Rafael Guerrero-Sanchez v. Warden York County Prison

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

Nos. 16-4134 & 17-1390

_____________

RAFAEL IGNACIO GUERRERO-SANCHEZ

v.

WARDEN YORK COUNTY PRISON;

DISTRICT DIRECTOR PHILADELPHIA FIELD OFFICE;

JACQUELINE OSTERLIND; THOMAS S.

WINKOWASKI;

SECRETARY UNITED STATES DEPARTMENT OF

HOMELAND SECURITY,

Appellants

______________

APPEAL FROM THE UNITED STATES DISTRICT

COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

(D.C. Civ. Action No. 1:15-cv-02423)

District Judge: Honorable William W. Caldwell

______________

Argued April 18, 2018

______________

Before: GREENAWAY, JR., RENDELL, and FUENTES,

Circuit Judges.

(Opinion Filed: September 26, 2018)

______________

OPINION

______________

Chad A. Readler

William C. Peachey

Sarah Fabian

Joseph A. Darrow [Argued]

United States Department of Justice

Office of Immigration Litigation

District Court Section

P.O. Box 868, Ben Franklin Station

Washington, D.C. 20044

Counsel for Appellants

Daniel B. Conklin [Argued]

The Shagin Law Group

120 South Street

Harrisburg, PA 17101

Counsel for Appellee

Witold J. Walczak

247 Ft. Pitt Blvd.

2nd Floor

Pittsburgh, PA 1522

Counsel for Amici Appellee, American Civil Liberties

Union of Pennsylvania

2

Golnaz Fakhimi

P.O. Box 60173

Philadelphia, PA 19102

Counsel for Amici Appellee, American Civil Liberties

Union of Pennsylvania

Michael Tan

Judy Rabinovitz

125 Broad Street

18th Floor

New York, NY 10004

Counsel for Amici Appellee, American Civil Liberties

Union Foundation Immigrants’ Rights Project

Farrin R. Anello

Edward Barocas

Jeanne LoCicero

89 Market Street’

7th floor

P.O. Box 32159

Newark, NJ 07102

Counsel for Amici Appellee, American Civil Liberties

Union of New Jersey Foundation

Trina Realmuto

100 Summer Street

23rd Floor

Boston, MA 02110

Counsel for Amici Appellee, American Immigration

Counsel

3

Mark R. Barr

Lichter Immigration

1601 Vine Street

Denver, CO 80206

Counsel for Amici Appellee, American Immigration

Lawyers Association

GREENAWAY, JR., Circuit Judge.

Rafael Guerrero-Sanchez, a native and citizen of

Mexico whose original removal order was reinstated pursuant

to 8 U.S.C. § 1231(a)(5), was detained by Immigration and

Customs Enforcement (“ICE”) from May 2015 to February

2017 while he awaited the Immigration Court’s decision on

whether he would be afforded country-specific protection from

removal. The District Court determined that his detention was

governed by the pre-removal detention provision of the

Immigration and Nationality Act (“INA”), 8 U.S.C. § 1226(a),

which affords aliens a right to a bond hearing before an

immigration judge to determine if the alien’s detention is

necessary while he or she awaits immigration proceedings. At

the hearing, the District Court determined that Guerrero-

Sanchez posed neither a flight risk nor a danger to society, and

therefore released him on bail after 637 days in civil

confinement.

The Government appeals solely the District Court’s

determination of the source of Guerrero-Sanchez’s detention,

which it contends is 8 U.S.C. § 1231(a), the post-removal

detention authority provision of the INA. In stark contrast to

§ 1226(a), the text of § 1231(a) does not explicitly authorize a

bond hearing. Guerrero-Sanchez, however, contends that his

detention raises constitutional concerns even under § 1231(a),

4

and therefore that Congress implicitly intended for that

provision to compel a bond hearing after prolonged detention.

Thus, in Guerrero-Sanchez’s estimation, he was owed a bond

hearing regardless of the statutory source of his detention.

Accordingly, this case requires us to decide a novel

question of immigration law in this Circuit: is the detention of

an alien, such as Guerrero-Sanchez, who has a reinstated order

of removal but is also pursuing withholding-only relief

governed by § 1226(a) or § 1231(a)? If the former, then such

aliens are statutorily permitted to a bond hearing. But if we

find that § 1231(a) controls, then we must answer a second

question: does § 1231(a)(6) compel an implicit bond hearing

requirement after prolonged detention?

For the reasons discussed below, we hold that § 1231(a)

governs Guerrero-Sanchez’s detention and that § 1231(a)(6)

affords a bond hearing after prolonged detention to any alien

who falls within the ambit of that provision. We will therefore

affirm on alternative grounds the District Court’s decision to

afford Guerrero-Sanchez a bond hearing.

I.FACTS

Guerrero-Sanchez attempted to unlawfully enter the

United States from Mexico on January 24, 1998 by presenting

a fraudulent birth certificate. U.S. Customs and Border

Protection determined that he was inadmissible for having

sought admission by fraud or misrepresentation, in violation of

8 U.S.C. § 1182(a)(6)(C)(ii). An expedited order of removal

was entered against him, see 8 U.S.C. § 1225(b)(1)(A)(i), and

he was immediately removed back to Mexico.

5

At an unknown date thereafter, Guerrero-Sanchez re-

entered the United States without inspection. In April 2012, he

was arrested for his role in an Idaho-based drug trafficking

organization. Guerrero-Sanchez pled guilty to one count of

conspiracy to distribute more than fifty grams of

methamphetamine, in violation of 21 U.S.C. §§ 846 and

841(a)(1), and he was sentenced to forty-two months of

imprisonment. While Guerrero-Sanchez was serving that

sentence, ICE reinstated his original order of removal from

1998, pursuant to 8 U.S.C. § 1231(a)(5). On April 9, 2015,

Guerrero-Sanchez filed before this Court a petition for review

and motion for stay of the reinstated removal order, which were

denied.

On May 19, 2015, the date that Guerrero-Sanchez

completed his sentence, he was transferred to ICE custody

pending his removal. An asylum officer subsequently

conducted a reasonable-fear interview at Guerrero-Sanchez’s

request, see 8 C.F.R. § 241.8(e), where Guerrero-Sanchez

contended that he would be tortured by a drug cartel if removed

to Mexico. The officer concluded that Guerrero-Sanchez’s

fear of persecution was reasonable and referred the matter to

an immigration judge. See 8 C.F.R. § 1208.31(e).

Guerrero-Sanchez subsequently initiated withholding-

only proceedings before the Immigration Court, seeking an

order either withholding his removal to Mexico pursuant to 8

U.S.C. § 1231(b)(3) or, in the alternative, deferring his removal

under the Convention Against Torture (“CAT”). The

Immigration Judge denied both claims, finding that he was

ineligible for relief under § 1231(b)(3) because he committed

a “particularly serious crime,” see § 1231(b)(3)(B)(ii), and that

he did not qualify for CAT relief because he did “not [meet]

his burden of establishing by a preponderance of the evidence

6

that the Mexican Government would consent to or be willfully

blind to [his] hypothetical torture . . . .” App. 120. Guerrero-

Sanchez appealed the denial of his CAT claim to the Board of

Immigration Appeals (“BIA”), which affirmed the

Immigration Judge. He then petitioned this Court for review

of the BIA’s order, and we stayed his removal pending the

disposition of his appeal.

We granted the petition of review, finding that “the BIA

erred by failing to consider whether the record evidence of the

violence caused by the [drug] cartel and corruption of law

enforcement officials demonstrated that it is more likely than

not that Guerrero will be tortured ‘by or at the instigation of or

with the consent or acquiescence of a public official or other

person acting in an official capacity.’” Guerrero v. Attorney

Gen., 672 F. App’x 188, 191 (3d Cir. 2016) (quoting 8 C.F.R.

§ 1208.18(a)(1)). We therefore vacated the BIA’s order and

remanded for further consideration.

On December 17, 2015, while his case remained

pending before the BIA, Guerrero-Sanchez filed a petition for

a writ of habeas corpus before the District Court, challenging

his detention by ICE while he waits for a determination on

whether he will be afforded country-specific protection from

removal. To date, his withholding-only proceeding is not

scheduled until September 5, 2019, which is fifty-three months

from the date that he was originally detained by ICE. On

September 19, 2016, the District Court granted the petition,

finding that Guerrero-Sanchez was statutorily permitted to a

bond hearing because his detention was governed by the pre-

removal order detention statute, 8 U.S.C. § 1226(a), rather

than the post-removal statute, 8 U.S.C. § 1231(a). The District

Court therefore ordered that the Immigration Judge afford

Guerrero-Sanchez a hearing within twenty-one days.

