Raul Padilla-Ramirez v. Daniel Bible ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAUL PADILLA-RAMIREZ, No. 16-35385
Plaintiff-Appellant,
D.C. No.
v. 1:16-cv-00127-
BLW
DANIEL A. BIBLE; JEH CHARLES
JOHNSON; JEFFERSON B. SESSIONS
III, Attorney General; RICK LAYHER, AMENDED
Defendants-Appellees. OPINION
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief Judge, Presiding
Argued and Submitted March 13, 2017
San Francisco, California
Filed July 6, 2017
Amended February 15, 2018
Before: J. Clifford Wallace, M. Margaret McKeown,
and Jay S. Bybee, Circuit Judges.
Opinion by Judge Wallace
2 PADILLA-RAMIREZ V. BIBLE
SUMMARY*
Immigration / Habeas Corpus
The panel amended an opinion affirming the district
court’s judgment denying Raul Padilla-Ramirez’s habeas
corpus petition, in which he sought 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.
8 U.S.C. § 1226(a) grants the Attorney General discretion
to detain an alien pending a decision on whether the alien is
to be removed from the United States, and permits the
Attorney General to release the alien on bond or conditional
parole. Pursuant to 8 C.F.R. § 236.1(d)(1), 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 immigration judge. 8 U.S.C. § 1231(a)
provides for mandatory detention during a ninety-day
removal period, and discretionary detention beyond the
removal period in certain circumstances. However, the bond
hearing authorized under 8 C.F.R. § 236.1(d)(1) does not
apply to detentions authorized under section 1231(a).
Padilla-Ramirez’s entitlement to a bond hearing hinged
on whether he is detained pursuant to section 1226(a) or
section 1231(a). The panel held that reinstated removal
orders are administratively final for detention purposes, and
that the detention of aliens subject to reinstated removal
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
PADILLA-RAMIREZ V. BIBLE 3
orders is governed by section 1231(a), rather than section
1226(a). Padilla-Ramirez was therefore not entitled to a bond
hearing.
The panel noted that its decision creates a circuit split
with the Second Circuit’s decision in Guerra v. Shanahan,
831 F.3d 59 (2d Cir. 2016).
COUNSEL
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 fo 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.
4 PADILLA-RAMIREZ V. BIBLE
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 Nonoprofit Legal Services Organizations and Co-
Director of Law School Immigration Clinic.
OPINION
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
PADILLA-RAMIREZ V. BIBLE 5
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.
6 PADILLA-RAMIREZ V. BIBLE
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).
PADILLA-RAMIREZ V. BIBLE 7
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 (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
8 PADILLA-RAMIREZ V. BIBLE
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
1
Padilla-Ramirez did not challenge the factual predicates for
reinstatement. We do not consider whether such a challenge would trigger
section 1226.
2
We underscore that section 1231(a)(5)’s bar against collateral
challenges to the underlying removal order is not absolute. “Although
§ 1231(a)(5) limits the scope of judicial review of reinstated removal
orders, § 1252(a)(2)(D) reinstates this court’s jurisdiction over certain
constitutional claims and questions of law.” Villa-Anguiano, 727 F.3d at
877 n.3. This jurisdiction, however, is limited to the narrow circumstance
in which the alien can show a “gross miscarriage of justice” in the original
removal proceedings. Id. at 877 (quoting Garcia de Rincon v. Dep’t of
Homeland Sec., 539 F.3d 1133, 1138 (9th Cir. 2008)). We do not consider
whether a collateral challenge of this type could trigger subsection
(ii) because the issue is not before us.
PADILLA-RAMIREZ V. BIBLE 9
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 Padilla-Ramirez simply states that
“[o]nce the removal period defined in section 241(a)(1) of the
Act begins, an alien in the United States will be taken into
custody pursuant to the warrant of removal.” Id. § 241.3(a).
This regulation therefore does not answer the question of
when the removal period begins. Because the regulation does
not answer the question presented, we will conduct our own
review of the statute.
Reinstatement of a removal order is governed by section
1231(a)(5), which reads as follows:
10 PADILLA-RAMIREZ V. BIBLE
If the Attorney General finds that an alien has
reentered the United States illegally after
having been removed or having departed
voluntarily, under an order of removal, 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 under this
chapter, and the alien shall be removed under
the prior order at any time after the reentry.
8 U.S.C. § 1231(a)(5). This provision indicates, in two ways,
that a reinstated removal order is administratively final. First,
a removal order undoubtedly is administratively final when
it first is executed; if it is reinstated from its original date, it
stands to reason that it retains the same administrative finality
because section 1231(a)(5) proscribes any challenge that
might affect the status of the underlying removal order.
Second, the reinstatement provision is located in the same
section of the Act, tellingly entitled “Detention and removal
of aliens ordered removed,” id. § 1231 (emphasis added), as
the detention authority that the government claims in this
case. This placement suggests that Congress meant for the
detention of aliens subject to reinstated removal orders to be
governed by that section, which would require that such
orders be administratively final. The fact that the
reinstatement provision appears among section 1231(a)’s
detention and supervision provisions further bolsters this
inference. Id. § 1231(a)(2)–(3), (6).
Notwithstanding section 1231(a)(5)’s mandatory
language, it offers some leeway with respect to withholding-
only proceedings. Andrade-Garcia, 828 F.3d at 831. Such
PADILLA-RAMIREZ V. BIBLE 11
proceedings are an exception to the general prohibition
against seeking relief from removal pursuant to a reinstated
order. See 8 C.F.R. § 241.8(e). Furthermore, the Department
of Homeland Security likely “cannot execute the reinstated
removal order until the reasonable fear and withholding of
removal proceedings are complete.” Luna-Garcia v. Holder,
777 F.3d 1182, 1183 (10th Cir. 2015), citing 8 C.F.R.
§§ 208.1(a), 208.5(a). This removal moratorium would
override section 1231(a)(5)’s command that “the alien shall
be removed under the prior order at any time after the
reentry.” 8 U.S.C. § 1231(a)(5) (emphasis added). It is thus
clear that some aspects of section 1231(a)(5) do not apply
with full force to an alien involved in withholding-only
proceedings.
