Guerrero-Sanchez v. Warden York Cnty. Prison

• Decision Date: 26 September 2018
• Docket Number: Nos. 16-4134 & 17-1390,s. 16-4134 & 17-1390
• Citation: 905 F.3d 208
• Parties: Rafael Ignacio GUERRERO-SANCHEZ v. WARDEN YORK COUNTY PRISON; District Director Philadelphia Field Office; Jacqueline Osterlind; Thomas S. Winkowaski; Secretary United States Department of Homeland Security, Appellants
• Court: U.S. Court of Appeals — Third Circuit

905 F.3d 208

Rafael Ignacio GUERRERO-SANCHEZ

v.WARDEN YORK COUNTY PRISON; District Director Philadelphia Field Office; Jacqueline Osterlind; Thomas S. Winkowaski; Secretary United States Department of Homeland Security, Appellants

Nos. 16-4134 & 17-1390

United States Court of Appeals, Third Circuit.

Argued April 18, 2018

Opinion Filed: September 26, 2018

Chad A. Readler, William C. Peachey, Sarah Fabian, Joseph A. Darrow [Argued], United States Department of Justice, Office of Immigration Litigation, District Court Section, P.O. Box 868, Ben Franklin Station, Washington, D.C. 20044 Counsel for Appellants

Daniel B. Conklin [Argued], The Shagin Law Group, 120 South Street, Harrisburg, PA 17101, Counsel for Appellee

Witold J. Walczak, 247 Ft. Pitt Blvd., 2nd Floor, Pittsburgh, PA 1522, Counsel for Amici Appellee, American Civil Liberties Union of Pennsylvania

Golnaz Fakhimi, P.O. Box 60173, Philadelphia, PA 19102, Counsel for Amici Appellee, American Civil Liberties Union of Pennsylvania

Michael Tan, Judy Rabinovitz, 125 Broad Street, 18th Floor, New York, NY 10004, Counsel for Amici Appellee, American Civil Liberties Union Foundation Immigrants' Rights Project

Farrin R. Anello, Edward Barocas, Jeanne LoCicero, 89 Market Street', 7th floor, P.O. Box 32159, Newark, NJ 07102, Counsel for Amici Appellee, American Civil Liberties Union of New Jersey Foundation

Trina Realmuto, 100 Summer Street, 23rd Floor, Boston, MA 02110, Counsel for Amici Appellee, American Immigration Counsel

Mark R. Barr, Lichter Immigration, 1601 Vine Street, Denver, CO 80206, Counsel for Amici Appellee, American Immigration Lawyers Association

Before: GREENAWAY, JR., RENDELL, and FUENTES, Circuit Judges.

OPINION

GREENAWAY, JR., Circuit Judge.

Rafael Guerrero-Sanchez, a native and citizen of Mexico whose original removal order was reinstated pursuant to 8 U.S.C. § 1231(a)(5), was detained by Immigration and Customs Enforcement ("ICE") from May 2015 to February 2017 while he awaited the Immigration Court's decision on whether he would be afforded country-specific protection from removal. The District Court determined that his detention was governed by the pre-removal detention provision of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1226(a), which affords aliens a right to a bond hearing before an immigration judge to determine if the alien's detention is necessary while he or she awaits immigration proceedings. At the hearing, the District Court determined that Guerrero-Sanchez posed neither a flight risk nor a danger to society, and therefore released him on bail after 637 days in civil confinement.

The Government appeals solely the District Court's determination of the source of Guerrero-Sanchez's detention, which it contends is 8 U.S.C. § 1231(a), the post-removal detention authority provision of the INA. In stark contrast to § 1226(a), the text of § 1231(a) does not explicitly authorize a bond hearing. Guerrero-Sanchez, however, contends that his detention raises constitutional concerns even under § 1231(a), and therefore that Congress implicitly intended for that provision to compel a bond hearing after prolonged detention. Thus, in Guerrero-Sanchez's estimation, he was owed a bond hearing regardless of the statutory source of his detention.

Accordingly, this case requires us to decide a novel question of immigration law in this Circuit: is the detention of an alien, such as Guerrero-Sanchez, who has a reinstated order of removal but is also pursuing withholding-only relief governed by § 1226(a) or § 1231(a) ? If the former, then such aliens are statutorily permitted to a bond hearing. But if we find that § 1231(a) controls, then we must answer a second question: does § 1231(a)(6) compel an implicit bond hearing requirement after prolonged detention?

For the reasons discussed below, we hold that § 1231(a) governs Guerrero-Sanchez's detention and that § 1231(a)(6) affords a bond hearing after prolonged detention to any alien who falls within the ambit of that provision. We will therefore affirm on alternative grounds the District Court's decision to afford Guerrero-Sanchez a bond hearing.