7

At the hearing, the Immigration Judge denied Guerrero-

Sanchez release on bond, finding that he represented a flight

risk and/or danger to the community. Following the bond

hearing before the Immigration Judge, Guerrero-Sanchez filed

a motion to reconsider and “to enforce” the District Court’s

order, claiming that the bond hearing had been legally deficient

and requesting that the District Court conduct the hearing

itself. The District Court granted the motion in part on

December 23, 2016, finding that the bond hearing was legally

insufficient because it was not individualized, did not account

for the evidence of rehabilitation that Guerrero-Sanchez

provided, and that it was “doubtful” that the Government

carried its burden of proof that he is a flight risk or a danger to

the community. App. 40.

The District Court then, in February 2017, held a bond

hearing itself. It found that Guerrero-Sanchez did not pose a

danger to the community because of “the absence of any

criminal history beyond his drug conspiracy conviction,

acceptance of responsibility for his criminal conduct, extensive

evidence of rehabilitation and good conduct while incarcerated

and detained, multiple offers of support from family and

employers if he were to be released, and numerous sworn

statements attesting to [his] good character.” App. 19. The

District Court also determined that Guerrero-Sanchez was not

a flight risk because he has a wife and daughter living in Las

Vegas, Nevada, that he was pursuing a bona fide withholding

of removal claim before the Immigration Court, and that the

conditions of release would assure that he appeared at future

immigration proceedings. It therefore ordered his immediate

release subject to conditions of supervision. In total, Guerrero-

8

Sanchez had remained in ICE detention for 637 days without a

bond hearing.1

II.THE AUTHORITY GOVERNING GUERRERO-

SANCHEZ’S DETENTION

The Government originally appealed the District

Court’s order holding that 8 U.S.C. § 1226(a) governs

Guerrero-Sanchez’s detention, as well as the orders mandating

a de novo hearing in federal court and releasing him on bond.

It then withdrew its appeals of the latter two determinations.

Thus, the Government now contests only the statutory basis of

Guerrero-Sanchez’s detention. In the Government’s view, it

is not the pre-removal detention provision, 8 U.S.C. § 1226(a),

that controls in Guerrero-Sanchez’s case, but rather, the post-

removal detention provision, 8 U.S.C. § 1231(a). Because

§ 1231(a) contains no explicit bond hearing requirement, the

Government argues that such a hearing should have never been

held, and that the Government should have the authority to

detain Guerrero-Sanchez again.2 For his part, Guerrero-

1

The District Court had jurisdiction over this case

pursuant to 28 U.S.C. § 2241, and we have jurisdiction under

28 U.S.C. §§ 1291 and 2253.

2

In the alternative, the Government argues that, should

§ 1226 govern, then a different subsection of the provision—

§ 1226(c)—applies. That subsection “carves out a statutory

category of aliens who may not be released under § 1226(a).”

Jennings v. Rodriguez, 138 S. Ct. 830, 837 (2018). It provides

that the “Attorney General shall take into custody any alien,”

who commits one of various enumerated categories of criminal

and terrorist offenses, 8 U.S.C. § 1226(c), including a violation

of “any law or regulation of a State, the United States, or a

9

Sanchez contends that the District Court was correct in

concluding that § 1226(a) applies, but that even if § 1231(a)

governs, he was still entitled to a bond hearing because

§ 1231(a)(6) implicitly requires a bond hearing after prolonged

detention. Thus, according to Guerrero-Sanchez, he was

entitled to a bond hearing irrespective of the statutory authority

for his detention, and he should remain released subject to the

conditions of supervision already in place.

With all of this in mind, we must first decide whether

Guerrero-Sanchez’s detention is governed by § 1226(a) or

§ 1231(a). Because this question is an issue of statutory

interpretation, it is subject to de novo review. Fair Hous.

Rights Ctr. in Se. Pa. v. Post Goldtex GP, LLC, 823 F.3d 209,

213 (3d Cir. 2016). For the reasons discussed below, we hold

that § 1231(a), the post-removal provision, controls. We will

then proceed to address Guerrero-Sanchez’s alternative

argument, that is, whether § 1231(a)(6) implicitly requires that

he be afforded a bond hearing after prolonged detention.

A. Legal Framework

We begin by examining the text of both provisions. See,

e.g., United States v. Thornhill, 759 F.3d 299, 307 (3d Cir.

2014) (“Statutory interpretation requires that we begin with a

foreign country relating to a controlled substance,” id.

§ 1227(a)(2)(B)(i). If an alien falls within the ambit of

§ 1226(c), then no bond hearing is provided and the alien’s

“detention may end prior to the conclusion of removal

proceedings ‘only if’ the alien is released for witness-

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

U.S.C. § 1226(c)).

10

careful reading of the text.” (quoting Zimmerman v. Norfolk S.

Corp., 706 F.3d 170, 177 (3d Cir. 2013))). Section 1226 is the

pre-removal provision of the INA and “generally governs the

process of arresting and detaining . . . aliens pending their

removal.” Jennings v. Rodriguez, 138 S. Ct. 830, 837 (2018).

It provides that “an alien may be arrested and detained pending

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

United States.” 8 U.S.C. § 1226(a). Critical for the purposes

of this case, an alien detained under § 1226(a) must be afforded

a bond hearing before an immigration judge to determine if the

alien’s detention is necessary while he or she awaits

immigration proceedings. See Jennings, 138 S. Ct. at 837

(“[T]he Attorney General ‘may release’ an alien detained

under § 1226(a) ‘on bond . . . or conditional parole.’” (quoting

8 U.S.C. § 1226(a))); 8 C.F.R. § 236.1(d)(1) (“[T]he

immigration judge is authorized to exercise the authority . . . to

detain the alien in custody, release the alien, and determine the

amount of bond.”).

Section 1231(a) is the post-removal detention provision

of the INA and applies to aliens who are subject to a final order

of removal. It provides that “when an alien is ordered

removed, the Attorney General shall remove the alien from the

United States within a period of 90 days.” 8 U.S.C.

§ 1231(a)(1)(A). The provision requires that the alien be

detained during this 90-day timeframe, see 8 U.S.C.

§ 1231(a)(2), which is “referred to as the ‘removal period.’”

8 U.S.C. § 1231(a)(1)(A). “If the alien does not leave or is not

removed within the removal period,” then he is normally

subject to supervised release. 8 U.S.C. § 1231(a)(3). Section

1231(a)(6), however, authorizes the continued detention of

certain classes of aliens “beyond the removal period,” 8 U.S.C.

§ 1231(a)(6), for a timeframe “reasonably necessary to bring

11

about that alien’s removal from the United States,” Zadvydas

v. Davis, 533 U.S. 678, 689 (2001); see also id. at 701 (“[A]n

alien may be held in confinement until it has been determined

that there is no significant likelihood of removal in the

reasonably foreseeable future.”). The categories of aliens

covered by § 1231(a)(6) include those who, like Guerrero-

Sanchez, are inadmissible under 8 U.S.C. § 1182.3

Critically, unlike § 1226(a), the text of § 1231(a)(6)

does not explicitly authorize a bond hearing. Therefore, at least

according to the Government, whether Guerrero-Sanchez is

entitled to a bond hearing turns on whether § 1226(a) or

§ 1231(a) authorizes his detention. We note at the outset that

this is a question that has divided our sister circuits. Compare

Padilla-Ramirez, 882 F.3d 826, 832 (9th Cir. 2017) (holding

that § 1231(a) governs), with Guerra v. Shanahan, 831 F.3d

59, 64 (2d Cir. 2016) (holding that § 1226(a) governs).

B. Chevron Deference

As a threshold matter, the Government contends that a

regulation issued by the Department of Homeland Security, 8

C.F.R. § 241.8(f), is owed Chevron deference because it

allegedly provides that § 1231(a) applies to aliens with

reinstated orders of removal.4 We disagree. That regulation

3

The other classes of aliens covered by § 1231(a)(6) are

those removable under § 8 U.S.C. 1227(a)(1)(C), 1227(a)(2),

or 1227(a)(4), and those who have “been determined by the

Attorney General to be a risk to the community or unlikely to

comply with the order of removal,” 8 U.S.C. § 1231(a)(6).

4

“Under the familiar two-step Chevron inquiry, first, if

the statute is clear we must give effect to Congress’

12

states that “[e]xecution of the reinstated order of removal and

detention of the alien shall be administered in accordance with”

Part 241 of the Code of Federal Regulations, which contains

the regulations implementing 8 U.S.C. § 1231. 8 C.F.R.

§ 241.8(f). The relevant provisions of Part 241, however,

apply to aliens who are subject to reinstated removal orders

but, unlike Guerrero-Sanchez, have either not expressed a fear

of removal, or have already been granted withholding but are

still subject to detention. See id. §§ 241.3, 241.4(b)(3),

241.8(f). Conspicuously absent from these regulations is any

mention of aliens, who like Guerrero-Sanchez, have reinstated

removal orders but are still pursuing bona fide withholding-

only relief. Chevron deference is inapplicable, then, because

§ 241.8(f) does not resolve the question of whether § 1226(a)

or § 1231(a) governs Guerrero-Sanchez’s detention. See

Padilla-Ramirez v. Bible, 882 F.3d at 831 (declining to defer

to 8 C.F.R. § 241.8(f) “because the regulation does not answer

the question presented”); Guerra, 831 F.3d at 63 (“Chevron

deference is inapplicable because [Part 241] do[es] not answer

the question of which provision governs Guerra’s detention.”).

