IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

FRANCISCO FERNANDO-MATEO, )

)

Petitioner, )

)

v. ) No. 20-cv-2999

)

BILL PRIM, McHenry County Sheriff; ) Judge John Z. Lee

ROBERT GUADIAN, Field Office )

Director, Chicago, U.S. Immigration )

and Customs Enforcement; and )

CHAD F. WOLF, Secretary (Acting), )

U.S. Department of Homeland Security, )

)

Respondents. )

MEMORANDUM OPINION AND ORDER

Francisco Fernando-Mateo has filed a petition for habeas corpus under 

28 U.S.C. § 2241, as well as an emergency motion for a rule to show cause why his 

petition should not be granted. Fernando-Mateo is an alien from Guatemala who is 

subject to a reinstated order of removal under 8 U.S.C. § 1231(a)(5). Prior to being 

removed, he informed the authorities that he is fearful for his life if he is returned to 

Guatemala. This triggered withholding of removal proceedings under 8 U.S.C. 

§ 1231(b)(3)(A) to determine whether Fernando-Mateo should be returned to 

Guatemala or another country. In the meantime, he has been detained without a 

bond hearing, to which he argues that he is entitled under 8 U.S.C. § 1226(a). 

Respondents McHenry County Sheriff Bill Prim, the Field Office Director of 

the U.S. Immigration and Customs Enforcement in Chicago Robert Guadian, and the 

Acting Secretary of the U.S. Department of Homeland Security Chad Wolf

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(collectively “Respondents”)1 contend that an alien, like Fernando-Mateo, who is 

detained subject to a section 1231(a)(5) reinstated removal order does not have the 

right to a bond hearing. 

For the reasons explained below, Fernando-Mateo’s petition and motion are 

granted. Respondent Guadian is directed to provide Fernando-Mateo with an 

individualized bond hearing no later than three days from the issuance of this Order 

and to release him on bond if he is eligible.

I. Background

Fernando-Mateo first entered the United States without authorization on

November 12, 2014, and was discovered and removed that same day by the United 

States Department of Homeland Security (“DHS”) pursuant to an expedited removal 

order. He was returned to Guatemala, the country whence he came. Gov’t’s Ex.,

Ochoa Decl. ¶ 7, ECF No. 11-1. 

Fernando-Mateo again entered the United States without authorization in

2015 and again was discovered by DHS. At that point, DHS reinstated the removal 

order from November 2014 pursuant to 8 U.S.C. § 1231(a)(5) and returned FernandoMateo to Guatemala.2 

1 Fernando-Mateo has sued Guadian as the official who is legally authorized to provide 

an individualized bond hearing, and Wolf as the official who implemented the policy that 

confined him without a bond hearing. See 8 C.F.R. § 236.1(d)(1); 8 U.S.C. § 1103(a)(3); 

Rumsfeld v. Padilla, 542 U.S. 426, 435 n.8 (2004); Romero v. Evans, 280 F. Supp. 3d 835, 

842–43 (E.D. Va. 2017), aff’d sub. nom. Guzman Chavez v. Hott, 940 F.3d 867, 878 (4th 

Cir. 2019), cert. granted sub nom. Albence v. Guzman Chavez, No. 19-897, 2020 WL 

3146678 (U.S. June 15, 2020). He has sued Prim as his custodian in the event that the 

bond hearing permits his release. See Romero, 280 F. Supp. 3d at 842–43.

2 Section 1231(a)(5) states: 

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Similar events unfolded in 2016. Fernando-Mateo entered the United States

without authorization; he was discovered; DHS reinstated the 2014 removal order; 

and he was removed to Guatemala. Id. ¶¶ 8–9.

Undeterred, Fernando-Mateo again entered the United States without 

authorization on May 20, 2019. Pet. Writ Habeas Corpus & Req. Release Detention

(“Pet.”) ¶ 5, ECF No. 1. And, like before, he was discovered by DHS. Ochoa Decl. ¶ 

10. 

On May 22, 2019, DHS notified him of its intent to reinstate the 2014 removal 

order. Id. Fernando-Mateo acknowledged receipt of the notice and indicated that he 

did not contest the reinstatement. Id. He also confirmed that Francisco FernandoMateo was his true name and admitted that he had used aliases when he had entered

the United States in the past. Id. Then, on May 24, 2019, DHS released him on an 

order of supervision pending removal. Id.

During the subsequent six months, Fernando-Mateo checked in routinely with 

DHS. Pet. ¶ 16. On one such occasion, on November 21, 2019, DHS again notified 

Fernando-Mateo of its decision to reinstate the 2014 removal order. Ochoa Decl. ¶ 11. 

But this time, Fernando-Mateo indicated that he feared returning to Guatemala due 

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 any time after the 

reentry.

8 U.S.C. § 1231(a)(5). 

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to threats to his life and freedom and requested that he not be returned there

pursuant to 8 U.S.C. § 1231(b)(3)(A).

3 Pet. ¶¶ 16–17. 

Although there is no indication in the record of any change in FernandoMateo’s circumstances (other than his request), that very day, DHS served him with 

an arrest warrant, took him into custody, and informed him that he would be 

detained, without a bond hearing, pending a final administrative decision on his

section 1231(b)(3)(A) request. Ochoa Decl. ¶ 11. 

On December 30, 2019, an asylum officer found that Fernando-Mateo had not 

established a reasonable fear of returning to Guatemala as required under section 

1231(b)(3)(A). Id. ¶ 12. Fernando-Mateo appealed that determination to an

immigration judge, who disagreed with the asylum officer and vacated the prior

finding. Id. Fernando-Mateo then was placed in what is commonly referred to as 

“withholding-only” proceedings. Id. ¶¶ 12, 13

After two separate days of hearings in April and May 2020, an immigration 

judge granted Fernando-Mateo’s application for withholding on June 9, 2020. Pet’r’s 

Notice of Filing, Ex., Decision of Immigration Judge, at 1, ECF No. 15-1. DHS has 

appealed that determination to the Board of Immigration Appeals (“BIA”). See Pet’r’s 

Notice of Filing at 2. That appeal is pending, and the non-prevailing party will be 

3 Section 1231(b)(3)(A) states, in relevant part: 

[T]he Attorney General may not remove an alien to a country if the

Attorney General decides that the alien’s life or freedom would be 

threatened in that country because of the alien’s race, religion, nationality, 

membership in a particular social group, or political opinion. 

