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.
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.
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
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
The Government originally appealed the District Court's order holding that 8 U.S.C. § 1226(a) governs Guerrero-Sanchez's detention, as well as the orders mandating a de novo hearing in federal court and releasing him on bond. It then withdrew its appeals of the latter two determinations. Thus, the Government now contests only the statutory basis of Guerrero-Sanchez's detention. In the Government's view, it is not the pre-removal detention provision, 8 U.S.C. § 1226(a), that controls in Guerrero-Sanchez's case, but rather, the post-removal detention provision, 8 U.S.C. § 1231(a). Because § 1231(a) contains no explicit bond hearing requirement, the Government argues that such a hearing should have never been held, and that the Government should have the authority to detain Guerrero-Sanchez again.
With all of this in mind, we must first decide whether Guerrero-Sanchez's detention is governed by § 1226(a) or § 1231(a). Because this question is an issue of statutory interpretation, it is subject to de novo review. Fair Hous. Rights Ctr. in Se. Pa. v. Post Goldtex GP, LLC, 823 F.3d 209, 213 (3d Cir.2016). For the reasons discussed below, we hold that § 1231(a), the post-removal provision, controls. We will then proceed to address Guerrero-Sanchez's alternative argument, that is, whether § 1231(a)(6) implicitly requires that he be afforded a bond hearing after prolonged detention.
We begin by examining the text of both provisions. See, e.g., United States v. Thornhill, 759 F.3d 299, 307 (3d Cir.2014) ("Statutory interpretation requires that we begin with a careful reading of the text." (quoting Zimmerman v. Norfolk S. Corp., 706 F.3d 170, 177 (3d Cir.2013))). Section 1226 is the pre-removal provision of the
Section 1231(a) is the post-removal detention provision of the INA and applies to aliens who are subject to a final order of removal. It provides that "when an alien is ordered removed, the Attorney General shall remove the alien from the United States within a period of 90 days." 8 U.S.C. § 1231(a)(1)(A). The provision requires that the alien be detained during this 90-day timeframe, see 8 U.S.C. § 1231(a)(2), which is "referred to as the `removal period.'" 8 U.S.C. § 1231(a)(1)(A). "If the alien does not leave or is not removed within the removal period," then he is normally subject to supervised release. 8 U.S.C. § 1231(a)(3). Section 1231(a)(6), however, authorizes the continued detention of certain classes of aliens "beyond the removal period," 8 U.S.C. § 1231(a)(6), for a timeframe "reasonably necessary to bring about that alien's removal from the United States," Zadvydas v. Davis, 533 U.S. 678, 689, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001); see also id. at 701, 121 S.Ct. 2491 ("[A]n alien may be held in confinement until it has been determined that there is no significant likelihood of removal in the reasonably foreseeable future."). The categories of aliens covered by § 1231(a)(6) include those who, like Guerrero-Sanchez, are inadmissible under 8 U.S.C. § 1182.
Critically, unlike § 1226(a), the text of § 1231(a)(6) does not explicitly authorize a bond hearing. Therefore, at least according to the Government, whether Guerrero-Sanchez is entitled to a bond hearing turns on whether § 1226(a) or § 1231(a) authorizes his detention. We note at the outset that this is a question that has divided our sister circuits. Compare Padilla-Ramirez v. Bible, 882 F.3d 826, 832 (9th Cir.2017) (holding that § 1231(a) governs), with Guerra v. Shanahan, 831 F.3d 59, 64 (2d Cir.2016) (holding that § 1226(a) governs).
As a threshold matter, the Government contends that a regulation issued by the Department of Homeland Security, 8 C.F.R. § 241.8(f), is owed Chevron deference because it allegedly provides that § 1231(a) applies to aliens with reinstated orders of removal.
To determine whether Guerrero-Sanchez was entitled to a bond hearing, we must ascertain the source of authority for his detention. The authorization for an alien's detention shifts from § 1226(a) to § 1231(a) — that is, from the pre-removal phase to the post-removal phase — at the point that the alien's order of removal becomes administratively final and removal is therefore certain. See 8 U.S.C. § 1231(a)(1)(B). Thus, which provision governs here depends on whether the removal order entered against Guerrero-Sanchez is administratively final: if it is final, then § 1231(a) applies; otherwise, § 1226(a) controls.