We must therefore conduct our own scrutiny of the statutory

provisions.

unambiguous intent, and, second, if the statute is silent or

ambiguous with respect to a specific issue, we defer to an

implementing agency’s reasonable interpretation of that

statute.” De Leon-Ochoa v. Att’y Gen., 622 F.3d 341, 348 (3d

Cir. 2010) (citing Chevron, U.S.A., Inc. v. Natural Res. Def.

Council, Inc., 467 U.S. 837, 842–43 (1984)).

13

C. Authorization of Detention

To determine whether Guerrero-Sanchez was entitled to

a bond hearing, we must ascertain the source of authority for

his detention. The authorization for an alien’s detention shifts

from § 1226(a) to § 1231(a)—that is, from the pre-removal

phase to the post-removal phase—at the point that the alien’s

order of removal becomes administratively final and removal

is therefore certain. See 8 U.S.C. § 1231(a)(1)(B). Thus,

which provision governs here depends on whether the removal

order entered against Guerrero-Sanchez is administratively

final: if it is final, then § 1231(a) applies; otherwise, § 1226(a)

controls.

Crucial to this determination is the fact that Guerrero-

Sanchez’s removal order was reinstated “from its original date

and is not subject to being reopened or reviewed.” 8 U.S.C.

§ 1231(a)(5).5 Although aliens with reinstated orders of

5

Section 1231(a)(5) provides in its entirety:

If the Attorney General finds that

an alien has reentered the United

States illegally after having been

removed or having departed

voluntarily, under an order of

removal, the prior order of

removal is reinstated from its

original date and is not subject to

being reopened or reviewed, the

alien is not eligible and may not

apply for any relief under this

chapter, and the alien shall be

removed under the prior order at

14

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

under Chapter 12 of the INA, id., they may seek withholding-

only remedies, see Cazun v. Attorney Gen. United States, 856

F.3d 249, 255-56 (3d Cir. 2017) (“[P]recedent and the Attorney

General’s own interpretation clarify that withholding from

removal and CAT protection—both forms of relief—are

actually still available to individuals in reinstatement

proceedings.” (citing Fernandez-Vargas v. Gonzales, 548 U.S.

30, 35 n.4 (2006); 8 C.F.R. §§ 1208.31(e), 1208.16(c)(4))).

Accordingly, in order to resolve this case, we must decide

whether a reinstated order of removal against an alien who, like

Guerrero-Sanchez, is pursuing bona fide withholding-only

relief is administratively final.

With this framing of the issue in mind, we find that

§ 1231(a), the post-removal provision, is the more logical

source of authority for Guerrero-Sanchez’s detention. A

removal order is unquestionably final when it is first entered.

See 8 C.F.R. § 241.1. When such an order is subsequently

reinstated, as happened here in Guerrero-Sanchez’s case, “it

stands to reason that it retains the same administrative finality

because section 1231(a)(5) proscribes any challenge that might

affect the status of the underlying removal order.” Padilla-

Ramirez, 882 F.3d at 831. Indeed, when a reinstated order of

removal is in place, withholding-only proceedings do not

disturb the underlying order of removal; rather, they only

potentially impede the order’s execution with respect to a

specific country. See § 1208.2(c)(3)(i). If Guerrero-Sanchez

were to ultimately prevail on either his withholding or CAT

any time after the reentry.

8 U.S.C. § 1231(a)(5).

15

claim, the resulting remedy would prohibit only his removal to

the country of risk: Mexico. It would not prohibit his removal

from the United States to an alternative, non-risk country. See,

e.g., Lanza v. Ashcroft, 389 F.3d 917, 933 (9th Cir. 2004)

(stating that a grant of withholding “only prohibits removal of

the petitioner to the country of risk, but does not prohibit

removal to a non-risk country” (quoting Castellano-Chacon v.

INS, 341 F.3d 533, 545 (6th Cir. 2003), holding modified by

Almuhtaseb v. Gonzales, 453 F.3d 743, 748 (6th Cir. 2006))).

Thus, “[t]he removal order itself . . . is not at issue in the

withholding-only proceedings, meaning that those proceedings

cannot diminish or otherwise affect its finality.” Padilla-

Ramirez, 882 F.3d at 832.

Furthermore, the placement of § 1231(a)(5), which

governs reinstated orders of removal, within the post-removal

provision itself evidences Congress’s intent that § 1231(a)

governs the detention of aliens with reinstated orders of

removal, even when they pursue withholding-only

proceedings. See id.; see also, e.g., Cipollone v. Liggett Grp.,

Inc., 505 U.S. 504, 516 (1992) (“Congress’ intent may be

‘explicitly stated in the statute’s language or implicitly

contained in its structure’” (quoting Jones v. Rath Packing Co.,

430 U.S. 519, 525 (1977))). The Ninth Circuit, which held that

such detentions were authorized by § 1231(a), did so in part on

this basis. Padilla-Ramirez, 882 F.3d at 832 (“The fact that the

reinstatement provision appears among section 1231(a)’s

detention and supervision provisions further bolsters this

inference.”).

Conversely, we are compelled to find that the plain text

of the pre-removal provision, § 1226(a), forecloses its

application to reinstated removal orders. Critically, for that

provision to apply there must be a decision “pending” before

16

an immigration judge as to “whether the alien is to be removed

from the United States.” 8 U.S.C. § 1226(a) (emphasis added).

No such decision is pending here. As discussed above, the

decision that was before the Immigration Judge was not

whether Guerrero-Sanchez should be removed “from the

United States”—as is required to trigger § 1226(a)—but rather,

whether he may be removed to Mexico, i.e., to where he should

be removed. “This narrow question of to where an alien may

be removed is distinct from the broader question of whether the

alien may be removed; indeed, the former inquiry requires that

the latter already have been resolved in the affirmative.”

Padilla-Ramirez, 882 F.3d at 832. Because Guerrero-

Sanchez’s CAT claim casts no doubt on his removal from the

United States, it does not implicate § 1226(a). See id. (“The

fact that [an alien] may seek further withholding relief if he

prevails on his present application does not change this

conclusion since the pending decision in such hypothetical

proceedings always will be whether he can be removed to a

particular country, which does not implicate section

1226(a).”).

Accordingly, we hold that a reinstated order of removal

against an alien who has initiated withholding-only

proceedings is administratively final.6 Therefore, just as we

6

It is worth noting that if § 1226 applied, there would

be merit to the Government’s argument that § 1226(c) would

nonetheless—as a statutory matter—prohibit a bond hearing in

Guerrero-Sanchez’s case. As discussed supra note 2,

§ 1226(c) applies to the detention of aliens that have been

convicted of certain qualifying offenses and does not afford a

bond hearing unless the alien is released for witness protection

purposes. See Jennings, 138 S. Ct. at 847. Here, Guerrero-

17

Sanchez pled guilty and was convicted under 21 U.S.C. §§ 846

and 841(a)(1) for conspiracy to distribute more than fifty grams

of methamphetamine and was sentenced in April 2013 to forty-

two months’ imprisonment. That offense is a qualifying

criminal conviction under § 1226(c), which provides that

“[t]he Attorney General shall take into custody any alien who

. . . is deportable by reason of having committed any offense

covered in section 1227(a)(2)(A)(ii), (A)(iii), (B) . . . of this

title.” 8 U.S.C. § 1226(c)(1)(B). Relevant for Guerrero-

Sanchez’s case is § 1227(a)(2)(B)(i), which provides:

Any alien who at any time after

admission has been convicted of a

violation of (or a conspiracy or

attempt to violate) any law or

regulation of a State, the United

States, or a foreign country

relating to a controlled substance

(as defined in section 802 of Title

21), other than a single offense

involving possession for one’s

own use of 30 grams or less of

marijuana, is deportable.

8 U.S.C. § 1227(a)(2)(B)(i). Because Guerrero-Sanchez’s

conviction related to more than fifty grams of

methamphetamine, his detention would fall within the confines

of § 1226(c). Since he offers no evidence that his release is

pursuant to a witness protection purpose, he would be

statutorily foreclosed from being afforded a bond hearing

altogether if § 1226 applied. Whether Guerrero-Sanchez

would be constitutionally entitled to a bond hearing under the

18

elect to follow Padilla-Ramirez, we concurrently decline to

follow Guerra. In Guerra, the Second Circuit found that

§ 1226(a) governs because, although an alien subject to a

reinstated removal order is clearly removable, the “purpose of

withholding-only proceedings is to determine precisely

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

831 F.3d at 62 (quoting 8 U.S.C. § 1226(a)). However, as

discussed supra, we respectfully disagree with the Second

Circuit’s interpretation—the purpose of withholding-only

proceedings is to determine the narrow question of where an

alien will be removed to, but has no bearing on whether the

alien will ultimately “be removed from the United States.”

