- Aliens who have been removed from the United States and reenter illegally are subject to reinstatement of their prior removal orders under section 241(a)(5) of the INA.
- If aliens subject to reinstatement claim to have a fear of harm, they are interviewed to determine whether they have a reasonable fear of persecution or torture. If found to have a reasonable fear, they are placed into withholding-only proceedings before an immigration judge to apply for statutory withholding of removal under section 241(b)(3) of the INA and protection under the Convention Against Torture (CAT).
- The Second and Fourth Circuits have held that aliens subject to reinstatement in withholding-only proceedings are eligible to seek bond from an IJ under section 236 of the INA, the general apprehension and detention provision that applies to aliens in standard removal proceedings.
- The Third and Ninth Circuits have held that those aliens are not eligible for bond under section 236 of the INA, but after being detained for six months may apply for bond from an IJ at which DHS bears the burden of showing by "clear and convincing evidence" that the alien poses a risk of flight or a danger to the community.
- The decisions from the Second and Fourth Circuits are contrary to Congress's express intentions in section 241 of the INA, which governs the detention of aliens under final orders of removal — like aliens in withholding-only proceedings whose removal orders have been reinstated.
- Each of those decisions also gives aliens who have been ordered removed incentives to reenter the United States illegally, make fraudulent but facially valid fear claims, and to abscond if they are released. The decisions from the Third and Ninth Circuits also give those aliens perverse incentives to delay their withholding-only proceedings, in order to seek release.
- The Supreme Court on Monday agreed to review the bond procedures under section 236 of the INA that the Second and Fourth Circuits have mandated for aliens who have illegally reentered after removal and who are in withholding-only proceedings.
- The government has also requested that the Supreme Court review the Third and Ninth Circuit's mandates that aliens in such proceedings receive bond hearings after six months of detention, arguing, on other grounds, that those mandates violate the Supreme Court's 2018 decision in Rodriguez v. Jennings, which required similar procedures for other aliens subject to mandatory detention under the INA.
On Monday, the Supreme Court issued orders in two immigration-related cases. The first order, in Albence v. Guzman Chavez, granted the government's request to review a decision from the Fourth Circuit finding that aliens who reentered the United States after being removed are entitled to bond hearings pending a decision on their applications in withholding-only proceedings. The second denied the government's request that it review California's restrictions on its state law enforcement officers in immigration-related matters (which I will discuss in a future post). A decision in the government's favor in Guzman Chavez would remove incentives that encourage illegal reentry, consistent with Congress's clear intent.
By way of background, aliens who have been removed from the United States and reenter illegally are subject to reinstatement of their prior removal orders under section 241(a)(5) of the INA. This means that the Department of Homeland Security (DHS) does not have to relitigate removability in cases where aliens have reentered the United States illegally after being removed.
As with aliens in expedited removal, if aliens subject to reinstatement assert a fear of harm if removed, they are interviewed by asylum officers who determine whether they have a reasonable fear of persecution or torture. If they are found to have a reasonable fear, they are placed into withholding-only proceedings before an immigration judge (IJ) to apply for statutory withholding of removal under section 241(b)(3) of the INA and protection under the Convention Against Torture (CAT). They are not eligible for any other privilege or relief.
In Guzman Chavez v. Hott, the Court of Appeals for the Fourth Circuit held that aliens in withholding-only proceedings to apply for statutory withholding and CAT are eligible to seek bond from an IJ under section 236 of the INA. That general provision allows aliens in ordinary removal proceedings under section 240 of the INA to seek bond after detention.
The government argued that, since the alien petitioners there had already been ordered removed, that they were subject to mandatory detention under sections 241(a)(1) and (2) of the INA. The first provision directs the removal of an alien within 90 days of the issuance of a final removal order, and the latter provision begins: "During the removal period, the Attorney General shall detain the alien." (Emphasis added.)
The Fourth Circuit's opinion affirmed a decision from the district court below, which had also certified a Virginia-wide class of aliens who were detained pending their withholding-only proceedings.
Judge Julius Richardson, in dissent from the circuit court's opinion, did not see things quite so clearly, noting that section 241 of the INA "applies 'when an alien is ordered removed'", which these aliens plainly had been. Significantly, he explained that simply because the aliens were in withholding-only proceedings did not alter that fact, as "withholding does not address whether an alien is ordered removed — that has already been determined. It only addresses how, and more specifically where, the removal will occur."
The Department of Justice (DOJ) sought review of that decision from the Supreme Court (in a case now captioned Albence v. Guzman Chavez), noting that this decision has created a circuit-split, with the Second and now Fourth Circuits holding that aliens in withholding-only removal proceedings are eligible to seek bond from an IJ under section 236 of the INA, while the Third and Ninth Circuits held that such aliens fall within section 241 of the INA, and are therefore not eligible for bond under section 236.
