Case preview: Justices will confront statutory puzzle on bond eligibility for noncitizens contesting deportation
Pham v. Guzman Chavez, which will be argued on Jan. 11, addresses the right of certain noncitizens to be released on bond while they are in the process of removal from the United States. The migrants at issue are a subgroup of a subgroup: those who have previously been ordered removed, and are statutorily subject to swift deportation based on reinstatement of the prior order, but who have a so-called “withholding” claim, which, if granted, prohibits their removal to a particular country under the Convention Against Torture or related U.S. statutes and regulations. Noncitizens with reinstated removal orders are normally summarily removed with virtually no formal process, and are prohibited from raising almost all defenses or claims for discretionary relief. The major exception is that withholding claims halt removal as the petition is administratively and judicially evaluated. (Some courts hold that claims of U.S. citizenship may also be raised).
The Immigration and Nationality Act allows migrants pursuing so-called “withholding only” relief to be released on bond at some point; the court must decide which release statute applies. The United States insists that the restrictive 8 U.S.C. § 1231 governs. That section applies to some noncitizens already ordered removed, and it mandates 90 days’ detention to carry out the deportation. After 90 days, if for some reason deportation has not occurred, release is granted or denied based on an internal Immigration and Customs Enforcement process with no live hearing. If release is granted, various forms of supervision are required. In addition, in Zadvydas v. Davis, the Supreme Court recognized constitutional limits on detention under Section 1231 once it appears that there is no significant likelihood that a noncitizen would actually be removed.
Maria Angelica Guzman Chavez and other noncitizens claim they may be released under 8 U.S.C. § 1226, which applies “pending a decision on whether the alien is to be removed.” This section generally requires no period of detention, does not mandate supervision if a person is released, and, perhaps most importantly, allows an immigration judge to evaluate the question of release based on live testimony.
The briefs of the parties and amici underline the consequences of the choice. Withholding-only cases can remain pending before an immigration judge or the Board of Immigration Appeals for months, or several years, if the decision is reviewed in a court of appeals. Detained individuals are less likely to obtain counsel, which reduces the chances of obtaining relief. According to amici, prolonged detention under harsh conditions sometimes causes noncitizens to abandon their meritorious claims. Drawing the sting from the unsympathetic fact that all migrants involved in this case have previously been deported and subsequently reentered the United States unlawfully, amici point out that some had no opportunity to present their claims in the first proceeding. The inspector general of the Department of Homeland Security, for example, noted that ICE detainees were not always given information about asylum and withholding of removal in a language they could understand.
The question of the applicable bond regime divided the circuits, as well as the three-judge panel of the U.S. Court of Appeals for the 4th Circuit the justices are reviewing here. This disagreement accurately reflects the headache-inducing complexity of the statutory structure.
At one level, the parties argue over policy and practicalities — should a withholding-only claimant be treated as a recidivist in the process of being expelled again, or as someone whose ability to stay in the United States remains undecided? The United States points out that a withholding-only claim does not undermine the removability of an individual with a reinstated removal order. A decision on withholding relief, the government says, is “not a decision on whether the alien is to be removed from the United States; rather it only affects where and when removal may occur.” In principle, a person awarded withholding relief may be removed to some other country that is willing to take them in.
However, removal to a third country cannot happen without giving the noncitizen the opportunity to raise a withholding claim as to the new country. And the noncitizens claim that less than 2% of those granted withholding are removed to some alternative country where they do not face danger. Thus, those ultimately awarded withholding relief often remain in the United States, at liberty, indefinitely. Detention under the more restrictive Section 1231 is intended to give the government an opportunity to arrange for actual deportation. Because that cannot happen while the withholding claim is evaluated, the noncitizens contend that mandatory detention is a pointless and arbitrary imposition of hardship, unconnected to any legitimate justification for a restraint on physical liberty.
The technical statutory analysis is also challenging. The mandatory detention/limited release scheme of Section 1231 is triggered by the commencement of the “removal period.” The removal period begins “on the latest of the following”: (1) the date the order of removal becomes “administratively final”; (2) “the date of the court’s final order,” if the order is judicially reviewed and the court orders a stay; or (3) the date the noncitizen is released from some form of non-immigration detention, such as prison.
In the ordinary case of a reinstated removal order coupled with a withholding-only claim, the trigger for the removal period will turn on whether the order is “administratively final.” There is no statutory definition of “administratively final.” However, the INA deems a deportation order “final” when it is affirmed by the Board of Immigration Appeals, or when the time for board review has passed without an application for review. The United States argues that “final” and “administratively final” are identical, and that a reinstated order of removal is, if anything, more final than “final.” Under subsection (a)(5) of Section 1231, if an immigration officer finds that someone ordered removed has unlawfully reentered, the government points out, “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 … and the alien shall be removed under the prior order at any time after reentry.”
The noncitizens do not dispute that in the more than 98% of reinstatement cases raising no withholding claim, a reinstated order is final and triggers the removal period and mandatory detention under Section 1231. But in the relatively unusual cases where a withholding claim is advanced, it will be considered by an immigration judge, and possibly also the board and a court of appeals. It makes no sense, they claim, to regard an order of deportation as “final” when it undisputedly cannot be executed precisely because it is undergoing administrative review.
The noncitizens have on their side a remarkable body of precedent which developed to untangle the puzzle of review of withholding claims. A reinstated order is statutorily “not subject to being … reviewed.” In addition, 8 U.S.C. § 1252(b)(1), governing judicial review of removal, provides that “[t]he petition for review must be filed not later than 30 days after the date of the final order of removal,” which for a reinstated order will usually be a date long in the past. The prohibition on review coupled with the expired deadline might suggest that reinstated orders are simply unreviewable. But 8 C.F.R. § 241.8(e) makes clear that withholding claims can be raised even in the context of a reinstated order. And the INA makes clear that a withholding claim is judicially reviewable as part of the reinstated order. Subsection (a)(4) of Section 1252 provides that “a petition for review” of a removal order “shall be the sole and exclusive means for judicial review” of withholding claims, which unambiguously suggests that withholding claims can be judicially reviewed after conclusion of the administrative process. Based on this provision, 11 circuits agree a reinstated order is judicially reviewable, as a vehicle to permit review of withholding claims. And several courts have also held that a reinstated order is not final until the withholding claim is administratively resolved.
The United States did not address this body of cases in its opening brief. Turning to them in its reply, the government declined to argue that all 11 circuits were wrong, instead contending that “the court need not resolve the issue.” “Finality is variously defined,” it explained, and “like many legal terms its meaning depends on context.” The government’s position is apparently that a reinstated order with a pending withholding claim is not final for purposes of judicial review, yet is final for purposes of bond. But the two bond regimes differ based on the finality of the order. And if the language is to be interpreted prudentially, the government’s position is challenged by the fact that withholding claims are unusual exceptions to the general effect of reinstatement, and that successful withholding claims do, apparently, almost always mean there will be no removal.
The United States finally invokes Chevron USA v. Natural Resources Defense Council, under which courts defer to agencies’ reasonable interpretations of ambiguous statutes. The government argues that regulations issued by the Department of Homeland Security and the Department of Justice reflect the determination that Section 1231 applies. The noncitizens dispute that any regulations actually reflect that interpretation, and they invoke the constitutional avoidance canon, under which courts refrain from statutory interpretations that would cause constitutional problems. Here, they argue, the government’s interpretation would subject individuals to prolonged periods of civil detention with no legitimate justification – an outcome that would raise serious due process problems. In a case this close and complicated, these considerations will surely be discussed at Monday’s argument — and could even be decisive.