Crucial to this determination is the fact that Guerrero-Sanchez's removal order was reinstated "from its original date and is not subject to being reopened or reviewed." 8 U.S.C. § 1231(a)(5).
With this framing of the issue in mind, we find that § 1231(a), the post-removal
Furthermore, the placement of § 1231(a)(5), which governs reinstated orders of removal, within the post-removal provision itself evidences Congress's intent that § 1231(a) governs the detention of aliens with reinstated orders of removal, even when they pursue withholding-only proceedings. See id.; see also, e.g., Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992) ("Congress' intent may be `explicitly stated in the statute's language or implicitly contained in its structure'" (quoting Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 51 L.Ed.2d 604 (1977))). The Ninth Circuit, which held that such detentions were authorized by § 1231(a), did so in part on this basis. Padilla-Ramirez, 882 F.3d at 832 ("The fact that the reinstatement provision appears among section 1231(a)'s detention and supervision provisions further bolsters this inference.").
Conversely, we are compelled to find that the plain text of the pre-removal provision, § 1226(a), forecloses its application to reinstated removal orders. Critically, for that provision to apply there must be a decision "pending" before an immigration judge as to "whether the alien is to be removed from the United States." 8 U.S.C. § 1226(a) (emphasis added). No such decision is pending here. As discussed above, the decision that was before the Immigration Judge was not whether Guerrero-Sanchez should be removed "from the United States" — as is required to trigger § 1226(a) — but rather, whether he may be removed to Mexico, i.e., to where he should be removed. "This narrow question of to where an alien may be removed is distinct from the broader question of whether the alien may be removed; indeed, the former inquiry requires that the latter already have been resolved in the affirmative." Padilla-Ramirez, 882 F.3d at 832. Because Guerrero-Sanchez's CAT claim casts no doubt on his removal from the United States, it does not implicate § 1226(a). See id. ("The fact that [an alien] may seek further withholding relief if he prevails on his present application does not change this conclusion since the pending decision in such hypothetical proceedings always will be whether he can be removed to a
Accordingly, we hold that a reinstated order of removal against an alien who has initiated withholding-only proceedings is administratively final.
Guerra also reasoned that the reinstated removal order was not final because an alien could appeal a denial of a withholding application to a federal court of appeals. 831 F.3d at 63. On the basis that the conception of finality pertaining to judicial review must be the same as that which pertains to the administrative finality of his removal order for detention purposes, the Second Circuit reasoned that a "bifurcated definition of finality" would "run[] counter to principles of administrative law
Padilla-Ramirez, 882 F.3d at 836 (citations omitted); see also Ponta-Garcia v. Att'y Gen., 557 F.3d 158, 162 (3d Cir.2009) ("[A]liens subject to reinstatement have already been ordered removed, and thus have already been provided with the requisite procedures and review.").
In a similar vein, amici the American Immigration Council and the American Immigration Lawyers Association (collectively "AIC") contend that "[e]very circuit to have addressed the question [of finality] has agreed that a reinstatement order where the individual has articulated a fear of return is not final until reasonable fear or the withholding-only proceedings have been concluded." AIC Br. at 17-18 (citing Ponce-Osorio v. Johnson, 824 F.3d 502 (5th Cir.2016); Jimenez-Morales v. Att'y Gen., 821 F.3d 1307 (11th Cir.2016), cert. denied sub nom. Jimenez-Morales v. Lynch, ___ U.S. ___, 137 S.Ct. 685, 196 L.Ed.2d 528 (2017); Luna-Garcia v. Holder, 777 F.3d 1182, 1183 (10th Cir.2015); Ortiz-Alfaro v. Holder, 694 F.3d 955 (9th Cir.2012)). However, none of these cases address the finality of reinstated deportation orders for the purposes of removal. Rather, they address whether such orders are final "for the purposes of timely petitioning for judicial review" of orders denying relief in a reasonable fear or withholding-only proceeding. See, e.g., Ortiz-Alfaro, 694 F.3d at 958 (noting that validity of "the underlying prior removal order" was not before the court).
To summarize, Guerrero-Sanchez's detention is governed by § 1231(a). A reinstated removal order is administratively final for the purposes of removal because it provides that an alien "shall be removed" from the United States, and that determination is "not subject to being reopened or reviewed." 8 U.S.C. § 1231(a)(5). An alien with a reinstated order of removal therefore cannot have a decision "pending" before an immigration judge on "whether the alien is to be removed from the United States." 8 U.S.C. § 1226(a) (emphasis added). As a result, such aliens cannot fulfill the necessary predicate to implicate § 1226(a), and they cannot rely on that provision to obtain a bond hearing.