I. FACTS

Guerrero-Sanchez attempted to unlawfully enter the United States from Mexico on January 24, 1998 by presenting a fraudulent birth certificate. U.S. Customs and Border Protection determined that he was inadmissible for having sought admission by fraud or misrepresentation, in violation of 8 U.S.C. § 1182(a)(6)(C)(ii). An expedited order of removal was entered against him, see 8 U.S.C. § 1225(b)(1)(A)(i), and he was immediately removed back to Mexico.

At an unknown date thereafter, Guerrero-Sanchez reentered the United States without inspection. In April 2012, he was arrested for his role in an Idaho-based drug trafficking organization. Guerrero-Sanchez pled guilty to one count of conspiracy to distribute more than fifty grams of methamphetamine, in violation of 21 U.S.C. §§ 846 and 841(a)(1), and he was sentenced to forty-two months of imprisonment. While Guerrero-Sanchez was serving that sentence, ICE reinstated his original order of removal from 1998, pursuant to 8 U.S.C. § 1231(a)(5). On April 9, 2015, Guerrero-Sanchez filed before this Court a petition for review and motion for stay of the reinstated removal order, which were denied.

On May 19, 2015, the date that Guerrero-Sanchez completed his sentence, he was transferred to ICE custody pending his removal. An asylum officer subsequently conducted a reasonable-fear interview at Guerrero-Sanchez's request, see 8 C.F.R. § 241.8(e), where Guerrero-Sanchez contended that he would be tortured by a drug cartel if removed to Mexico. The officer concluded that Guerrero-Sanchez's fear of persecution was reasonable and referred the matter to an immigration judge. See 8 C.F.R. § 1208.31(e).

Guerrero-Sanchez subsequently initiated withholding-only proceedings before the Immigration Court, seeking an order either withholding his removal to Mexico pursuant to 8 U.S.C. § 1231(b)(3) or, in the alternative, deferring his removal under the Convention Against Torture ("CAT"). The Immigration Judge denied both claims, finding that he was ineligible for relief under § 1231(b)(3) because he committed a "particularly serious crime," see § 1231(b)(3)(B)(ii), and that he did not qualify for CAT relief because he did "not [meet] his burden of establishing by a preponderance of the evidence that the Mexican Government would consent to or be willfully blind to [his] hypothetical torture...." App. 120. Guerrero-Sanchez appealed the denial of his CAT claim to the Board of Immigration Appeals ("BIA"), which affirmed the Immigration Judge. He then petitioned this Court for review of the BIA's order, and we stayed his removal pending the disposition of his appeal.

We granted the petition of review, finding that "the BIA erred by failing to consider whether the record evidence of the violence caused by the [drug] cartel and corruption of law enforcement officials demonstrated that it is more likely than not that Guerrero will be tortured ‘by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.’ " Guerrero v. Attorney Gen. , 672 F. App'x 188, 191 (3d Cir.2016) (quoting 8 C.F.R. § 1208.18(a)(1) ). We therefore vacated the BIA's order and remanded for further consideration.

On December 17, 2015, while his case remained pending before the BIA, Guerrero-Sanchez filed a petition for a writ of habeas corpus before the District Court, challenging his detention by ICE while he waits for a determination on whether he will be afforded country-specific protection from removal. To date, his withholding-only proceeding is not scheduled until September 5, 2019, which is fifty-three months from the date that he was originally detained by ICE. On September 19, 2016, the District Court granted the petition, finding that Guerrero-Sanchez was statutorily permitted to a bond hearing because his detention was governed by the pre-removal order detention statute, 8 U.S.C. § 1226(a), rather than the post-removal statute, 8 U.S.C. § 1231(a). The District Court therefore ordered that the Immigration Judge afford Guerrero-Sanchez a hearing within twenty-one days.

At the hearing, the Immigration Judge denied Guerrero-Sanchez release on bond, finding that he represented a flight risk and/or danger to the community. Following the bond hearing before the Immigration Judge, Guerrero-Sanchez filed a motion to reconsider and "to enforce" the District Court's order, claiming that the bond hearing had been legally deficient and requesting that the District Court conduct the hearing itself. The District Court granted the motion in part on December 23, 2016, finding that the bond hearing was legally insufficient because it was not individualized, did not account for the evidence of rehabilitation that Guerrero-Sanchez provided, and that it was "doubtful" that the Government carried its burden of proof that he is a flight risk or a danger to the community. App. 40.

The District Court then, in February 2017, held a bond hearing itself. It found that Guerrero-Sanchez did not pose a danger to the community because of "the absence of any criminal history beyond his drug conspiracy conviction, acceptance of responsibility for his criminal conduct, extensive evidence of rehabilitation and good conduct while incarcerated and detained, multiple offers of support from family and employers if he were to be released, and numerous sworn statements attesting to [his] good character." App. 19. The District Court also determined that Guerrero-Sanchez was not a flight risk because he has a wife and daughter living in Las Vegas, Nevada, that he was pursuing a bona fide withholding of removal claim before the Immigration Court, and that the conditions of release would assure that he appeared at future immigration proceedings. It therefore ordered his immediate release subject to conditions of supervision. In total,...