Raul PADILLA-RAMIREZ, Plaintiff-Appellant, v. Daniel A. BIBLE; Jeh Charles Johnson; Jefferson B. Sessions III, Attorney General; Rick Layher, Defendants-Appellees.
No. 16-35385
United States Court of Appeals, Ninth Circuit.
July 6, 2017
881
Argued and Submitted March 13, 2017, San Francisco, California
Rather, the HSA and TVPRA were intended to address the unique vulnerability of minors who enter this country unaccompanied, and to improve the treatment of such children while in government custody. There is nothing in the legislative history of either statute to suggest that, in doing so, Congress in fact sought to strip unaccompanied minors of any extant protections, including their right to a bond hearing under the Flores Settlement.
****
Nothing in the text, structure, or purpose of the HSA or TVPRA renders continued compliance with Paragraph 24A, as it applies to unaccompanied minors, “impermissible.” See Flores v. Lynch, 828 F.3d at 910. Nor does anything in the two statutes turn the Flores Settlement or any part of it into an “instrument of wrong.” See Wright, 364 U.S. at 647, 81 S.Ct. 368.
Not a single word in either statute indicates that Congress intended to supersede, terminate, or take away any right enjoyed by unaccompanied minors at the time of the acts’ passage. Thus, we hold that the statutes have not terminated the Flores Settlement‘s bond-hearing requirement for unaccompanied minors.
We therefore affirm the decision of the district court granting plaintiffs’ motion to enforce Paragraph 24A of the Flores Settlement in its entirety.
AFFIRMED.
Brian C. Ward (argued), Trial Attorney; Elizabeth J. Stevens, Assistant Director; William C. Peachey, Director; Benjamin C. Mizer, Principal Deputy Assistant Attorney General; District Court Section, Office of Immigration Litigation, United States Department of Justice, Washington, D.C.; for Defendants-Appellees.
Before: J. CLIFFORD WALLACE, M. MARGARET McKEOWN, and JAY S. BYBEE, Circuit Judges.
OPINION
WALLACE, Circuit Judge:
Raul Padilla-Ramirez appeals from the district court‘s judgment denying his habeas corpus petition, in which he seeks a custody redetermination as he awaits the outcome of administrative proceedings to determine whether he has a reasonable fear of returning to his native country of El Salvador. We have jurisdiction pursuant to
We review the district court‘s denial of Padilla-Ramirez‘s habeas petition de novo. Singh v. Holder, 638 F.3d 1196, 1202 (9th Cir. 2011). We also review questions of statutory construction de novo. See Hing Sum v. Holder, 602 F.3d 1092, 1095 (9th Cir. 2010).
II.
The facts of this case are undisputed. In 1999, Padilla-Ramirez unlawfully entered the United States without applying for admission or parole. When Immigration and Customs Enforcement (ICE) initiated removal proceedings against him in 2006, Padilla-Ramirez sought to avoid removal by applying for asylum, withholding of removal, and relief under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention). These applications were denied, but the immigration judge (IJ) allowed Padilla-Ramirez to depart the country voluntarily. In the event that Padilla-Ramirez failed to depart timely, the order of voluntary departure would become an order of removal.
Padilla-Ramirez appealed unsuccessfully the IJ‘s orders to the Board of Immigration Appeals (Board). He managed to obtain a sixty-day extension of his voluntary departure period, but failed to depart by the deadline. As a result, the voluntary departure order was converted into a removal order that became effective on January 25, 2009. ICE removed Padilla-Ramirez to El Salvador in February 2010.
In December 2015, ICE discovered that Padilla-Ramirez had re-entered the country illegally and was being detained in Idaho in connection with a state criminal prosecution. ICE promptly reinstated Padilla-Ramirez‘s original removal order pursuant to
Padilla-Ramirez filed the instant habeas petition after the IJ denied his request for a bond hearing on grounds that she lacked jurisdiction to consider the request. The district court denied the petition on substantially the same grounds, concluding that Padilla-Ramirez is detained pursuant to a provision of the Immigration and Nationality Act (Act) that does not allow for bond hearings. Padilla-Ramirez appeals.
III.
Our task in this case is to determine which provision of the Act governs Padilla-Ramirez‘s detention. Padilla-Ramirez argues that he is detained pursuant to
Our decision only addresses Padilla-Ramirez‘s entitlement to an initial bond hearing under
A.
Our analysis begins with the text of the provisions at issue. Am. Tobacco Co. v. Patterson, 456 U.S. 63, 68, 102 S.Ct. 1534, 71 L.Ed.2d 748 (1982). Section 1226(a)‘s detention authority applies “pending a decision on whether the alien is to be removed from the United States.”
We are concerned here only with the date of administrative finality. See
The question before us, then, is whether Padilla-Ramirez‘s reinstated removal order is administratively final. If it is, then section 1231(a) controls. If not, then section 1226(a) provides the only authority for detaining him.
Under the Act, a removal order becomes final “upon the earlier of . . . a determination by the Board . . . affirming such order . . . or the expiration of the period in which the alien is permitted to seek review of such order by the Board.”
