Amicus Curiae Brief — Tae D. Johnson, Acting Director of U.S. Immigration and Customs Enforcement, et al., Petitioners v. Maria Angelica Guzman Chavez, et al.
Supreme Court briefNov 12, 2020
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No. 19-897
IN THE
Supreme Court of the United States
TONY H. PHAM, Senior Official Performing the Duties
of the Director of U.S. Immigration and Customs
Enforcement, et al.,
Petitioners,
v.
MARIA ANGELICA GUZMAN CHAVEZ, et al.,
Respondents.
ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BRIEF FOR AMICI CURIAE
NATIONAL IMMIGRATION LITIGATION ALLIANCE,
NORTHWEST IMMIGRANT RIGHTS PROJECT,
CATHOLIC LEGAL IMMIGRATION NETWORK, INC.,
FLORENCE IMMIGRANT & REFUGEE RIGHTS
PROJECT, AND PUBLIC COUNSEL
IN SUPPORT OF RESPONDENTS
TRINA REALMUTO
NATIONAL IMMIGRATION
LITIGATION ALLIANCE
10 Griggs Terrace
Brookline, MA 02446
MATT ADAMS
NORTHWEST IMMIGRANT
RIGHTS PROJECT
615 Second Ave., Ste. 400
Seattle, WA 98104
MARK C. FLEMING
Counsel of Record
TESS AMBROSE FOLEY
WILMER CUTLER PICKERING
HALE AND DORR LLP
60 State Street
Boston, MA 02109
(617) 526-6000
mark.fleming@wilmerhale.com
CLAIRE BERGERON
WILMER CUTLER PICKERING
HALE AND DORR LLP
1875 Pennsylvania Ave., NW
Washington, DC 20006
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ............................................ iii
INTEREST OF AMICI CURIAE ..................................... 1
SUMMARY OF ARGUMENT ......................................... 3
ARGUMENT ....................................................................... 5
I.
THIS CASE INVOLVES A NARROW
CATEGORY OF INDIVIDUALS WHO, THOUGH
SUBJECT TO A REINSTATEMENT ORDER,
HAVE ALREADY SHOWN THAT THEY ARE
LIKELY ENTITLED TO PROTECTION FROM
REMOVAL ....................................................................... 5
II. SECTION 1226 GOVERNS THE DETENTION
OF INDIVIDUALS IN WITHHOLDING-ONLY
PROCEEDINGS, BECAUSE A DECISION IS
STILL “PENDING … ON WHETHER” THEY
WILL BE REMOVED .................................................... 11
A. For Individuals In Withholding-Only
Proceedings, A Decision Whether
Their Removal Should Be Withheld Is
Almost Always A Decision Whether
They Will Be Removed At All .......................... 12
B. Individuals
In
Withholding-Only
Proceedings Have Not Yet Received A
Final “Decision” Whether They Will
Be Removed ......................................................... 15
III. THE CONTEXT AND STRUCTURE OF THE
INA SUPPORT AFFIRMANCE..................................... 18
(i)
ii
TABLE OF CONTENTS—Continued
Page
IV. A RULE THAT SECTION 1226 GOVERNS THE
DETENTION
OF
INDIVIDUALS
IN
WITHHOLDING-ONLY PROCEEDINGS IS
READILY WORKABLE................................................. 21
CONCLUSION ................................................................. 24
iii
TABLE OF AUTHORITIES
CASES
Page(s)
Aden v. Nielsen, 409 F. Supp. 3d 998 (W.D.
Wash. 2019) ................................................................. 13
Andriasian v. INS, 180 F.3d 1033 (9th Cir. 1999) ........... 13
Bibiano v. Lynch, 834 F.3d 966 (9th Cir. 2016) ............. 20
Casas-Castrillon v. DHS, 535 F.3d 942 (9th
Cir. 2008) ...................................................................... 21
de Souza Neto v. Smith, 272 F. Supp. 3d 228 (D.
Mass. 2017) .................................................................... 7
Diouf v. Napolitano, 634 F.3d 1081 (9th Cir.
2011) ............................................................................. 10
Fadiga v. Attorney General, 488 F.3d 142 (3d
Cir. 2007) ...................................................................... 19
Garcia v. Holder, 756 F.3d 885 (5th Cir. 2014) .............. 20
Guerrero-Sanchez v. Warden York County
Prison, 905 F.3d 208 (3d Cir. 2018) .......................... 10
Gutierrez v. Holder, 730 F.3d 900 (9th Cir. 2013) ............ 13
Hadera v. Gonzales, 494 F.3d 1154 (9th Cir. 2007) .......... 12
Jennings v. Rodriguez, 138 S. Ct. 830 (2018) .......... 12, 21
Jimenez-Morales v. U.S. Attorney General,
821 F.3d 1307 (11th Cir. 2016) .................................. 16
Kossov v. INS, 132 F.3d 405 (7th Cir. 1998) .................. 13
Kumarasamy v. Attorney General, 453 F.3d
169 (3d Cir. 2006) .......................................................... 7
Luna-Garcia v. Holder, 777 F.3d 1182 (10th
Cir. 2015) ...................................................................... 17
iv
TABLE OF AUTHORITIES—Continued
Page(s)
Matter of I-S- & C-S-, 24 I. & N. Dec. 432 (BIA
2008) ............................................................................. 12
Mendez v. Barr, 794 F. App’x 68 (2d Cir. 2019) ............ 17
Mendoza-Ordonez v. Lowe, 273 F. Supp. 3d 528
(M.D. Pa. 2017) ...................................................... 10, 17
Nasrallah v. Barr, 140 S. Ct. 1683 (2020) ...................... 12
Patpanathan v. Attorney General, 553 F.
App’x 261 (3d Cir. 2014) .............................................. 7
Perez-Guzman v. Lynch, 835 F.3d 1066 (9th
Cir. 2016) .................................................................. 5, 18
Ponce-Osorio v. Johnson, 824 F.3d 502 (5th Cir.
2016) ............................................................................. 17
Sisiliano-Lopez v. Attorney General, 717 F.
