Padilla-Ramirez v. Bible

• Decision Date: 06 July 2017
• Docket Number: No. 16-35385,16-35385
• Citation: 882 F.3d 826
• Parties: Raul PADILLA–RAMIREZ, Plaintiff-Appellant, v. Daniel A. BIBLE; Jeh Charles Johnson; Jefferson B. Sessions III, Attorney General; Rick Layher, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

882 F.3d 826

Raul PADILLA–RAMIREZ, Plaintiff-Appellant,

v.Daniel A. BIBLE; Jeh Charles Johnson; Jefferson B. Sessions III, Attorney General; Rick Layher, Defendants-Appellees.

No. 16-35385

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 13, 2017—San Francisco, California

Filed July 6, 2017

Amended February 15, 2018

Maria E. Andrade (argued), Benjamin E. Stein (argued), and Christine M. Meeuwsen, Andrade Legal, Boise, Idaho; Matt Adams and Glenda M. Aldana Madrid, Northwest Immigrant Rights Project, Seattle, Washington; for Plaintiff-Appellant.

Brian C. Ward (argued),Trial Attorney; Gisela A. Westwater, Assistant Director; William C. Peachey, Director; Chad A. Readler, Acting Assistant Attorney General; District Court Section, Office of Immigration Litigation, United States Department of Justice, Washington, D.C.; for Defendants-Appellees.

Marc Van Der Hout and Amalia Wille, Van Der Hout Brigagliano & Nightingale LLP, San Francisco, California; Trina Realmuto, National Immigration Project for the National Lawyers Guild, Boston, Massachusetts; for Amici Curiae National Immigration Project of the National Lawyers Guild, Detention Watch Network, Dolores Street Community Services, Immigrant Defenders Law Center, and Pangea Legal Services.

Abigail E. Pringle, Lauren J. Pomeroy, and Jeffry M. Gutkin, Cooley LLP, San Francisco, California; Monique R. Sherman, Cooley LLP, Palo Alto, California; for Amici Curiae Non-profit Legal Services Organizations and Co-Director of Law School Immigration Clinic.

Before: J. Clifford Wallace, M. Margaret McKeown, and Jay S. Bybee, Circuit Judges.

WALLACE, Circuit Judge:

Raul Padilla–Ramirez appeals from the district court's judgment denying his habeas corpus petition, in which he seeks a custody redetermination as he awaits the outcome of administrative proceedings to determine whether he has a reasonable fear of returning to his native country of El Salvador. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

I.

We review the district court's denial of Padilla–Ramirez's habeas petition de novo. Singh v. Holder , 638 F.3d 1196, 1202 (9th Cir. 2011). We also review questions of statutory construction de novo. See Hing Sum v. Holder , 602 F.3d 1092, 1095 (9th Cir. 2010).

II.

The facts of this case are undisputed. In 1999, Padilla–Ramirez unlawfully entered the United States without applying for admission or parole. When Immigration and Customs Enforcement (ICE) initiated removal proceedings against him in 2006, Padilla–Ramirez sought to avoid removal by applying for asylum, withholding of removal, and relief under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention). These applications were denied, but the immigration judge (IJ) allowed Padilla–Ramirez to depart the country voluntarily. In the event that Padilla–Ramirez failed to depart timely, the order of voluntary departure would become an order of removal.

Padilla–Ramirez appealed unsuccessfully the IJ's orders to the Board of Immigration Appeals (Board). He managed to obtain a sixty-day extension of his voluntary departure period, but failed to depart by the deadline. As a result, the voluntary departure order was converted into a removal order that became effective on January 25, 2009. ICE removed Padilla–Ramirez to El Salvador in February 2010.

In December 2015, ICE discovered that Padilla–Ramirez had re-entered the country illegally and was being detained in Idaho in connection with a state criminal prosecution. ICE promptly reinstated Padilla–Ramirez's original removal order pursuant to 8 U.S.C. § 1231(a)(5) and, following the dismissal of his state charges, took custody of Padilla–Ramirez in February 2016. Padilla–Ramirez then asserted that he feared returning to El Salvador and was referred to an asylum officer for a reasonable fear determination pursuant to 8 C.F.R. § 208.31. The asylum officer found that Padilla–Ramirez had stated a reasonable fear of persecution or torture if he were removed to El Salvador and referred him to an IJ to determine whether he is eligible for withholding of removal or protection under the Convention. These "withholding-only" proceedings are ongoing.

Padilla–Ramirez filed the instant habeas petition after the IJ denied his request for a bond hearing on grounds that she lacked jurisdiction to consider the request. The district court denied the petition on substantially the same grounds, concluding that Padilla–Ramirez is detained pursuant to a provision of the Immigration and Nationality Act (Act) that does not allow for bond hearings. Padilla–Ramirez appeals.

III.