Because § 1231(a) governs Guerrero-Sanchez's detention, we must next reach his alternative argument that he is still entitled to a bond hearing because that provision implicitly requires a bond hearing after prolonged detention. For the reasons below, we agree and will affirm the District Court's order on this basis.
As discussed supra, when an alien has been found to be unlawfully present in the United States and a final order of removal has been entered, the Government ordinarily secures the alien's removal during a subsequent 90-day statutory "removal period," during which time the alien normally is held in custody. 8 U.S.C. § 1231(a)(1)(A). However, since Guerrero-Sanchez's detention lasted longer than 90 days, it was governed by § 1231(a)(6), which authorizes detention beyond the 90 days under certain circumstances. It provides:
8 U.S.C. § 1231(a)(6). Noticeably, unlike § 1226(a), the text of § 1231(a)(6) does not explicitly authorize a bond hearing for aliens that are encompassed within its ambit. Nor does § 1231(a)(6) contain any express limit on the duration of an alien's detention under the provision.
In Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001), however, the Supreme Court interpreted § 1231(a)(6) to authorize the detention of aliens "only as long as `reasonably necessary' to remove them from the country." Clark v. Martinez, 543 U.S. 371, 377, 125 S.Ct. 716, 160 L.Ed.2d 734 (2005) (quoting Zadvydas, 533 U.S. at 689, 699, 121 S.Ct. 2491). Such an interpretation was required to avoid the "`serious constitutional threat'... posed by the indefinite detention of aliens who had been admitted to the country." Id. (quoting Zadvydas, 533 U.S. at 699, 121 S.Ct. 2491). According to the Court, the provision's use of the word "may" was ambiguous because it "`suggests discretion,' but `not necessarily ... unlimited discretion.'" Id. (quoting Zadvydas, 533 U.S. at 699, 121 S.Ct. 2491). Here, the Government argues that Zadvydas resolves the only ambiguity in the text of § 1231(a)(6) and makes clear that Guerrero-Sanchez "may be held in confinement until it has been determined that there is no significant likelihood of removal in the reasonably foreseeable future." Appellant Br. at 15 (quoting Zadvydas, 533 U.S. at 701, 121 S.Ct. 2491).
We disagree. Zadvydas had no occasion to address the due process concerns posed by prolonged detention of someone in Guerrero-Sanchez's situation who is still seeking withholding-only relief. Rather, Zadvydas addressed only the detention of noncitizens who — unlike Guerrero-Sanchez — have exhausted all administrative and judicial challenges to removal, including applications for relief from removal, and are only waiting for their removal to be effectuated. See Demore v. Kim, 538 U.S. 510, 527, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003) (distinguishing Zadvydas on the basis that "in Zadvydas, the aliens challenging their detention following final orders of deportation were ones for whom removal was `no longer practically attainable'" (quoting Zadvydas, 533 U.S. at 690, 121 S.Ct. 2491)).
This distinction is material because detaining Guerrero-Sanchez without a bond hearing while he pursues his bona fide withholding-only claim "would effectively punish [him] for pursuing applicable legal remedies."
Guerrero-Sanchez's detention without bond — which had spanned 637 days before his hearing — pending the resolution of his withholding-only proceedings raises serious due process concerns. See Diouf, 634 F.3d at 1086 ("[P]rolonged detention under § 1231(a)(6), without adequate procedural protections, would raise `serious constitutional concerns.'" (quoting Casas-Castrillon v. Dep't of Homeland Sec., 535 F.3d 942, 950 (9th Cir.2008))); Chavez-Alvarez v. Warden York Cty. Prison, 783 F.3d 469, 471 (3d Cir.2015) ("The total number of days that Chavez-Alvarez has been held in civil detention since his arrest, of itself, gives us reason for pause."), abrogated in part and on other grounds by Jennings, 138 S.Ct. at 847.