App’x 155 (3d Cir. 2017) ............................................ 20
Velasquez-Banegas v. Lynch, 846 F.3d 258 (7th
Cir. 2017) ...................................................................... 19
Zadvydas v. Davis, 533 U.S. 678 (2001) ................... 12, 16
STATUTES, RULES, AND REGULATIONS
8 U.S.C.
§ 1158 ............................................................................ 13
§ 1225 ............................................................................ 21
§ 1226 ................................................................... passim
§ 1228 ............................................................................ 19
§ 1229a .................................................................... 18, 21
§ 1229b............................................................................ 6
§ 1231 ................................................................... passim
§ 1255 .............................................................................. 6
v
TABLE OF AUTHORITIES—Continued
Page(s)
Foreign Affairs Reform and Restructuring Act
of 1998, Pub. L. No. 105-277, 112 Stat. 2681 ............. 7
Legal Immigration Family Equity (“LIFE”)
Act, Pub. L. No. 106-553, 114 Stat. 2762A142 (2000) ....................................................................... 5
LIFE Act Amendments of 2000, Pub. L. No.
106-554, 114 Stat. 2763A-324 ...................................... 5
8 C.F.R.
§ 208.2 ............................................................................. 6
§ 208.16 ..................................................................... 6, 12
§ 208.31 ............................................................... 6, 12, 19
§ 241.4 ....................................................................... 9, 10
§ 241.8 ............................................................................. 6
§ 241.13 ......................................................................... 10
§ 274a.12 ....................................................................... 14
§ 1208.2 ........................................................................... 6
§ 1208.16 ..................................................................... 6, 7
§ 1208.17 ......................................................................... 7
§ 1208.24 ....................................................................... 13
§ 1208.31 ......................................................................... 6
§ 1235.6 ......................................................................... 19
§ 1241.8 ........................................................................... 6
S. Ct. R. 32.3 ....................................................................... 14
vi
TABLE OF AUTHORITIES—Continued
Page(s)
OTHER AUTHORITIES
American Immigration Council and National
Immigrant Justice Center, The Difference
Between Asylum and Withholding of
Removal, https://www.americanimmigration
council.org/sites/default/files/research/the_
difference_between_asylum_and_withhold
ing_of_removal.pdf (visited Nov. 11, 2020) ........ 8, 21
Letter from U.S. Immigration and Customs
Enforcement to Chudier Banguot (Oct. 21,
2019) (on file with amicus Northwest Immigrant Rights Project) .......................................13-14
U.S. Citizenship and Immigration Services,
Reasonable Fear of Persecution and
Torture Determinations Lesson (Feb. 13,
2017), reprinted in Mem. From John Lafferty, Chief, Asylum Division to All Asylum Office Personnel (Feb. 13, 2017),
https://www.aila.org/File/Download
EmbeddedFile/70908 ................................................... 8
U.S. Citizenship and Immigration Services,
Semi-Monthly
Credible
Fear
and
Reasonable Fear Receipts and Decisions
(Nov. 5, 2020), https://www.uscis.gov/
tools/reports-and-studies/semi-monthly-cre
dible-fear-and-reasonable-fear-receipts-and
-decisions ....................................................................... 9
vii
TABLE OF AUTHORITIES—Continued
Page(s)
U.S. Commission on Civil Rights, Trauma at
the Border: The Human Cost of Inhumane
Immigration Policies (Oct. 2019), https://
www.usccr.gov/pubs/2019/10-24-Trauma-at
-the-Border.pdf ........................................................... 23
U.S. Immigration and Customs Enforcement,
Annual Report, Immigration Enforcement
Actions: 2017 (Mar. 2019), https://
www.dhs.gov/sites/default/files/publication
s/enforcement_actions_2017.pdf ............................... 8
von Werthern, Martha, et al., The Impact of
Immigration Detention on Mental Health:
A Systematic Review, 18 BMC Psychiatry
382 (2018), https://rdcu.be/cahZu ............................. 23
Weissbrodt, David S. & Laura Danielson, Immigration Law and Procedure (5th ed.
2005) ............................................................................... 7
INTEREST OF AMICI CURIAE1
Amici are immigration advocacy organizations who
represent detained individuals in “withholding-only”
proceedings such as those at issue. Amici submit this
brief to aid the Court in understanding how withholding-only proceedings operate in practice and to explain
how, based on amici’s extensive real-world experience,
the court of appeals correctly determined that detention of noncitizens in withholding-only proceedings is
subject to 8 U.S.C. § 1226, which affords bond hearings
for some of these individuals.
The National Immigration Litigation Alliance
(NILA) is a non-profit organization that seeks to realize systemic change in the immigrants’ rights arena
through federal court litigation. NILA engages in impact litigation to extend the rights of noncitizens and to
eliminate systemic obstacles they or their counsel routinely face. In addition, NILA builds the capacity of
social justice attorneys to litigate in federal court by cocounseling individual federal court cases and by providing strategic advice and assistance to its members.
The Northwest Immigrant Rights Project
(NWIRP) is a nonprofit legal organization dedicated to
the defense and advancement of noncitizens’ legal
rights. NWIRP provides community education, legal
consultations, and direct representation to low-income
immigrants placed in removal proceedings, as well as
other noncitizens seeking immigration benefits.
1
No counsel for a party authored this brief in whole or in
part, and no entity or person, other than amici curiae, their members, and their counsel, made a monetary contribution intended to
fund the preparation or submission of this brief. All parties have
consented to the filing of this brief.
2
Catholic Legal Immigration Network, Inc.
(“CLINIC”) is the largest charitable legal immigration
network in the United States. Its network affiliates
represent immigrants in immigration courts across the
country. CLINIC’s mission, which derives from its
broader purpose of embracing the Gospel value of welcoming the stranger, is to promote the dignity and protect the rights of immigrants in partnership with its
network affiliates. CLINIC implements its mission by
providing substantive legal and program management
training and support for its network affiliates, including
organizations engaged in providing legal orientation to
asylum-seekers; representing immigrants in bond proceedings; and completing affirmative and defensive applications for asylum and withholding of removal.