The government urges us to defer to a federal regulation which, it contends, answers the question before us. That regulation reads: “Execution of the reinstated order of removal and detention of the alien shall be administered in accordance with this part.”
Reinstatement of a removal order is governed by section 1231(a)(5), which reads as follows:
If the Attorney General finds that an alien has reentered the United States illegally after having been removed or having departed voluntarily, under an order of removal, 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 under this chapter, and the alien shall be removed under the prior order at any time after the reentry.
Notwithstanding section 1231(a)(5)‘s mandatory language, it offers some leeway with respect to withholding-only proceedings. Andrade-Garcia, 828 F.3d at 831. Such proceedings are an exception to the general prohibition against seeking relief from removal pursuant to a reinstated order. See
Withholding-only proceedings do not, however, purport to override section 1231(a)(5)‘s prohibition on reopening or reviewing a reinstated order. See Ortiz-Alfaro, 694 F.3d at 958 (stating that a grant or denial of withholding would “have no effect on the reinstatement of [the] removal order” at issue in that case). At most, a grant of withholding will only inhibit the order‘s execution with respect to a particular country. Even if Padilla-Ramirez were to prevail on his application, he still would be subject to removal pursuant to the reinstated order—the government simply would have to seek an alternate country to receive him. See
B.
Section 1226(a), which applies only while “a decision on whether the alien is to be removed from the United States” is “pending,”
In this respect, Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001), is instructive. There, an alien (Zadvydas) had been ordered removed and was detained pursuant to section 1231(a). See id. at 683-84. As it turned out, none of the available countries of removal were willing to accept him. Id. at 684. Zadvydas then challenged his continuing detention, which appeared at that point to be potentially permanent. Id. at 684-85. The Supreme Court, relying on the canon of constitutional avoidance, held that the government‘s detention authority under section 1231(a) terminates “once removal is no longer reasonably foreseeable.” Id. at 699. But even in such a circumstance, section 1231(a) still controls: although the government cannot detain the alien, the alien is subject to supervision under section 1231(a)(3). See id. at 696.
Like Zadvydas, Padilla-Ramirez is subject to an order of removal that is, by all
C.
Padilla-Ramirez argues that we are foreclosed from holding that section 1231(a) governs his detention because we have already decided that reinstated removal orders are not final during the pendency of withholding-only proceedings. In Ortiz-Alfaro v. Holder, 694 F.3d 955 (9th Cir. 2012), an alien subject to a reinstated removal order sought to challenge a federal regulation governing withholding-only proceedings because it prevented him from applying for asylum. Id. at 956. At the time he filed his petition for review, however, his withholding-only proceedings were still ongoing. Id. at 957. We held that we lacked jurisdiction to review the petition because the reinstated removal order would not become “final” for purposes of judicial review pursuant to
At first blush, Ortiz-Alfaro appears to support Padilla-Ramirez‘s position. But the case is readily distinguishable because its holding rested on the canon of constitutional avoidance. We acknowledged that there were “compelling arguments in favor of finding that [the alien‘s] reinstated removal order [wa]s final,” but observed that such a conclusion “would make it impossible for [the alien] to timely petition for review of any IJ decisions denying him relief or finding that he does not have a reasonable fear.” Id. at 958. Because this “could raise serious constitutional concerns,” we decided that the reinstated order would not become final for judicial review purposes until the conclusion of the alien‘s withholding-only proceedings. Id.
Holding that Padilla-Ramirez‘s reinstated order is administratively final for detention purposes poses no such constitutional difficulty, so the avoidance canon need not dictate the outcome here. In such a situation, the normal presumption that a particular word has the same meaning in different parts of a statute can give way if the provision at issue points toward a different meaning. See Sun v. Ashcroft, 370 F.3d 932, 939-40 (9th Cir. 2004). As explained above, the text and structure of the Act indicate that Congress intended for section 1231(a) to govern detention of aliens subject to reinstated removal orders. Ortiz-Alfaro therefore does not control the outcome of this case.
Our recent decision in Ayala v. Sessions, 855 F.3d 1012 (9th Cir. 2017), is no different. That case came to us in a somewhat problematic procedural posture. After the government reinstated the alien‘s expedited order of removal, she expressed a fear of returning to Guatemala. Id. at 1016. An
We faced a jurisdictional dilemma. Although the petition had been filed within four days of the Board‘s dismissal of the alien‘s appeal, more than thirty days had elapsed since the IJ‘s denial of the motion to reopen. Id. Thus, whether we had jurisdiction depended on which of the two orders constituted a “final order” for purposes of judicial review. See
Ayala tracks Ortiz-Alfaro in all important respects, as both cases addressed the finality of reinstated orders for purposes of judicial review and were decided in large part to preserve the petitioners’ ability to obtain such review. Our statement in Ayala that “a removal order is considered final only when ‘all administrative proceedings have concluded,‘” id. at 1019, quoting Abdisalan v. Holder, 774 F.3d 517, 526 (9th Cir. 2014) (en banc), as amended (Jan. 6, 2015), broke no new ground. Ortiz-Alfaro stands for the same proposition—that a reinstated removal order is not “final” for judicial-review purposes until the relevant administrative proceedings conclude. The question in Ayala was simply at what point those proceedings had ended. Accordingly, Ayala offers no more support than Ortiz-Alfaro for adopting Padilla-Ramirez‘s preferred interpretation of finality in the detention context.
