T.S. ELLIS, III, District Judge.
The primary question presented by this habeas corpus immigration petition is whether the government's detention of an illegal alien for ten months pursuant to a reinstated order of removal violates the Due Process Clause where the alien's application for relief under the Convention Against Torture remains pending before the immigration judge following the government's successful appeal to the Board of Immigration Appeals, which vacated the initial grant of relief and remanded the matter for a new relief determination. The resolution of this question turns on which of two statutes governs petitioner's detention: (1) Immigration and Nationality Act ("INA") § 236 (8 U.S.C. § 1226), which governs detention for aliens pending a decision on their removal, or (2) INA § 241 (8 U.S.C. § 1231), which governs detention for aliens who have been ordered removed. The text and structure of the INA point convincingly to the conclusion that petitioner is subject to 8 U.S.C. § 1231(a), which means that his detention must be analyzed under the framework established by the Supreme Court in Zadvydas v. Davis, 533 U.S. 678 (2001). Under this analytical framework, petitioner's detention currently does not violate the Due Process Clause, though circumstances may arise in the future that would require release or a bond hearing under the Fifth Amendment.
The facts in this case are straightforward and undisputed. Petitioner Jose Ricardo Ayala Crespin is a native and citizen of El Salvador. He seeks a writ of habeas corpus under 28 U.S.C. § 2241
Petitioner entered the United States illegally and without inspection at an unknown place on an unknown date. In November 2012, he pled guilty in the Circuit Court of Fairfax County, Virginia to possession of cocaine, a felony under Virginia law.
Despite his removal, petitioner again entered the United States illegally and without inspection at an unknown place and on an unknown date. In May 2016, respondent arrested petitioner and turned him over to the United States Marshals. Petitioner pled guilty to reentry of a removed alien in violation of 8 U.S.C. § 1326(a)(1), (b)(1) and was sentenced to 90 days incarceration. See United States v. Crespin, No. 1-16-cr-94 (E.D. Va. June 20, 2016). During petitioner's incarceration, respondent reinstated his 2014 removal order under 8 U.S.C. § 1231(a)(5).
Following his transfer to respondent's custody, petitioner expressed fear at the prospect of returning to El Salvador. Under the INA, when an alien, like petitioner, who is subject to a reinstated removal order expresses fear of returning to the country of removal, a United States Citizenship and Immigration Services ("USCIS") officer must interview the alien to determine if the alien has a "reasonable fear" of persecution or torture. See generally 8 C.F.R. § 1208.31. As a result, a USCIS officer interviewed petitioner. The officer determined that petitioner had a reasonable fear of returning to El Salvador, and the matter was referred to an immigration judge to determine if petitioner's removal should be withheld or deferred under the INA and the Convention Against Torture ("CAT"). See 8 C.F.R. § 1208.31(e),(g).
After holding a hearing on the merits of withholding or deferring petitioner's removal, the immigration judge issued a decision in January 2017. The immigration judge denied petitioner's request for withholding of removal under the INA and the CAT because he had committed serious nonpolitical crimes in El Salvador due to his membership in the MS-13 gang. See 8 C.F.R. § 1208.16(d)(2); see also 8 U.S.C. § 1231(b)(3)(B). As for petitioner's request for deferral of removal under the CAT, the immigration judge concluded that petitioner had established that it was more likely than not that he would be tortured if removed to El Salvador. See 8 C.F.R. § 1208.16(c)(2). As a result, the immigration judge granted petitioner's request for deferral of removal under the CAT. In January 2017, respondent appealed that decision to the Board of Immigration Appeals ("BIA").
While petitioner's case worked through the immigration court, deportation officers conducted two assessments, or "Post Order Custody Reviews" ("POCR"), to determine whether petitioner should remain in detention. Respondent conducted the first POCR on October 19, 2016. The deportation officer recommended that petitioner remain in custody pending the resolution of his case because of the significant likelihood of petitioner's removal and his designation as an enforcement priority. Petitioner was informed of this decision on November 15, 2016. On January 30, 2017, soon after respondent appealed the immigration judge's decision to the BIA, respondent conducted another POCR. ICE Headquarters Removal and International Operations determined on February 2, 2017 that continued detention was appropriate due to respondent's pending appeal of the immigration judge's decision, and petitioner was informed of this decision on February 7, 2017. Petitioner remains in detention at the Farmville Detention Center in Farmville, Virginia. There are no obstacles to removing petitioner to El Salvador if his deferral of removal is ultimately denied. In particular, ICE is routinely able to obtain travel documents from El Salvador's government, and as a result ICE believes that it will be able to obtain such documents for petitioner. ICE also represents that there are no diplomatic barriers that would prevent petitioner's removal to El Salvador.