The Florence Immigrant & Refugee Rights Project (“Florence Project”) provides free legal and social
services to immigrant men, women, and children detained in immigration custody in Arizona. In 2019, the
Florence Project provided free legal and social services
to over 10,000 noncitizens facing removal in Arizona.
The Florence Project regularly works with people who
have reinstated removal orders and are either awaiting
their reasonable fear interview or have passed that
screening and are in withholding-only proceedings.
The Florence Project has seen firsthand how lack of
clarity about the detention authority for persons in
withholding-only proceedings results in unnecessarily
prolonged detention of people with valid claims for relief.
Public Counsel, based in Los Angeles, California,
represents indigent immigrants from around the world
in their claims for immigration relief, including those in
withholding-only proceedings. Public Counsel has provided legal services to thousands of immigrants de-
3
tained by the Department of Homeland Security, including through legal orientations, pro se assistance,
direct representation, and impact litigation. Public
Counsel is committed to advancing transparency,
equality, and justice in our nation’s immigration system.
SUMMARY OF ARGUMENT
This case concerns the liberty interests of a small
number of noncitizens who are placed in “withholdingonly” immigration proceedings each year. Each of
these individuals has already demonstrated—to the
satisfaction of an asylum officer or an immigration
judge—a “reasonable fear” of persecution or torture in
the country to which the government seeks to remove
them. Respondents (and others who are similarly situated) have thus already demonstrated a strong likelihood that they will not be removed from the United
States, as U.S. law prohibits the removal of a noncitizen
to a country where it is more likely than not that she
will face persecution or torture. Although it is theoretically possible for the government to deport individuals
granted protection in withholding-only proceedings, in
amici’s experience, this rarely occurs. The vast majority of individuals granted protection in withholding-only
proceedings are never removed from the United
States.
The government, however, insists that individuals
in withholding-only proceedings must remain in immigration incarceration during the many months, sometimes years, they pursue their protection claims without the opportunity for release on bond. This position—if adopted—would needlessly subject many people likely to never be removed to years of confinement.
Amici have witnessed the toll that such confinement
4
takes on these individuals. Congress did not impose
such a senseless deprivation of liberty, and the government’s interpretation is at odds with the text of the
relevant detention statutes and their application in other contexts. Notably, the government itself has taken
the position that a removal order is not “final” for purposes of judicial review when a withholding-only proceeding is pending. Indeed, some individuals in these
circumstances have had their removal orders judicially
stayed, such that the statutory “removal period” has
not even begun, meaning that the detention provision
the government invokes, which applies only “during the
removal period” and “beyond the removal period,” cannot apply.
The government invokes the statute’s “context and
structure,” but amici’s experience with persons in both
withholding-only proceedings and standard removal
proceedings demonstrates that the statutory context
and structure actually reinforce the court of appeals’
view that 8 U.S.C. § 1226 governs respondents’ detention, not the government’s view that 8 U.S.C. § 1231(a)
controls. Amici’s experience likewise demonstrates
that the court of appeals’ interpretation of the statutes
is anything but “patently unworkable” (Pet. Br. 34); it
is in fact entirely consistent with the statutory detention framework. And to the extent that the Court considers such policy arguments in interpretating the statutes at issue, amici respectfully submit that it should
also consider the toll of long-term detention on noncitizens who have already demonstrated a bona fide claim
for protection from removal.
The Court should affirm the judgment of the court
of appeals.
5
ARGUMENT
I.
THIS CASE INVOLVES A NARROW CATEGORY OF INDIVIDUALS WHO, THOUGH SUBJECT TO A REINSTATEMENT ORDER, HAVE ALREADY SHOWN THAT THEY ARE
LIKELY ENTITLED TO PROTECTION FROM REMOVAL
8 U.S.C. § 1231(a)(5) provides that the Department
of Homeland Security (DHS) may issue summary removal orders, called reinstatement orders, to noncitizens who reenter the country after having been previously ordered removed. But not all individuals with
prior removal orders are placed in these “reinstatement” proceedings. Certain categories of individuals
are statutorily exempt.2 And DHS sometimes opts to
place individuals with prior removal orders into standard removal proceedings, by issuing a notice to appear
(“NTA”) before an immigration judge (“IJ”), as opposed to a reinstatement order. See Perez-Guzman v.
Lynch, 835 F.3d 1066, 1081 (9th Cir. 2016) (“[T]he government has discretion to forgo reinstatement and instead place an individual in ordinary removal proceedings.”). Individuals previously ordered removed who
are placed in standard removal proceedings may advance the same defenses against removal before the IJ
2
See Legal Immigration Family Equity Act (LIFE Act), Pub.
L. No. 106-553, § 1104(b), 114 Stat. 2762A-142 (2000), as amended
by LIFE Act Amendments of 2000, Pub. L. No. 106-554,
§ 1503(a)(3), 114 Stat. 2763A-324 (certain individuals filing for adjustment of status under the LIFE Act); id. §§ 1505(a)(1), 1505(c),
1505(b)(1) (certain Nicaraguan, Cuban, Salvadoran, Guatemalan,
Eastern European, and Haitian noncitizens filing for relief under
the Nicaraguan Adjustment and Central American Relief Act of
1997 (NACARA) and the Haitian Refugee Immigration Fairness
Act of 1998 (HRIFA)).
6
that are available to noncitizens who were not previously removed.3
Noncitizens who are placed in reinstatement proceedings, on the other hand, face summary removal
based solely on an order issued by a DHS officer, i.e.,
without a hearing before an IJ.
See 8 C.F.R.
§§ 241.8(a), 1241.8(a). These individuals are generally
not eligible for traditional forms of immigration relief
from deportation. There is one important exception,
however: if a noncitizen in reinstatement proceedings
indicates a fear of return, DHS must refer the noncitizen to an asylum officer to determine whether she can
show a “reasonable fear of persecution or torture.” Id.
