Guerra v. Shanahan
2016 U.S. App. LEXIS 13774
2d Cir.2016Background
- Guerra, a Guatemalan national, reentered the U.S. multiple times after prior removals; a 1998 removal order was reinstated under 8 U.S.C. § 1231(a)(5) after his 2014 arrest.
- ICE detained Guerra on January 6, 2014; an asylum officer found he had a reasonable fear of return and referred him to an Immigration Judge (IJ) for withholding-only proceedings under 8 U.S.C. § 1231(b)(3).
- Withholding-only proceedings limit the IJ to considering only withholding or CAT relief; appeal from an IJ withholding denial goes to the BIA and then to the court of appeals.
- Guerra sought habeas relief arguing his detention was governed by 8 U.S.C. § 1226(a) (entitling him to an IJ bond hearing under 8 C.F.R. § 1236.1(d)); Respondents argued § 1231(a) governed (no IJ bond if removal is reasonably foreseeable).
- The district court held § 1226(a) applied and ordered an individual bond hearing; the Second Circuit affirmed, concluding a reinstated removal order is not "administratively final" while withholding-only proceedings are pending, so § 1226(a) controls detention.
Issues
| Issue | Plaintiff's Argument (Guerra) | Defendant's Argument (Respondents) | Held |
|---|---|---|---|
| Which statute governs detention of an alien during withholding-only proceedings after a reinstated removal order? | § 1226(a) governs because detention is "pending a decision on whether the alien is to be removed," and withholding proceedings determine removability. | § 1231(a) governs because the reinstated removal order is "final," invoking the post-final-order detention regime and its 90-day removal period. | § 1226(a) governs; a reinstated removal order is not "administratively final" while withholding-only proceedings are pending, so the alien is entitled to an IJ bond hearing. |
| Whether different notions of "finality" should apply for detention versus judicial review | Finality should be uniform; withholding proceedings prevent a removal decision and thus preclude finality for detention purposes. | Finality for detention can differ from finality for judicial review; the reinstated order is final for detention even if reviewable later. | Rejected; the court refused to create tiers of finality and applied a uniform conception aligned with administrative-law finality. |
| Whether agency regulations or deference doctrines (Chevron/Auer) resolve the statutory question | N/A (Guerra relied on statutory text/structure). | Regulations and agency interpretations support treating the order as governed by § 1231(a); seek Chevron/Auer deference. | Chevron and Auer do not resolve the dispute because the cited regulations do not clearly answer which statute applies; court interprets the statutes directly. |
| Whether continued detention would violate due process absent foreseeable removal | N/A at this stage because bond hearing entitlement was primary relief. | Even if § 1226(a) did not apply, detention under § 1231(a) would be lawful if removal is reasonably foreseeable. | Court did not decide a Zadvydas due process violation here; it resolved entitlement to a bond hearing under § 1226(a). |
Key Cases Cited
- Theodoropoulos v. INS, 358 F.3d 162 (2d Cir.) (standard of de novo review for habeas grants)
- Park ’N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189 (1985) (statutory construction begins with text)
- Kanacevic v. INS, 448 F.3d 129 (2d Cir.) (denial of asylum reviewable even without a final removal order; avoid elevating form over substance)
- Chupina v. Holder, 570 F.3d 99 (2d Cir.) (order not final when remanded claims could nullify removal)
- Zadvydas v. Davis, 533 U.S. 678 (2001) (post-removal-period detention violates due process if removal not reasonably foreseeable)
- Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984) (agency statutory-interpretation deference framework)
- Auer v. Robbins, 519 U.S. 452 (1997) (deference to agency interpretations of its own regulations)
- Gonzales v. Oregon, 546 U.S. 243 (2006) (limits on agency regulatory interpretations when regulation is silent)
- U.S. Army Corps of Eng’rs v. Hawkes Co., 136 S. Ct. 1807 (2016) (agency action is final when it marks consummation of decisionmaking)
- Bennett v. Spear, 520 U.S. 154 (1997) (administrative finality principles)