Martinez v. Larose

Decision Date27 July 2020
Docket NumberNo. 19-3908,19-3908
Citation968 F.3d 555
Parties Walter Melara MARTINEZ, Petitioner-Appellant, v. Christopher LAROSE, et al., Respondents-Appellees.
CourtU.S. Court of Appeals — Sixth Circuit

SILER, Circuit Judge.

Petitioner Walter Melara Martinez (Melara) presents us with a question of statutory interpretation that has divided our sister circuits: Are aliens in withholding-only proceedings detained pursuant to 8 U.S.C. § 1226 or 8 U.S.C. § 1231 ? This question is significant because aliens detained under § 1226(a) are entitled to bond hearings before an immigration judge (IJ) under the federal regulations, while aliens detained under § 1231(a) do not have a right to a bond hearing. In addition to the statutory interpretation issue, Melara argues that after two years of confinement, his continued detention—absent an individualized determination before a neutral decision maker—violates his due process rights.

The district court dismissed the case. In resolving the statutory interpretation question, we hold that § 1231(a) provides the authority for detaining aliens in withholding-only proceedings. Further, because Melara's removal is reasonably foreseeable, his continued detention does not violate due process at this time under the framework set out in Zadvydas v. Davis , 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). Therefore, we affirm the district court's dismissal of Melara's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241.


In 2008, Melara, a native and citizen of El Salvador, entered the United States illegally and was removed to El Salvador after being apprehended. Following his deportation to El Salvador, Melara lived with his common-law wife, Rosalia, in a rural area outside of the city of La Libertad and had two children. In 2016, Rosalia and the couple's two children immigrated legally to the United States and became lawful permanent residents. The couple planned for Rosalia to return to El Salvador in 2017 to marry Melara so he could begin the legal immigration process.

However, after Rosalia's departure to America, Melara's problems with the MS-13 gang began. In September 2017, after harassment from MS-13,1 an associate of the gang recommended to Melara that he become an informant so that the harassment would stop. But after Melara refused to work with the gang, police officers came to Melara's home and beat him with the butts of their rifles.2 A few days later, he received a call from a member of MS-13 who told Melara that he had to make a $500 payment to the gang or else he would be killed. After Melara failed to make the payment, two members of the gang went to his home, assaulted him, and threatened him again that he must pay the $500. Melara fled the area immediately after that confrontation.

To try to hide from MS-13, Melara stayed with his adult daughter in the city of Lourdes. While hiding out in his daughter's home, he received an anonymous call on his cell phone threatening that sooner or later the gang would find him and his family. Not long after the call, Rosalia informed Melara that a relative of hers with ties to MS-13 had spotted him attending church in Lourdes. Shortly after Rosalia's call, Melara fled to the United States.

In December 2017, Melara illegally reentered the United States. The government apprehended him and reinstated his 2008 removal order. After Melara expressed fear of returning to El Salvador, an asylum officer interviewed him and found that he had established a reasonable possibility of future torture. Consequently, Melara's case was referred to an IJ for a withholding-of-removal determination. The IJ found that Melara was not entitled to relief under the applicable laws and denied his application for withholding of removal. Further, after a colloquy with Melara, the IJ determined that Melara was choosing to waive appeal.3 After he appealed to the Board of Immigration Appeals (BIA), the BIA found that Melara had waived his appellate rights and dismissed the appeal. The BIA also denied Melara's subsequent motion to reconsider. Following these adverse decisions, Melara filed petitions for review before this court, which stayed his removal and held the case in abeyance pending his BIA appeal on a motion to reopen. However, subsequent to argument in this case, we vacated the stay, remanded Melara's withholding-only case to the BIA, and dismissed two of his three petitions for review. Following remand, the BIA held that Melara did not knowingly and intelligently waive his right to appeal, so it vacated its prior order of dismissal and reinstated Melara's appeal.

Melara has remained in detention since the government took him into custody in December 2017. In June 2019, Melara filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 in the United States District Court for the Northern District of Ohio seeking either release from detention or a bond hearing before a neutral decision maker. He alleged that his continued detention without an individualized determination violates his due process rights under the Fifth Amendment to the United States Constitution. The district court dismissed Melara's petition. It held that 8 U.S.C. § 1226 does not apply to his detention and under the 8 U.S.C. § 1231(a) indefinite-detention standard, his due process claims fail because his removal is reasonably foreseeable.


