemala, entered the United States 18

without inspection in 1998. Later that year he was placed in removal 19

proceedings and ordered removed. He was removed in April 2009. The 20

following year he again reentered the United States without inspection, 214 and again he was removed. He then reentered without inspection a third 1

time. Following his arrest, he was detained by Immigration and Customs 2

Enforcement (“ICE”) on January 6, 2014. His 1998 removal order was 3

reinstated pursuant to 8 U.S.C. § 1231(a)(5). 4

While Guerra was in detention, an asylum officer concluded that 5

Guerra had a reasonable fear of returning to Guatemala and referred 6

Guerra’s case to an immigration judge (“IJ”) for a determination as to 7

whether Guerra was eligible for withholding of removal under 8 U.S.C. 8

§ 1231(b)(3) or the Convention Against Torture. As of the date of this 9

opinion, Guerra’s withholding of removal proceedings are pending. 10

Guerra petitioned for a writ of habeas corpus in the Southern 11

District of New York in June 2014. He argued that he was entitled to a 12

bond hearing because his detention was authorized by 8 U.S.C. § 1226(a) 13

and aliens detained pursuant to that section are entitled to a bond hearing 14

before an IJ under 8 C.F.R. § 1236.1(d). In the alternative, he contended 15

that his detention violated due process. Respondents argued that his 16

detention was authorized by 8 U.S.C. § 1231(a), which provides for 17

periodic custody reviews by ICE but does not authorize bond hearings 18

before an IJ. Respondents also argued that his detention did not violate 195 due process because his removal was reasonably foreseeable. The district 1

court agreed with Guerra that his detention was governed by 8 U.S.C. 2

§ 1226(a) and granted his petition; Guerra is currently free on bond. 3

Respondents appealed. 4

II. DISCUSSION 5

We review a district court’s grant of habeas relief de novo. 6

Theodoropoulos v. INS

, 358 F.3d 162, 167 (2d Cir. 2004). 7

a. Rules Governing Detention of Aliens 8

9

If an alien who has previously had an order of removal entered 10

against him reenters the United States, the Attorney General reinstates the 11

final order of removal, and “the alien is not eligible and may not apply for 12

any relief” under the immigration laws. 8 U.S.C. § 1231(a)(5). The 13

Attorney General, however, may not remove an alien to a country where 14

the alien would face persecution or torture. 8 U.S.C. § 1231(b)(3); 8 C.F.R. 15

§ 1208.16(c). 16

If an alien subject to a reinstated removal order expresses to an 17

asylum officer a reasonable fear of returning to the country specified in the 18

removal order, the case is referred to an IJ, for “withholding

‐ only” 19

proceedings. 8 C.F.R. § 208.31(b), (e). In withholding

‐ only proceedings, 206 “all parties are prohibited from raising or considering any

. . 

### . issues” other 1

than withholding or deferral of removal. 8 C.F.R. § 1208.2(c)(3)(i). The IJ’s 2

order concerning withholding can be appealed to the Board of 3

Immigration Appeals (“BIA”), and from there, by a petition for review, to 4

a court of appeals. 8 C.F.R. § 208.31(e); 8 U.S.C. § 1252(b). An order of 5

removal is considered “final” upon the earlier of a BIA decision affirming 6

an IJ’s order of removal or the passing of the deadline to appeal to the BIA 7

an IJ’s order of removal. 8 U.S.C. § 1101(a)(47)(B). 8

As relevant here, two statutory subsections authorize detention of 9

aliens. 8 U.S.C. § 1226(a) authorizes the detention of an alien “pending a 10

decision on whether the alien is to be removed from the United States”; 11

under this section, ICE may detain an alien or release him subject to parole 12

or a bond. If ICE elects to detain the alien, the alien may request a bond 13

hearing before an IJ. 8 C.F.R. § 1236.1(d)(1). 8 U.S.C. § 1231(a), by contrast, 14

governs detention of aliens who are subject to a final order of removal. 15

This section defines a 90

‐ day “removal period” after a removal order 16

becomes “administratively final”; during the removal period, detention is 17

required. 8 U.S.C. § 1231(a)(1)

‐ (2). After the removal period has expired, 18

detention is discretionary, but a bond hearing is not authorized if removal 197 is “reasonably foreseeable.” 8 U.S.C. § 1231(a)(6); see Zadvydas v. Davis

, 533 1

U.S. 678, 699 (2001) (holding that detention under § 1231(a) violates due 2

process if removal is not “reasonably foreseeable”). 3

b. Analysis 4

5

This case presents an issue of first impression in this Circuit: 6

whether a reinstated removal order is “administratively final” during the 7

pendency of withholding

‐ only proceedings. The answer to this question 8

determines whether Guerra’s detention is governed by § 1231(a) or instead 9

by § 1226(a), and, in turn, whether he was eligible to be released on bond. 10

None of our sister Circuits has ruled on this issue, 1 and the various district 11

courts to have considered the issue have reached conflicting conclusions. 12

See Reyes v. Lynch

, 2015 WL 5081597, at *2 & nn.4

‐ 5 (D. Colo. Aug. 28, 2015) 13

(collecting cases). 14

1 The Ninth and Tenth Circuits have held that they lack jurisdiction over

petitions for review filed while withholding

‐ only proceedings are ongoing.

See Ortiz

‐ Alfaro v. Holder

, 694 F.3d 955, 958 (9th Cir. 2012); Luna

‐ Garcia v.

Holder

, 777 F.3d 1183, 1184 (10th Cir. 2015). Neither court, however,

answered the question of which section authorized detention for aliens in

Guerra’s position. As discussed infra

, Respondents do not challenge these

cases, arguing instead that finality in the detention context differs from

finality in the context of judicial review.8 “Statutory construction must begin with the language employed by 1

Congress

. . . .” Park ‘N Fly, Inc. v. Dollar Park & Fly, Inc.