We see no substantial distinction between the liberty interests of aliens detained under § 1226(a) and § 1231(a)(6) because "[r]egardless of the stage of the proceedings, the same important interest is at stake — freedom from prolonged detention" — accordingly, "[t]he liberty interests of persons detained under § 1231(a)(6) are comparable to those of persons detained under § 1226(a)." Diouf, 634 F.3d at 1087. The Government contends that individuals like Guerrero-Sanchez
As to the Government's interest in detaining aliens in the post-removal context, we agree with the Ninth Circuit that "[t]he distinctions between § 1226(a) and § 1231(a)(6) ... are not substantial enough to justify denying a bond hearing to all aliens subject to extended detention under § 1231(a)(6)." Diouf, 634 F.3d at 1087. As the Ninth Circuit aptly explained:
Id. at 1087-88. We therefore find that it may be the case that the Due Process Clause prohibits prolonged detention under § 1231(a)(6) without a bond hearing.
Despite the constitutional concerns raised by Guerrero-Sanchez's detention under § 1231(a)(6), we decline to decide whether his continued confinement violated the Due Process Clause. "As a first inquiry, we must avoid deciding a constitutional question if the case may be disposed of on some other basis." Doe v. Pa. Bd. of Prob. & Parole, 513 F.3d 95, 102 (3d Cir.2008). We assume that Congress does not intend to pass unconstitutional laws — accordingly, "it is a cardinal principle of statutory interpretation ... that when an Act of Congress raises a serious doubt as to its constitutionality,... [courts] will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided." Diop, 656 F.3d at 231 (quoting Zadvydas, 533 U.S. at 689, 121 S.Ct. 2491). We therefore invoke the canon of constitutional avoidance so long as "the statute is found to be susceptible of more than one construction." Jennings, 138 S.Ct. at 842 (quoting Clark, 543 U.S. at 385, 125 S.Ct. 716).
The Supreme Court has already determined that the text of § 1231(a)(6) is ambiguous as to the due process protections that it provides. See Zadvydas, 533 U.S. at 697, 121 S.Ct. 2491 (holding that § 1231(a)(6) is ambiguous). This is the case because § 1231(a)(6), unlike other provisions in the INA, does not provide for detention for a specified period of time, uses the word "may" to describe the detention authority rather than "shall," and lacks an express exception to detention provided for in the provision. See Jennings, 138 S.Ct. at 844. The plain text of
In order to avoid determining whether Guerrero-Sanchez's detention violates the Due Process Clause, we adopt the Ninth Circuit's limiting construction of § 1231(a)(6) that "an alien facing prolonged detention under [that provision] is entitled to a bond hearing before an immigration judge and is entitled to be released from detention unless the government establishes that the alien poses a risk of flight or a danger to the community."
Here, there is no basis in § 1231(a)(6) to fashion a class of aliens that is not explicitly enumerated in the provision — if we were to hold that only aliens like Guerrero-Sanchez were entitled to bond hearings, then we would be acknowledging and distinguishing a specific class of aliens that is not ostensibly recognized anywhere in the text or legislative history of the INA. See Clark, 543 U.S. at 378, 125 S.Ct. 716 ("To give [the words `may be detained beyond the removal period,' in § 1231(a)(6)] a different meaning for each category [of aliens] would be to invent a statute rather than interpret one."). Such a reading of § 1231(a)(6) would be implausible, and would therefore constitute an inappropriate application of the canon of constitutional avoidance. See Jennings, 138 S.Ct. at 843 ("Spotting a constitutional issue does not give a court the authority to rewrite a statute as it pleases. Instead, the canon permits a court to `choos[e] between competing plausible interpretations of a statutory text.'" (quoting Clark, 543 U.S. at 381, 125 S.Ct. 716)). Accordingly, our interpretation applies to all classes of aliens that are enumerated in § 1231(a)(6) — i.e., aliens who are inadmissible under 8 U.S.C. § 1182, removable under 8 U.S.C. § 1227(a)(1)(C), (a)(2), or (a)(4), or who have "been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal," 8 U.S.C. § 1231(a)(6) — because
We emphasize, however, that aliens detained under § 1231(a)(6) are only entitled to a bond hearing after prolonged detention.
