G.P. v. Garland

United States Court of Appeals

For the First Circuit

No. 24-1119

G.P.,

Petitioner, Appellant,

v.

MERRICK B. GARLAND, U.S. Attorney General; TODD LYONS, Field

Office Director, Enforcement and Removal Operations, U.S.

Immigration and Customs Enforcement; CHRISTOPHER BRACKETT,

Superintendent, Strafford County Department of Corrections,

Respondents, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul J. Barbadoro, U.S. District Judge]

Before

Barron, Chief Judge,

Selya and Howard, Circuit Judges.

SangYeob Kim, with whom Gilles Bissonnette and American Civil

Liberties Union of New Hampshire were on brief, for appellant.

Jeffrey M. Hartman, Trial Attorney, Office of Immigration

Litigation, Civil Division, U.S. Department of Justice, with whom

Brian Boynton, Principal Deputy Assistant Attorney General, Civil

Division, Song Park, Assistant Director, Office of Immigration

Litigation, Sarah S. Wilson, Assistant Director, Office of

Immigration Litigation, and Jesi J. Carlson, Senior Litigation

Counsel, Office of Immigration Litigation were on brief, for

appellees.

June 11, 2024

HOWARD, Circuit Judge. Petitioner G.P. has been held in

immigration detention since October 2020 while he seeks protection

under the Convention Against Torture (CAT) against removal to his

home country of the Dominican Republic. See G.P. v. Garland, No.

21-2002, 2023 WL 4536070 (1st Cir. July 13, 2023) (remanding for

further consideration of CAT claim). During the course of his

confinement, the Department of Homeland Security (DHS) has

repeatedly reviewed his custody status and found that he would

pose a danger to the community if released. Unsatisfied with these

results, G.P. brought the instant application for a writ of habeas

corpus, see 28 U.S.C. § 2241(b), arguing that there is "no

significant likelihood of [his] removal in the reasonably

foreseeable future," Zadvydas v. Davis, 533 U.S. 678, 701 (2001),

and that he should therefore be released subject to supervision.

The district court disagreed, and G.P. now appeals. Finding no

error in the district court's conclusion, we affirm.

I.

G.P. is a 52-year-old native of the Dominican Republic

who first entered the United States unlawfully in 1993. Two years

later, he was convicted in Massachusetts state court for

trafficking cocaine. He spent 17 years in prison and was

subsequently removed to the Dominican Republic. In 2017, G.P.

unlawfully entered the United States for a second time and, once

again, quickly became enmeshed in legal trouble when he was

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arrested by federal authorities for his involvement in a sizeable

fentanyl-trafficking organization. G.P. pled guilty to the

charges that he was facing, cooperated with the government in its

prosecution of the leader of the enterprise, and was sentenced to

three years' imprisonment. While serving that sentence, G.P. was

attacked by two other inmates who claimed to be friends of the

leader of the trafficking organization.

DHS reinstated G.P.'s original removal order following

the end of his federal prison sentence in October 2020 with the

intention of removing him for a second time. See 8

U.S.C. § 1231(a)(5). G.P., however, expressed a fear of

retaliation in the Dominican Republic on account of his cooperation

with the government. An asylum officer found that fear to be

credible and accordingly placed G.P. into withholding-only

proceedings. See 8 C.F.R. § 1208.31(e).

Appearing before an immigration judge (IJ), G.P. applied

for deferral of removal under CAT. See 8 C.F.R. § 1208.17(a). In

support of that application, he offered the testimony of an expert

witness who claimed that G.P. faced a "very high risk of being

targeted and physically harmed by a range of forces" if removed to

the Dominican Republic. The IJ found that the expert had testified

credibly but nonetheless denied G.P. relief. The Board of

Immigration Appeals (BIA) affirmed that decision in December 2021,

and G.P. filed a petition for review in this court. We granted

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that petition in July 2023, reasoning that the IJ's decisions

regarding the expert witness' testimony were not shown to be

supported by substantial evidence, see G.P., 2023 WL 4536070, at

*1, and remanded to the agency for further consideration of G.P.'s

claim for relief.1

G.P. has been held in immigration detention since

October 2020 as his withholding-only proceedings have unfolded.

That detention has been subject to review pursuant to both DHS

regulations and COVID-related litigation. Specifically, DHS has

repeatedly considered the issue of his confinement under 8 C.F.R.