"We review de novo a district court's denial of a § 2241 habeas petition." Christian v. Wellington , 739 F.3d 294, 298 (6th Cir. 2014). Statutory interpretation is a question of law that is also subject to de novo review. Wilson v. Safelite Grp., Inc. , 930 F.3d 429, 433 (6th Cir. 2019).


Melara first argues that because he is detained pursuant to 8 U.S.C. § 1226(a), he is entitled to a bond hearing. Respondents, conversely, contend that Melara is not entitled to a bond hearing because he is detained under 8 U.S.C. § 1231(a). It suffices to say that the statutory scheme governing the detention of aliens in withholding-only proceedings "is not a model of clarity." Prieto-Romero v. Clark , 534 F.3d 1053, 1058 (9th Cir. 2008). Indeed, that lack of clarity has created a split among our sister circuits. Compare Guzman Chavez v. Hott , 940 F.3d 867, 882 (4th Cir. 2019) ("[W]e agree with the district court that the relevant provisions of § 1226, rather than § 1231, govern the petitioners’ detention"), and Guerra v. Shanahan , 831 F.3d 59, 64 (2d Cir. 2016) (holding the same), with Guerrero-Sanchez v. Warden York Cty. Prison , 905 F.3d 208, 215-16, 219 (3d Cir. 2018) ("[W]e find that § 1231(a), the post-removal provision, is the more logical source of authority for Guerrero-Sanchez's detention."), and Padilla-Ramirez v. Bible , 882 F.3d 826, 833, 836-37 (9th Cir. 2017) (holding the same). Because we find the Third and Ninth Circuits’ analyses to be more consistent with the plain text of the statutes, we hold that Melara is detained under § 1231(a).


However, before addressing the statutory interpretation question, some background on the relevant statutes and regulations is required. When a previously deported alien reenters the United States illegally, "the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed, the alien is not eligible and may not apply for any relief ... and the alien shall be removed under the prior order at any time after the reentry."4 8 U.S.C. § 1231(a)(5). Nevertheless, despite the absolute language of § 1231(a)(5), an alien with a reinstated removal order does have recourse to seek some protection from deportation: withholding of removal. See § 1231(b)(3)(A) ("Notwithstanding paragraphs (1) and (2), the Attorney General may not remove an alien to a country if the Attorney General decides that the alien's life or freedom would be threatened in that country because of the alien's race, religion, nationality, membership in a particular social group, or political opinion."); Fernandez-Vargas v. Gonzales , 548 U.S. 30, 35 n.4, 126 S.Ct. 2422, 165 L.Ed.2d 323 (2006).

That, of course, necessarily brings us to the question before the panel today: Is an alien in withholding-only proceedings detained under 8 U.S.C. § 1226(a) or § 1231(a) ? Section 1226(a) states: "On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States." Section 1231(a)(1)(A), on the other hand, holds: "Except as otherwise provided in this section, when an alien is ordered removed, the Attorney General shall remove the alien from the United States within a period of 90 days (in this section referred to as the ‘removal period’)." The removal period is defined as beginning on the latest of three events: (1) "[t]he date the order of removal becomes administratively final"; (2) "[i]f the removal order is judicially reviewed and if a court orders a stay of the removal of the alien, the date of the court's final order"; or (3) "[i]f the alien is detained or confined (except under an immigration process), the date the alien is released from detention or confinement." § 1231(a)(1)(B). Further, § 1231(a)(2) provides for mandatory detention of the alien during the 90-day removal period, and § 1231(a)(6) allows for the government to detain aliens past the 90-day removal period if they are removable and considered "unlikely to comply with the order of removal."

But for Melara, the most significant distinction between the two statutes is the availability of a bond hearing before an IJ. An alien detained pursuant to § 1226(a) is entitled to an individualized hearing before an IJ to determine whether detention is necessary during the course of his immigration proceedings. See 8 C.F.R. § 236.1(d)(1). But aliens detained under § 1231 are not entitled to bond hearings through the regulations governing detention. See 8 C.F.R. §§ 241.4, 241.13(a). Because the government...

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