968 F.3d 555
6th Cir.2020Background
- Melara, a Salvadoran national, was removed in 2008, reentered the U.S. illegally in December 2017 after threats from MS-13, and the government reinstated his prior removal order.
- After claiming fear of return, Melara received withholding-of-removal proceedings; the IJ denied relief and the BIA initially dismissed his appeal but later vacated and reinstated it following court action.
- Melara has been detained since December 2017 and filed a habeas petition under 28 U.S.C. § 2241 (June 2019) seeking release or a bond hearing before an immigration judge, arguing detention under 8 U.S.C. § 1226(a) and asserting due process violations from prolonged detention.
- The government treated him as detained under 8 U.S.C. § 1231(a) (post-removal detention) and refused a bond hearing; the district court dismissed Melara’s petition.
- The Sixth Circuit affirmed: it held § 1231(a) governs detention for aliens in withholding-only proceedings and, applying Zadvydas, concluded Melara’s removal was reasonably foreseeable so his continued detention did not (yet) violate due process.
- Judge Gibbons concurred in part (agreeing § 1231(a) applies) but dissented as to due process, arguing Melara’s >2-year indefinite detention renders removal not reasonably foreseeable and thus unconstitutional.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Source of statutory authority for detention (§ 1226(a) vs § 1231(a)) | Melara: detained under § 1226(a); entitled to IJ bond hearing under regulations | Gov: detained under § 1231(a); no regulatory bond right applies | Held: § 1231(a) governs detention of aliens in withholding-only proceedings; no regulatory right to an IJ bond hearing |
| Due process — prolonged post-removal detention (Zadvydas standard) | Melara: ~2+ years detained without individualized neutral review; removal not reasonably foreseeable; due process violated | Gov: Under Zadvydas, removal remains reasonably foreseeable while appeals and remedies run; government may detain past 6 months when removal is likely | Held: Applying Zadvydas, removal is reasonably foreseeable here; no due-process violation at this time (dissent would find a violation) |
Key Cases Cited
- Zadvydas v. Davis, 533 U.S. 678 (statutory-avoidance and six-month presumptive rule for post-removal detention; burden-shifting when removal not reasonably foreseeable)
- Nasrallah v. Barr, 140 S. Ct. 1683 (clarified that CAT/CAT-like relief does not nullify a final order of removal for detention purposes)
- Padilla-Ramirez v. Bible, 882 F.3d 826 (9th Cir. decision holding § 1231(a) governs reinstated orders and discussing bond-hearing entitlement)
- Guerrero-Sanchez v. Warden York Cty. Prison, 905 F.3d 208 (3d Cir. decision holding § 1231(a) governs detention for reinstated removal orders)
- Guzman Chavez v. Hott, 940 F.3d 867 (4th Cir. decision holding § 1226 governs withholding-only detainees — presented and distinguished)
- Guerra v. Shanahan, 831 F.3d 59 (2d Cir. decision holding § 1226 governs — presented and distinguished)
- Jennings v. Rodriguez, 138 S. Ct. 830 (rejected judicially created bond-hearing requirements and constrained reliance on pre-Jennings precedent)
- Castellano-Chacon v. I.N.S., 341 F.3d 533 (6th Cir. precedent on scope of withholding relief and removability)