§§ 208.31, 1208.31 (describing the process for
“[r]easonable fear of persecution or torture determinations involving ... aliens whose removal is reinstated”);
id. §§ 241.8(e), 1241.8(e) (outlining the withholding of
removal exception for those in reinstatement proceedings). Noncitizens who demonstrate such a “reasonable
fear” are then placed in “withholding-only proceedings”
before an IJ, where they can apply for withholding of
removal under 8 U.S.C. § 1231(b)(3)(A) and/or protection under the United States Convention Against Torture (CAT). See 8 C.F.R. §§ 208.31(e), 1208.31(e)
(providing that if an asylum officer determines that a
noncitizen has a reasonable fear, the officer shall refer
the person to withholding-only proceedings); id.
§§ 208.2(c)(2), 1208.2(c)(2) (granting exclusive jurisdiction to IJs over withholding-only proceedings); id.
§§ 208.16, 1208.16 (setting the standard and procedure
for adjudicating applications filed in withholding-only
proceedings). These procedures ensure compliance
3
These defenses include, for example, adjustment of status
and cancellation of removal. See 8 U.S.C. §§ 1229b, 1255.
7
with the United States’ statutory and treaty-based obligations not to return any person to a country where
that person would face persecution or torture. See 8
U.S.C. § 1231(b)(3)(A); Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No. 105-277, § 1242, 112
Stat. 2681.4
If an individual is granted withholding of removal
or relief under the CAT, DHS may not remove the person to the country to which removal has been withheld
(or deferred). And while the government may theoretically seek to remove the noncitizen to a third country,
in amici’s experience, it only rarely does so. See Kumarasamy v. Attorney Gen., 453 F.3d 169, 171 n.1 (3d
Cir. 2006) (“[I]n practice ... non-citizens who are granted [withholding of] removal are almost never removed
from the U.S.” (quoting Weissbrodt & Danielson, Immigration Law and Procedure 303 (5th ed. 2005))); accord Patpanathan v. Attorney Gen., 553 F. App’x 261,
263 n.3 (3d Cir. 2014); de Souza Neto v. Smith, 272 F.
4
A noncitizen in “withholding-only” proceedings may pursue
three forms of protection from removal: withholding of removal
under the Immigration and Nationality Act (INA) (see 8 U.S.C. §
1231(b)(3); 8 C.F.R. § 1208.16(b)); withholding of removal under
the CAT (see 8 C.F.R. § 1208.16(c)); and deferral of removal under
the CAT (see id. § 1208.17). To be granted withholding of removal
under the INA, a noncitizen must show that it is more likely than
not that his or her life or freedom would be threatened in the proposed country of removal on account of race, religion, nationality,
membership in a particular social group, or political opinion. 8
U.S.C. § 1231(b)(3)(A); 8 C.F.R. § 1208.16. To be granted either
withholding of removal or deferral of removal under the CAT, a
noncitizen must show that it is more likely than not that he or she
would be tortured if removed to the designated country. 8 C.F.R.
§§ 1208.16(c)(2), 1208.17(a). Additionally, to be granted withholding of removal (as opposed to deferral of removal) under the CAT,
a noncitizen must not have certain disqualifying convictions or
bars to relief. Id. § 1208.16(d)(2).
8
Supp. 3d 228, 230 (D. Mass. 2017). According to documents disclosed by the government in response to a
Freedom of Information Act request, just 21 recipients
of withholding of removal were removed from the
United States during all of 2017.5 That represented a
tiny fraction (approximately 0.0175%) of the approximately 120,000 people removed that year pursuant to
the reinstatement of removal process, and an even
smaller share (approximately 0.007%) of the total number of people removed.6
Establishing “reasonable fear,” as needed to qualify
for withholding-only proceedings, is difficult: it is
equivalent to establishing a “well-founded fear,” the
standard that governs a discretionary grant of asylum.
See U.S. Citizenship and Immigration Services, Reasonable Fear of Persecution and Torture Determinations Lesson 11, reprinted in Mem. From John Lafferty, Chief, Asylum Division to All Asylum Office Personnel (Feb. 13, 2017), https://www.aila.org/File/
DownloadEmbeddedFile/70908. Between October 1,
2019 and October 15, 2020, for example, asylum officers
adjudicated a total of 7,670 reasonable fear cases and
found just 1,034 people (approximately 13.5%) to meet
5
American Immigration Council and National Immigrant
Justice Center, The Difference Between Asylum and Withholding
of Removal 7, https://www.americanimmigrationcouncil.org/sites/
default/files/research/the_difference_between_asylum_and_withhold
ing_of_removal.pdf (visited Nov. 11, 2020).
6
U.S. Immigration and Customs Enforcement, Annual Report, Immigration Enforcement Actions: 2017, at 9 (Mar. 2019),
https://www.dhs.gov/sites/default/files/publications/enforcement_a
ctions_2017.pdf (noting that approximately 300,000 individuals
were removed during FY 2017, of which approximately 40% (or
approximately 120,000 people) were removed pursuant to the
reinstatement of removal process).
9
the standard to be referred to withholding-only proceedings.7 The noncitizens this case concerns, therefore, are a small and select group of people who have
already demonstrated a bona fide basis for protection
from removal.
Amici submit that Congress intended for these individuals, who have already demonstrated “reasonable
fear” and are in “withholding-only” proceedings, to
have the opportunity to have an IJ decide whether they
may be released from immigration detention while they
pursue their fear-based claims. If their detention is
governed by 8 U.S.C. § 1226, as the court of appeals
held, they may receive a bond hearing (as long as they
are not otherwise subject to mandatory detention under § 1226(c), which applies to persons with qualifying
criminal conduct). Of course, qualifying for a bond
hearing does not guarantee that an individual will be
released from immigration custody; it merely provides
noncitizens with the opportunity to ask a neutral decision-maker to assess and determine whether they present a danger or risk of flight.
