Guzman Chavez v. Hott, 18-6086

Decision Date10 October 2019
Docket NumberNo. 18-6086, No. 18-6419,18-6086
Citation940 F.3d 867
Parties Maria Angelica GUZMAN CHAVEZ; Danis Faustino Castro Castro; Jose Alfonso Serrano Colocho, Petitioners-Appellees, and Christian Flores Romero; Wilber A. Rodriguez Zometa, Petitioners, v. Russell HOTT, Field Office Director, U.S. Immigration and Customs Enforcement; DOJ Executive Office for Immigration Review; Ronald D. Vitiello, Acting Director, U.S. Immigration and Customs Enforcement; William P. Barr, Attorney General, Respondents-Appellants, and Brenda Cook, Court Administrator, Executive Office for Immigration Review, Baltimore Immigration Court, Respondent. American Immigration Council; American Immigration Lawyers Association, Amici Supporting Appellees. Rogelio Amilcar Cabrera Diaz; Jennry Francisco Moran Barrera; Rodolfo Eduardo Rivera Flamenco, on behalf of themselves and all others similarly situated, Petitioners-Appellees, v. Russell Hott, Field Office Director, U.S. Immigration and Customs Enforcement; William P. Barr, Attorney General, Respondents-Appellants. American Immigration Council; American Immigration Lawyers Association, Amici Supporting Appellees.
CourtU.S. Court of Appeals — Fourth Circuit

ARGUED: Scott Grant Stewart, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellants. Paul Whitfield Hughes, III, MAYER BROWN LLP, Washington, D.C., for Appellees. ON BRIEF: Chad A. Readler, Acting Assistant Attorney General, William C. Peachey, Director, Gisela A. Westwater, Assistant Director, Brian C. Ward, Senior Litigation Counsel, Lauren E. Fascett, Ari Nazarov, Civil Division, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellants. Simon Yehuda Sandoval-Moshenberg, Rachel Colleen McFarland, LEGAL AID JUSTICE CENTER, Falls Church, Virginia; Mark Stevens, MURRAY OSORIO PLLC, Fairfax, Virginia; Adam Hudes, MAYER BROWN LLP, Washington, D.C., for Appellees. Trina Realmuto, Boston, Massachusetts, Karolina J. Walters, AMERICAN IMMIGRATION COUNCIL, Washington, D.C., for Amici Curiae.

Before FLOYD, HARRIS, and RICHARDSON, Circuit Judges.

Affirmed by published opinion. Judge Harris wrote the opinion, in which Judge Floyd joined. Judge Richardson wrote a dissenting opinion.

PAMELA HARRIS, Circuit Judge:

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. We agree with the district court’s careful analysis of the relevant statutes and affirm its judgment.


For context, we begin with a brief description of the law governing reinstated removal orders and withholding-only proceedings under the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101 et seq.

When a noncitizen who has been ordered removed from the United States reenters the country without authorization, the "prior order of removal is reinstated from its original date." Id. § 1231(a)(5). That reinstated order "is not subject to being reopened or reviewed," and the noncitizen "may not apply for any relief" but instead "shall be removed under the prior order." Id. Implementing regulations track the statute, providing that a noncitizen who unlawfully reenters after a prior removal order "shall be removed from the United States by reinstating the prior order" without any right to a hearing before an immigration judge. 8 C.F.R. § 241.8(a). In the great majority of cases, this process plays out exactly as contemplated, and a noncitizen facing a reinstated removal order is removed from the country without further legal proceedings.

But there is an exception to that rule, which produces the issue we face today. Consistent with our country’s obligations under international law, Congress has provided that a noncitizen may not be removed to a country where she would be persecuted – that is, her "life or freedom ... threatened" based on a protected ground, such as race or religion, 8 U.S.C. § 1231(b)(3)(A) – or tortured, see 8 U.S.C. § 1231 note (United States Policy With Respect to Involuntary Return of Persons in Danger of Subjection to Torture); see also 8 C.F.R. § 208.16(c) (implementing regulations). Where an individual meets the high standard for showing that she will face persecution or torture in a given country, relief is mandatory, and the government must withhold removal to that country. See Salgado-Sosa v. Sessions , 882 F.3d 451, 456 (4th Cir. 2018) ; Dankam v. Gonzales , 495 F.3d 113, 115–16 (4th Cir. 2007).

Thus, as the district court explained, although a noncitizen "cannot otherwise challenge a reinstated removal order, he can seek protection from having that order executed to a particular country by initiating a withholding-only proceeding." Romero v. Evans , 280 F. Supp. 3d 835, 843 (E.D. Va. 2017) ; see Fernandez-Vargas v. Gonzales , 548 U.S. 30, 35 n.4, 126 S.Ct. 2422, 165 L.Ed.2d 323 (2006) ("[E]ven an alien subject to [a reinstated removal order] may seek withholding of removal."). Those proceedings ensure that removal complies with the limited statutory restrictions outlined above; if a claim is successful, it bars the government from removing an individual only to the specific country designated in the removal order. See 8 C.F.R. § 208.31. A grant of withholding of removal with respect to one country does not preclude the government from removing a noncitizen to a third country, see id. § 208.16(f), nor affect a noncitizen’s status as a removable individual, see id. § 208.2(c)(2)(3).

The process works as follows. When a noncitizen subject to a reinstated removal order expresses a fear of persecution or torture in the country designated on the order, an asylum officer conducts a screening interview to make a "reasonable fear" determination. Id. § 208.31(b). If the asylum officer identifies a "reasonable possibility" of torture or persecution in the designated country, then the noncitizen is permitted to apply for withholding of removal. See id. § 208.31(c), (e). At that point, the case goes to an immigration judge for an administrative hearing to determine whether the noncitizen can meet her burden of establishing eligibility for withholding of removal. Id. § 208.31(e). The noncitizen may appeal the immigration judge’s determination to the Board of Immigration Appeals, id. , and the Board’s decision is subject to judicial review, 8 U.S.C. § 1252(a)(1), (a)(4). Throughout, the only issue that may be raised is eligibility for withholding of removal; the underlying (and now reinstated) removal order is not subject to collateral attack during these "withholding-only" proceedings. See 8 C.F.R. § 208.2(c)(3)(i).1


We turn now to the facts underlying this appeal, which are similar for each petitioner and may be sketched out briefly. Each petitioner was removed from the United States pursuant to an order of removal. On their return to their designated countries of removal, the petitioners allege, they were confronted with persecution or torture, or threats of persecution or torture that in several cases included death threats. Fearing for their safety, the petitioners returned to the United States, reentering without authorization and despite their prior removal orders.

When the government discovered the petitioners’ presence, their original removal orders were reinstated under 8 U.S.C. § 1231(a)(5). As noted above, those orders are "not subject to being reopened or reviewed," id. , so the petitioners could not challenge their underlying removability. But they did initiate the withholding-only process by expressing fear of persecution or torture in their native countries, designated as their countries of removal. In every case, the asylum officer, after an initial screening interview, found that the petitioner had a "reasonable fear" of persecution or torture. Accordingly, the petitioners were placed in withholding-only proceedings before immigration judges.

Although some of the petitioners initially were granted supervised release, all ultimately were detained by the government.


This case arose out of a dispute over whether the petitioners could seek release on bond – and do so in hearings before immigration judges – while their withholding-only proceedings were pending. The government took the position that they could not, because they were subject to mandatory detention under 8 U.S.C. § 1231, and bond hearings were denied.

Two sets of petitioners then filed habeas petitions in the same district court in Virginia. Each sought a declaration that 8 U.S.C. § 1226, rather than 8...

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