Chavez v. Hott, No. 18-6086, 4th Cir., 10-10-19, published
PANEL: Floyd, Harris, & Richardson, Circuit Judges
OPINION BY: Judge Pamela Harris
DISSENTIONG OPINION: Judge Richardson
KEY QUOTE FROM THE MAJORITY:
PAMELA HARRIS, Circuit Judge:
The petitioners in this case are a class of noncitizens subject to reinstated removalorders, 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. We agree with the district court’s careful
analysis of the relevant statutes and affirm its judgment.
KEY QUOTE FROM DISSENT:
RICHARDSON, Circuit Judge, dissenting:
This case presents a question of statutory interpretation. Are previously removedaliens, who are subject to a reinstated order of removal from the United States, entitled to a bond hearing when they seek withholding of removal? The answer turns on which provision of the Immigration and Nationality Act governs their detention. Section 1231 applies “when an alien is ordered removed” and provides no right to a bond hearing. On the other hand, § 1226 applies to an alien awaiting “a decision on whether the alien is to be removed” and permits the alien’s release on bond after a hearing. The majority holds that § 1226 controls.
I respectfully dissent. 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.
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Great decision! Congratulations to Paul Whitfield Hughes, III, Mayer Brown, LLP who argued the case for the Appellees. Also, congratulations to the Legal Aid and Justice Center and to Mark Stevens, Murray Osorio, LLC, who practiced before me in Arlington, for their role in litigating the case below.
I am particularly proud and gratified by the role played by my former Georgetown Law student, now a full-fledged member of “New Due Process Army,” Rachel Colleen McFarland, who is an attorney with the Legal Aid and Justice Center.
Nice to know that some Article III Appellate Judges are “getting it,” and standing up to the Trump Administration’s abuse.
Not surprisingly, those of us who have seen how the system often doesn’t work know that many of those under so-called “reinstated orders” were railroaded out the first time around without any “Due Process.”
PWS
10-17-19