However, if detention is governed by 8 U.S.C. §
1231(a), as the government contends, then individuals
in withholding-only proceedings would never receive a
bond hearing. In the government’s view, the only detention-review process available is an administrative
custody review, which otherwise applies only to detainees with final orders of removal.8 See 8 C.F.R. § 241.4
7
U.S. Citizenship and Immigration Services, Semi-Monthly
Credible Fear and Reasonable Fear Receipts and Decisions (Nov.
5, 2020), https://www.uscis.gov/tools/reports-and-studies/semimonthly-credible-fear-and-reasonable-fear-receipts-and-decisions.
8
Some circuits have interpreted § 1231 as requiring a bond
hearing once detention becomes prolonged, generally at the six-
10
(setting forth the process for detaining those with final
removal orders beyond 90 days after a final removal
order, known as the removal period); id. § 241.13 (“establish[ing] special review procedures for those … who
are subject to a final order of removal and are detained
under the custody review procedures provided at
§ 241.4 after the expiration of the removal period,
where the alien has provided good reason to believe
there is no significant likelihood of removal”). In amici’s experience, these administrative custody reviews
result in perfunctory denials, without any meaningful
opportunity to seek release during the lengthy process,
and cannot meaningfully be compared to individualized
bond determinations made by an IJ. Administrative
custody reviews do not provide for an in-person hearing or the right to appeal. See, e.g., Guerrero-Sanchez
v. Warden York Cty. Prison, 905 F.3d 208, 226-227 (3d
Cir. 2018); Diouf v. Napolitano, 634 F.3d 1081, 1091
(9th Cir. 2011). Critically, the decision regarding continued detention is made “by DHS employees who are
not ostensibly neutral decision makers such as immigration judges.” Guerrero-Sanchez, 905 F.3d at 227.
In amici’s experience, withholding-only proceedings usually take at least months and often take years.
See, e.g., Guerrero-Sanchez, 905 F.3d at 212 (53-month
period between start of original detention and withholding hearing); Mendoza-Ordonez v. Lowe, 273 F.
Supp. 3d 528, 529 (M.D. Pa. 2017) (noncitizen detained
for “almost two years … pending his ongoing withholding-of-removal proceedings”). Accordingly, when a
noncitizen is held in detention for the duration of her
month mark. See Guerrero-Sanchez v. Warden York Cty. Prison,
905 F.3d 208, 219-220 (3d Cir. 2018); Diouf v. Napolitano, 634 F.3d
1081, 1091-1092 (9th Cir. 2011); see also Pet. Br. 7 n.2.
11
withholding-only proceedings, detention can be lengthy
indeed.
II. SECTION 1226 GOVERNS THE DETENTION OF INDIVIDUALS IN WITHHOLDING-ONLY PROCEEDINGS, BECAUSE
A DECISION IS STILL “PENDING … ON WHETHER”
THEY WILL BE REMOVED
8 U.S.C. § 1226 provides that a noncitizen “may be
arrested and detained pending a decision on whether
the alien is to be removed from the United States,” but
that “the Attorney General … may release the alien on
a bond of at least $1,500 with security approved by, and
containing conditions prescribed by, the Attorney General.” 8 U.S.C. § 1226(a)(2) (emphasis added). The government has implemented this statute by permitting
noncitizens detained under Section 1226 to request
bond before an immigration judge. Pet. Br. 6-7. As the
court of appeals ruled, this category includes people in
“withholding-only” proceedings, as the “decision on
whether the alien is to be removed from the United
States” remains “pending.” Pet. App. 22a.
The government disagrees, arguing that: (1) withholding-only proceedings consider only “where” a person should be removed, not “whether” they should be
removed (Pet. Br. 16); and (2) the requisite “decision”
on “whether the alien is to be removed from the United
States” is the initial order of removal, rather than any
order subsequently issued at the conclusion of withholding-only proceedings (id.). Based on amici’s extensive experience working with noncitizens in removal
proceedings (including thousands each year who are
detained), both arguments are inconsistent with how
removal proceedings actually work and with the government’s application of the relevant detention statutes
in other immigration contexts.
12
A. For Individuals In Withholding-Only Proceedings, A Decision Whether Their Removal
Should Be Withheld Is Almost Always A Decision Whether They Will Be Removed At All
Removal orders are country-specific. They do not
direct removal into the air, but rather specify removal
to a particular country—typically the person’s country
of citizenship. E.g., Nasrallah v. Barr, 140 S. Ct. 1683,
1688 (2020) (BIA “vacate[d] the order granting CAT
relief and ordered Nasrallah removed to Lebanon”);
Jennings v. Rodriguez, 138 S. Ct. 830, 838 (2018) (petitioner “ordered … deported to Mexico”); Zadvydas v.
Davis, 533 U.S. 678, 684 (2001) (petitioner “ordered deported to Germany”); see also Hadera v. Gonzales, 494
F.3d 1154, 1156 (9th Cir. 2007) (“After determining that
a noncitizen is removable, an IJ must assign a country
of removal.”). Because the BIA has held that “in order
to withhold removal there must first be an order of removal that can be withheld,” Matter of I-S- & C-S-, 24
I. & N. Dec. 432, 433 (BIA 2008), when an IJ grants
withholding of removal, the IJ will issue a final removal
order directing removal to a particular country, but
then state in the same order that removal to that country is being withheld. See 8 C.F.R. § 208.16(d) (explaining the criteria for granting an application for withholding of removal “to a country of proposed removal”); id.
§ 208.31 (explaining the criteria for determining whether “removal to the country of removal must be withheld
or deferred” when a noncitizen is subject to a reinstated removal order). A grant of withholding of removal
thus means that an individual cannot be removed to the
country to which the government has sought to remove
the person.
While theoretically the government could later
seek to remove a person to the originally designated
13
country in limited circumstances—such as if conditions
in that country were to change, or based on a showing
of fraud in the original application or the commission of
certain criminal offenses—the government would need
to provide notice to the noncitizen and an opportunity
to be heard, and would also need to prove, by preponderance of the evidence, that there existed a ground for
terminating the grant of withholding. See 8 C.F.R.
§ 1208.24(f); Gutierrez v. Holder, 730 F.3d 900 (9th Cir.