D.
We are not the first federal appellate court to consider this issue. In Guerra v. Shanahan, 831 F.3d 59 (2d Cir. 2016), the Second Circuit, guided by the text of section 1226(a) and circuit precedents, held that an alien subject to a reinstated removal order is detained pursuant to section 1226(a) during withholding-only proceedings. Id. at 62-64. This holding, of course, is contrary to our conclusion that section 1231(a) applies to aliens like Padilla-Ramirez. Although we are wary to create a circuit split, we must part company with our sister circuit here.
For the reasons already explained, we respectfully disagree with the Second Circuit‘s reading of section 1226(a). In concluding that “the purpose of withholding-only proceedings is to determine precisely whether ‘the alien is to be removed from the United States,‘” id. at 62, quoting
The cases cited by the Second Circuit do not convince us otherwise. First, the court attempted to draw an analogy to asylum-only proceedings, whereby an alien obtains entry to the country by waiving his right to challenge removal except by applying for asylum. Guerra, 831 F.3d at 63 & n.2, citing Kanacevic v. INS, 448 F.3d 129 (2d Cir. 2006). In Kanacevic, the Second Circuit held that it had jurisdiction to review a denial of asylum notwithstanding the absence of a “final order of removal,”
Far from supporting the Second Circuit‘s analogy, Kanacevic underscores a critical distinction between asylum-only proceedings and withholding-only proceedings: in the former, the denial of asylum is the order of removal. Consequently, there can be no removal order, final or otherwise, until the alien‘s claim for relief is resolved. Not so in withholding-only proceedings, where a final removal order has been not only entered but executed by the time a withholding-only claim is made. Also, in contrast to withholding-only proceedings, the removal order itself is at issue in asylum-only proceedings, as evidenced by the fact that the order (i.e., denial of asylum) is subject to judicial review. See id. Finally, Kanacevic, like Ortiz-Alfaro and Ayala, addressed finality for judicial-review purposes and was motivated, at least in part, to ensure the availability of such review. Id. at 135 (“Were we to . . . hold[] that the disposition of asylum-only proceedings does not function as a final order of removal . . . , we would create uncertainty over exactly what procedure a Visa Waiver applicant could pursue in order to obtain review of his or her asylum proceedings in the Courts of Appeals“). Kanacevic therefore is a poor fit in helping to decide this case.
The second case relied on by the Second Circuit, Chupina v. Holder, 570 F.3d 99 (2d Cir. 2009), stands only for the unremarkable proposition that a removal order does not become final for purposes of judicial review until all of an alien‘s claims for relief made during his original removal proceedings are resolved. Id. at 103, citing
Finally, the Second Circuit fell back on “principles of administrative law” to reject the “tiers of finality” that the government urges in this case. Guerra, 831 F.3d at 63 (internal quotation marks omitted). The Second Circuit is correct that only an agency action marking “the consummation of the agency‘s decisionmaking process” qualifies as final agency action. Id., quoting U.S. Army Corps of Eng‘rs v. Hawkes Co., — U.S. —, 136 S.Ct. 1807, 1813, 195 L.Ed.2d 77 (2016). But its conclusion that no such consummation exists while withholding-only proceedings are ongoing again misunderstands the decision at stake in those proceedings. The agency already decided that Padilla-Ramirez “is to be removed from the United States,”
IV.
As a general rule, “we decline to create a circuit split unless there is a compelling reason to do so.” Kelton Arms Condo. Owners Ass‘n, Inc. v. Homestead Ins. Co., 346 F.3d 1190, 1192 (9th Cir. 2003). This is especially true where the rules at issue “are best applied uniformly.” Id. The Immigration and Nationality Act, a comprehensive federal scheme that requires a nationally unified administration program, certainly falls into this category. While this consideration ordinarily would counsel in favor of adopting the Second Circuit‘s resolution of the issue before us, we believe that the legislative intent on this point is in clear opposition to that resolution. By its terms, section 1231(a)(5) inoculates reinstated removal orders against any challenge, and withholding-only proceedings do not override that proscription. Our own decisions in Ortiz-Alfaro and Ayala, which addressed finality for judicial-review purposes and turned principally on avoiding a construction that would severely inhibit or eliminate that review, are not controlling in the detention context. Nor are we persuaded by the Second Circuit‘s analysis in reaching the opposite conclusion in Guerra. So even though it may create discord in our immigration system, we must give effect to Congress‘s purpose as we understand it. The judgment of the district court is affirmed. If uniformity is required, we are content to leave it to the Supreme Court to harmonize the resulting split of authority.
AFFIRMED.
WALLACE
CIRCUIT JUDGE