8 U.S.C. § 1231(b)(3)(A). 

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able to seek review of the BIA’s decision before the Seventh Circuit Court of Appeals. 

See 8 U.S.C. § 1252; see also Garcia-Arce v. Barr, 946 F.3d 371, 375–76 (7th Cir. 

2019) (reviewing the BIA’s order affirming an immigration judge’s denial of

withholding of removal where alien was subject to a reinstated removal order). 

Having been held in custody since November 21, 2019, without a bond hearing, 

Fernando-Mateo has filed this petition and his motion requesting that the Court 

order DHS to provide him with an individualized bond hearing during the pendency 

of his withholding-only proceedings as required by 8 U.S.C. § 1226(a).4 FernandoMateo’s petition poses a thorny question of law that has bedeviled numerous circuit 

courts: whether an alien who is subject to a reinstated removal order under 8 U.S.C. 

§ 1231(a)(5) and is detained during a withholding-only proceeding under 8 U.S.C. § 

1231(b)(3)(A) is entitled to a detention hearing under 8 U.S.C. § 1226(a). See Aleman 

Gonzalez v. Barr, 955 F.3d 762, 786 n.18 (9th Cir. 2020) (recognizing the circuit split). 

The Second Circuit and Fourth Circuit have answered yes, while the Third, 

Sixth, and Ninth Circuits have said no. Compare Guzman Chavez v. Hott, 940 F.3d 

867, 878 (4th Cir. 2019), cert. granted sub nom. Albence v. Guzman Chavez, No. 19-

897, 2020 WL 3146678 (U.S. June 15, 2020); and Guerra v. Shanahan, 831 F.3d 59, 

62–64 (2d Cir. 2016), with Martinez v. Larose, 968 F.3d 555, 560–64 (6th Cir. 2020); 

Guerrero-Sanchez v. Warden York Cty. Prison, 905 F.3d 208, 217 (3d Cir. 2018); and

4 Although Fernando-Mateo also argues he should be released from custody under the 

Administrative Procedures Act (“APA”), see 5 U.S.C. § 706, the entirety of his argument is 

three sentences long. See Pet. ¶¶ 71–72. The Court finds the argument undeveloped and, 

therefore, waived. See Schaefer v. Universal Scaffolding & Equip., LLC, 839 F.3d 599, 507 

(7th Cir. 2016) (“Perfunctory and undeveloped arguments are waived, as are arguments 

unsupported by legal authority.”).

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Padilla-Ramirez v. Bible, 882 F.3d 826, 831−32 (9th Cir. 2017). The Supreme Court 

is poised to resolve the circuit split in the near future. See Albence, 2020 WL 3146678. 

The Seventh Circuit has yet to address the issue. 

For the reasons explained below, the Court agrees with the reasoning of the 

Second and Fourth Circuits and concludes that Fernando-Mateo is entitled to an 

individualized bond hearing under section 1226(a). The petition and the motion are 

therefore granted. 

II. Legal Standard

A federal district court is authorized to grant a writ of habeas corpus under 28 

U.S.C. § 2241 where the petitioner is “in custody under or by color of the authority of 

the United States . . . [or] in custody in violation of the Constitution or laws or treaties 

of the United States.” 28 U.S.C. § 2241(c)(1), (3). “Section 2241 habeas proceedings 

are available as a forum for statutory and constitutional challenges to post-removalperiod detention.” Zadvydas v. Davis, 533 U.S. 678, 678 (2001); see Parra v. 

Perryman, 172 F.3d 954, 957 (7th Cir. 1999) (holding that jurisdiction under § 2241 

is proper when petitioner raises due process challenge to legislative framework). 

III. Analysis

Fernando-Mateo’s petition hinges on whether the government’s authority to 

detain him stems from 8 U.S.C. § 1231 or 8 U.S.C. § 1226. If this power comes from 

section 1231, then Fernando-Mateo is subject to mandatory detention until he 

establishes that there is not a significant likelihood of removal in the reasonably

foreseeable future. See 8 U.S.C. § 1231(a)(2); Zadvydas, 533 U.S. at 699–701. On the 

other hand, if the government’s ability to detain Fernando-Mateo arises from section 

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1226(a), then Fernando-Mateo must be afforded the opportunity to prove himself 

eligible for release on bond. See 8 U.S.C. § 1231(a)(2); 8 C.F.R. § 236.1. The Court 

starts with an overview of the relevant statutory framework.

A. Reinstatement of Removal Orders and Withholding of Removal

When an alien reenters the United States without authorization after he or 

she was previously removed or voluntarily left the country under a removal order, 

“the prior order of removal is reinstated from its original date.” 8 U.S.C. § 1231(a)(5). 

Furthermore, the reinstated order “is not subject to being reopened or reviewed,” id., 

and the alien is “generally foreclose[d] [from seeking] discretionary relief from the 

terms of the reinstated order,” Fernandez-Vargas v. Gonzales, 548 U.S. 30, 35 (2006). 