§ 241.4, as well as the since-vacated preliminary injunction in

Fraihat v. U.S. Immigration & Customs Enforcement, 445 F. Supp. 3d

709, 750–51 (C.D. Cal. 2020), vacated, 16 F.4th 613 (9th Cir.

2021). Additionally, a federal district court provided G.P. a

bail hearing in connection with Gomes v. U.S. Department of

Homeland Security, 460 F. Supp. 3d 132 (D.N.H. 2020), where it

found that the government had met its burden of proving by clear

and convincing evidence that he would pose a danger to the

community if released.

G.P. now brings this collateral attack on his detention.2

He argues that, under Zadvydas, he is entitled to be released

1G.P.'s hearing in front of the IJ on remand commenced in

April of this year and has been continued until June 25, 2024.

G.P. initially filed with us a motion for temporary release

2

while the petition for review in his underlying withholding-only

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subject to supervision because there is "no significant likelihood

of [his] removal in the reasonably foreseeable future." Id. at

701. The district court entered judgment denying his application

in January 2024, and G.P. timely appealed.

II.

We begin our consideration of G.P.'s appeal by sketching

out the relevant legal framework.

Congress has created an "expedited [removal] process"

for noncitizens who reenter the United States unlawfully after

having previously been removed. See Johnson v. Guzman Chavez, 594

U.S. 523, 529–30 (2021); 8 U.S.C. § 1231(a). Specifically, "the

prior order of removal is reinstated from its original date and is

not subject to being reopened or reviewed." § 1231(a)(5); see

Garcia Sarmiento v. Garland, 45 F.4th 560, 563 (1st Cir. 2022).

DHS must then remove the noncitizen within a 90-day "removal

period." See Guzman Chavez, 594 U.S. at 528 (citing

§ 1231(a)(1)(A)). Detention is mandatory during the removal

period, see § 1231(a)(2), and may be extended into a "post-

removal[]period" in certain circumstances, see Guzman Chavez, 594

U.S. at 528–529 (citing §§ 1231(a)(1)(C), (c)(2)(A), (a)(6)). If

none of those circumstances apply, a noncitizen "who is not removed

proceedings remained pending. We treated that motion as an

application for a writ of habeas corpus under 28 U.S.C. § 2241(b)

and ordered it transferred to the District of New Hampshire. See

Fed. R. App. P. 22(a).

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within the 90-day removal period will be released subject to

supervision." Id. at 529 (citing § 1231(a)(3)).

This expedited process notwithstanding, a noncitizen who

is subject to a reinstated removal order may seek to prevent

removal to a specific country by obtaining statutory withholding

of removal or relief under CAT. See id. at 530–32 (describing

withholding-only procedures). In Guzman Chavez, the Supreme Court

held that § 1231 governs the detention of a noncitizen with a

reinstated removal order while the noncitizen pursues these forms

of relief. Id. at 526.

Section 1231 "does not specify a time limit" on how long

DHS may detain a noncitizen. See id. at 529; see also Johnson v.

Arteaga-Martinez, 596 U.S. 573, 576 (2022) (holding that

§ 1231(a)(6) does not require the government "to offer detained

noncitizens bond hearings after six months of detention in which

the [g]overnment bears the burden of proving by clear and

convincing evidence that a noncitizen poses a flight risk or a

danger to the community"). DHS regulations, however, provide an

opportunity for a noncitizen to secure release during the post-

removal period on a showing that the noncitizen would not pose a

danger to the community or significant flight risk. See 8 C.F.R.

§ 241.4(d)(1).

Additionally, in Zadvydas, the Supreme Court "read an

implicit limitation into the statute . . . in light of the

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Constitution's demands" and held that it authorizes detention only

for "a period reasonably necessary to bring about [an] alien's

removal from the United States." 533 U.S. at 689. The Zadvydas

Court recognized a six-month window following the removal period

during which a noncitizen's detention is presumptively reasonable.

Id. at 701. After that, if the noncitizen "provides good reason

to believe that there is no significant likelihood of removal in

the reasonably foreseeable future, the [g]overnment must respond

with evidence sufficient to rebut that showing" or release the

noncitizen subject to supervision. Id.; see also 8 C.F.R. § 241.13

(setting out Zadvydas procedures); Clark v. Martinez, 543 U.S.

371, 377–78 (2005) (applying Zadvydas to a different class of

noncitizens detained under § 1231(a)(6)).

With this framework in mind, we turn to the merits of

G.P.'s appeal. We have jurisdiction under 28 U.S.C. § 1291, and

our review is de novo. See Hernandez-Lara v. Lyons, 10 F.4th 19,

26 (1st Cir. 2021)

III.