, 469 U.S. 189, 194 2

(1985). Here, the statutory text favors Guerra’s interpretation. 8 U.S.C. 3

§ 1226(a) permits detention of an alien “pending a decision on whether the 4

alien is to be removed from the United States.” The statute does not speak 5

to the case of whether the alien is theoretically removable but rather to 6

whether the alien will actually be removed. An alien subject to a 7

reinstated removal order is clearly removable, but the purpose of 8

withholding

‐ only proceedings is to determine precisely whether “the alien 9

is to be removed from the United States.” 8 U.S.C. § 1226(a). 10

The structure of the statute also favors Guerra’s interpretation. 8 11

U.S.C. § 1226(a) authorizes the detention of aliens whose removal 12

proceedings are ongoing. By contrast, 8 U.S.C. § 1231(a) is concerned 13

mainly with defining the 90

‐ day removal period during which the 14

Attorney General “shall remove the alien.” The former provision is the 15

more logical source of authorization for the detention of aliens currently in 16

withholding

‐ only proceedings. 17

Although this case presents an issue of first impression, our 18

precedent is not without guidance. We have held, in the similar context of 199 asylum

‐ only proceedings, 2 that a denial of asylum is judicially reviewable 1

even though it is not accompanied by a “final order of removal.” We held 2

that a contrary decision would “elevate form over substance.” Kanacevic v. 3

INS

, 448 F.3d 129, 133

‐ 35 (2d Cir. 2006). In another case, we have held that 4

an order of removal was not final when the BIA denied asylum and 5

upheld the IJ’s removal order but then remanded the alien’s claims for 6

withholding. Because the alien’s “remanded applications

. . . if granted, 7

effectively would result in the cancellation of any order removing [him],” 8

the order was not final. Chupina v. Holder

, 570 F.3d 99, 103 (2d Cir. 2009). 9

Respondents do not dispute that Guerra, if his withholding 10

application is denied, could petition this Court for review of that denial. 11

They argue that the finality which permits judicial review is different from 12

the finality which permits his detention under 8 U.S.C. § 1231(a). They 13

point to no authority for this proposition, however, and we have never 14

recognized such “tiers” of finality. Moreover, the bifurcated definition of 15

2 Asylum

‐ only proceedings arise when an alien enters the United States

under the Visa Waiver Pilot program, “under which certain aliens may enter

the United States without a visa for up to 90 days if they waive their right to

contest any action for [removal] (other than on the basis of an asylum

application) against them.” Jean

‐ Baptiste v. Reno

, 144 F.3d 212, 216

‐ 17 (2d

Cir. 1998); see also 8 U.S.C. § 1187.10 finality urged upon us runs counter to principles of administrative law 1

which counsel that to be final, an agency action must “mark the 2

consummation of the agency’s decisionmaking process.” U.S. Army Corps 3

of Eng’rs v. Hawkes Co.

, 136 S. Ct. 1807, 1813 (2016) (quoting Bennett v. Spear

, 4

520 U.S. 154, 178 (1997)). Accordingly, we must take 8 U.S.C. § 1226(a) at 5

face value when it authorizes detention for aliens “pending a decision on 6

whether they are to be removed,” and we need not create new principles 7

parsing administrative finality. 8

Respondents argue that the regulations interpreting the statutes are 9

entitled to deference and that their interpretation of these regulations is 10

also entitled to deference. While both propositions are undoubtedly true, 11

see Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc.

, 467 U.S. 837 (1984); 12

Auer v. Robbins

, 519 U.S. 452 (1997), in this case Chevron deference is 13

inapplicable because the regulations do not answer the question of which 14

provision governs Guerra’s detention. Certainly if a regulation provided 15

that an alien in Guerra’s position was subject to detention under 8 U.S.C. 16

§ 1231(a), our review would be limited to whether the regulation was 17

“based on a permissible construction of the statute.” Chevron

, 467 U.S. at 18

843. The regulations Respondents cite, however, do not provide which 1911 section authorizes detention of aliens in Guerra’s position. They discuss 1

aliens who have not expressed a fear of returning and aliens who have 2

been granted withholding but are still subject to detention. 8 C.F.R. 3

§§ 241.3, 241.4(b)(3), 241.8(f). Respondents’ argument for Chevron 4

deference assumes the dispositive question in this case. They argue that 5

because Guerra’s removal order is final, the regulations (discussing aliens 6

subject to final orders of removal) make clear that his detention is pursuant 7

to 8 U.S.C. § 1231(a). Our holding that Guerra’s removal order is not final 8

during the pendency of his withholding

‐ only proceedings disposes of this 9

argument. 10

For similar reasons, Respondents’ position is not entitled to 11

deference under Auer

. An agency may not convert an issue of statutory 12

interpretation into one of deference to an agency’s interpretation of its own 13

regulations simply by pointing to the existence of regulations whose 14

relevance is tenuous at best. Cf. Gonzales v. Oregon

, 546 U.S. 243, 257 (2006) 15

(“Since the regulation gives no indication how to decide this issue, the 16

Attorney General’s effort to decide it now cannot be considered an 17

interpretation of the regulation.”). 1812 Accordingly, the language and structure of the statutes dictate the 1

conclusion that Guerra’s detention during the pendency of his 2

withholding

‐ only proceedings is detention pursuant to 8 U.S.C. § 1226(a). 3

The regulations offer no contrary suggestion. Guerra was entitled to the 4

bond hearing he received. 5

III. Conclusion 6

7

For the foregoing reasons, we AFFIRM the district court’s decision. 8