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Immigration Noncitizens facing removal are entitled to bond hearing

Where noncitizens are awaiting the outcome of proceedings on their petitions to withhold removal based on a fear of persecution or torture in other countries, they are entitled to bond hearings that could lead to their release during those proceedings.


The petitioners in this case are a class of noncitizens subject to reinstated removal orders, which generally are not open to challenge. The petitioners may, however, pursue withholding of removal if they have a reasonable fear of persecution or torture in the countries designated in their removal orders. Availing themselves of that right, these petitioners sought withholding of removal, and they are being detained by the government while they await the outcome of their “withholding-only” proceedings. The question before us is whether they have the right to individualized bond hearings that could lead to their release during those proceedings.

Answering that question requires that we determine the statutory authority under which the government detains noncitizens who seek withholding of removal after a prior removal order has been reinstated. The petitioners argue that their detention is governed by 8 U.S.C. § 1226, which authorizes detention “pending a decision on whether the alien is to be removed,” and would allow them to seek release on bond and to make their case before an immigration judge. The government, on the other hand, points to 8 U.S.C. § 1231, which applies “when an alien is ordered removed”—as the petitioners were, the government says, by virtue of their reinstated removal orders—and makes that detention mandatory during a 90-day “removal period.”

The district court granted summary judgment to the petitioners, holding that they are detained under § 1226 because a decision on removal remains “pending” until their withholding-only proceedings are complete.


The courts of appeals are divided on this question and as the district court recognized, there are arguments of at least “some force” on both sides of the issue. We are persuaded, however, that the district court’s reading of the two statutory provisions—also adopted by a sister circuit—is the better one.

That reading fully effectuates the plain text of the provisions and also ensures that § 1226 and § 1231 fit together to form a workable statutory framework: Before the government has the actual authority to remove a noncitizen from the country, § 1226 applies; once the government has that authority, § 1231 governs. Because the government lacks the authority to “actually execute … order[s] of removal” while withholding-only proceedings are ongoing, the petitioners are detained under § 1226.

The government has a twofold response to this understanding of § 1226 and § 1231 and the way in which they work together. First, the government argues, it misconceives the nature of withholding-only proceedings and relief. Section 1226 applies only when there is a pending decision on whether the alien is to be removed, the government emphasizes, whereas withholding-only proceedings are about the where of removal: Removability is not and may not be contested, and all that remains “pending” is a determination of the specific countries to which the petitioners will be removed. And while § 1226 by terms does not apply to the petitioners, the government finishes, § 1231 does, because the petitioners’ reinstated removal orders are “administratively final” and thus trigger the removal period under § 1231(a)(1)(B)(i). We disagree.

In addition to the two primary arguments addressed above, the government has a fallback position: Even if the text and structure of § 1226 and § 1231 do not make clear that the petitioners’ detention is governed by § 1231, we should adopt that position as a matter of deference to reasonable agency regulations.

Although the courts are divided, as we have discussed, on the ultimate merits of this dispute, there is one point on which they are unanimous: The regulations cited by the government do not actually specify which section, § 1226 or § 1231, authorizes detention of noncitizens subject to reinstated removal orders who have been placed in withholding-only proceedings. We agree.



(Richardson, J.): Both the plain language and the structure of the Immigration and Nationality Act compel the conclusion that § 1231, not § 1226, governs the detention of aliens with reinstated orders of removal. Petitioners are thus not entitled to a bond hearing while they seek withholding of removal under their reinstated orders of removal.

Chavez v. Hott (Lawyers Weekly No. 001-176-19, 43 pp.) (Pamela Harris, J.) (Julius N. Richardson, J., dissenting) Appeal Nos. 18-6086 and 18-6419. Oct. 10, 2019. From E.D. Va. (Leonie Brinkema, J.)


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