Petitioner filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241 on February 1, 2017, alleging that his ten-month detention violates the Fifth Amendment's Due Process Clause. He seeks either release or a bond hearing before an immigration judge. Respondent has moved for summary judgment on the petition, contending that petitioner's detention does not violate the Due Process Clause. After respondent filed its motion for summary judgment and the parties submitted their respective briefs, respondent provided notice of the BIA's May 22, 2017 decision sustaining respondent's appeal, vacating the immigration judge's deferral of removal, and remanding the record to the immigration judge for a new decision on the merits of petitioner's application for deferral of removal.
Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Rule 56(a), Fed. R. Civ. P. A "fact is material if it might affect the outcome of the suit under the governing law." Vannoy v. Fed. Reserve Bank of Richmond, 827 F.3d 296, 300 (4th Cir. 2016) (internal quotation marks omitted). A "dispute is genuine if a reasonable jury could return a verdict for the nonmoving party." Id. (internal quotation marks omitted). The movant bears the burden of showing an absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. Once the movant has met this burden, the non-moving party, to defeat the motion, must set forth specific facts showing that there is a genuine issue for trial. Covenant Media of S.C., LLC v. City of N. Charleston, 493 F.3d 421, 436 (4th Cir. 2007). The facts must be construed "in the light most favorable" to the non-movant, and all reasonable inferences must be drawn in the non-movant's favor. Vannoy, 827 F.3d at 300. Only "disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Two statutes — 8 U.S.C. § 1226 and 8 U.S.C. § 1231 — govern the detention of aliens. Petitioner's entitlement to release or a bond hearing turns on which statute governs his detention because the statutes prescribe different procedures for detained aliens. See Guerra v. Shanahan, 831 F.3d 59, 62 (2d Cir. 2016).
The first statute — 8 U.S.C. § 1226 — governs the procedures for detaining an alien before a removal decision. Specifically, § 1226(a) provides that "an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States." The statute further states that the Attorney General "may release the alien on" bond or conditional parole pending a removal decision. Id. § 1226(a)(1)-(2).
The parties' dispute concerning which statute applies to petitioner's detention focuses on whether petitioner's reinstated removal order is "administratively final" within the meaning of § 1231(a) given petitioner's ongoing withholding-only proceedings. Under § 1231(a)(5), if an alien, like petitioner, illegally reenters the United States after having been removed under a prior removal order, "the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed" and the alien must be removed. 8 U.S.C. § 1231(a)(5).
Petitioner contends that his ongoing withholding-only proceeding means that a decision with respect to his removal remains "pending" under § 1226, and accordingly his reinstated removal order is not administratively final under § 1231(a). In support of this contention, petitioner relies exclusively on the Second Circuit's decision in Guerra v. Shanahan, 831 F.3d 59, 61 (2d Cir. 2016), which also involved an alien detained under a reinstated order of removal during the pendency of withholding-only proceedings.
The Second Circuit's Guerra decision is unpersuasive, and hence so are petitioner's arguments. With respect to the text of § 1226(a), the Supreme Court has made clear that "in all statutory construction cases, we assume that the ordinary meaning of the statutory language accurately expresses the legislative purpose." Marx v. Gen. Revenue Corp., 568 U.S. ___, 133 S.Ct. 1166, 1172 (2013) (quotation marks and brackets omitted). Section 1226(a) provides that "an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States." The ordinary meaning of a "pending" decision is one that is "not yet decided." Webster's Third New International Dictionary 1669 (1993). Pursuant to that ordinary meaning, "there is no `pending' decision regarding removal" for an alien subject to a reinstated removal order because the decision "has been made." Padilla-Ramirez v. Bible, 180 F.Supp.3d 697, 701 (D. Idaho 2016), appeal filed Padilla-Ramirez v. Bible, No. 16-35385 (9th Cir. 2016). The plain text of § 1226(a) creates no distinction between aliens who are "theoretically removable" under a reinstated removal order but not "practically" removable due to ongoing withholding-only proceedings, and it is inappropriate to read such a distinction into the statutory text. See, e.g., Iselin v. United States, 270 U.S. 245, 251 (1926) ("To supply omissions transcends the judicial function.").