A.

G.P. argues that, under Zadvydas, he is entitled to be

released subject to supervision because there is "no significant

likelihood of [his] removal in the reasonably foreseeable future."

This, he contends, is especially true following our decision to

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remand his withholding-only proceedings to the agency for

additional consideration.

The argument stumbles out of the gate because G.P.'s

situation is readily distinguishable from Zadvydas. There, two

noncitizens brought habeas petitions to challenge their post-

removal-period detention. The first had been born in 1948 to

Lithuanian parents in a displaced persons camp in Germany before

immigrating to the United States when he was eight years old. 533

U.S. at 684. After being convicted of a series of crimes, he was

ordered deported to Germany in 1994. Id. The noncitizen's removal

hit a snag, however, when Germany, Lithuania, and the Dominican

Republic (his spouse's home country) all refused to accept him.

Id. The second noncitizen in Zadvydas had been born in Cambodia

in 1977. Id. at 685. His family fled that country when he was a

child, eventually settling in the United States, where the

noncitizen was convicted of manslaughter for his involvement in a

gang-related shooting in 1995. He was ordered removed after

serving two years' imprisonment, but Cambodia -- which had no

repatriation treaty with the United States -- refused to accept

him. Id. at 685–86.

The Supreme Court has characterized the predicament that

these two noncitizens found themselves in as a "removable-but-

unremovable limbo." Jama v. Immigr. & Customs Enf't, 543 U.S.

335, 347 (2005). Crucially, both had exhausted administrative and

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judicial remedies to prevent removal and were being detained only

because the government was struggling to find a country to take

them in. Zadvydas, 533 U.S. at 684–86. Accordingly, the Court

described their confinement as "not limited, but potentially

permanent," contrasting their situations with that in Carlson v.

Landon, 342 U.S. 524 (1952), where the Court "uph[e]ld[] temporary

detention of [an] alien during deportation proceeding[s] while

noting that [any] 'problem of . . . unusual delay' was not

present." Id. at 691 (quoting Carlson, 342 U.S. at 546).

G.P., on the other hand, has not exhausted his

administrative remedies. Rather, he is being detained because his

CAT proceedings remain pending. While we acknowledge that the

length of those proceedings now well surpasses the presumptively

reasonable six-month post-removal period set out in Zadvydas,

there is no indication that they have dragged on because of bad

faith or undue delay by the agency. Furthermore, G.P. does not

dispute that, if he is ultimately denied relief, the government

will be able to move forward with removing him for a second time

to the Dominican Republic. There thus appears to be little chance

of a removable-but-unremovable limbo for him. See id. at 697

("[P]ost-removal-period detention, unlike detention pending a

determination of removability or during the subsequent 90-day

removal period, has no obvious termination point." (emphasis

added)). Instead, once G.P.'s current withholding-only

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proceedings end, he will either be removed to the Dominican

Republic or the government will have to begin the process of

finding a different country to accept him. Under the present

circumstances then, he has failed to show that there is "no

significant likelihood of [his] removal in the reasonably

foreseeable future." Id. at 701; cf. Jennings v. Rodriguez, 583

U.S. 281, 298–304 (2018) (characterizing detention of noncitizens

during immigration proceedings under 8 U.S.C. §§ 1225(b)(1),

1225(b)(2), and 1226(c) as lasting "for a specified period of time"

or, alternatively, having "a definite termination point" (quoting

Demore v. Kim, 538 U.S. 510, 529 (2003))).

B.

In concluding that G.P. is not entitled to habeas relief,

we align ourselves with all of the circuit courts that have

considered analogous circumstances. Most recently, the Fourth

Circuit rejected a nearly identical challenge to post-removal-

period detention during withholding-only proceedings. See

Castaneda v. Perry, 95 F.4th 750 (4th Cir. 2024). We find the

Castaneda court's reasoning persuasive.

The noncitizen there had a previous order of removal

reinstated in 2019 and had been detained while he pursued relief

under CAT. Id. at 753 & n.1. Those proceedings accrued a

labyrinthine history during his confinement: Twice an IJ granted

the noncitizen CAT relief, but both times the BIA remanded. Id.

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at 753–54. Following the second remand, the IJ changed course and

denied the petitioner relief. Yet once again, the BIA did not

affirm, sending the case back to the IJ to hear for a fourth time.

Id. at 754. The noncitizen brought a habeas petition, arguing

that his continued detention ran afoul of Zadvydas and the Due

Process Clause.3 Id.