Id. Under § 1231(a)(6), "[w]hen detention crosses the six-month threshold and release or removal is not imminent, the private interests at stake are profound" and "the risk of an erroneous deprivation of liberty in the absence of a hearing before a neutral decisionmaker is substantial." Diouf, 634 F.3d at 1091-92; id. at 1092 n.13 ("As a general matter, detention is prolonged [under § 1231(a)(6)] when it has lasted six months and is expected to continue more than minimally beyond six months."). This is because "the constitutional case for continued detention without inquiry into its necessity becomes more and more suspect as detention continues. ..." Diop, 656 F.3d at 234; see also Zadvydas, 533 U.S. at 701, 121 S.Ct. 2491 (providing that due process analysis is altered as "the period of ... confinement grows").
Correspondingly, the fiscal and administrative burden on the Government of requiring a bond hearing before an immigration judge is diminished in light of our estimation that the incidence of these hearings will be manageable since the vast majority of removal orders are executed well before six months.
In interpreting § 1231(a)(6) to avoid the serious due process concerns identified above, we recognize that we are declining to defer to relevant DHS regulations. When a statute is ambiguous, we "normally apply Chevron deference to the agency's interpretation of the statute, so long as that construction was reasonable." Romanishyn v. Attorney Gen. of U.S., 455 F.3d 175, 183 (3d Cir.2006). However, although we consider the canon of constitutional avoidance to "defin[e] the scope of a congressional delegation in light of an agency's actual interpretation," Am. Farm Bureau Fed'n v. U.S. E.P.A., 792 F.3d 281, 301 (3d Cir.2015), we do not defer to an agency's interpretation of a statute that raise serious constitutional doubts. See Miller v. Johnson, 515 U.S. 900, 923, 115 S.Ct. 2475, 132 L.Ed.2d 762 (1995) ("[W]e think it inappropriate for a court engaged in constitutional scrutiny to accord deference to [an agency's] interpretation of [a statute]."); Rust v. Sullivan, 500 U.S. 173, 207, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991) ("It is thus implausible that, after Chevron, agency interpretations of ambiguous statutes will prevail even if the consequence of those interpretations is to ... raise serious constitutional doubts" (quoting Cass R. Sunstein, Law and Administration After Chevron, 90 COLUM L. REV. 2071, 2113 (1990))); Solid Waste Agency of N. Cook Cty. v. U.S. Army Corps of Eng'rs, 531 U.S. 159, 173-74, 121 S.Ct. 675, 148 L.Ed.2d 576 (2001) (refusing to apply Chevron deference where "significant constitutional questions [are] raised"); Hernandez-Carrera, 547 F.3d at 1249 ("It is well established that the canon of constitutional avoidance does constrain an agency's discretion to interpret statutory ambiguities, even when Chevron deference would otherwise be due."); Nat'l Mining Ass'n v. Kempthorne, 512 F.3d 702, 711 (D.C. Cir. 2008) ("This canon of constitutional avoidance trumps Chevron deference, and we will not submit to an agency's interpretation of a statute if it `presents serious constitutional difficulties.'" (quoting Chamber of Commerce v. FEC, 69 F.3d 600, 605 (D.C. Cir.1995)) (citation omitted)); Kim Ho Ma v. Ashcroft, 257 F.3d 1095, 1105 n.15 (9th Cir.2001) ("Chevron principles are not applicable where a substantial constitutional question is raised by an agency's interpretation of a statute it is
Such is the case here. The DHS regulations that implement the Government's detention authority under § 1231(a)(6) themselves "raise serious constitutional concerns." Diouf, 634 F.3d at 1091. These regulations — 8 C.F.R. §§ 241.4 and 241.13 — provide administrative custody reviews after 90 days, 180 days, and 18 months, see 8 C.F.R. § 241.4(k)(2)(ii)-(iii), by DHS employees who are not ostensibly neutral decision makers such as immigration judges. Importantly, the regulations also place the burden on the alien, rather than the Government, to prove that he or she is not a flight risk or a danger to the society, see 8 C.F.R. § 241.4(d)(1), and "there is no appeal from [DHS's] ... decision." 8 C.F.R. § 241.4(d); see also 8 C.F.R. § 241.13(g)(2).
This procedure fails to account for the Supreme Court's admonition that "the Constitution may well preclude granting `an administrative body the unreviewable authority to make determinations implicating fundamental rights.'" Zadvydas, 533 U.S. at 692, 121 S.Ct. 2491 (quoting Superintendent, Mass. Corr. Inst. at Walpole v. Hill, 472 U.S. 445, 450, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985)). We therefore decline to apply Chevron deference to the Government's interpretation of § 1231(a)(6). See Diouf, 634 F.3d at 1091 (declining to defer to DHS regulations that implement post-removal detention).