Respectfully, this is not a close case. Section 236(a) of the INA addresses whether an alien should be "arrested and detained pending a decision on whether the alien is to be removed from the United States."
For an alien in withholding-only proceedings, the "decision on whether the alien is to be removed from the United States" has already been made (twice): first, as reflected in the order of removal under which the alien was removed the first time, and then by Congress pursuant to the reinstatement provision: section 241(a)(5) of the INA. That section specifically states that "the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed." (Emphasis added.)
This is reinforced by the fact that the only relief available to such aliens is statutory withholding and CAT. As I have previously explained:
Both statutory withholding of removal and CAT protection are unique in that they can only be granted to an alien who is removable from the United States, and has been ordered removed. [An] alien granted either form of protection can be removed to a third country — just not any country to which that protection has been extended (and not rescinded). For example, to grant statutory withholding or CAT when I was an immigration judge, I had to first order the applicant removed, and then withhold or defer the removal to the country in question. [Emphasis added.]
Hence, Judge Richardson's observation that "withholding ... only addresses how, and more specifically where, the removal will occur."
Note, however, that detention under section 241(a) of the INA is not absolute, or always indefinite. That section mandates detention for 90 days from the time the alien is ordered removed (the removal period), although DHS has discretion to detain or release aliens ordered removed who are inadmissible (as these aliens are) beyond that 90-day period under section 241(a)(6) of the INA. The authority to grant release under the regulation implementing this provision, 8 C.F.R. § 241.4, is vested with DHS.
And, in Zadvydas v. Davis, the Supreme Court held that indefinite detention is not permitted under section 241 of the INA. The Court concluded there that, if detention lasts for more than six months and the alien "provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the Government must respond with evidence sufficient to rebut that showing." The regulation governing that process is found at 8 C.F.R. § 241.13, and again, the release determination or denial is made by DHS.
That said, however, it is more difficult and takes longer for an alien to seek release from DHS pursuant to those regulations issued pursuant to section 241 of the INA than from an IJ under section 236. Further, bond hearings take time, and requiring IJs to hold bond hearings imposes a burden on their dockets. Finally, if aliens know that they can be released more or less immediately after reentering the United States illegally, they are more likely to do so. The Supreme Court review of the Fourth Circuit's decision is not a simple statutory-interpretation exercise: it is one with real-world implications.
It should also be noted that, as DOJ states in its petition for writ of certiorari: "The Third and Ninth Circuits have both held that, even under [section 241 of the INA], an alien may still be entitled to a bond hearing in some circumstances."
In that regard, the department in Albence v. Arteaga-Martinez (a case involving a Mexican national who entered illegally four times who is seeking statutory withholding and CAT) has also requested Supreme Court review of the Third Circuit's standards for release of such aliens.
That circuit, as well as the Ninth Circuit, requires that aliens in withholding-only proceedings who are detained under section 241 of the INA for more than six months receive IJ bond redeterminations, at which the government bears the burden of proving the need for continued detention (in the Third Circuit, by clear and convincing evidence). In bond proceedings under section 236 of the INA (for an alien who is not subject to mandatory detention under subsection (c) therein), on the other hand, the alien bears the burden of showing that he or she is not a danger nor a flight risk.
The government's argument therein is largely premised on the Supreme Court's decision in Jennings v. Rodriguez, which I analyzed at length in a March 2018 post captioned "SCOTUS Returns Order to Bond Determinations for Aliens".
Rodriguez overturned Ninth Circuit precedent requiring bond hearings before IJs at which the government bore the burden of proof in cases involving aliens in expedited-removal proceedings, other aliens who are inadmissible to the United States, and deportable aliens who are subject to mandatory detention who had been detained for more than six months. The statutes in those three cases mandate the detention of such aliens, which is also true of section 241(a) of the INA, as noted above.
The department argues in its petition there:
Because those released aliens have already been ordered removed from the United States, they would have a strong incentive to abscond in order to avoid removal. In fact, the Third Circuit's decision creates a perverse incentive for aliens to delay their withholding-only proceedings, in an effort to obtain a bond hearing and release after six months.
You think? That argument is an understatement, as it does not even address the point I made above: It also gives foreign nationals a perverse incentive to reenter the United States illegally after being removed, to begin with.
DOJ filed its petition with the Supreme Court in Arteaga-Martinez at the same time that it filed its petition in Guzman Chavez, so it will be interesting to see whether the Court grants review in that case as well. Doing so in both cases could, again, give the Court the opportunity to return order to bond determinations under the INA and also allow it to apply Congress's express direction that aliens ordered removed be detained pending removal, with tightly delineated exceptions.
And such an order would remove incentives for aliens to serially reenter this country illegally, make frivolous applications for statutory withholding and CAT, and delay determinations on those applications. I will keep you posted on the Court's ultimate determinations in both cases.