Our task in this case is to determine which provision of the Act governs Padilla–Ramirez's detention. Padilla–Ramirez argues that he is detained pursuant to 8 U.S.C. § 1226(a), which grants the Attorney General discretion to detain an alien "pending a decision on whether the alien is to be removed from the United States." 8 U.S.C. § 1226(a)(1). That section also permits the Attorney General to release the alien on bond or conditional parole. Id. § 1226(a)(2). Pursuant to regulations, an initial custody determination under section 1226(a) is made by the district director, but the detainee may request an additional bond hearing before an IJ. 8 C.F.R. § 236.1(d)(1). As stated, Padilla–Ramirez requested such a bond hearing, but the IJ denied his request.

Conversely, the government contends that Padilla–Ramirez is detained pursuant to 8 U.S.C. § 1231(a). Section 1231(a) provides for mandatory detention during a ninety-day "removal period," id. § 1231(a)(2), and discretionary detention "beyond the removal period" in certain circumstances, id. § 1231(a)(6). The bond hearing authorized under 8 C.F.R. § 236.1(d)(1) does not apply to detentions authorized under section 1231(a). Thus, Padilla–Ramirez's entitlement to a bond hearing hinges on whether he is detained pursuant to section 1226(a) or section 1231(a).

Our decision only addresses Padilla–Ramirez's entitlement to an initial bond hearing under 8 C.F.R. § 236.1. We do not address Padilla–Ramirez's entitlement to a bond hearing after prolonged detention. We previously have held that "individuals detained under § 1231(a)(6) are entitled to the same procedural safeguards against prolonged detention as individuals detained under § 1226(a)." Diouf v. Napolitano , 634 F.3d 1081, 1084 (9th Cir. 2011).

A.

Our analysis begins with the text of the provisions at issue. Am. Tobacco Co. v. Patterson , 456 U.S. 63, 68, 102 S.Ct. 1534, 71 L.Ed.2d 748 (1982). Section 1226(a)'s detention authority applies "pending a decision on whether the alien is to be removed from the United States." 8 U.S.C. § 1226(a). By contrast, section 1231(a) applies during an alien's "removal period," id. § 1231(a)(2), which begins on the latest of three dates: (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," id. § 1231(a)(1)(B)(i)–(iii).

We are concerned here only with the date of administrative finality. See id. § 1231(a)(i)(B)(i). Although Padilla–Ramirez may seek judicial review of an adverse decision in his withholding-only proceedings, Andrade-Garcia v. Lynch , 828 F.3d 829, 833 (9th Cir. 2016), that review would be confined to the order relating to his application for withholding. Likewise, judicial review of any challenge by Padilla–Ramirez to the reinstatement order would be "limited to assessing ICE's determination of the factual predicates for reinstatement."¹ Villa-Anguiano v. Holder , 727 F.3d 873, 878 (9th Cir. 2013). The court would not review the underlying removal order itself, except in circumstances not applicable here. See 8 U.S.C. § 1231(a)(5).² Section 1231(a)(1)(B)(ii) therefore is inapplicable. Diouf v. Mukasey , 542 F.3d 1222, 1230 (9th Cir. 2008) (holding that "the plain text of" section 1231(a)(1)(B)(ii)"entail[s] judicial review of a removal order "). Section 1231(a)(1)(B)(iii) does not apply either because "an immigration process" is the only basis for Padilla–Ramirez's detention. 8 U.S.C. § 1231(a)(1)(B)(iii).

The question before us, then, is whether Padilla–Ramirez's reinstated removal order is administratively final. If it is, then section 1231(a) controls. If not, then section 1226(a) provides the only authority for detaining him.

Under the Act, a removal order becomes final "upon the earlier of ... a determination by the Board ... affirming such order ... or the expiration of the period in which the alien is permitted to seek review of such order by the Board." Id. § 1101(a)(47)(B)(i)–(ii). This definition has limited utility in the context of reinstated removal orders because the prior underlying removal orders cannot be reopened or reviewed, except in circumstances not applicable here. Id. § 1231(a)(5); see supra note 2. Indeed, we previously have concluded that "this statutory definition of finality does not dictate a clear answer here because there is no way to appeal the reinstatement of a removal order to the [Board]." Ortiz-Alfaro v. Holder , 694 F.3d 955, 958 (9th Cir. 2012). Accordingly, we must look elsewhere to determine the statute's meaning.

The government urges us to defer to a federal regulation which, it contends, answers the question before us. That regulation reads: "Execution of the reinstated order of removal and detention of the alien shall be administered in accordance with this part." 8 C.F.R. § 241.8(f). "[T]his part" refers to Part 241, which contains regulations implementing section 1231. On its face, this regulation appears to indicate that Padilla–Ramirez is detained pursuant to that section. However, the only detention regulation in Part 241 that could apply to an alien like...