2013) (per curiam). Of course, this is no different from
the government’s authority to terminate an asylee’s
status on similar bases. See 8 U.S.C. § 1158(c)(2). And
on the rare occasion that the government seeks to remove a noncitizen granted withholding of removal to a
third country—something that happened only 21 times
in all of 2017, see supra p. 8, and in amici’s experience
almost always involves dual nationals—the government
must allow the individual the option of seeking withholding of removal or protection under the CAT as to
that country. Andriasian v. INS, 180 F.3d 1033, 1041
(9th Cir. 1999); Kossov v. INS, 132 F.3d 405, 408 (7th
Cir. 1998); see also Aden v. Nielsen, 409 F. Supp. 3d
998, 1009 (W.D. Wash. 2019) (“A noncitizen must be
given sufficient notice of a country of deportation [such]
that, given his capacities and circumstances, he would
have a reasonable opportunity to raise and pursue his
claim for withholding of deportation.”).
In other words, absent additional process initiated
by the government, a decision withholding removal (or
“deferring” removal under the CAT) to the sole country (or countries) designated for removal by the government is a decision on “whether” an individual will be
removed. See Letter from U.S. Immigration and Customs Enforcement to Chudier Banguot (Oct. 21, 2019)
(“DHS intends to seek a travel document to remove
14
you to South Sudan .... If you believe you will face torture in South Sudan, you may request protection from
removal ....”).9 The government is not legally authorized to remove a noncitizen to a country to which removal has been withheld.10
For individuals in withholding-only proceedings,
then, removal itself is far from certain. That makes
Section 1231’s detention provisions inapplicable, as they
are meant to ensure that a noncitizen is detained
while—in the government’s own words—the government “tackles the practicalities of removal.” Pet. Br.
22. Withholding-only proceedings are obviously not
one of the “practicalities of removal.” They involve
lengthy legal proceedings before immigration judges
that determine substantive rights, and the proceedings
often include fact testimony by the noncitizen, family
members, and other witnesses; sometimes expert testimony regarding conditions in the proposed country of
removal; review of documentation and country conditions information; and administrative appeals. And
they often conclude in an order forbidding removal at
all to the sole country that the government has designated.
9
A copy of this letter is on file with amicus NWIRP. Amici
are prepared to lodge the document pursuant to S. Ct. R. 32.3
should the Court request it.
10
In light of this reality, the regulations entitle persons
granted withholding of removal to obtain employment authorization. 8 C.F.R. § 274a.12(a)(10).
15
B. Individuals In Withholding-Only Proceedings
Have Not Yet Received A Final “Decision”
Whether They Will Be Removed
Individuals in withholding-only proceedings are also still awaiting the issuance of a final “decision”
whether they will be removed from the United States,
placing their detention within the ambit of Section
1226, not Section 1231(a). See 8 U.S.C. § 1226(a). Notwithstanding their prior removal orders, individuals in
withholding-only proceedings do not fall within the categories of people “ordered removed” whose detention is
authorized by Section 1231(a). Section 1231(a) authorizes detention only in two specific circumstances:
“[d]uring the removal period,” 8 U.S.C. § 1231(a)(2),
and “beyond the removal period,” id. § 1231(a)(6). Neither category covers the time period in which a noncitizen is in withholding-only proceedings, because the
statute defines the “removal period” as beginning on
the latest of three events:
(i) The date an order of removal becomes administratively final. (ii) If the removal order is
judicially reviewed and if a court orders a stay
of the removal of the alien, the date of the
court’s final order. (iii) If the alien is detained
or confined (except under an immigration process), the date the alien is released from detention of confinement.
Id. § 1231(a)(1)(B). For individuals in withholding-only
proceedings, the statutory trigger for the “removal period” has not yet occurred, for two reasons.
First, while individuals in withholding-only proceedings may have previously been “ordered removed”
(Pet. App. 23), their prior orders of removal are not
“administratively final” for purposes of 8 U.S.C.
16
§ 1231(a)(1)(B)(i) once they are placed in withholdingonly proceedings. “Courts have routinely held—and
the government has agreed—that a reinstated order of
removal is not ‘final’ for purposes of judicial review until [the government] completes adjudication of a noncitizen’s request for withholding of removal.” Pet. App.
27a; see also Jimenez-Morales v. U.S. Attorney Gen.,
821 F.3d 1307, 1308 (11th Cir. 2016) (“We agree with
the Ninth and Tenth Circuits that, where an alien pursues a reasonable fear proceeding following DHS’ initial
reinstatement of a prior removal order, the reinstated
removal order does not become final until the reasonable fear proceeding is completed.”). There is no reason
why the definition of administrative finality should be
different for purposes of judicial review than for purposes of beginning the “removal period” to which detention under Section 1231 is tied. The government’s
brief offers no explanation for why such a distinction
would exist.11
Second, there are many individuals in withholdingonly proceedings for whom a court has stayed removal,
thus postponing the alternative statutory trigger. See
8 U.S.C. § 1231(a)(1)(B)(ii) (“the removal period begins
on the latest of … (ii) … if a court orders a stay of the
removal of the alien, the date of the court’s final or11
That Section 1231 governed the detention of the petitioners
in Zadvydas v. Davis, 533 U.S. 678 (2001) is irrelevant. Pet. Br.
25. Zadvydas concerned individuals who had been issued final orders of removal that were legally valid, but which the government
was unable to “effectuate,” “because the designated countries of
removal refused to accept them.” Id. (citing Zadvydas, 533 U.S. at
688-689, 699-701). In contrast, this case concerns individuals whom
the government cannot remove because they have sought withholding of removal—an application that may result in an order
with the “legal effect” of “preclud[ing] removal” (Pet. Br. 33) to
the sole country that the government has designated.