As we have discussed throughout our decision, our holding today is in line with that of the Ninth Circuit, the sole court of appeals to have also addressed this issue. See Diouf, 634 F.3d at 1082. Diouf is not controlling on us, yet it is instructive. We are also "reluctant to create [a] circuit split[]," and only do so "where a `compelling basis exists.'" Parker v. Montgomery Cty. Corr. Facility/Bus. Office Manager, 870 F.3d 144, 152 (3d Cir.2017) (quoting Karlo v. Pittsburgh Glass Works, LLC, 849 F.3d 61, 75 n.7 (3d Cir.2017)). This reluctance is especially acute "where the rules at issue `are best applied uniformly.'" Padilla-Ramirez, 882 F.3d at 836 (quoting Kelton Arms Condo. Owners Ass'n, Inc. v. Homestead Ins. Co., 346 F.3d 1190, 1192 (9th Cir.2003)). Here, the INA "certainly falls into this category" because it is "a comprehensive federal scheme that requires a nationally unified administration program." Id.; see also Arizona v. United States, 567 U.S. 387, 401, 132 S.Ct. 2492, 183 L.Ed.2d 351 (2012) (describing federal immigration law as "a comprehensive and unified system"). Our decision today aligns this Court's law with that of our sister circuit, and therefore effectuates Congress's directive that "the immigration laws of the United States should be enforced vigorously and uniformly." Immigration Reform and Control Act of 1986, Pub.L. 99-603, § 115, 100 Stat. 3384 (emphasis added).
Here, Guerrero-Sanchez was detained by ICE from May 2015 to February 2017, and he was provided a bond hearing only after 637 days in civil detention. Pursuant to our limiting construction of § 1231(a)(6), he was owed a hearing because he was detained well beyond six months. According to the Government, Guerrero-Sanchez
RENDELL, Circuit Judge, concurring:
I concur in the majority's reasoning and result but believe that neither 8 U.S.C. § 1226(a) nor § 1231(a) clearly addresses the detention of one whose removal order has been reinstated but who has filed for withholding of removal. The majority chooses to apply § 1231(a)(6) because, given the finality of a reinstated removal order, a decision as to whether Guerrero-Sanchez is to be removed from the United States is not "pending." While § 1226(a) may be intended to apply before a removal order is entered, the provision for bond hearings under § 1226(a) may be better suited to the instant situation, since withholding proceedings are protracted, and can remain pending for years. Two other Courts of Appeals have considered this issue, each reasoning thoughtfully to a different conclusion.
Section 1231(a) anticipates that removal is certain, yet Guerrero-Sanchez's reinstated removal order is not administratively final, as his withholding proceedings are ongoing. C.f. Majority Opinion at 216. Indeed, nearly every Court of Appeals to have considered the issue of finality of a reinstated removal order has held that there is no administrative finality until the agency has adjudicated the request for withholding of removal. See Guerra v. Shanahan, 831 F.3d 59, 63-64 (2d Cir. 2016); Jimenez-Morales v. Att'y Gen., 821 F.3d 1307, 1308 (11th Cir.2016), cert. denied sub nom. Jimenez-Morales v. Lynch, ___ U.S. ___, 137 S.Ct. 685, 196 L.Ed.2d 528 (2017); Ponce-Osorio v. Johnson, 824 F.3d 502, 506-07 (5th Cir.2016); Luna-Garcia v. Holder, 777 F.3d 1182, 1185-86 (10th Cir.2015); Ortiz-Alfaro v. Holder, 694 F.3d 955, 958 (9th Cir.2012); but see Padilla-Ramirez v. Bible, 882 F.3d 826, 832 (9th Cir.2017). See also Shehu v. Att'y Gen., 482 F.3d 652, 656 (3d Cir.2007) (holding that an order is final when the alien is entitled to "no further process" before they are removed). Granted, Guerrero-Sanchez's removal order has been reinstated, and thus
As the Majority notes, Guerrero-Sanchez was detained under § 1231(a)(6) for 637 days (approximately 21 months) while his withholding proceedings remained, and continue to remain, pending. Guerrero-Sanchez was detained by ICE in May of 2015 and his withholding-only proceedings are scheduled for September 5, 2019, after which it may take months for a final decision to be issued, subject to further appeals. Thus, Guerrero-Sanchez would potentially have been detained for over four years absent a bond hearing and grant of release. Alternatively, an initial bond hearing under § 1226(a) would release those aliens who should not be detained — those who neither pose a risk of flight nor danger to their communities — without detaining them for over 6 months before they can raise a due process challenge to the prolonged nature of their detention.
