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ImmIGRATION AUGUST 06, 2021 | The Indian Eye 38

the Fight for immigration Justice is Not Over:

ScOtuS rules mandatory Detention of certain

immigrants Seeking Safety in the united States : part-i

SOphia GeNOveSe he or she would be tortured bond. Prior to June 29, 2021, whether the [noncitizen] will While in ICE custody, Mr.
in the country of removal.” 8 according to the Second and actually be removed.” Guer- Padilla-Ramirez expressed
n Johnson v. Guzman C.F.R. §§ 241.8(e), 208.31(c). Fourth Circuits, the detention ra, 831 F.3d at 62. It follows a fear of return to his native
Chavez, 594 U.S. __ If an Asylum Officer deter- of noncitizens in withhold- that a noncitizen subject to El Salvador, passed his RFI,
I(2021), the Supreme Court mines that there is a reason- ing-only proceedings is gov- reinstatement of removal is and was placed into with-
held that noncitizens in with- able possibility that the non- erned by 8 U.S.C. § 1226(a) removable, “but the purpose holding-only proceedings. Id.
holding-only proceedings are citizen will face persecution or and are thus entitled to a of withholding only proceed- After being denied the oppor-
not entitled to a custody re- torture, the noncitizen will be bond hearing before an im- ings is to determine precisely tunity to seek bond before the
determination, or bond, hear- placed into withholding-only migration judge pursuant to whether ‘the [noncitizen] is to immigration court, Mr. Padil-
ing before the Immigration proceedings where they are 8 C.F.R. § 1236.1(d). Guerra be removed from the United la-Ramirez filed a petition for
Court. This holding effective- only permitted to apply for v. Shanahan, 831 F.3d 59 (2d States.’” Id. The Second Cir- writ of habeas corpus, which
ly leaves thousands of asylum withholding of removal or Cir. 2016); Guzman Chavez cuit reasoned that §1226(a) was dismissed by the district
seekers at risk of prolonged protection under the Conven- v. Hott, 940 F.3d 867 (4th contemplates detention of re- court, and he appealed to the
and indefinite detention. tion Against Torture (CAT). Cir. 2019). According to the moval proceedings which are Ninth Circuit.
By way of background, 8 C.F.R. § 208.31(e). Neither Third, Sixth, and Ninth Cir- ongoing, whereas §1231(a) is The Ninth Circuit upheld
individuals who return to the withholding of removal nor cuits, the detention of non- primarily concerned with de- the decision of the lower court,
United States after having protection under CAT grant citizens in withholding-only fining the 90-day removal pe- concluding that §1231(a) gov-
previously been removed are lawful permanent residence, proceedings is governed by 8 riod during which a noncitizen erned Mr. Padilla-Ramirez’s
subject to reinstatement of but both allow for the nonciti- U.S.C. § 1231(a) and are thus “shall” be removed, and thus, detention, and ruled that he
removal. 8 U.S.C. § 1231(a) zen to obtain work authoriza- not entitled to a bond hear- §1226(a) governed the deten- was not entitled a bond hear-
(5); 8 C.F.R. 241.8(a). How- tion and reside in the United ing under the §1226(a) pro- tion of noncitizens in with- ing under §1226(a). But see
ever, if someone with a prior States. An individual granted visions. Martinez v. LaRose, holding-only proceedings. Id. Diouf v. Napolitano, 634 F.3d
removal order expresses a withholding of removal or 968 F.3d 555 (6th Cir. 2020); In addressing finality of the 1081 (9th Cir. 2011) (holding
fear of persecution, they are protection under CAT can Guerrero-Sanchez v. War- reinstated removal order, the that prolonged detention un-
referred for a Reasonable be removed to a third county den York County Prison, 905 Second Circuit explained that der §1231(a)(6) is prohibit-
Fear Interview (RFI) where (see 8 C.F.R. § 1208.16(f)); F.3d 208 (3d Cir. 2018); Padil- the decision to remove the ed without an individualized
they must demonstrate “a however, this rarely occurs. la-Ramirez v. Bible, 882 F.3d noncitizen from the country hearing to determine wheth-
reasonable possibility that he Prior to Johnson v. Guz- 826 (9th Cir. 2017). is not made until the pro- er the person is a flight risk