17
der”). Amici have worked with scores of individuals in
withholding-only proceedings whose removal has been
judicially stayed pending the conclusion of those proceedings and any subsequent appeal. See, e.g., Mendez
v. Barr, 794 F. App’x 68, 71 (2d Cir. 2019) (vacating
previously issued stay of removal pending review of
denial of withholding application); Mendoza-Ordonez,
273 F. Supp. 3d at 529 (“The United States Court of
Appeals for the Third Circuit has granted a stay of removal as it considers Mendoza’s petition for review of
the Board of Immigration Appeals’ (BIA) decision
denying his application for withholding of removal.”).
Such applicants are neither in the “removal period” nor
“beyond the removal period” under either 8 U.S.C.
§ 1231(a)(1)(B)(i) or (ii), and thus cannot be subject to
detention under § 1231.
The government seeks to avoid engaging with Section 1231(a)(1)(B)’s “removal period” definition by arguing that, for individuals in withholding-only proceedings, the only order that matters is the original order of
removal that is subject to reinstatement. Pet. Br. 2728. But that view cannot be reconciled with the government’s prior (and repeated) admission that, at least
for purposes of judicial review, a reinstated order of
removal is not “administratively final” once the recipient of that order is placed in withholding-only proceedings. See, e.g., Ponce-Osorio v. Johnson, 824 F.3d 502,
503, 505-506 (5th Cir. 2016) (per curiam) (agreeing with
“both sides” that case should be dismissed for lack of
jurisdiction because there was no final order to review
where “withholding-of-removal proceedings remain ongoing”); Luna-Garcia v. Holder, 777 F.3d 1182, 1183
(10th Cir. 2015) (“The government has moved to dismiss the petition for review for lack of jurisdiction, ar-
18
guing that the ongoing reasonable fear proceedings
render the reinstated removal order nonfinal.”).
Moreover, the government’s view that “the reinstated removal order is itself the ‘decision on whether
the alien is to be removed from the United States’” for
purposes of 8 U.S.C. § 1226, Pet. Br. 16, is belied by the
fact that some individuals who come into contact with
DHS after having been previously issued final orders of
removal are never placed in “reinstatement” proceedings at all, but are instead placed in standard removal
proceedings before an IJ under 8 U.S.C. § 1229a. Perez-Guzman, 835 F.3d at 1081. In amici’s experience,
the government has never even asserted, let alone prevailed in demonstrating, that noncitizens with prior
removal orders who subsequently reenter are subject
to detention under § 1231(a) if the government places
them in standard removal proceedings under § 1229a.
Instead, they are uniformly detained pursuant to §
1226, which retains the possibility of release on bond (if
they are not subject to mandatory detention under §
1226(c)). There is no reason why the government’s detention authority should depend on an official’s arbitrary decision to place a noncitizen in full removal proceedings rather than in reinstatement proceedings.
III. THE CONTEXT AND STRUCTURE OF THE INA SUPPORT
AFFIRMANCE
Congress’s decision to “locate the reinstatement and
the statutory withholding provisions in Section 1231”
does not somehow suggest that “Congress meant for the
detention of aliens who have reinstated removal orders
and who are in withholding-only proceedings to be governed by that section.” Pet. Br. 17. Section 1231(b)(3)
governs withholding of removal for all noncitizens who
seek statutory withholding, many of whom are not sub-
19
ject to a reinstated removal order. See, e.g., VelasquezBanegas v. Lynch, 846 F.3d 258, 261 (7th Cir. 2017);
Fadiga v. Attorney Gen., 488 F.3d 142, 163 (3d Cir.
2007). In fact, the same regulation detailing the process
for withholding-only proceedings for individuals with
reinstated orders of removal also applies to individuals
who are not in reinstatement proceedings, but who are
subject to removal under 8 U.S.C. § 1228(b) (which provides for the expedited removal of certain noncitizens
who are not lawful permanent residents). See 8 C.F.R.
§ 208.31. A separate regulation provides that individuals
who arrived in the United States at the Commonwealth
of the Northern Mariana Islands prior to January 1, 2014
and claim a fear of return may pursue withholding of
removal (and protection under the CAT) in very similar
proceedings. See id. § 1235.6(a)(ii). And of course, many
noncitizens concede removability in standard removal
proceedings and opt to pursue only withholding of removal or protection under the CAT. In amici’s experience, the government has never taken the position that
individuals in any of these groups are subject to detention without bond under Section 1231(a) simply because
they have conceded removability and the only form of
relief that they are pursuing is withholding of removal or
CAT protection.
Nor is amici’s position at odds with the “purpose”
of Section 1231(a). Nothing in the statute indicates that
Congress intended to “streamline the procedure for
removing” individuals who are seeking withholding of
removal and have already established a reasonable fear
of persecution to an asylum officer’s or IJ’s satisfaction.
Pet. Br. 20. The INA in fact forbids DHS from removing an individual to a country to which removal has
been withheld, including when the person would otherwise be subject to reinstatement of removal. It
20
would make little sense for the statute to encourage the
“streamline[d]” removal of individuals while an adjudication was pending on whether they should be removed
to the designated country at all.
It makes sense that Congress expressly provided
individuals who had previously been removed and are
now subject to reinstatement the chance to pursue
withholding of removal or protection under the CAT,
because there are many reasons why an individual previously ordered removed may not have had the opportunity to raise a genuine fear of persecution or torture
during the earlier proceeding. Conditions in the country of origin (or the noncitizen’s personal circumstances—as was the case with respondent Rodriguez Zometa, see Resp. Br. 8) may have changed since the initial
order of removal was issued, prompting new fears of
persecution or torture. E.g., Garcia v. Holder, 756 F.3d
885, 887-889 (5th Cir. 2014) (withholding applicant targeted in the country of removal for extortion by police
officers who threatened and beat him so severely he
was hospitalized for a week post-removal); SisilianoLopez v. Attorney Gen., 717 F. App’x 155, 157 (3d Cir.
2017) (withholding applicant threatened by MS-13 after
he returned to El Salvador and helped his sister obtain
a divorce from an individual affiliated with the gang).
