WALTER MELARA MARTINEZ, Petitioner-Appellant, v. CHRISTOPHER LAROSE, et al., Respondents-Appellees.
No. 19-3908
United States Court of Appeals for the Sixth Circuit
Argued: January 30, 2020; Decided and Filed: July 27, 2020
RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b); File Name: 20a0229p.06
Before: SILER, GIBBONS, and THAPAR, Circuit Judges.
Appeal from the United States District Court for the Northern District of Ohio at Youngstown. No. 4:19-cv-01411—Jack Zouhary, District Judge.
COUNSEL
ARGUED: Andrew A. Lyons-Berg, MCDERMOTT WILL & EMERY, LLP, Washington, D.C., for Appellant. Brian C. Ward, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
SILER, J., delivered the opinion of the court in which THAPAR, J., joined, and GIBBONS, J., joined in part. GIBBONS, J. (pp. 15–16), delivered a separate opinion concurring in part and dissenting in part.
OPINION
SILER, Circuit Judge. Petitioner Walter Melara Martinez (Melara) presents us with a question of statutory interpretation that has divided our sister circuits: Are aliens in withholding-only proceedings detained pursuant to
The district court dismissed the case. In resolving the statutory interpretation question, we hold that
I.
In 2008, Melara, a native and citizen of El Salvador, entered the United States illegally and was removed to El Salvador after being apprehended. Following his deportation to El Salvador, Melara lived with his common-law wife, Rosalia, in a rural area outside of the city of La Libertad and had two children. In 2016, Rosalia and the couple‘s two children immigrated legally to the United States and became lawful permanent residents. The couple planned for Rosalia to return to El Salvador in 2017 to marry Melara so he could begin the legal immigration process.
However, after Rosalia‘s departure to America, Melara‘s problems with the MS-13 gang began. In September 2017, after harassment from MS-13,1 an associate of the gang recommended to Melara that he become an informant so that the harassment would stop. But after Melara refused to work with the gang, police officers came to Melara‘s home and beat him with the butts of their rifles.2 A few days later, he received a call from a member of MS-13 who told Melara that he had to make a
To try to hide from MS-13, Melara stayed with his adult daughter in the city of Lourdes. While hiding out in his daughter‘s home, he received an anonymous call on his cell phone threatening that sooner or later the gang would find him and his family. Not long after the call, Rosalia informed Melara that a relative of hers with ties to MS-13 had spotted him attending church in Lourdes. Shortly after Rosalia‘s call, Melara fled the United States.
In December 2017, Melara illegally reentered the United States. The government apprehended him and reinstated his 2008 removal order. After Melara expressed fear of returning to El Salvador, an asylum officer interviewed him and found that he had established a reasonable possibility of future torture. Consequently, Melara‘s case was referred to an IJ for a withholding-of-removal determination. The IJ found that Melara was not entitled to relief under the applicable laws and denied his application for withholding of removal. Further, after a colloquy with Melara, the IJ determined that Melara was choosing to waive appeal.3 After he appealed to the Board of Immigration Appeals (BIA), the BIA found that Melara had waived his appellate rights and dismissed the appeal. The BIA also denied Melara‘s subsequent motion to
reconsider. Following these adverse decisions, Melara filed petitions for review before this court, which stayed his removal and held the case in abeyance pending his BIA appeal on a motion to reopen. However, subsequent to argument in this case, we vacated the stay, remanded Melara‘s withholding-only case to the BIA, and dismissed two of his three petitions for review. Following remand, the BIA held that Melara did not knowingly and intelligently waive his right to appeal, so it vacated its prior order of dismissal and reinstated Melara‘s appeal.
Melara has remained in detention since the government took him into custody in December 2017. In June 2019, Melara filed a petition for a writ of habeas corpus pursuant to
II.
“We review de novo a district court‘s denial of a § 2241 habeas petition.” Christian v. Wellington, 739 F.3d 294, 298 (6th Cir. 2014). Statutory interpretation is a question of law that is also subject to de novo review. Wilson v. Safelite Grp., Inc., 930 F.3d 429, 433 (6th Cir. 2019).
III.
A.
Melara first argues that because he is detained pursuant to
lack of clarity has created a split among our sister circuits. Compare Guzman Chavez v. Hott, 940 F.3d 867, 882 (4th Cir. 2019) (“[W]e agree with the district court that the relevant provisions of § 1226, rather than § 1231, govern the petitioners’ detention“), and Guerra v. Shanahan, 831 F.3d 59, 64 (2d Cir. 2016) (holding the same), with Guerrero-Sanchez v. Warden York Cty. Prison, 905 F.3d 208, 215-16, 219 (3d Cir. 2018) (“[W]e find that § 1231(a), the post-removal provision, is the more logical source of authority for Guerrero-Sanchez‘s detention.“), and Padilla-Ramirez v. Bible, 882 F.3d 826, 833, 836-37 (9th Cir. 2017) (holding the same). Because we find the Third and Ninth Circuits’ analyses to be more consistent with the plain text of the statutes, we hold that Melara is detained under
1.