8 U.S.C. § 1226(a) (emphasis added). We agree with the Ninth

Circuit that “[i]n concluding that the ‘purpose of withholding-

only proceedings is to determine precisely whether the alien is

to be removed from the United States,’ the [Second Circuit] did

not paint with a fine enough brush.” Padilla-Ramirez, 882

F.3d at 835 (citations and internal quotation marks omitted)

(quoting Guerra, 831 F.3d at 62).

Guerra also reasoned that the reinstated removal order

was not final because an alien could appeal a denial of a

withholding application to a federal court of appeals. 831 F.3d

at 63. On the basis that the conception of finality pertaining to

judicial review must be the same as that which pertains to the

Due Process Clause is an entirely different question—a

question that we need not resolve today because we hold that

his detention is governed by § 1231(a). See Jennings, 138 S.

Ct. at 847 (declining to decide whether the Due Process Clause

requires a pre-removal bond hearing because the Supreme

Court is “a court of review, not of first view” (quoting Cutter

v. Wilkinson, 544 U.S. 709, 718 n.7 (2005))).

19

administrative finality of his removal order for detention

purposes, the Second Circuit reasoned that a “bifurcated

definition of finality” would “run[] counter to principles of

administrative law which counsel that to be final, an agency

action must ‘mark the consummation of the agency’s

decisionmaking process.’” Id. (quoting U.S. Army Corps of

Eng’rs v. Hawkes Co., 136 S.Ct. 1807, 1813 (2016)).

However, we disagree—as the Ninth Circuit aptly explained,

the application of § 1231(a) here does not vitiate the

administrative legal principles that the Second Circuit relies

on:

The Second Circuit is correct that only an agency

action marking “the consummation of the

agency’s decisionmaking process” qualifies as

final agency action. But its conclusion that no

such consummation exists while withholding-

only proceedings are ongoing again

misunderstands the decision at stake in those

proceedings. The agency already decided that

Padilla–Ramirez “is to be removed from the

United States,” 8 U.S.C. § 1226(a), and a

different, more limited decision is now pending

in his withholding-only proceedings—namely,

whether he may be removed to El Salvador. The

agency has consummated its decision-making

regarding the first issue, but not the second. It

therefore is consonant with settled administrative

legal principles to hold that Padilla–Ramirez’s

reinstated removal order (i.e., the agency’s

decision that he “is to be removed from the

United States,” id.) is final for detention

purposes even though it lacks finality for

20

purposes of judicial review of his withholding-

only claim.

Padilla-Ramirez, 882 F.3d at 836 (citations omitted); see also

Ponta-Garcia v. Att’y Gen., 557 F.3d 158, 162 (3d Cir. 2009)

(“[A]liens subject to reinstatement have already been ordered

removed, and thus have already been provided with the

requisite procedures and review.”).

In a similar vein, amici the American Immigration

Council and the American Immigration Lawyers Association

(collectively “AIC”) contend that “[e]very circuit to have

addressed the question [of finality] has agreed that a

reinstatement order where the individual has articulated a fear

of return is not final until reasonable fear or the withholding-

only proceedings have been concluded.” AIC Br. at 17-18

(citing Ponce-Osorio v. Johnson, 824 F.3d 502 (5th Cir. 2016);

Jimenez-Morales v. Att’y Gen., 821 F.3d 1307 (11th Cir. 2016),

cert. denied sub nom. Jimenez-Morales v. Lynch, 137 S.Ct. 685

(2017); Luna-Garcia v. Holder, 777 F.3d 1182, 1183 (10th Cir.

2015); Ortiz-Alfaro v. Holder, 694 F.3d 955 (9th Cir. 2012)).

However, none of these cases address the finality of reinstated

deportation orders for the purposes of removal. Rather, they

address whether such orders are final “for the purposes of

timely petitioning for judicial review” of orders denying relief

in a reasonable fear or withholding-only proceeding. See, e.g.,

Ortiz-Alfaro, 694 F.3d at 958 (noting that validity of “the

underlying prior removal order” was not before the court).7

7

See also Ponce-Osorio, 824 F.3d at 507 (“The

reinstatement order is thus non-final, and we lack jurisdiction

over Ponce-Osorio’s petition for review.”); Luna-Garcia, 777

F.3d at 1185 (describing the issue as determining “the point at

which a reinstated removal order becomes final for purposes of

21

These cases are therefore inapposite. AIC relies on the

incorrect assumption that “the finality of a reinstatement order

is identical for purposes of judicial review and detention.” AIC

Br. at 20. Indeed, it is telling that neither Padilla-Ramirez nor

Guerra—both of which were decided after Ponce-Osorio,

Jimenez-Morales, Luna-Garcia, and Ortiz-Alfaro—rely on

any of these cases for support; to the contrary, they distinguish

them.8

calculating the time to petition for review”); Jimenez-Morales,

821 F.3d at 1308 (“DHS’ reinstatement of the 2011 order of

removal was not final because the reasonable fear proceeding

was ongoing. That presents a jurisdictional problem because

the Immigration and Nationality Act vests circuit courts with

jurisdiction to review only ‘final’ orders of removal.”).

8

In Guerra, when discussing that the court was deciding

an issue of first impression, it stated “[t]he Ninth and Tenth

Circuits have held that they lack jurisdiction over petitions for

review filed while withholding-only proceedings are ongoing”

but that “[n]either court, however, answered the question of

which section authorized detention for aliens in Guerra’s

position.” 831 F.3d at 62 n.1 (citing Ortiz-Alfaro, 694 F.3d at

958; Luna-Garcia, 777 F.3d at 1184).

In Padilla-Ramirez, the Ninth Circuit held that Ortiz-

Alfaro “is readily distinguishable because its holding rested on

the canon of constitutional avoidance.” 882 F.3d at 833.

Conversely, “[h]olding that Padilla-Ramirez’s reinstated order

is administratively final for detention purposes poses no such

constitutional difficulty, so the avoidance canon need not

dictate the outcome here.” Id. Thus, “Ortiz-Alfaro . . . does

22

To summarize, Guerrero-Sanchez’s detention is

governed by § 1231(a). A reinstated removal order is

administratively final for the purposes of removal because it

provides that an alien “shall be removed” from the United

States, and that determination is “not subject to being reopened

or reviewed.” 8 U.S.C. § 1231(a)(5). An alien with a

reinstated order of removal therefore cannot have a decision

“pending” before an immigration judge on “whether the alien

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

(emphasis added). As a result, such aliens cannot fulfill the

necessary predicate to implicate § 1226(a), and they cannot

rely on that provision to obtain a bond hearing.

III. THE IMPLICIT BOND HEARING REQUIREMENT

OF § 1231(a)(6)

Because § 1231(a) governs Guerrero-Sanchez’s

detention, we must next reach his alternative argument that he

is still entitled to a bond hearing because that provision

implicitly requires a bond hearing after prolonged detention.

not control the outcome of this case.” Id. at 834. Notably,

Guerrero-Sanchez relies on Ortiz-Alfaro for the proposition

that a holding that the reinstated removal order is final would

make it impossible for him to timely petition for review of an

immigration judge’s decision denying him relief. However,

this portion of his case does not invoke the canon of

constitutional avoidance because “the text and structure of the

[INA] indicate that Congress intended for section 1231(a) to

govern detention of aliens subject to reinstated removal

orders.” Padilla-Ramirez, 882 F.3d at 834. Ortiz-Alfaro is

therefore inapposite.

23

For the reasons below, we agree and will affirm the District

Court’s order on this basis.

A. Zadvydas v. Davis

As discussed supra, when an alien has been found to be

unlawfully present in the United States and a final order of

removal has been entered, the Government ordinarily secures

the alien’s removal during a subsequent 90-day statutory

“removal period,” during which time the alien normally is held

in custody. 8 U.S.C. § 1231(a)(1)(A). However, since

Guerrero-Sanchez’s detention lasted longer than 90 days, it

was governed by § 1231(a)(6), which authorizes detention

beyond the 90 days under certain circumstances. It provides:

An alien ordered removed [1] who is

inadmissible . . . [2] [or] removable [as a result

of violations of status requirements or entry

conditions, violations of criminal law, or reasons

of security or foreign policy] or [3] who has been

determined by the Attorney General to be a risk

to the community or unlikely to comply with the

order of removal, may be detained beyond the

removal period and, if released, shall be subject

to [certain] terms of supervision . . . .

8 U.S.C. § 1231(a)(6). Noticeably, unlike § 1226(a), the text

of § 1231(a)(6) does not explicitly authorize a bond hearing for

aliens that are encompassed within its ambit. Nor does

§ 1231(a)(6) contain any express limit on the duration of an

alien’s detention under the provision.