A removal order, whether original or reinstated, designates the country to 

which the alien is to be removed. See 2 Immigr. Law and Defense app. A Form I-851A 

(“Final Administrative Removal Order” ordering that the alien “be removed from the 

United States to [the destination country] or to any alternate country prescribed by 

Section 241 of the Act”); 8 C.F.R. § 238.1 (referring to form). But the government may 

not remove the alien to the designated country (i.e., must “withhold removal”) if the 

alien can show that his or her life or freedom would be threatened in the designated 

country because of the alien’s race, religion, nationality, membership in a particular 

social group, or political opinion. 8 U.S.C. § 1231(b)(3).5 Once an alien expresses such 

5 Although not applicable here, another exception is that the Attorney General must 

withhold removal of an alien to a country when the alien establishes that it is more likely 

than not that he or she would be tortured if removed to the proposed country of removal. See

8 C.F.R. § 208.16(c).

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fears, such statements trigger a screening process to determine whether the alien 

may apply for withholding of removal. See Romero, 280 F. Supp. 3d at 844.

As part of this process, the alien first must appear before a DHS officer for a 

reasonable-fear determination. 8 C.F.R. § 208.31(b). If the officer concludes that the 

alien has a reasonable fear that his or her life or freedom is threatened due to the 

enumerated characteristics, the alien may apply for withholding of removal. Id.

§ 208.31(e). 

On the other hand, if the DHS officer concludes that the alien has not 

established a reasonable fear of threat, the alien may appeal the decision to an 

immigration judge. See id. § 208.31(f). If the immigration judge agrees with the DHS 

officer, no further appeal is available, and all that remains is for DHS to execute the 

reinstated removal order. Id. § 208.31(g)(1). However, if the immigration judge 

disagrees with the DHS officer’s determination and vacates it, the alien may apply to 

the agency for withholding of removal. 8 U.S.C. § 1231(b)(3); 8 C.F.R. § 208.31(g)(2). 

From there, the alien proceeds to a withholding-only hearing where the alien 

has to convince an immigration judge that his or her life or freedom would be 

threatened because of race, religion, nationality, membership in a particular social 

group, or political opinion. 8 U.S.C. § 1231(b)(3); 8 C.F.R. § 208.16(b). At the 

conclusion of the proceedings, the immigration judge must decide whether to 

withhold (i.e., prohibit) removal of the alien to the designated country. See 8 C.F.R. 

§ 208.31(g)(2)(i). Either side may appeal an adverse decision to the BIA. Id.

§ 208.31(g)(2)(ii). And after the BIA issues its ruling on appeal, the losing party may 

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seek review of the ruling in the appropriate federal court of appeals. 8 U.S.C. 

§ 1252(b)(4). 

At the conclusion of this often lengthy process, if an alien obtains a final order

withholding removal to the designated country, the government may not remove the 

alien to that country. 8 U.S.C. § 1231(b)(3). But this is not the end of the matter. 

DHS may seek to remove the alien to another country, so long as the destination 

country meets certain statutory criteria. See id. § 1231(b)(2). 

In this case, Fernando-Mateo jumped through the various administrative

hoops, and an immigration judge granted his request that his removal to Guatemala 

be withheld. The government has appealed that order to the BIA, and the appeal 

remains pending. 

In the meantime, DHS is trying to find other countries near Guatemala that 

would be willing to accept Fernando-Mateo. Ochoa Suppl. Decl. ¶ 6, ECF No. 14-1. 

And, because Fernando-Mateo is an ethnic Mayan and his racial history and ethnicity 

is that of a person indigenous to Guatemala, it is highly unlikely that he will have 

national ties to any other country for purposes of removal. See Pet’r’s Notice of Filing 

at 2–3.

B. Statutes and Regulations Governing the Detention of Aliens

Under section 1226(a), DHS is authorized to detain or release an alien on bond 

or conditional parole “pending a decision on whether the alien is to be removed from 

the United States.” 8 U.S.C. § 1226(a). If an alien is detained after DHS’s initial 

determination, he or she may request a bond hearing before an immigration judge at 

any time before an order of removal becomes final. 8 C.F.R. § 236.1(d)(1). 

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Once an alien is ordered removed, the alien then enters the “removal period,” 

as defined in section 1231(a)(1)(A): “[W]hen an alien is ordered removed, the Attorney 

General shall remove the alien from the United States within a period of 90 days (in 

this section referred to as the ‘removal period.’).” 8 U.S.C. § 1231(a)(1)(A) (emphasis 

provided). The 90-day removal period begins on the latest of:

(i) The date the order of removal becomes 

administratively final.

(ii) If the removal order is judicially reviewed and if a 

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

the court’s final order.

(iii) If the alien is detained or confined (except under an 

immigration process), the date the alien is released from 

detention or confinement.

Id. § 1231(a)(1)(B). And section 1231(a)(2) mandates that, “[d]uring the removal 

period, the Attorney General shall detain the alien.” Id. § 1231(a)(2); see 8 C.F.R. 

§ 241.3.6 Most salient to this discussion, section 1231 and its implementing 

regulations do not provide the alien with the right to a bond hearing. 

6 The 90-day removal period can be extended in certain limited circumstances:

The removal period shall be extended beyond a period of 90 days 

and the alien may remain in detention during such extended 

period if the alien fails or refuses to make timely application in 

good faith for travel or other documents necessary to the alien's 

departure or conspires or acts to prevent the alien's removal 

subject to an order of removal.

8 U.S.C. § 1231(a)(1)(C).

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C. Source of DHS’s Authority to Detain Aliens Subject to Reinstated 

Removal Orders During Withholding-only Proceedings

The Court must determine whether the authority for Fernando-Mateo’s

detention lies in section 1231 (which does not authorize a bond hearing) or section

1226 (which does). As in all cases, “it is best to start with the statutory language 

itself.” E.E.O.C. v. Sears, Roebuck & Co., 417 F.3d 789, 801 (7th Cir. 2005). After all, 

“[t]he plain language of the statute is the most instructive and reliable indicator of 

that Congressional intent.” Papazoglou v. Holder, 725 F.3d 790, 792–93 (7th Cir. 

2013). And “if the statute is unambiguous and has spoken directly to the precise issue 

such that the intent is clear, we simply give effect to that intent.” Id. at 792.

According to Respondents, the plain text of section § 1231 authorizes 

Fernando-Mateo’s mandatory detention without bond. First, they cite to section

1231(a)(2), which states in pertinent part that “[d]uring the removal period, the 

Attorney General shall detain the alien.”