Much like us, the Fourth Circuit found it significant

that the noncitizen's detention "simply [was] not the type of

indefinite and potentially permanent detention at issue in

Zadvydas." Id. at 757 (internal quotations omitted). Instead,

the court reasoned, "withholding-only proceedings are finite."

Id. And because they "have a definite ending point, then so too

must the detention pending the resolution of those proceedings."

Id.

The Fourth Circuit additionally surveyed the courts of

appeal and found that "[t]o reach a contrary result would be to go

against th[e] clear weight of authority and create a circuit

split." Id. at 759. We concur. See Martinez v. Larose, 968 F.3d

555, 565 (6th Cir. 2020) ("If [petitioner] does not prevail in his

pending actions before this court and the BIA, nothing should

impede the government from removing him to El Salvador."); Prieto-

3G.P. challenges his detention under only Zadvydas. Unlike

the Fourth Circuit then, we need not consider any constitutional

claim.

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Romero v. Clark, 534 F.3d 1053, 1063 (9th Cir. 2008) ("It is true

that [petitioner's] detention lacks a certain end date, but this

uncertainty alone does not render his detention indefinite in the

sense the Supreme Court found constitutionally problematic in

Zadvydas."); Soberanes v. Comfort, 388 F.3d 1305, 1311 (10th Cir.

2004) ("[F]or now, [petitioner's] detention is clearly neither

indefinite nor potentially permanent like the detention held

improper in Zadvydas; it is, rather, directly associated with a

judicial review process that has a definite and evidently impending

termination point . . . .").

C.

G.P. endeavors unsuccessfully to deal with this one-

sided body of case law. He concedes that he is unable to provide

any decision where a court ordered a noncitizen to be released

under Zadvydas while removal or withholding-only proceedings

remained pending before the agency.4 This, G.P. contends, is of

4 The closest that G.P. comes to citing such a case are his

references to Nadarajah v. Gonzales, 443 F.3d 1069 (9th Cir. 2006),

but these are unavailing. In Nadarajah, the Ninth Circuit adopted

the reasoning of Zadvydas in interpreting 8 U.S.C. § 1225(b) and

granted habeas relief to a noncitizen detained under that statute.

See id. at 1071, 1076–78. But see Jennings, 583 U.S. at 297–301

(declining to apply the reasoning of Zadvydas in interpreting

§ 1225(b)). Unlike G.P., the noncitizen in Nadarajah no longer

had an immigration case that was pending in front of an IJ or the

BIA. Instead, after the IJ granted the noncitizen asylum and

relief under CAT and that decision was affirmed by the BIA, the

BIA Chairperson made the "unusual move" of referring the

noncitizen's case to the Attorney General. See Nadarajah, 443

F.3d at 1075; 8 C.F.R. §§ 1003.1(d)(7)(i), (h). With no indication

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no matter because his case is "unique." Namely, he points to our

decision in his withholding-only proceedings, G.P., 2023 WL

4536070, which he posits, "will render it extremely difficult for

the IJ and the BIA to deny his relief."

Central to G.P.'s argument is a belief that it is

appropriate for this court, in this collateral proceeding, to weigh

in on the merits of his underlying CAT claim on remand before the

agency. We have significant doubts about that proposition. See

I.N.S. v. Orlando Ventura, 537 U.S. 12, 16 (2002) ("Within broad

limits the law entrusts the agency to make the basic . . . decision

here in question. In such circumstances[,] a 'judicial judgment

cannot be made to do service for an administrative judgment.'"

(citations omitted) (quoting SEC v. Chenery Corp., 318 U.S. 80, 88

(1943))); cf. Nasrallah v. Barr, 590 U.S. 573, 580–81 (2020) ("CAT

orders . . . may not be reviewed in district courts, even via

habeas corpus . . . ." (citing 8 U.S.C. § 1252(a)(4))).

of when the Attorney General would get around to considering the

noncitizen's ongoing detention, the Ninth Circuit found that

habeas relief was appropriate. Nadarajah, 443 F.3d at 1081 ("By

any analysis, a five-year period of confinement of an alien who

has not been charged with any crime, and who has won relief at

every administrative level, is unreasonable under the standards

set forth by the Supreme Court."). Notably, however, the Ninth

Circuit later rejected an attempt to analogize to Nadarajah by a

noncitizen with a pending petition for review in his underlying

case who had been detained for over three years. See Prieto-

Romero, 534 F.3d at 1056, 1064–65. We find Prieto-Romero more

akin to the instant case and thus see Nadarajah as no barrier to

our conclusion that G.P. is not entitled to habeas relief.