However, before addressing the statutory interpretation question, some background on the relevant statutes and regulations is required. When a previously deported alien reenters the United States illegally, “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 the reentry.”4
That, of course, necessarily brings us to the question before the panel today: Is an alien in withholding-only proceedings detained under
states: “On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States.” Section 1231(a)(1)(A), on the other hand, holds: “Except as otherwise provided in this section, when an alien is ordered removed, the Attorney General shall remove the alien from the United States within a period of 90 days (in this section referred to as the ‘removal period‘).” The removal period is defined as beginning on the latest
But for Melara, the most significant distinction between the two statutes is the availability of a bond hearing before an IJ. An alien detained pursuant to
2.
Thus, we must ascertain whether the regulations entitle Melara to a bond hearing by determining the source of statutory authority for his detention. Because Melara raises a statutory interpretation issue, our analysis begins with the language of the statutes, and if the statutory language provides a clear answer, it will end there as well. In re Application to Obtain Discovery for Use in Foreign Proceedings, 939 F.3d 710, 723 (6th Cir. 2019) (quoting Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 438 (1999)). The split among our sister circuits largely comes down to the differing conceptions of the case. The Second and Fourth Circuits argue that
country, while
Section 1226(a) states that “an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States.”
While the Second and Fourth Circuits object that it has not been decided whether an alien actually can be removed as long as he is in withholding-only proceedings, see Guzman Chavez, 940 F.3d at 876; Guerra, 831 F.3d at 62, this misstates the inquiry of withholding-only proceedings. Section 1231(b)(3)(A), which provides the statutory authority for withholding-of-removal claims, states that “the Attorney General may not remove an alien to a country if the Attorney General decides that the alien‘s life or freedom would be threatened in that country because of the alien‘s race, religion, nationality, membership in a particular social group, or political opinion.”
itself a final order of removal because it is not an order ‘concluding that the alien is deportable or ordering deportation.’ . . . An order granting CAT relief means only that, notwithstanding the order of removal, the noncitizen may not be removed to the designated country of removal, at least until conditions change in that country. But the noncitizen still ‘may be removed at any time to another country where he or she is not likely to be tortured.‘” (quoting
Moving away from the statutory text, because all four circuits to consider this issue have found whether the reinstated removal order is an administratively final decision provides a dispositive answer as to whether
The Ninth Circuit did not share the Second and Fourth Circuits’ concerns. While grappling with the bifurcation of finality issue, the Ninth Circuit explained:
The agency already decided that Padilla-Ramirez “is to be removed from the United States,”
8 U.S.C. § 1226(a) , and a different, more limited decision is now pending in his withholding-only proceedings—namely, whether he may be removed to El Salvador. The agency has consummated its decision-making regarding the first issue, but not the second. It therefore is consonant with settled administrative legal principles to hold that Padilla-Ramirez‘s reinstated removal order (i.e., the agency‘s decision that he “is to be removed from theUnited States,” id.) is final for detention purposes even though it lacks finality for purposes of judicial review of his withholding-only claim.
Padilla-Ramirez, 882 F.3d at 836. Cf. Nasrallah, 140 S. Ct. at 1691 (“[T]he immigration judge‘s or the Board‘s ruling on a CAT claim does not affect the validity of the final order of removal and therefore does not merge into the final order of removal.“). We agree with the Ninth Circuit and find its explanation to be consistent with our own precedent.
In order for an agency action to be considered final in this circuit, two conditions must be met: (1) “the action must mark the consummation of the agency‘s decisionmaking process,” and (2) “the actions must be one by which rights or obligations have been determined.” Hosseini v. Johnson, 826 F.3d 354, 360 (6th Cir. 2016) (quoting Bennett v. Spear, 520 U.S. 154, 177-78 (1997)) (internal quotation marks omitted). On the question of whether the government may remove Melara from the United States, the reinstated removal order is a consummation of the agency‘s decisionmaking process. He cannot challenge the prior removal order by seeking to have it reopened or reviewed. See
he can be removed. The withholding-only proceedings merely determine whether he may be returned to a particular country, not whether he may be removed from the United States. Thus, it is clear that with regard to the question of whether the government can remove Melara, there has been an administratively final decision.6
aliens past the 90-day removal period if they are removable and considered “unlikely to comply with the order of removal.” Accordingly, we hold that
B.