In Zadvydas v. Davis, 533 U.S. 678 (2001), however,

the Supreme Court interpreted § 1231(a)(6) to authorize the

24

detention of aliens “only as long as ‘reasonably necessary’ to

remove them from the country.” Clark v. Martinez, 543 U.S.

371, 377 (2005) (quoting Zadvydas, 533 U.S. at 689, 699).

Such an interpretation was required to avoid the “‘serious

constitutional threat’ . . . posed by the indefinite detention of

aliens who had been admitted to the country.” Id. (quoting

Zadvydas, 533 U.S. at 699). According to the Court, the

provision’s use of the word “may” was ambiguous because it

“‘suggests discretion,’ but ‘not necessarily . . . unlimited

discretion.” Id. (quoting Zadvydas, 533 U.S. at 699). Here, the

Government argues that Zadvydas resolves the only ambiguity

in the text of § 1231(a)(6) and makes clear that Guerrero-

Sanchez “may be held in confinement until it has been

determined that there is no significant likelihood of removal in

the reasonably foreseeable future.” Appellant Br. at 15

(quoting Zadvydas, 533 U.S. at 701).

We disagree. Zadvydas had no occasion to address the

due process concerns posed by prolonged detention of

someone in Guerrero-Sanchez’s situation who is still seeking

withholding-only relief. Rather, Zadvydas addressed only the

detention of noncitizens who—unlike Guerrero-Sanchez—

have exhausted all administrative and judicial challenges to

removal, including applications for relief from removal, and

are only waiting for their removal to be effectuated. See

Demore v. Kim, 538 U.S. 510, 527 (2003) (distinguishing

Zadvydas on the basis that “in Zadvydas, the aliens challenging

their detention following final orders of deportation were ones

for whom removal was ‘no longer practically attainable’”

(quoting Zadvydas, 533 U.S. at 690)).

This distinction is material because detaining Guerrero-

Sanchez without a bond hearing while he pursues his bona fide

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

25

pursuing applicable legal remedies.”9 Leslie v. Attorney Gen.

of U.S., 678 F.3d 265, 271 (3d Cir. 2012) (internal quotation

marks omitted), abrogated in part and on other grounds by

Jennings, 138 S. Ct. at 847. Thus, Zadvydas’ focus on the

foreseeability of removal—and its limiting construction of

§ 1231(a)(6) as authorizing detention only when removal is

reasonably foreseeable—does not address or settle the due

process concerns raised by the prolonged detention of an alien

like Guerrero-Sanchez, who is still pursuing a bona fide

withholding-only claim that could take years to resolve.

More importantly, Zadvydas narrowed the scope of the

detention that § 1231(a)(6) authorizes. See Hernandez-

Carrera v. Carlson, 547 F.3d 1237, 1248 (10th Cir. 2008)

(“The Supreme Court [in Zadvydas], confronted with a very

broad statute, narrowed its scope to avoid unconstitutionality”

(quoting Thai v. Ashcroft, 389 F.3d 967, 971 (9th Cir. 2004)

(Kozinski, J., dissenting from denial of en banc))). It did not,

however, provide that the Court’s limiting construction of

§ 1231(a)(6) is the sole constraint on detention that the Due

9

The Government contends that Guerrero-Sanchez’s

confinement is not “‘punishment’ for pursuing withholding or

deferral of removal to Mexico” because such detention is

“nonpunitive in purpose and effect.” Government Reply Br. at

18 (quoting Zadvydas, 533 U.S. at 690). However, “the reality

[is] that merely calling a confinement ‘civil detention’ does

not, of itself, meaningfully differentiate it from penal

measures.” Chavez-Alvarez v. Warden York Cty. Prison, 783

F.3d 469, 478 (3d Cir. 2015) (citing Kansas v. Hendricks, 521

U.S. 346, 361 (1997); Application of Gault, 387 U.S. 1, 27

(1967)).

26

Process Clause requires.10 See id. at 1249 (“In Zadvydas, the

Supreme Court did not purport to ‘resolve’ the statutory

ambiguity in § 1231(a)(6) once and for all. . . . In no way, . . .

did the Court signal that its interpretation was the only

reasonable construction of § 1231(a)(6).”); id. at 1248 (“[T]he

Court’s method of narrowing [§ 1231(a)(6) in Zadvydas] is not

the only permissible one.” (quoting Thai, 389 F.3d at 971

(Kozinski, J., dissenting from denial of en banc))). Indeed, a

detention could still raise constitutional concerns even if it is

ostensibly authorized by statute. See Diouf v. Napolitano, 634

F.3d 1081, 1084 (9th Cir. 2011) (invoking canon of

constitutional avoidance to interpret § 1231(a)(6) after

determining “that [the alien’s] detention was authorized by

statute”); Prieto-Romero v. Clark, 534 F.3d 1053, 1065 (9th

Cir. 2008) (“Even if [an alien’s] continued detention is

permitted by statute, however, due process requires ‘adequate

procedural protections’ to ensure that the government’s

asserted justification for physical confinement ‘outweighs the

individual’s constitutionally protected interest in avoiding

physical restraint.’” (quoting Zadvydas, 533 U.S. at 690-91)).

While Zadvydas limited the substantive scope of § 1231(a)(6),

10

To the contrary, Zadvydas provides that, even where

detention is not indefinite, it still must bear a “reasonable

relation” to the Government’s interests in preventing flight and

danger to the community and be accompanied by adequate

procedures to determine if detention is necessary. 533 U.S. at

690 (quoting Jackson v. Indiana, 406 U.S. 715, 738 (1972));

see also id. at 700 (“[I]f removal is reasonably foreseeable, the

habeas court should consider the risk of the alien’s committing

further crimes as a factor potentially justifying confinement

within that reasonable removal period.”).

27

it did not explicitly preclude courts from construing

§ 1231(a)(6) to include additional procedural protections

during the statutorily authorized detention period, should those

protections be necessary to avoid detention that could raise

different constitutional concerns. See Diouf, 634 F.3d at 1084

(holding that “individuals detained under § 1231(a)(6) are

entitled to the same procedural safeguards against prolonged

detention as individuals detained under § 1226(a)”).

B. The Due Process Concerns Associated with Guerrero-

Sanchez’s Detention

Guerrero-Sanchez’s detention without bond—which

had spanned 637 days before his hearing—pending the

resolution of his withholding-only proceedings raises serious

due process concerns. See Diouf, 634 F.3d at 1086

(“[P]rolonged detention under § 1231(a)(6), without adequate

procedural protections, would raise ‘serious constitutional

concerns.’” (quoting Casas-Castrillon v. Dep’t of Homeland

Sec., 535 F.3d 942, 950 (9th Cir. 2008)); Chavez-Alvarez v.

Warden York Cty. Prison, 783 F.3d 469, 471 (3d Cir. 2015)

(“The total number of days that Chavez–Alvarez has been held

in civil detention since his arrest, of itself, gives us reason for

pause.”), abrogated in part and on other grounds by Jennings,

138 S. Ct. at 847.

We have already recognized in the pre-removal context

that “when detention becomes unreasonable, the Due Process

Clause demands a hearing, at which the Government bears the

burden of proving that continued detention is necessary to

fulfill the purposes of the detention statute.” Diop v.

ICE/Homeland Sec., 656 F.3d 221, 233 (3d Cir. 2011),

abrogated in part and on other grounds by Jennings, 138 S.

28

Ct. at 847.11 In those cases, “due process requires us to

recognize that, at a certain point—which may differ case

11

In Diop, applying the canon of constitutional

avoidance, we construed § 1226(c) to contain an implicit

“reasonable” time limit on the period for which detention

without a bond hearing was statutorily authorized. 656 F.3d at

231. This statutory holding has been abrogated by Jennings,

where the Court held that the text of § 1226(c) is clear and that

“detention [under § 1226(c)] may end prior to the conclusion

of removal proceedings ‘only if’ the alien is released for

witness-protection purposes.” Jennings, 138 S. Ct. at 847

(quoting 8 U.S.C. § 1226(c)).

Diop, however, also reached a constitutional holding

and found that “when detention becomes unreasonable, the

Due Process Clause demands a hearing, at which the

Government bears the burden of proving that continued

detention is necessary to fulfill the purposes of the detention

statute.” 656 F.3d at 233 (emphasis added); see also id. at 223

(“[T]he Due Process Clause of the Fifth Amendment to the

Constitution requires that the Government establish that

continued detention is necessary to further the purposes of

[§ 1226(c)].”); id. at 235 (holding that Diop’s detention

constituted “a violation of the Due Process Clause”). We

reasoned, inter alia, that “[t]he constitutionality of [mandatory

detention] is a function of the length of the detention” and that

“[a]t a certain point, continued detention . . . becomes

unconstitutional unless the Government has justified its actions

at a hearing inquiring into whether continued detention is

consistent with the law’s purpose of preventing flight and

dangers to the community.” Id. at 232 (emphasis added).