7 8 U.S.C. § 1231(a)(2). Second, Respondents

point to section 1231(a)(1)(B)(i), which provides that the “removal period” begins on 

the “date the order of removal becomes administratively final.” Id. § 1231(a)(1)(B)(i). 

Third, they lean on section 1231(a)(5), which states, “If the Attorney General finds 

that an alien has reentered the United States illegally after having been removed or 

7 Section 1231(a)(2) states in full: 

During the removal period, the Attorney General shall detain 

the alien. Under no circumstance during the removal period 

shall the Attorney General release an alien who has been found 

inadmissible under section 1182(a)(2) or 1182(a)(3)(B) of this 

title or deportable under section 1227(a)(2) or 1227(a)(4)(B) of 

this title.

8 U.S.C. § 1231(a)(2).

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having departed voluntarily, under an order of removal, a prior order of removal is 

reinstated from its original date and is not subject to being reopened or reviewed.” 

Id. § 1231(a)(5). From this, Respondents argue that Fernando-Mateo’s reinstated 

removal order—the order that forms the basis for his current detention—became 

administratively final on November 12, 2014, and that the removal period began to 

run on that date, allowing the government to detain him now without a bond hearing. 

For his part, Fernando-Mateo contends that the government’s authority to 

detain him emanates from section 1226(a). Because the agency has not issued a final 

order mandating his actual removal from the United States, he reasons, he is being 

detained “pending a decision on whether [he] is to be removed” under section 1226(a). 

See 8 U.S.C. § 1226(a). Fernando-Mateo also argues that, because the BIA has not 

issued its decision in his withholding-only proceeding, the administrative process 

dealing with his removal from the United States remains pending and is not yet final 

for the purpose of judicial review.

 1. Circuit Court Decisions

The Second and Fourth Circuits have concluded that section 1226(a) governs 

the detention of an alien, who is subject to a reinstated removal order but undergoing 

withholding-only proceedings. On the other hand, the Ninth, Third, and Sixth 

Circuits have held that such detentions are subject to section 1231. A review of these 

cases is instructive.

First came the Second Circuit’s decision in Guerra, 831 F.3d 59. There, the 

court relied on section 1226(a)’s language and its relation to section 1231: 

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8 U.S.C. § 1226(a) permits detention of an alien “pending a 

decision on whether the alien is to be removed from the United 

States.” The statute does not speak to the case of whether the 

alien is theoretically removable but rather to whether the 

alien will actually be removed. An alien subject to a reinstated 

removal order is clearly removable, but the purpose of 

withholding-only proceedings is to determine precisely 

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

Id. at 62. By contrast, the Second Circuit continued, section 1231(a) is concerned 

mainly with defining the 90-day removal period during which the Attorney General 

“shall remove the alien.” Id. at 62–63 (internal quotation marks omitted). Thus, the 

former provision is “the more logical source of authorization for the detention of aliens 

currently in withholding-only proceedings.” Id. at 63. 

The court also reasoned that the definition of the word “final” as it appears in 

section 1231(a)(1)(B)(i) should mirror the definition of that word as it appears in 

section 1252(a)(1), a provision in the INA that limits judicial review to “final” agency 

orders. Id. (citing Kanacevic v. INS, 448 F.3d 129, 133–35 (2d Cir. 2006), and 

Chupina v. Holder, 570 F.3d 99, 103 (2d Cir. 2009) (holding that a removal order 

would not be final until withholding proceedings concluded after remand)). 

Lastly, the court rejected the government’s argument that “the finality which 

permits judicial review is different from the finality which permits [the petitioner’s] 

detention under [section] 1231(a),” noting that “we have never recognized such ‘tiers’ 

of finality.” Id. Indeed, the court observed, “the bifurcated definition of finality urged 

upon us runs 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. at 64 (quoting U.S. Army Corps of Eng’rs v. Hawkes Co., 136 S. Ct. 1807, 

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1813 (2016) (in turn quoting Bennett v. Spear, 520 U.S. 154, 178 (1997))). In the end, 

the court concluded that section 1226(a) controlled and held that the petitioner was 

entitled to a bond hearing before an immigration judge to determine whether 

continued detention was necessary. Id.

The Fourth Circuit agreed with this analysis in Guzman Chavez. See 940 F.3d 

at 880−82. Contrasting the different roles of section 1226(a) with 1231(a) within the 

INA’s statutory structure, the court held:

[R]eading the two provisions together, we conclude . . . that it 

is § 1226 that governs the petitioners’ detention, entitling them 

to bond hearings. Section 1231’s “removal period”—and with it, 

the requirement of mandatory detention—begins only when the 

government acquires the “present and final legal authority” to 

execute a removal order, and so long as withholding-only 

proceedings are pending, the government lacks that authority.

Id. at 873 (internal citation omitted). 

The court came to this conclusion for several reasons. It looked first to the 

language of the two provisions, noting, “[s]ubsection 1226(a) does not reference legal 

‘removability,’ or use other language that captures ‘whether the alien is theoretically 

removable.’ Instead, the statute applies ‘pending a decision on whether the alien is 

to be removed,’ invoking the practical question of whether the government has the 

authority to execute a removal.” Id. at 876 (internal citations omitted). As for section

1231, the court continued, its “detention provisions are triggered not when ‘an alien 

is ordered removed’ . . . but only when the ‘removal period’ begins.” Id. And “that 

period does not being until the government as the actual legal authority to remove a 

noncitizen from the country.” Id. (emphasis provided). In this way, “the text and 

structure of § 1226 and § 1231 align.” Id. at 877. 