In addition to the text of § 1226(a), the structural features of §§ 1226 and 1231 support the conclusion that § 1231 governs petitioner's detention. See Abramski v. United States, 134 S.Ct. 2259, 2267 (2014) (noting that structure is a tool of "divining meaning" in statutes). To begin with, the "order in which the statutes are set forth indicates that § 1226 does not apply to aliens who have already been ordered removed." Barrera-Romero v. Cole, No. 1-16-cv-148, 2016 WL 7041710, at *4 (W.D. La. Aug. 19, 2016) (report and recommendation), adopted Barrera Romero v. Warden, No. 1-16-cv-148, 2016 WL 7041614 (W.D. La. Dec. 1, 2016). As the Barrera-Romero court observed, § 1226 "precedes the sections governing removal proceedings," which "indicat[es] that it applies to pre-removal order detention." Id. Section 1231, however, "follows the sections governing removal proceedings, indicating that it applies to post-removal order detention." Id. Furthermore, § 1231 is titled "[d]etention and removal of aliens ordered removed," which indicates that the statute applies to all aliens, such as those subject to reinstated removal orders, who have already been ordered removed. See Almendarez-Torres v. United States, 523 U.S. 224, 234 (1998) ("[T]he title of a statute and the heading of a section are tools available for the resolution of a doubt about the meaning of a statute.") (quotation marks omitted). Finally, the placement of § 1231(a)(5), which governs reinstated removal orders, within § 1231 itself supports the conclusion that reinstated removal orders are subject to the detention provisions of § 1231. See Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 439 (2011) (looking at a section's placement within a statute to interpret its meaning). Taken together, all of these structural features provide additional support for the conclusion that § 1231 controls the detention of aliens subject to reinstated removal orders.
Petitioner's final argument is that reinstated removal orders are non-final under § 1231 during the pendency of withholding-only proceedings because several courts have held that such orders are non-final for purposes of judicial review while withholding-only proceedings remain pending. See, e.g. Ortiz-Alfaro v. Holder, 694 F.3d 955, 958 (9th Cir. 2012) (holding that "where an alien pursues reasonable fear and withholding of removal proceedings following the reinstatement of a prior removal order, the reinstated removal order does not become final until the reasonable fear of persecution and withholding of removal proceedings are complete").
In sum, the text and structure of §§ 1226 and 1231 show that reinstated removal orders are "administratively final" under § 1231 because the alien is not awaiting a "pending" decision with respect to his removability. The fact that reinstated removal orders are non-final for purposes of judicial review does not change this conclusion.
Because § 1231 governs petitioner's detention, the next issue is whether he is entitled to release or a bond hearing under that statute. Section 1231 does not contain any requirement for a bond hearing, and thus raises the question of whether respondent can detain petitioner indefinitely. The Supreme Court addressed this precise issue in Zadvydas v. Davis, 533 U.S. 678, 689 (2001). concluding that indefinite detention under the INA would present a "serious constitutional problem" under the Fifth Amendment's Due Process Clause. As a result, the Supreme Court limited "an alien's post-removal-period detention to a period reasonably necessary to bring about that alien's removal from the United States" and held that the statute "does not permit indefinite detention." Id. In particular, the Court recognized that a six-month detention was "presumptively reasonable" and then defined a test for determining the constitutionality of detention after that six-month period:
Id. at 701. Petitioner, having been in respondent's custody for about ten months, is beyond the presumptively reasonable six-month period of detention. He accordingly seeks release or a bond hearing, arguing that there is no significant likelihood of removal in the reasonably foreseeable future because (i) he has already been granted relief from removal and (ii) respondent is unlikely to succeed in its appeal of the immigration judge's deferral decision. This argument fails.
To begin with, the BIA's recent decision on May 22, 2017 vacating the immigration judge's deferral decision and remanding for a new deferral determination substantially weakens petitioner's arguments because, at this point, his removal is no longer deferred. Even before the BIA's decision, however, petitioner's arguments would have still failed. Petitioner is unlike the aliens detained in Zadvydas, who were left in a "removable-but-unremovable limbo"
In sum, petitioner has failed to show that there is no significant likelihood of removal in the reasonably foreseeable future. He has been detained only four months beyond the presumptively reasonable six-month period, respondent has succeeded on its appeal before the BIA, and now the immigration judge must decide anew whether petitioner is entitled to relief under the CAT. Of course, in the event this withholding-only proceeding takes an unusually long period of time, petitioner's continued detention may present a due process problem. See Tijani v. Willis, 430 F.3d 1241, 1242-43 (9th Cir. 2005) (granting writ to alien detained for two years and eight months while awaiting removal decision). But at this time, the petition is appropriately denied without prejudice to the filing of a future petition should circumstances warrant.
For the foregoing reasons, petitioner's request for release or a bond hearing is denied without prejudice.
An appropriate order will issue.