Since we hold that Guerrero-Sanchez’s detention is governed

29

by case—the burden to an alien’s liberty outweighs a mere

presumption that the alien will flee and/or is dangerous.”

Chavez-Alvarez, 783 F.3d at 474–75 (footnote omitted); see

also Diop, 656 F.3d at 232 (“At a certain point, continued

detention becomes . . . unconstitutional unless the Government

has justified its actions at a hearing inquiring into whether

continued detention is consistent with the law’s purposes of

preventing flight and dangers to the community.”).

by § 1231(a)(6) and not § 1226(c), we have no occasion to

determine here whether Diop’s constitutional holding survives

Jennings.

However, the constitutional concerns that Diop

identified with mandatory detention in the pre-removal context

are similar to those in the post-removal context. See Diouf, 634

F.3d at 1087 (“Regardless of the stage of the proceedings, the

same important interest is at stake—freedom from prolonged

detention.”). And we need not determine that those concerns

rise to the level of an outright constitutional violation in order

to employ the canon of constitutional avoidance. Indeed, the

entire purpose of the canon is to avoid reaching the merits of

the constitutional issue. See, e.g., Santana Prod., Inc. v.

Bobrick Washroom Equip., Inc., 401 F.3d 123, 130–31 (3d Cir.

2005) (“[I]t is well established that courts have a duty to avoid

passing upon a constitutional question if the case may be

disposed of on some other ground.” (quoting Spicer v. Hilton,

618 F.2d 232, 239 (3d Cir. 1980))). Accordingly, because we

conclude that—unlike § 1226(c)—§ 1231(a)(6) is ambiguous,

we will interpret the provision in a manner that does not raise

the constitutional concerns that Diop identified.

30

We see no substantial distinction between the liberty

interests of aliens detained under § 1226(a) and § 1231(a)(6)

because “[r]egardless of the stage of the proceedings, the same

important interest is at stake—freedom from prolonged

detention”—accordingly, “[t]he liberty interests of persons

detained under § 1231(a)(6) are comparable to those of persons

detained under § 1226(a).” Diouf, 634 F.3d at 1087. The

Government contends that individuals like Guerrero-Sanchez

have a lesser liberty interest because they each have a prior

removal order already in place. However, Guerrero-Sanchez’s

status is not appreciably different from that of the alien in Diop,

who had a final removal order at the time we decided his case

and was subjected to prolonged detention while pursuing—

precisely like Guerrero-Sanchez—CAT relief, as well as

withholding of removal. See 656 F.3d at 226 (explaining that

the alien in Diop argued before the Immigration Court “that the

vacatur of his conviction meant that he was eligible for

withholding of removal” and that he made a “claim of a right

to relief under the Convention Against Torture”).

As to the Government’s interest in detaining aliens in

the post-removal context, we agree with the Ninth Circuit that

“[t]he distinctions between § 1226(a) and § 1231(a)(6) . . . are

not substantial enough to justify denying a bond hearing to all

aliens subject to extended detention under § 1231(a)(6).”

Diouf, 634 F.3d at 1087. As the Ninth Circuit aptly explained:

First, the government has an interest in ensuring

that aliens are available for removal if their legal

challenges do not succeed whether they are

detained under § 1226(a) or § 1231(a)(6).

Second, in either circumstance, the

government’s interest in the prompt removal of

aliens who have exhausted their legal challenges

31

is served by the bond hearing process itself. If the

alien poses a flight risk, [continued] detention is

permitted.

Third, the same concerns about prolonged

detention arise irrespective of whether an alien

has petitioned for review of an order of removal

(direct review) or an order denying a motion to

reopen (collateral review). In both situations, it

may take years for the petitions for review to be

resolved.

Id. at 1087-88. We therefore find that it may be the case that

the Due Process Clause prohibits prolonged detention under

§ 1231(a)(6) without a bond hearing.

A. Canon of Constitutional Avoidance and Our

Construction of § 1231(a)(6)

Despite the constitutional concerns raised by Guerrero-

Sanchez’s detention under § 1231(a)(6), we decline to decide

whether his continued confinement violated the Due Process

Clause. “As a first inquiry, we must avoid deciding a

constitutional question if the case may be disposed of on some

other basis.” Doe v. Pa. Bd. of Prob. & Parole, 513 F.3d 95,

102 (3d Cir. 2008). We assume that Congress does not intend

to pass unconstitutional laws—accordingly, “it is a cardinal

principle of statutory interpretation . . . that when an Act of

Congress raises a serious doubt as to its constitutionality, . . .

[courts] will first ascertain whether a construction of the statute

is fairly possible by which the question may be avoided.”

Diop, 656 F.3d at 231 (quoting Zadvydas, 533 U.S. at 689).

We therefore invoke the canon of constitutional avoidance so

long as “the statute is found to be susceptible of more than one

32

construction.” Jennings, 138 S. Ct. at 842 (quoting Clark, 543

U.S. at 385).

The Supreme Court has already determined that the text

of § 1231(a)(6) is ambiguous as to the due process protections

that it provides. See Zadvydas, 533 U.S. at 697 (holding that

§ 1231(a)(6) is ambiguous). This is the case because

§ 1231(a)(6), unlike other provisions in the INA, does not

provide for detention for a specified period of time, uses the

word “may” to describe the detention authority rather than

“shall,” and lacks an express exception to detention provided

for in the provision. See Jennings, 138 S. Ct. at 844. The plain

text of § 1231(a)(6) therefore invites us to apply the canon of

constitutional avoidance in order to avoid the question of

whether Guerrero-Sanchez’s continued detention under that

provision violates the Due Process Clause. See Demore, 538

U.S. at 523 (“It is well established that the Fifth Amendment

entitles aliens to due process of law in deportation

proceedings.” (quoting Reno v. Flores, 507 U.S. 292, 306

(1993)).

In order to avoid determining whether Guerrero-

Sanchez’s detention violates the Due Process Clause, we adopt

the Ninth Circuit’s limiting construction of § 1231(a)(6) that

“an alien facing prolonged detention under [that provision] is

entitled to a bond hearing before an immigration judge and is

entitled to be released from detention unless the government

establishes that the alien poses a risk of flight or a danger to the

community.”12 Diouf, 634 F.3d at 1092. Critically, our

12

The Government must meet its burden in such bond

hearings by clear and convincing evidence. See Singh v.

Holder, 638 F.3d 1196, 1203-04 (9th Cir. 2011) (“Because it

is improper to ask the [alien] to ‘share equally with society the

33

holding today necessarily applies to all aliens detained under

§ 1231(a)(6), not just those, like Guerrero-Sanchez, who have

reinstated removal orders under § 1231(a)(5) and are pursuing

withholding-only relief. This is because “statutory language

given a limiting construction in one context must be interpreted

consistently in other contexts, ‘even though other of the

statute’s applications, standing alone, would not support the

same limitation.’” Spector v. Norwegian Cruise Line Ltd., 545

U.S. 119, 140 (2005) (quoting Clark, 543 U.S. at 380).

Here, there is no basis in § 1231(a)(6) to fashion a class

of aliens that is not explicitly enumerated in the provision—if

we were to hold that only aliens like Guerrero-Sanchez were

entitled to bond hearings, then we would be acknowledging

and distinguishing a specific class of aliens that is not

ostensibly recognized anywhere in the text or legislative

history of the INA. See Clark, 543 U.S. at 378 (“To give [the

words ‘may be detained beyond the removal period,’ in

§ 1231(a)(6)] a different meaning for each category [of aliens]

would be to invent a statute rather than interpret one.”). Such

a reading of § 1231(a)(6) would be implausible, and would

therefore constitute an inappropriate application of the canon

risk of error when the possible injury to the individual’—

deprivation of liberty—is so significant, a clear and convincing

evidence standard of proof provides the appropriate level of

procedural protection.” (quoting Addington v. Texas, 441 U.S.

418, 427 (1979))); Lora v. Shanahan, 804 F.3d 601, 616 (2d

Cir. 2015) (“[W]e also hold that the detainee must be admitted

to bail unless the government establishes by clear and

convincing evidence that the immigrant poses a risk of flight

or a risk of danger to the community.”), cert. granted,

judgement vacated on other grounds, 138 S. Ct. 1260 (2018).

34

of constitutional avoidance. See Jennings, 138 S. Ct. at 843

(“Spotting a constitutional issue does not give a court the

authority to rewrite a statute as it pleases. Instead, the canon

permits a court to ‘choos[e] between competing plausible

interpretations of a statutory text.’” (quoting Clark, 543 U.S. at

381)). Accordingly, our interpretation applies to all classes of

aliens that are enumerated in § 1231(a)(6)—i.e., aliens who are

inadmissible under 8 U.S.C. § 1182, removable under 8 U.S.C.