Or they may not have received notice of the prior proceedings, resulting in the issuance of an initial order of
removal in absentia. E.g., Bibiano v. Lynch, 834 F.3d
966, 969 (9th Cir. 2016). The government has not explained why Congress would have wanted individuals
in this position—who had already established a reasonable fear of harm upon return—to be detained without
any chance of release on bond.
21
IV. A RULE THAT SECTION 1226 GOVERNS THE DETENTION OF INDIVIDUALS IN WITHHOLDING-ONLY PROCEEDINGS IS READILY WORKABLE
Finally, notwithstanding the government’s assertion (Pet. Br. 34), the INA’s detention scheme can readily accommodate bond hearings for people in withholding-only proceedings. The number of people in respondents’ position—who are subject to a reinstatement order but have proven to an asylum officer or
immigration judge that they have a “reasonable fear” of
persecution or torture in the country of removal—is
extremely small. In FY 2019, for example, the immigration courts received just 3,652 withholding-only cases, amounting to just 0.6% of the 543,997 cases received
that year.12
The government’s complaint that the court of appeals’ ruling would cause the INA’s detention scheme
to “vary from alien to alien” (Pet. Br. 34) is strange, because the decision to place an individual in reinstatement proceedings, as opposed to standard immigration
proceedings under 8 U.S.C. § 1229a, already varies
from person to person. See supra pp. 5, 18. Moreover,
“[t]he statutory scheme governing the detention of aliens in removal proceedings is not static; rather, the
Attorney General’s authority over an alien’s detention
shifts as the alien moves through different phases of
administrative and judicial review.” Casas-Castrillon
v. DHS, 535 F.3d 942, 945 (9th Cir. 2008). 8 U.S.C.
§ 1225(b), for example, authorizes the detention of certain noncitizens seeking admission to the United
States. See Jennings, 138 S. Ct. at 837. Section 1226
12
American Immigration Council and National Immigrant
Justice Center, The Difference Between Asylum and Withholding
of Removal 4, supra note 5.
22
“generally governs the process of arresting and detaining … aliens pending their removal.” Id. And Section
1231 “authorizes the detention of aliens who have already been ordered removed from the country” (id. at
843), during an initial 90-day “removal period” (8 U.S.C.
§ 1231(a)(1)(A)), and, for certain noncitizens, “beyond
the removal period” (8 U.S.C. § 1231(a)(6)).
Those general detention categories are themselves
riddled with “case-by-case” (Pet. Br. 34) exceptions.
For example, under Section 1226, most noncitizens are
eligible for bond hearings, but some (those who are removable based on certain criminal offenses) are generally subject to mandatory detention, i.e., they have no
right to a bond hearing and may only be released from
detention if doing so is “necessary to provide protection
to a witness, a potential witness, a person cooperating
with an investigation into major criminal activity …
and the alien satisfies the Attorney General that the
alien will not pose a danger to the safety of other persons or property and is likely to appear for any scheduled proceeding.” 8 U.S.C. § 1226(c)(2). Under Section
1231(a)(1)(C), the 90-day “removal period” may be “extended” in the event that “the alien fails or refuses to
make timely application in good faith for travel or other
documents necessary to the alien’s departure or conspires or acts to prevent the alien’s removal.” And certain noncitizens are subject to detention “beyond the
removal period,” and, if released, are subject to an order of supervision, if the government determines that
they are “unlikely to comply with the order of removal”
or are a “risk to the community.” 8 U.S.C. § 1231(a)(6).
In sum, DHS’s detention authority is based upon a
statutory scheme that already requires “case-by-case”
considerations. There is no reason to believe that the
court of appeals’ holding that respondents’ detention is
23
governed by Section 1226, not Section 1231, is creating
a more “unworkable” detention structure. Affirmance
would simply ensure that Section 1226 governs the detention of the small number of individuals placed in
withholding-only proceedings until the conclusion of
those proceedings, as Congress intended. If a noncitizen’s application for withholding of removal is denied
and the noncitizen is ordered removed to the designated country, then and only then would the noncitizen be
subject to detention under Section 1231.13
Finally, to the extent that the government’s invocation of policy considerations is even relevant to the
Court’s interpretation of this clear statutory provision,
the Court should consider the impact of long-term detention on noncitizens who have already demonstrated a
bona fide claim for protection from removal. Numerous
studies have documented the harmful effects of longterm immigration detention for individuals who have
previously faced and fled trauma in their home countries.14 Nothing in the INA indicates that Congress intended to subject these individuals, who have faced such
persecution that affords them right to obtain protection,
13
In the extremely rare occasion that the government sought
to remove a noncitizen granted withholding of removal to a new
country not originally designated (from which removal had not also
been withheld), the government would initiate removal proceedings again. Such a situation, to the extent that it is any more than
an edge case, is no more complicated than the current detention
scheme.
14
See, e.g., U.S. Commission on Civil Rights, Trauma at the
Border: The Human Cost of Inhumane Immigration Policies
(Oct. 2019), https://www.usccr.gov/pubs/2019/10-24-Trauma-at-theBorder.pdf; von Werthern et al., The Impact of Immigration Detention on Mental Health: A Systematic Review, 18 BMC Psychiatry 382 (2018), https://rdcu.be/cahZu.
24
to months or years of detention while they await a determination whether they will be removed at all.
CONCLUSION
The judgment of the court of appeals should be affirmed.
Respectfully submitted.
TRINA REALMUTO
NATIONAL IMMIGRATION
LITIGATION ALLIANCE
10 Griggs Terrace
Brookline, MA 02446
MATT ADAMS
NORTHWEST IMMIGRANT
RIGHTS PROJECT
615 Second Ave., Ste. 400
Seattle, WA 98104
NOVEMBER 2020
MARK C. FLEMING
Counsel of Record
TESS AMBROSE FOLEY
WILMER CUTLER PICKERING
HALE AND DORR LLP
60 State Street
Boston, MA 02109
(617) 526-6000
mark.fleming@wilmerhale.com
CLAIRE BERGERON
WILMER CUTLER PICKERING
HALE AND DORR LLP
1875 Pennsylvania Ave., NW
Washington, DC 20006
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.