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Additionally, the Fourth Circuit looked at the practical application of section 

1231(a)’s 90-day mandate, concluding that “the fact that the removal period is limited 

to 90 days strongly suggests that it is intended to apply only when all legal barriers 

to removal are cleared away, leaving just the travel, consular, and various other 

administrative arrangements that are necessary’ to execute a removal order.” Id. at 

877 (cleaned up). And because withholding-only proceedings are typically quite 

lengthy, “agency officials regularly and predictably will find themselves unable to 

meet the 90-day removal deadline.” Id.8 

As in Guerra, the government advanced two primary arguments before the 

Fourth Circuit, both of which the court rejected. In response to the government’s 

contention that section 1226(a) did not apply because the only question in a 

withholding-only proceeding is “to where” and not “whether the alien is to be 

removed,” the Fourth Circuit concluded, “We do not think the ‘whether’ and ‘where’

questions can be separated so cleanly. . . . Because the government’s removal 

authority turns on the ultimate identification of an appropriate country for removal, 

it is not clear while withholding-only proceedings are pending that petitioners are in 

fact to be removed from the United States.” Id. at 878 (cleaned up). And, like the 

Second Circuit, the court declined the government’s invitation to consider a

reinstated removal order as being simultaneously “administratively final,” but not 

“final” for the purposes of judicial review. Id. at 880 (rejecting the government’s 

8 The Fourth Circuit recognized that section 1231(a)(6) allows the government to detain 

an alien beyond the 90-day period in certain circumstances, but found them applicable. See

940 F.3d at 877–78 (stating, “absent a clearer textual command, we are most reluctant to 

adopt a construction of § 1231 that in an entire class of cases will put government officials 

routinely and completely foreseeably in dereliction of their statutory duties”). 

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“bifurcated definition of finality” because the “presumption is that finality should 

mean the same thing” in section 1231 and section 1252). 

In contrast to the Second and Fourth Circuits, the Ninth Circuit arrived at the 

opposition conclusion, holding that section 1231(a), not section 1226(a), governed the 

detention of an alien subject to a reinstated removal order. See Padilla-Ramirez, 882 

F.3d 826. In its view, “[t]he question . . . is whether [Petitioner’s] reinstated removal 

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

section 1226(a) provides the only authority for detaining him.” Id. at 830–31. 

The Padilla-Ramirez court began its analysis by examining section 1231(a)(5):

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 any time after the reentry.

Id. at 831 (quoting § 1231(a)(5)). In the court’s view, the fact that a reinstated 

removal order “is not subject to being reopened or reviewed” meant that it was 

“administratively final” as that term appears in section 1231(a)(1)(B)(ii). Id. The 

court also noted that the statute “proscribes any challenge that might affect the 

status of the underlying removal order.” Id. Moreover, the court added, by including 

the reinstatement provision within the detention and supervision provisions of 

section 1231, rather than within section 1226(a), “Congress meant for the detention 

of aliens subject to reinstated removal orders to be governed by that section, which 

would require that such orders be administratively final.” Id. 

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The Padilla-Ramirez court further explained that withholding-only 

“proceedings are an exception to the general prohibition against seeking relief from 

removal pursuant to a reinstated order.” Id. at 832 (citing 8 C.F.R. § 241.8(e)). This

exception “override[s] section 1231(a)(5)’s command that “the alien shall be removed

under the prior order at any time after the reentry,” but not the “prohibition on 

reopening or reviewing a prior removal order.” Id. The court stressed that, “[a]t most, 

a grant of withholding will only inhibit the order’s execution with respect to a 

particular country.” Id.9 “The removal order itself therefore is not at issue in the 

withholding-only proceedings, meaning that those proceedings cannot diminish or 

otherwise affect its finality.” Id.

Furthermore, the Padilla-Ramirez court noted that the presumption that a 

term has the same meaning in different parts of a statute “give[s] way if the provision 

at issue points toward a different meaning.” Id. at 834. And “the text and structure 

of the Act indicate that Congress intended for section 1231(a) to govern detention of 

aliens subject to reinstated removal orders.” Id.

Lastly, the Ninth Circuit drew upon the Supreme Court’s decision in Zadvydas, 

533 U.S. 678. In that case, the petitioner was an alien who was ordered removed and 

9 Put another way:

The decision to be made in those proceedings is not whether [the 

petitioner] is to be removed from the United States, but merely 

whether he may be removed to El Salvador. This narrow 

question of to where an alien may be removed is distinct from 

the broader question of whether the alien may be removed; 

indeed, the former inquiry requires that the latter already have 

been resolved in the affirmative. 

882 F.3d at 832.

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detain subject to removal, but no country would accept him. Id. at 684–85. And, 

because he fell into one of the groups set forth in section 1231(a)(6),10 the government 

argued that it could detain him for an indefinite period, until it found a country 

willing to accept him. Id. at 689. Concluding that “[a] statute permitting indefinite 

detention of an alien would raise a serious constitutional problem,” id. at 690, the 

Supreme Court placed an outer limit on continued detention under section 1231(a)(6), 

holding that “an alien may be held in confinement until it has been determined that 

there is no significant likelihood of removal in the reasonably foreseeable future,” id. 

at 701. Although not completely on point, the Ninth Circuit observed that the 

Supreme Court had no objection to the fact that Zadvydas was detained pursuant to 

section 1231(a) while the government was trying to find a suitable destination 

country. Padilla-Ramirez, 882 F.3d at 833. This, concluded the court, “indicates that 

such country-specific determinations are not ‘decision[s] on whether the alien is to be 

removed from the United States’” as provided in section 1226(a). Id.

The Third Circuit agreed with this reasoning in Guerrero-Sanchez, 905 F.3d 

208. Like the Ninth Circuit, the court framed the issue this way: “which provision 

[section 1226(a) or section 1231(a)] governs here depends on whether the removal 

10 That provision states:

An alien ordered removed who is inadmissible under section 

1182 of this title, removal under section 1227(a)(1)(C), 

1227(a)(2), or 1227(a)(4) of this title or 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 

the terms of supervision in paragraph (3).