Thus, I urge that legislative action is needed to clarify whether someone in Guerrero-Sanchez's position is statutorily entitled to a bond hearing.
8 U.S.C. § 1231(a)(5).
8 U.S.C. § 1227(a)(2)(B)(i). Because Guerrero-Sanchez's conviction related to more than fifty grams of methamphetamine, his detention would fall within the confines of § 1226(c). Since he offers no evidence that his release is pursuant to a witness protection purpose, he would be statutorily foreclosed from being afforded a bond hearing altogether if § 1226 applied. Whether Guerrero-Sanchez would be constitutionally entitled to a bond hearing under the Due Process Clause is an entirely different question — a question that we need not resolve today because we hold that his detention is governed by § 1231(a). See Jennings, 138 S.Ct. at 847 (declining to decide whether the Due Process Clause requires a pre-removal bond hearing because the Supreme Court is "a court of review, not of first view" (quoting Cutter v. Wilkinson, 544 U.S. 709, 718 n.7, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005))).
In Padilla-Ramirez, the Ninth Circuit held that Ortiz-Alfaro "is readily distinguishable because its holding rested on the canon of constitutional avoidance." 882 F.3d at 833. Conversely, "[h]olding that Padilla-Ramirez's reinstated order is administratively final for detention purposes poses no such constitutional difficulty, so the avoidance canon need not dictate the outcome here." Id. Thus, "Ortiz-Alfaro... does not control the outcome of this case." Id. at 834. Notably, Guerrero-Sanchez relies on Ortiz-Alfaro for the proposition that a holding that the reinstated removal order is final would make it impossible for him to timely petition for review of an immigration judge's decision denying him relief. However, this portion of his case does not invoke the canon of constitutional avoidance because "the text and structure of the [INA] indicate that Congress intended for section 1231(a) to govern detention of aliens subject to reinstated removal orders." Padilla-Ramirez, 882 F.3d at 834. Ortiz-Alfaro is therefore inapposite.
Diop, however, also reached a constitutional holding and found that "when detention becomes unreasonable, the Due Process Clause demands a hearing, at which the Government bears the burden of proving that continued detention is necessary to fulfill the purposes of the detention statute." 656 F.3d at 233 (emphasis added); see also id. at 223 ("[T]he Due Process Clause of the Fifth Amendment to the Constitution requires that the Government establish that continued detention is necessary to further the purposes of [§ 1226(c)]."); id. at 235 (holding that Diop's detention constituted "a violation of the Due Process Clause"). We reasoned, inter alia, that "[t]he constitutionality of [mandatory detention] is a function of the length of the detention" and that "[a]t a certain point, continued detention ... becomes unconstitutional unless the Government has justified its actions at a hearing inquiring into whether continued detention is consistent with the law's purpose of preventing flight and dangers to the community." Id. at 232 (emphasis added). Since we hold that Guerrero-Sanchez's detention is governed by § 1231(a)(6) and not § 1226(c), we have no occasion to determine here whether Diop's constitutional holding survives Jennings.
However, the constitutional concerns that Diop identified with mandatory detention in the pre-removal context are similar to those in the post-removal context. See Diouf, 634 F.3d at 1087 ("Regardless of the stage of the proceedings, the same important interest is at stake — freedom from prolonged detention."). And we need not determine that those concerns rise to the level of an outright constitutional violation in order to employ the canon of constitutional avoidance. Indeed, the entire purpose of the canon is to avoid reaching the merits of the constitutional issue. See, e.g., Santana Prod., Inc. v. Bobrick Washroom Equip., Inc., 401 F.3d 123, 130-31 (3d Cir. 2005) ("[I]t is well established that courts have a duty to avoid passing upon a constitutional question if the case may be disposed of on some other ground." (quoting Spicer v. Hilton, 618 F.2d 232, 239 (3d Cir.1980))). Accordingly, because we conclude that — unlike § 1226(c) — § 1231(a)(6) is ambiguous, we will interpret the provision in a manner that does not raise the constitutional concerns that Diop identified.