or she would be persecuted man Chavez, most individuals The Second Circuit was ceedings are complete, and or a danger to the commu-
on account of his or her race, in withholding-only proceed- the first court of appeals to accordingly, the reinstated nity). In reaching their deci-
religion, nationality, mem- ings were held in immigration directly address the issue of removal order cannot be ad- sion, the Ninth Circuit first
bership in a particular social detention unless they resided whether individuals in with- ministratively final. Id. at 64. analyzed the removal period
group or political opinion, or in a jurisdiction where they holding-only proceedings In Guzman Chavez v. and assessed whether Mr.
a reasonable possibility that were eligible for release on were entitled to a bond hear- Hott, 940 F.3d 867 (4th Cir. Padilla-Ramirez’s reinstated
ing. In Guerra, the Second 2019), the Fourth Circuit removal order was “admin-
Circuit explained that there reasoned along similar lines. istratively final.” The Court
are two statutory sections The Court concluded that concluded that under a plain
which authorize the deten- §1226 and §1231 “fit together reading of §1231(a)(5), a re-
tion of noncitizens: 8 U.S.C. to form a workable statutory instated removal order is ad-
§ 1226(a), which governs de- framework,” where the §1226 ministratively final. Id. at 831.
tention “pending a decision applies “before the govern- The Court reasoned that the
on whether the [noncitizen] is ment has the actual authority removal order was final when
to be removed from the Unit- to remove a noncitizen from it was first executed, and if re-
ed States,” and 8 U.S.C. § the country,” and that §1231 instated, it is reinstated from
1231(a), which governs deten- applies “once the government its original date and thus re-
tion of noncitizens subject to has that authority.” 940 F.3d tains the same administrative
a final order of removal. 831 at 876. And thus, “because finality. Id. The Court also
F.3d at 62. Under § 1226(a), the government lacks the au- reasoned that since the rein-
noncitizens are eligible for a thority to actually execute statement provision is in the
custody redetermination, or orders of removal while with- same section in the Act enti-
a bond, hearing before the holding-only proceedings are tled “Detention and removal
immigration court, so long as ongoing the petitioners are of [noncitizen] ordered re-
they are not classified as arriv- detained under § 1226.” Id. moved,” Congress intended
ing noncitizens on their No- (internal citations omitted). for the detention of nonciti-
tices to Appear, nor subject to The Ninth Circuit dis- zens subject to reinstatement
mandatory detention under agreed with the Second Cir- to be governed by that section,
§1226(c). Under §1231(a), de- cuit and held that noncitizens which require that the order
tention is mandatory for the in withholding-only proceed- be administratively final. Id.
m of 90-day “removal period” af- ings are detained pursuant The Court concluded that
CYRUS D. MEHTA & PARTNERS PLLC ter a removal order becomes to §1231(a). Padilla-Ramirez withholding-only proceedings
“administratively final,” and v. Bible, 882 F. 3d 826 (9th do not affect the administra-
thereafter, noncitizens are Cir. 2017). The noncitizen tive finality of the removal

entitled to periodic review in this case, Mr. Raul Padil- order; but rather, only deter-

  of their detention by ICE; la-Ramirez, had previous- mine whether a noncitizen
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­ however, ICE is permitted to ly been deported after his ought to be removed to a
€
‚   continue detaining the indi- application for asylum was particular country, and thus
vidual and extend the removal denied. Id. at 829. He re-en- §1231(a) governs their deten-
period. The Second Circuit tered the United States a few tion. Id. at 832.
reasoned that §1226(a) does years later undetected and
The Third Circuit in
not contemplate whether was transferred to ICE custo- Guerrero-Sanchez v. Warden
2 6th Floor the noncitizen is “theoreti- dy after dismissal of unrelat- York County Prison, 905 F.3d

   
cally removable but rather ed criminal charges in 2015. 208 (3d Cir. 2018) agreed with
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