8 U.S.C. § 1231(a)(6). 

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order . . . is administratively final: if it is final, then § 1231(a) applies; otherwise § 

1226(a) controls.” Id. at 215. And, like the Ninth Circuit, the Third Circuit found it 

persuasive that the only remaining decision for the agency to make was not whether 

the petitioner should be removed, but to where. Id. at 216. 

Having determined that section 1231(a) controlled, the Third Circuit 

nevertheless found that an alien detained during withholding-only proceedings 

generally is entitled to a bond hearing after six months to maintain the 

constitutionality of section 1231(a)(6). Id. at 219–20. In arriving that this conclusion, 

the Third Circuit took issue with the Ninth Circuit’s reliance on Zadvydas, noting 

that the Supreme Court “had no occasion to address the due process concerns posed 

by prolonged detention of someone in [Petitioner’s] situation who is still seeking 

withholding-only relief.” Id. at 220. Rather, the Third Circuit found that “Zadvydas

addressed only the detention of noncitizens who—unlike [Petitioner]—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.” Id. 

The most recent circuit court opinion also came down on the side of section 

1231(a). See Martinez, 968 F.3d 555. In Martinez, the Sixth Circuit determined that 

section 1231(a) provided the authority to detain an alien who is subject to a reinstated 

removal order and undergoing withholding-only proceedings. Id. at 559. Echoing the 

Ninth and Third Circuits, the court found section 1226(a) inapplicable because “an 

alien in withholding-only proceedings . . . cannot challenge whether the government 

can remove him; he may only challenge whether the government can remove him to 

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a particular country.” Id. at 561. And, as for whether a reinstated removal order was 

“administratively final,” the Sixth Circuit relied upon its prior cases, concluding that, 

“with regard to the question of whether the government can remove [Petitioner], 

there has been an administratively final decision.” Id. at 565. 

2. A Reinstated Removal Order Is Not “Administratively Final”

This Court too starts with the text of the relevant statutes and the question of 

whether Fernando-Mateo’s reinstated removal order from 2014 is “administratively 

final” within the meaning of section 1231(a). As should be obvious by now, the INA 

does not specify whether a reinstated removal order is “administratively final.” That 

said, the word “final” does appear in other INA provisions, particularly those that 

provide for judicial review of removal orders. See 8 U.S.C. § 1229a(c)(7)(C)(i) (“final 

administrative order of removal”); id. § 1252(a)(1) (“final order of removal “); id. 

§ 1252(b)(1) (“final order of removal”); see also Stone v. INS, 514 U.S. 386, 405 (1995). 

What is more, as Respondents concede, notwithstanding section 1231(a)(5), an alien

who is subject to a reinstated removal order may appeal the reinstatement itself as 

well as the agency’s denial of a withholding request. 8 U.S.C. §§ 1231(b)(3), 1252.11

Thus, as in prior cases, Respondents ask the Court to adopt a bifurcated 

definition of finality. In other words, according to Respondents, Fernando-Mateo’s 

11 An alien subject to a reinstated removal order may seek judicial review as to whether 

the reinstatement order was properly entered. See Torres-Tristan v. Holder, 656 F.3d 653, 

656 (7th Cir. 2011); Lemos v. Holder, 636 F.3d 365, 366 (7th Cir. 2011); Gomez-Chavez v. 

Perryman, 308 F.3d 796, 801 (7th Cir. 2002); see also Yi Xian Chen v. Holder, 705 F.3d 624, 

628 (7th Cir. 2013) (noting that the reinstatement of an order of removal could have been 

appealed, but was not). Likewise, an alien subject to a reinstated removal order who requests 

withholding of removal may appeal the denial of withholding. See Cruz-Martinez v. Sessions, 

885 F.3d 460, 463–64 (7th Cir. 2018). 

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removal order should be considered “administratively final” for purposes of detention 

under section 1231(a)(1)(B)(i), but not “final” for purposes of appellate review under 

section 1252 or section 1229a.

Although the Seventh Circuit has yet to squarely address the precise question

at hand, it has provided guidance on how it would interpret the phrase 

“administratively final” in the context of withholding-only proceedings. See GarciaArce, 946 F.3d 371. In that case, the petitioner was an alien subject to a reinstated 

removal order. Id. at 375. She sought withholding of removal and, once that was 

denied, appealed the adverse decision to the BIA. Id. After the BIA rejected her 

appeal in February 2019, she filed a motion asking the BIA to reopen the withholdingonly proceedings under section § 1229a(c)(7)(C)(i).12 Id. at 375–76. And once the BIA 

denied that motion in July 2019, the petitioner appealed both BIA decisions to the 

Seventh Circuit. Id. at 376. 

The Seventh Circuit went on to affirm the BIA’s decision on both grounds. 

And, in the process of doing so, the court implicitly characterized the BIA’s decision 

from July 2019 as the “final administrative order of removal” for the purposes of 

section 1229a(c)(7)(C)(i). See id. at 378. Of course, every circuit that has addressed 

the issue has held that a reinstated removal order is not “final” for purposes of section

1252(a) until the withholding-only proceedings have concluded.

13 But, apart from the 

12 Section 1229a(c)(7)(C)(i) states that, except as otherwise provided, any motion to 

reopen “shall be filed within 90 days of the date of entry of a final administrative order of 

removal.” 8 U.S.C. § 1229a(c)(7)(C)(i).

13

 See, e.g., Ortiz-Alfaro v. Holder, 694 F.3d 955, 958 (9th Cir. 2012) (“[W]e hold that 

where an alien pursues reasonable fear and withholding of removal proceedings following the 

reinstatement of a prior removal order, the reinstated removal order does not become final 

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Seventh Circuit in Garcia-Arce, the Court has been unable to find any circuit case

that addresses when a reinstated removal order subject to withholding-only 

proceedings becomes a “final administrative order of removal” for the purposes of 

section 1229a(c)(7)(C)(i). See 8 U.S.C. § 1229a(c)(7)(C)(i). 