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Those doubts are not assuaged by the fact that G.P.'s

primary strategy to head them off is to direct us to our withdrawn

opinion in Reid v. Donelan, 819 F.3d 486 (1st Cir. 2016),

withdrawn, Nos. 14-1270, 14-1803, 14-1823, 2018 WL 4000993 (1st

Cir. May 11, 2018). There, we considered a class action brought

by noncitizens detained under 8 U.S.C. § 1226(c) pending their

removal proceedings. Reid, 819 F.3d at 491. We read § 1226(c) to

contain an implicit reasonableness limitation that, if violated,

entitled a noncitizen to a bond hearing. Id. at 494–95, 498. G.P.

seizes on the last of the factors that we stated a "court might

examine" in conducting its reasonableness inquiry: "the likelihood

that the [underlying] proceedings will culminate in a final removal

order." Id. at 500. He contends that we should take this guidance

as a green light to conjecture the outcome of his withholding-only

proceedings on remand.

The effort is misguided for several reasons. First, our

2016 opinion in Reid was interpreting a different statute than the

one at issue here -- § 1226(c) rather than § 1231(a). It was also

considering a different remedy -- a bond hearing for the detained

noncitizens rather than release subject to supervision. But most

fundamentally, the Supreme Court subsequently rejected the notion

that § 1226(c) contains any implicit reasonableness limitation,

see Jennings, 583 U.S. at 303–06, which prompted us to withdraw

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our 2016 opinion.5 See 2018 WL 4000993, at *1. We are therefore

in no way bound by the decision. Cf. Williams v. Ashland Eng'g

Co., 45 F.3d 588, 592 (1st Cir. 1995) ("An existing panel decision

may be undermined by controlling authority, subsequently

announced, such as an opinion of the Supreme Court . . . ."),

abrogated on other grounds by Carpenters Loc. Union No. 26 v. U.S.

Fid. & Guar. Co., 215 F.3d 136 (1st Cir. 2000).

G.P.'s argument is further weakened by his failure to

cite a case in which a court of appeals in a collateral proceeding

has conducted the type of merits inquiry that he asks us to

undertake. Instead, he points to several of the cases cited above,

see Martinez, 968 F.3d at 565; Prieto-Romero, 534 F.3d at 1065;

Soberanes, 388 F.3d at 1311, in which he contends the courts

"considered the procedural posture and likelihood that the

petitioners would end up being removed for the assessment of

whether removal was reasonably foreseeable." But the noncitizens

in these three cases were all denied Zadvydas relief. And there

is nothing in the decisions to suggest that any of those courts

based its decision to deny relief on an estimation of the merits

of the noncitizen's underlying immigration proceedings.

5We later held in the same litigation that there is no per

se constitutional requirement to a bond hearing after six months

of detention. See Reid v. Donelan, 17 F.4th 1, 7–9 (1st Cir.

2021).

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Finally, it is worth considering the wide-ranging

implications of the position that G.P. urges us to adopt. G.P.

acknowledged at oral argument that, under his theory, he could

have brought a habeas petition under Zadvydas six months and a day

after being detained, at which point, by his reasoning, the court

would have been obligated to examine the merits of his bid for CAT

relief. This would hold true, presumably, even if the IJ had yet

to issue any decision in the underlying case. Despite this

invitation to open the door to what would essentially amount to

collateral attacks on proceedings that have yet to occur, G.P.

could not provide us the standard by which he would have us assess

the likelihood of the noncitizen's success in those proceedings.

Even in a hypothetical case where we could somehow say

with complete certainty that a noncitizen was going to prevail in

withholding-only proceedings, the Zadvydas inquiry would not

necessarily end there. That is because "withholding-only relief

is country-specific. It relates to where an alien may be removed.

It says nothing, however, about the antecedent question whether an

alien is to be removed from the United States." Guzman Chavez,

594 U.S. at 536. G.P. tells us that he fears being removed to any

country in the world. Therefore our task, following his preferred

approach, would conceivably include ascertaining the likelihood of

his success in yet-to-be-commenced withholding-only proceedings

with respect to any country to which the government may attempt to

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send him should it prove unable to remove him to the Dominican

Republic. Given the lack of precedent to support G.P.'s position,

we decline to go down that path.

***

For the foregoing reasons, the judgment of the district

court is affirmed.

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