Alternatively, Melara contends that even if he is not entitled to a bond hearing on regulatory grounds, he is entitled to a bond hearing or release from custody because the length and indefiniteness of his ongoing detention would otherwise violate his due process rights.7 The Supreme Court laid out a framework in Zadvydas v. Davis that guides our analysis of Melara‘s claim. In that case, Zadvydas had been held in detention under
We have found nothing in the history of these statutes that clearly demonstrates a congressional intent to authorize indefinite, perhaps permanent, detention. Consequently, interpreting the statute to avoid a serious constitutional threat, we conclude that, once removal is no longer reasonably foreseeable, continued
detention is no longer authorized by statute.
Id. at 699. The Supreme Court thus applied a presumptively reasonable six-month period for the government to effectuate removal. Id. at 701. “After this 6-month period, once 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.” Id. But the Court did explain that the six-month presumption “does not mean that every alien not removed must be released after six months. To the contrary, an alien may be
held in confinement until it has been determined that there is no significant likelihood of removal in the reasonably foreseeable future.” Id.
The district court here held that after his ongoing appeals run their course, “nothing impedes Melara‘s removal.” Thus, according to the district court, because Melara is not stuck in “removable-but-unremovable limbo,” “he will be subject to nearly immediate removal” once his appeals are resolved. Consequently, it held that Melara failed to demonstrate a due process violation.
On appeal, Melara argues that there is no significant likelihood of removal in the reasonably foreseeable future because he has been in detention for roughly two years and his case before the Sixth Circuit, at the time of the briefing in this matter, was still being held in abeyance. Further, Melara explains that the median time for an appeal in the Sixth Circuit is around seven months and if he prevails, his case will have to wind back through the immigration courts. Nevertheless, we agree with the district court that Melara‘s removal is reasonably foreseeable. If Melara does not prevail in his pending actions before this court and the BIA, nothing should impede the government from removing him to El Salvador.8 If Melara does prevail before this court or the BIA, he may refile his § 2241 petition and argue at that point that there is no significant likelihood of removal in the reasonably foreseeable future.9 See id. at 701 (explaining that “for detention to remain reasonable, as the period of prior postremoval confinement grows, what counts as the ‘reasonably foreseeable future’ conversely [has] to shrink“).
As a final matter, it seems necessary to address whether due process requires a bond hearing after a certain amount of time in detention. While we concur with the Third and Ninth Circuits that Melara and similarly situated petitioners are detained under
IV.
Because the authority for Melara‘s detention arises out of
WALTER MELARA MARTINEZ, Petitioner-Appellant, v. CHRISTOPHER LAROSE, et al., Respondents-Appellees.
No. 19-3908
United States Court of Appeals for the Sixth Circuit
DISSENTING IN PART
JULIA SMITH GIBBONS, Circuit Judge, dissenting in part. I agree with the majority that
The Supreme Court harbors “‘serious doubt[s]’ as to [§ 1231(a)(6)‘s] constitutionality.” Zadvydas v. Davis, 533 U.S. 678, 689 (2001). Because “indefinite, perhaps permanent, detention” under
Melara has provided good reason to believe that there is no significant likelihood of removal. He has already been detained for over twenty-eight months. And his detention will continue for an uncertain and indeterminate period. On February 12, 2020, another panel of this court remanded Melara‘s case to the BIA for further investigation or explanation. The BIA subsequently vacated its prior order dismissing Melara‘s appeal and ordered new briefing. The BIA must now decide the merits of Melara‘s claims that he will be subject to persecution if deported to El Salvador, and Melara may appeal the BIA‘s decision to this court.
The majority‘s response is to offer Melara the opportunity to file a second § 2241 petition to make out a Zadvydas claim if the likelihood of removal dissipates. But a second petition is unnecessary because the current extended period of detention and the likelihood that Melara will not be removed in the foreseeable future implicate Melara‘s due process rights today. See Zadvydas v. Davis, 533 U.S. at 689, 699–701; Rosales-Garcia v. Holland, 322 F.3d 386, 408–15 (6th Cir. 2003). Zadvydas counsels that “what counts as the ‘reasonably foreseeable future‘” should shrink “as the period of prior postremoval confinement grows.” 533 U.S. at 701. The length of Melara‘s future detention, however, has increased during the pendency of this appeal. The task of determining when a noncitizen‘s removal is reasonably foreseeable will present some difficult cases; but a case where a noncitizen detained for over two years faces indeterminate and ever-increasing lengths of detention is not among them.
Melara‘s removal is not reasonably foreseeable. Accordingly, the Due Process Clause does not countenance his continued detention. Because the majority holds otherwise, I respectfully dissent.
Notes
But neither of these premises is sound. First, Bejjani is no longer good law. Second, Melara‘s interpretation of