This difference matters. Granted, there may be some sliver of daylight 

between the phrasing “when the order of removal becomes administratively final” in 

section 1231(a)(1)(B)(i) and the phrasing “the date of the final order of removal” in 

section 1252(a) to support the government’s argument that they could mean different 

things (as the Ninth, Third, and Sixth Circuits propose). Compare 8 U.S.C. § 1252(a) 

(emphasis provided), with id. § 1231(a)(1)(B)(i) (emphasis provided). But no 

discernible light exists between the phrase “when the order of removal becomes 

administratively final” in section 1231(a)(1)(B)(i) and the phrase “a final 

administrative order of removal” in section 1229a(c)(7)(C)(i). Compare id. § 

1231(a)(1)(B)(i) (emphasis provided), with id. § 1229(c)(7)(C)(i) (emphasis provided). 

These practically identical phrases must mean the same thing. See Perry v. First 

Nat’l Bank, 459 F.3d 816, 820–21 (7th Cir. 2006) (stating the law presumes that 

“Congress intended the same terms used in different parts of the same statute to have 

the same meaning”). 

until the reasonable fear of persecution and withholding of removal proceedings are 

complete.”); see also Kouambo v. Barr, 943 F.3d 205, 213–14 (4th Cir. 2019); Guerra, 831 F.3d 

at 63; Jimenez-Morales v. U.S. Atty. Gen., 821 F.3d 1307, 1308 (11th Cir. 2016), cert. denied 

sub nom. Jimenez-Morales v. Lynch, 137 S. Ct. 685 (2017); Luna-Garcia v. Holder, 777 F.3d 

1182, 1185 (10th Cir. 2015); Stoddart v. Atty. Gen. U.S., 627 F. App’x 94, 96–97 (3d Cir. 

2015); cf. Pichimarov v. Sessions, 706 F. App’x 877, 879 (7th Cir. 2017) (holding that, under 

section 1252(a), “[a] final order of removal is not only the actual order of deportation, but all 

orders closely related to the deportation proceeding, including those entered during the 

proceeding”).

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Going back to Garcia-Arce, the Seventh Circuit found that the petitioner’s 

reinstated order of removal was not “a final administrative order of removal” (albeit 

under section 1229a(c)(7)(C)(i)) until the BIA denied her request for withholding. See

946 F.3d at 378. It follows that the Seventh Circuit would not consider FernandoMateo’s reinstated 2014 removal order to be “administratively final” under section 

1231(a)(1)(B)(i) until after the BIA resolves his appeal. Thus, section 1231(a)’s 90-

day removal period has yet to begin, and Fernando-Mateo’s current detention cannot 

be governed by section 1231(a), leaving the Court to consider section 1226(a). 

3. Section 1226(a) Governs Fernando-Mateo’s Detention

Section 1226(a), by its terms, applies to aliens who are “detained pending a 

decision on whether the alien is to be removed from the United States.” 8 U.S.C. §

1226(a). In finding this provision inapplicable in this context, the Ninth, Third and 

Sixth Circuits relied heavily on the distinction between the question of “whether” one 

is to be removed (which, they believe, is governed by section 1226(a)) and “to where”

one is to be removed (which, they believe, is governed by section 1231(a)). While this 

inventive construction has some superficial appeal, it ignores the rather complex, 

real-world operation of section 1231(b). This case is a good illustration.

Fernando-Mateo is subject to a reinstated removal order, but the immigration 

judge granted his request for withholding. Consequently, the government cannot 

remove him to Guatemala, the only country that appears in the 2014 removal order.14 

14 This is not unique to Fernando-Mateo. In 2018, 1,746 applications for withholding of 

removal were granted. See U.S. Dep’t Justice, Executive Office for Immigration Review, FY 

2018 Statistics Yearbook, Fig. 24, Withholding of Removal Initial Case Completions by 

Decision, https://www.justice.gov/eoir/file/1198896/download (last accessed Dec. 2, 2020).

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Moreover, it is unclear whether, despite its continuing efforts, the government will 

be able to find another appropriate destination country given his background as an 

ethnic Mayan indigenous to Guatemala. See Pet’r’s Notice of Filing at 1.15 

This, then, leaves at least three potential outcomes. First, if the BIA reverses 

the immigration judge’s order granting withholding, the BIA’s decision will be a final 

order, subject to appeal to the Seventh Circuit. See Garcia-Arce, 946 F.3d at 378. 

Second, if the BIA affirms the withholding order, DHS must look for another country 

to which Fernando-Mateo may be legally removed. See 8 C.F.R. 1240.12(d). And, if

it finds a suitable destination country, DHS must give Fernando-Mateo an 

opportunity to seek withholding of removal to that new country, and the process 

repeats. See Guzman Chavez, 940 F.3d at 879; cf. Kossov v. INS, 132 F.3d 405, 409 

(7th Cir. 1998) (“[T]he matter must return to the administrative process so that the 

Kossovs can receive a full and fair hearing for their claims of asylum and withholding 

of deportation as to Russia[, an alternate country].”). Third, if BIA affirms the 

withholding order and the DHS cannot find another country to which FernandoMateo may be legally removed despite all reasonable efforts, DHS then will have 

effectively determined that Fernando-Mateo cannot, in fact, be removed. 

But, under any of these scenarios, “ICE lacks the present and final legal 

authority to actually execute that order of removal.” Romero, 280 F. Supp. 3d at 846. 

Indeed, under the third scenario, Fernando-Mateo cannot be removed, even if his 

reinstated removal order is upheld and his withholding petition denied, if the agency 

15 Indeed, even the government agrees that it will release Fernando-Mateo if the BIA 

and Seventh Circuit uphold the immigration judge’s order, and an alternate country cannot 

be found. See Ochoa Suppl. Decl. ¶ 7. 

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determines that no destination country meets the requirements of section 1231(b). 