§ 1227(a)(1)(C), (a)(2), or (a)(4), or who have “been

determined by the Attorney General to be a risk to the

community or unlikely to comply with the order of removal,”

8 U.S.C. § 1231(a)(6)—because “[t]he operative language of

§ 1231(a)(6), ‘may be detained beyond the removal period,’

applies without differentiation to all three categories of aliens

that are its subject.” Clark, 543 U.S. at 378 (quoting 8 U.S.C.

§ 1231(a)(6)).

We emphasize, however, that aliens detained under

§ 1231(a)(6) are only entitled to a bond hearing after prolonged

detention.13 We therefore must determine when a detention

becomes prolonged. In order to identify “the specific dictates

13

Put differently, our decision today does not hold that

Congress intended for § 1231(a)(6) to contain an immediate

bond hearing at the instant that an alien’s removal order

becomes final. See Diouf, 634 F.3d at 1091 (“Our focus here .

. . is on prolonged detention.”). Furthermore, we emphasize

that aliens are not necessarily entitled to release after

prolonged detention. Rather, they are owed only a bond

hearing before an immigration judge to determine if they pose

either a flight risk or a danger to the community. An alien will

be released only if the immigration judge answers both

inquiries in the negative.

35

of due process” in this context, we apply the three-part test that

the Supreme Court enunciated in Mathews v. Eldridge, 424

U.S. 319, 355 (1976). That test provides that we weigh three

factors:

First, the private interest that will be affected by

the official action; second, the risk of an

erroneous deprivation of such interest through

the procedures used, and the probable value, if

any, of additional or substitute procedural

safeguards; and finally, the Government’s

interest, including the function involved and the

fiscal and administrative burdens that the

additional or substitute procedural requirement

would entail.

Id. Under § 1231(a)(6), “[w]hen detention crosses the six-

month threshold and release or removal is not imminent, the

private interests at stake are profound” and “the risk of an

erroneous deprivation of liberty in the absence of a hearing

before a neutral decisionmaker is substantial.” Diouf, 634 F.3d

at 1091-92; id. at 1092 n.13 (“As a general matter, detention is

prolonged [under § 1231(a)(6)] when it has lasted six months

and is expected to continue more than minimally beyond six

months.”). This is because “the constitutional case for

continued detention without inquiry into its necessity becomes

more and more suspect as detention continues . . . .” Diop, 656

F.3d at 234; see also Zadvydas, 533 U.S. at 701 (providing that

due process analysis is altered as “the period of . . .

confinement grows”).

Correspondingly, the fiscal and administrative burden

on the Government of requiring a bond hearing before an

immigration judge is diminished in light of our estimation that

36

the incidence of these hearings will be manageable since the

vast majority of removal orders are executed well before six

months.14 As such, “[t]he burden imposed on the

[G]overnment by requiring hearings before an immigration

judge at [the post-removal] stage of the proceedings is . . . a

reasonable one.” Diouf, 634 F.3d at 1092. Indeed, in

Zadvydas, the Supreme Court, while interpreting § 1231(a)(6)

in a related context, adopted a presumption that aliens could be

reasonably detained without a hearing for six months because

there is “reason to believe . . . that Congress previously

doubted the constitutionality of detention for more than six

months.” 533 U.S. 678, 701 (citing Juris. Statement in United

States v. Witkovich, O.T.1956, No. 295, pp. 8-9). We therefore

adopt a six-month rule here—that is, an alien detained under

14

See, e.g., United States v. Castro-Verdugo, 750 F.3d

1065, 1074 (9th Cir. 2014) (“[T]he median time spent by

defendants in immigration custody prior to a removal in Fall of

2012 (including people who did not concede removability) was

10 days, with 40 percent of aliens spending three days or less

in immigration detention prior to their removal.” (citing Legal

Noncitizens Receive Longest ICE Detention, Transactional

Records Access Clearinghouse (June 3, 2013), Table 3:

Statistics on Detention Time by Detailed “Book-out” Reason,

http://trac.syr.edu/immigration/reports/321/ (finding that, in

November and December 2012, ninety-eight percent of

detainees were removed within six-months after removal order

was entered, and that post-removal median detention length

was ten days and average detention length was twenty-seven

days))).

37

§ 1231(a)(6) is generally entitled to a bond hearing after six

months (i.e., 180 days) of custody.15

B. Chevron Deference

In interpreting § 1231(a)(6) to avoid the serious due

process concerns identified above, we recognize that we are

declining to defer to relevant DHS regulations. When a statute

is ambiguous, we “normally apply Chevron deference to the

agency’s interpretation of the statute, so long as that

construction was reasonable.” Romanishyn v. Attorney Gen. of

U.S., 455 F.3d 175, 183 (3d Cir. 2006). However, although we

consider the canon of constitutional avoidance to “defin[e] the

scope of a congressional delegation in light of an agency’s

actual interpretation,” Am. Farm Bureau Fed’n v. U.S. E.P.A.,

792 F.3d 281, 301 (3d Cir. 2015), we do not defer to an

agency’s interpretation of a statute that raise serious

constitutional doubts. See Miller v. Johnson, 515 U.S. 900,

15

However, we agree with the Ninth Circuit that “[i]f

the 180-day threshold has been crossed, but the alien’s release

or removal is imminent . . . [then] the government [is not]

required to afford the alien a [bond] hearing before an

immigration judge.” Diouf, 634 F.3d at 1092 n.13. We do so

to ensure the uniform and national administration of bond

hearings pursuant to § 1231(a)(6). See, e.g., Kahn v. INS, 36

F.3d 1412, 1414 (9th Cir. 1994) (“The INA ‘was designed to

implement a uniform federal policy,’ and the meaning of

concepts important to its application . . . ‘require[ ] a uniform

federal definition.’” (quoting Rosario v. INS, 962 F.3d 1412,

1414 (9th Cir. 1994))). We emphasize that this exception is

narrow, and that it applies only in instances where detention

“is expected to continue more than minimally beyond six

months.” Diouf, 634 F.3d at 1092 n.13.

38

923 (1995) (“[W]e think it inappropriate for a court engaged in

constitutional scrutiny to accord deference to [an agency’s]

interpretation of [a statute].”); Rust v. Sullivan, 500 U.S. 173,

207 (1991) (“It is thus implausible that, after Chevron, agency

interpretations of ambiguous statutes will prevail even if the

consequence of those interpretations is to . . . raise

serious constitutional doubts” (quoting Cass R. Sunstein, Law

and Administration After Chevron, 90 COLUM L. REV. 2071,

2113 (1990))); Solid Waste Agency of N. Cook Cty. v. U.S.

Army Corps of Eng’rs, 531 U.S. 159, 173-74 (2001) (refusing

to apply Chevron deference where “significant constitutional

questions [are] raised”); Hernandez-Carrera, 547 F.3d at 1249

(“It is well established that the canon of constitutional

avoidance does constrain an agency’s discretion to interpret

statutory ambiguities, even when Chevron deference would

otherwise be due.”); Nat’l Mining Ass’n v. Kempthorne, 512

F.3d 702, 711 (D.C. Cir. 2008) (“This canon of constitutional

avoidance trumps Chevron deference, and we will not submit

to an agency’s interpretation of a statute if it ‘presents serious

constitutional difficulties.’” (quoting Chamber of Commerce v.

FEC, 69 F.3d 600, 605 (D.C. Cir. 1995)) (citation omitted));

Kim Ho Ma v. Ashcroft, 257 F.3d 1095, 1105 n.15 (9th Cir.

2001) (“Chevron principles are not applicable where a

substantial constitutional question is raised by an agency’s

interpretation of a statute it is authorized to construe.” (citation

omitted)).

Such is the case here. The DHS regulations that

implement the Government’s detention authority under

§ 1231(a)(6) themselves “raise serious constitutional

concerns.” Diouf, 634 F.3d at 1091. These regulations—

8 C.F.R. §§ 241.4 and 241.13—provide administrative custody

reviews after 90 days, 180 days, and 18 months, see 8 C.F.R.

39

§ 241.4(k)(2)(ii)-(iii), by DHS employees who are not

ostensibly neutral decision makers such as immigration judges.

Importantly, the regulations also place the burden on the alien,

rather than the Government, to prove that he or she is not a

flight risk or a danger to the society, see 8 C.F.R. § 241.4(d)(1),

and “there is no appeal from [DHS’s] . . . decision.” 8 C.F.R.

§ 241.4(d); see also 8 C.F.R. § 241.13(g)(2).16

This procedure fails to account for the Supreme Court’s

admonition that “the Constitution may well preclude granting

‘an administrative body the unreviewable authority to make

determinations implicating fundamental rights.’” Zadvydas,

533 U.S. at 692 (quoting Superintendent, Mass. Corr. Inst. at

Walpole v. Hill, 472 U.S. 445, 450 (1985)). We therefore

decline to apply Chevron deference to the Government’s

interpretation of § 1231(a)(6). See Diouf, 634 F.3d at 1091

(declining to defer to DHS regulations that implement post-

removal detention).

