Fourth Circuit Survey

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Week of September 23, 2019 through September 27, 2019
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Chavez v. Hott

Decided: October 10th, 2019

The Fourth Circuit held that noncitizens subject to reinstated removal orders who seek withholding of removal are entitled to individualized bond hearings during the pendency of their “withholding only” proceedings.  Affirming the U.S. District Court for the Eastern District of Virginia and agreeing with the Second Circuit, the Court found that 8 U.S.C. § 1226, rather than 8 U.S.C. § 1231, governs where a noncitizen seeks withholding of removal after reinstatement of a prior removal order.

The consolidated appeal originated as habeas petitions filed by noncitizens who had previously been removed from the United States pursuant to an order of removal.  Once returned to their designated country, each petitioner alleged that they faced persecution, torture, or threats and, fearing for their safety, they fled and returned to the United States.  Once their presence in the United States was discovered, their original removal orders were reinstated pursuant to 8 U.S.C. §1231(a)(5).  Under §1231 noncitizens may not challenge their removability, but an exception exists to allow them to apply for withholding of removal on the grounds that they will face persecution or torture in the country they are scheduled to be removed to.  Successful withholding petitions bar the government from removing an individual to the specific country designated in the removal order but does not prevent the government from removing the noncitizen to a third country.

The issue before the Court was whether the noncitizen petitioners could seek bond hearings before an immigration judge while their withholding only proceedings were pending.  The government argued that 8 U.S.C. §1231, which applies when an alien is ordered removed, is applicable to withholding only petitions, and mandates detention.  Petitioner argued that their detention was under 8 U.S.C. § 1226, which applies to detentions “pending a decision on whether the alien is to be removed,” and allows for discretionary release on bond.

Applying a de novo review, the Court concluded that §1226 governed the petitioner’s detention, entitling them to bond hearings.  Noting a circuit split on the issue,  the Court found that while noncitizens subject to reinstated removal orders are clearly removable, withholding-only proceedings create an issue as to whether the noncitizen is to be removed or not. Because of this, the withholding-only proceeding constitutes a pending immigration proceeding that must be concluded before the noncitizen can be removed and, therefore, § 1226 is applicable and the petitioners are entitled to bond hearings.  

The dissent would hold that because the removal order is a reinstatement of an already final, unappealable order, the reinstatement is itself final and therefore governed by the mandatory detention provisions of §1231.  Regardless of the government’s ability to physically remove the noncitizen, the underlying removal order is administratively final.  Because the original removal order reached a final determination that the noncitizen is to be removed, there is no remaining removal determination to be made; the only issue before a withholding only proceeding is whether the noncitizen can be removed to the country named in the removal order.  Because the reinstated removal order is final, and § 1231 is specifically directed towards removed noncitizens who return to the United States, §1231 is applicable instead of § 1226 and the dissent would hold the petitioners are not entitled to a bond hearing.

Full Opinion

Michael Stover