Therefore, because “a decision on whether [Fernando-Mateo] is to be removed from 

the United States” is “pending” at this time, his present detention is governed by 

section 1226(a). See 8 U.S.C. § 1226(a); Guzman Chavez, 940 F.3d at 876 (stating 

that section 1226(a) applies when the government has the actual authority to execute 

a removal rather than when an alien is merely theoretically removable).

4. Section 1231(a) Is Ill-suited to Withholding-only Proceedings

Contrary to Respondents’ contentions, section 1231(a) is a poor match for an 

alien’s detention during withholding-only proceedings. First, assuming that a 

reinstated removal order becomes “administratively final” as of its original issuance, 

the statute mandates the Attorney General to remove the alien from the United 

States within 90 days. 8 U.S.C. § 1231(a)(1)(A) (“[T]he Attorney General shall remove 

the alien . . . within a period of 90 days . . . .” (emphasis provided)). But withholding 

proceedings (and likely subsequent appeals) almost always take more than 90 days, 

and it is reasonable to assume that Congress was aware of this when enacting section 

1231 and its amendments. Guzman Chavez, 940 F.3d at 877. As such, that Congress 

limited the typical removal period to 90 days “makes sense if the removal period is 

only meant to govern the final logistical steps of physically removing an alien.” 

Romero, 280 F. Supp.3d at 846. Otherwise, the agency regularly would be in violation 

of section 1231(a)(1)(A), something that Congress could not have intended.

In response, Respondents point out that section 1231(a)(1)(C) allows for an 

extension of the 90-day period “if the alien fails or refuses to make timely application 

in good faith for travel or other documents necessary to the alien’s departure or

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conspires or acts to prevent the alien’s removal subject to an order of removal.” 

8 U.S.C. § 1231(a)(1)(C). According to Respondents, when an alien requests 

withholding, he or she “acts to prevent the alien’s removal.” See id. But this is not 

obvious from the text of the statute, and the argument has been rejected before. See 

Guzman Chavez, 940 F.3d at 877–78. What is more, DHS has taken a contrary

position on a prior occasion, stating that “[a]n alien who challenges a final order of

removal through court processes, including appeals, stays of removal, and motions to 

reopen denial decisions, is not considered failing to comply with the removal order.” 

See DHS’s Office of the Inspector General, ICE’s Compliance with Detention Limits 

for Aliens with a Final Order of Removal from the United States, OIG–07–28 (Feb. 

2007) at 19, http://oig.dhs.gov/assets/Mgmt/OIG_07-28_Feb07.pdf.

16 Accordingly, the 

Court gives this argument little weight. 

As noted above, the Ninth, Third and Sixth Circuits relied heavily on the 

distinction between “whether” an alien is to be removed versus “to where” he or she 

is to be removed. But this deconstruction of removal orders also can support the 

opposite construction. Recall that section 1231(a)(5) precludes an alien from 

challenging the initial removal order upon its reinstatement. But, in section 

1231(b)(3)(A), Congress allowed the same individual to challenge the designated 

country of destination. From this, one interpretation (espoused by Respondents) is

that the “order of removal” in section 1231(a)(1)(B)(i) and “removal order” in section 

16 The Court may take judicial notice of this report. See Meriyu v. Barr, 950 F.3d 503,

508 (7th Cir. 2020) (permitting sua sponte judicial notice of a government agency’s report). 

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1231(a)(1)(B)(ii) refer only to the first element addressed in section 1231, the 

“whether.” 

But equally plausible is the view that the two phrases are intended to 

encompass both elements of an order of removal that are addressed in sections 

1231(a)(1)(5) and 1231(b)(3)(A)—the “whether” and the “to where.” In fact, as the 

Fourth Circuit put it, the language and structure of section 1231 confirm that “both 

legally and practically, the two [questions] are intertwined: Because the government’s 

removal authority turns on the ultimate identification of an appropriate country for 

removal, it is not clear while withholding-only proceedings are pending that 

petitioners are in fact ‘to be removed’ from the United States.” Guzman Chavez, 940 

F.3d at 878 (cleaned up). Accordingly, the deconstruction thought exercise offered by 

Respondents provides little guidance on this issue. 

Finally, the conclusion that section 1226(a), not section 1231(a), governs the 

detention of aliens, like Fernando-Mateo, who are subject to reinstated removal 

orders but undergoing withholding-only proceedings, finds support in the overall 

structure of the INA. With this construction, the statute sets forth a sensible 

sequence leading up to an alien’s actual removal. First, section 1226(a) provides for 

the apprehension and detention of aliens, as well as their detention “pending a 

decision on whether the alien is to be removed from the United States.” See 8 U.S.C. 

§ 1226(a). Next, section 1229 mandates the initiation of removal proceedings, while 

section 1229a governs the removal proceedings themselves. And, finally, 

section 1231(a) governs the detention and removal of aliens once all legal 

requirements have been satisfied and appeals completed, so all that remains is to 

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effectuate the removal. Because Fernando-Mateo has not reached that final stage, 

his detention is not governed by section 1231(a).

IV. Conclusion

For the reasons provided above, the Court holds that section 1226(a) is the 

source of authority for Fernando-Mateo’s detention.17 Accordingly, he is entitled to 

make his case for release on bond at an individualized hearing, and his habeas corpus

petition and emergency motion are granted. Respondents are ordered to provide 

Fernando-Mateo with an individualized hearing pursuant to section 1226(a) within 

three days of the issuance of this Order. 

IT IS SO ORDERED ENTERED: 12/2/20

___________________________________

JOHN Z. LEE

United States District Judge

17 Having concluded that 8 U.S.C. § 1226 governs, the Court need not address FernandoMateo’s alternative argument that, should 8 U.S.C. § 1231 apply, his due process rights have 

been violated under Zadvydas. See Pet’r’s Reply ¶¶ 27–32, ECF No. 12. The Court pauses 

only to note that, as to this claim, the initial burden is on the alien to show that there is no 

significant likelihood of removal in the foreseeable future, see Zadvydas, 533 U.S. at 701, and 

the present record is less than complete on this issue. 

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