IV. CONCLUSION

As we have discussed throughout our decision, our

holding today is in line with that of the Ninth Circuit, the sole

16

In the narrow circumstances that an alien is

determined to have “no significant likelihood of removal in the

reasonably foreseeable future,” 8 C.F.R. § 241.14(a)(1), and if

ICE determines that he or she is “specially dangerous,” then it

refers that ruling to an immigration judge for review, who must

conduct a “reasonable cause hearing” before making a merits

determination, id. § 241.14(g). The immigration judge’s

determination on the merits may be appealed by either party to

the BIA. Id. § 241.14(i)(4).

40

court of appeals to have also addressed this issue. See Diouf,

634 F.3d at 1082. Diouf is not controlling on us, yet it is

instructive. We are also “reluctant to create [a] circuit split[],”

and only do so “where a ‘compelling basis exists.’” Parker v.

Montgomery Cty. Corr. Facility/Bus. Office Manager, 870

F.3d 144, 152 (3d Cir. 2017) (quoting Karlo v. Pittsburgh

Glass Works, LLC, 849 F.3d 61, 75 n.7 (3d Cir. 2017)). This

reluctance is especially acute “where the rules at issue ‘are best

applied uniformly.’” Padilla-Ramirez, 882 F.3d at 836

(quoting Kelton Arms Condo. Owners Ass’n, Inc. v. Homestead

Ins. Co., 346 F.3d 1190, 1192 (9th Cir. 2003)). Here, the INA

“certainly falls into this category” because it is “a

comprehensive federal scheme that requires a nationally

unified administration program.” Id.; see also Arizona v.

United States, 567 U.S. 387, 401 (2012) (describing federal

immigration law as “a comprehensive and unified system”).

Our decision today aligns this Court’s law with that of our

sister circuit, and therefore effectuates Congress’s directive

that “the immigration laws of the United States should be

enforced vigorously and uniformly.” Immigration Reform and

Control Act of 1986, Pub.L. 99-603, § 115, 100 Stat. 3384

(emphasis added).

Here, Guerrero-Sanchez was detained by ICE from May

2015 to February 2017, and he was provided a bond hearing

only after 637 days in civil detention. Pursuant to our limiting

construction of § 1231(a)(6), he was owed a hearing because

he was detained well beyond six months. According to the

Government, Guerrero-Sanchez should not have received a

bond hearing at any point before his withholding-only

proceeding takes place, which is not scheduled until September

5, 2019. The Government contends that it may detain

Guerrero-Sanchez under § 1231(a)(6) for, at a minimum, fifty-

41

three months without inquiry into the necessity of his

detention. For all of the reasons discussed supra, we find to

the contrary and hold that Guerrero-Sanchez’s detention was

unquestionably prolonged. We will therefore affirm on

alternative grounds the District Court’s decision to afford

Guerrero-Sanchez a bond hearing.17

17

Because we conclude that a bond hearing was

statutorily required, and the Government withdrew its appeal

of the District Court’s determination at the bond hearing to

release Guerrero-Sanchez subject to certain conditions, the

District Court’s order pertaining to Guerrero-Sanchez’s release

will be left undisturbed.

42

Rafael Ignacio Guerrero-Sanchez

Nos. 16-4134 and 17-1390

RENDELL, Circuit Judge, concurring:

I concur in the majority’s reasoning and result but

believe that neither 8 U.S.C. § 1226(a) nor § 1231(a) clearly

addresses the detention of one whose removal order has been

reinstated but who has filed for withholding of removal. The

majority chooses to apply § 1231(a)(6) because, given the

finality of a reinstated removal order, a decision as to whether

Guerrero-Sanchez is to be removed from the United States is

not “pending.” While § 1226(a) may be intended to apply

before a removal order is entered, the provision for bond

hearings under § 1226(a) may be better suited to the instant

situation, since withholding proceedings are protracted, and

can remain pending for years. Two other Courts of Appeals

have considered this issue, each reasoning thoughtfully to a

different conclusion.1 Thus, I submit that legislative

1

In Padilla-Ramirez v. Bible, 882 F.3d 826 (9th Cir. 2017),

the court found a reinstated removal order to be

administratively final for the purpose of detention, despite the

detainee’s ongoing withholding proceedings, and thus found

detention to be appropriate under § 1231(a). In Guerra v.

Shanahan, 831 F.3d 59 (2d Cir. 2016), the court reasoned that

proceedings were not administratively final until the

detainee’s withholding proceedings had been adjudicated, and

thus found § 1226(a) to apply.

clarification is needed in order to addresses the specific

detention issue before us.2

Section 1231(a) anticipates that removal is certain, yet

Guerrero-Sanchez’s reinstated removal order is not

administratively final, as his withholding proceedings are

ongoing. C.f. Majority Opinion at 17. Indeed, nearly every

Court of Appeals to have considered the issue of finality of a

reinstated removal order has held that there is no

administrative finality until the agency has adjudicated the

request for withholding of removal. See Guerra v. Shanahan,

831 F.3d 59, 63–64 (2d Cir. 2016); Jimenez-Morales v. Att’y

Gen., 821 F.3d 1307, 1308 (11th Cir. 2016), cert. denied sub

nom. Jimenez-Morales v. Lynch, 137 S. Ct. 685 (2017);

Ponce-Osorio v. Johnson, 824 F.3d 502, 506–07 (5th Cir.

2016); Luna-Garcia v. Holder, 777 F.3d 1182, 1185–86 (10th

Cir. 2015); Ortiz-Alfaro v. Holder, 694 F.3d 955, 958 (9th

Cir. 2012); but see Padilla-Ramirez v. Bible, 882 F.3d 826,

832 (9th Cir. 2017). See also Shehu v. Att’y Gen., 482 F.3d

652, 656 (3d Cir. 2007) (holding that an order is final when

the alien is entitled to “no further process” before they are

removed). Granted, Guerrero-Sanchez’s removal order has

been reinstated, and thus not subject to appeal. Nonetheless, it

is not final in the true sense of the word.3

2

Although we have construed § 1231(a)(6) to require a bond

hearing after prolonged detention, § 1226(a) requires such a

hearing at the outset to determine whether an alien can be

detained, so the application of one section versus the other

has significant ramifications.

3

First, an alien subject to a reinstated removal order may not

be removed from the United States until withholding

proceedings have concluded and administrative proceedings

2

As the Majority notes, Guerrero-Sanchez was detained

under § 1231(a)(6) for 637 days (approximately 21 months)

while his withholding proceedings remained, and continue to

remain, pending. Guerrero-Sanchez was detained by ICE in

May of 2015 and his withholding-only proceedings are

scheduled for September 5, 2019, after which it may take

months for a final decision to be issued, subject to further

appeals. Thus, Guerrero-Sanchez would potentially have been

detained for over four years absent a bond hearing and grant

are truly final. Second, practically speaking, if an alien is

granted withholding of removal to the designated country, he

may never be removed at all, and thus removal contemplated

by § 1231(a) is even less certain. Here, if Guerrero-Sanchez is

granted withholding of removal to Mexico based on his

reasonable fear of future persecution or his CAT claim, he

may never be removed from the United States. Although

prevailing on a withholding or CAT claim “would not

prohibit [Guerrero-Sanchez’s] removal from the United States

to an alternative, non-risk country,” Majority Opinion at 16,

actual removal to a third, alternate country is rare. To do so,

the U.S. Government must show a tie between the alien and

the third country to satisfy the requirements of 8 U.S.C.

§§ 1231(b)(2)(D) and (E), and that country must also be

willing to accept the alien. See, e.g., Himri v. Ashcroft, 378

F.3d 932, 936–38 (9th Cir. 2004) (the government did not

carry its burden of showing that petitioners, Palestinians who

lived in Kuwait but had Jordanian passports, who were

entitled to withholding of removal to Kuwait, were removable

to Jordan, nor did the government show that Jordan would be

willing to accept petitioners). Often, no such alternate country

exists, and the alien who is granted withholding of removal

remains in the United States indefinitely.

3

of release. Alternatively, an initial bond hearing under §

1226(a) would release those aliens who should not be

detained—those who neither pose a risk of flight nor danger

to their communities—without detaining them for over 6

months before they can raise a due process challenge to the

prolonged nature of their detention.4 See Majority Opinion at

35-38.

Thus, I urge that legislative action is needed to clarify

whether someone in Guerrero-Sanchez’s position is

statutorily entitled to a bond hearing.

4

Although I recognize that the application of § 1226 to

Guerrero-Sanchez would not automatically afford him a bond

hearing due to his criminal conviction, see Majority Opinion

at 17 n.6, mandatory detention under either section for many

months, even years, could raise serious due process concerns.

4