Withholding-only proceedings do not, however, purport
to override section 1231(a)(5)’s prohibition on reopening or
reviewing a prior removal order. See Ortiz-Alfaro, 694 F.3d
at 958 (stating that a grant or denial of withholding would
“have no effect on the reinstatement of [the] removal order”
at issue in that case). At most, a grant of withholding will
only inhibit the order’s execution with respect to a particular
country. Even if Padilla-Ramirez were to prevail on his
application, he still would be subject to removal pursuant to
the reinstated order—the government simply would have to
seek an alternate country to receive him. See 8 U.S.C.
§ 1231(b)(2); Lanza v. Ashcroft, 389 F.3d 917, 933 (9th Cir.
2004) (acknowledging that withholding relief “only prohibits
removal of the [alien] to the country of risk, but does not
prohibit removal to a non-risk country” (quoting Castellano-
Chacon v. INS, 341 F.3d 533, 545 (6th Cir. 2003))). The
removal order itself therefore is not at issue in the
withholding-only proceedings, meaning that those
proceedings cannot diminish or otherwise affect its finality.
12 PADILLA-RAMIREZ V. BIBLE
Because Padilla-Ramirez’s reinstated removal order remains
administratively final, he is detained pursuant to section
1231(a).
B.
Section 1226(a), which applies only while “a decision on
whether the alien is to be removed from the United States” is
“pending,” 8 U.S.C. § 1226(a), is not to the contrary because
such a decision is not pending in Padilla-Ramirez’s
withholding-only proceedings. The decision to be made in
those proceedings is not whether he is to be removed from the
United States, but merely whether he may be removed to El
Salvador. 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.
The fact that the government may still remove Padilla-
Ramirez, albeit to an alternate country, even if he is granted
withholding confirms that the decision identified in section
1226(a) has already been made—he is “to be removed from
the United States.” Id. (emphasis added). That decision
therefore is not pending, meaning that section 1226(a) cannot
apply. The fact that Padilla-Ramirez 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 particular country, which does not implicate
section 1226(a).
In this respect, Zadvydas v. Davis, 533 U.S. 678 (2001),
is instructive. There, an alien (Zadvydas) had been ordered
removed and was detained pursuant to section 1231(a). See
id. at 683–84. As it turned out, none of the available countries
PADILLA-RAMIREZ V. BIBLE 13
of removal were willing to accept him. Id. at 684. Zadvydas
then challenged his continuing detention, which appeared at
that point to be potentially permanent. Id. at 684–85. The
Supreme Court, relying on the canon of constitutional
avoidance, held that the government’s detention authority
under section 1231(a) terminates “once removal is no longer
reasonably foreseeable.” Id. at 699. But even in such a
circumstance, section 1231(a) still controls: although the
government cannot detain the alien, the alien is subject to
supervision under section 1231(a)(3). See id. at 696.
Like Zadvydas, Padilla-Ramirez is subject to an order of
removal that is, by all appearances, administratively final.
Like Zadvydas, the only obstacles to Padilla-Ramirez’s
removal from the United States are potential individualized
determinations that he cannot be removed to specific
countries. There is an obvious distinction between the two
cases in that those determinations may be made in domestic
administrative proceedings in Padilla-Ramirez’s case,
whereas Zadvydas was made unremovable by virtue of other
countries’ refusals to accept him. However, the touchstone of
section 1226 is the nature of the decision to be made, not the
identity of the decision-maker, and the decision to be made in
this case is the same as in Zadvydas: whether Padilla-
Ramirez’s removal order may be executed with respect to
particular countries. The fact that Zadvydas was detained
pursuant to section 1231(a) even while the government cycled
through the list of possible removal countries indicates that
such country-specific determinations are not “decision[s] on
whether the alien is to be removed from the United States.”
8 U.S.C. § 1226(a). Accordingly, section 1226(a) has no
application here.
14 PADILLA-RAMIREZ V. BIBLE
C.
Padilla-Ramirez argues that we are foreclosed from
holding that section 1231(a) governs his detention because we
have already decided that reinstated removal orders are not
final during the pendency of withholding-only proceedings.
In Ortiz-Alfaro v. Holder, an alien subject to a reinstated
removal order sought to challenge a federal regulation
governing withholding-only proceedings because it prevented
him from applying for asylum. 694 F.3d at 956. At the time
he filed his petition for review, however, his withholding-
only proceedings were still ongoing. Id. at 957. We held that
we lacked jurisdiction to review the petition because the
reinstated removal order would not become “final” for
purposes of judicial review pursuant to 8 U.S.C. § 1252(a)(1)
until the alien’s withholding-only proceedings concluded. Id.
at 957–58.
At first blush, Ortiz-Alfaro appears to support Padilla-
Ramirez’s position. But the case is readily distinguishable
because its holding rested on the canon of constitutional
avoidance. We acknowledged that there were “compelling
arguments in favor of finding that [the alien’s] reinstated
removal order [wa]s final,” but observed that such a
conclusion “would make it impossible for [the alien] to
timely petition for review of any IJ decisions denying him
relief or finding that he does not have a reasonable fear.” Id.
at 958. Because this “could raise serious constitutional
concerns,” we decided that the reinstated order would not
become final for judicial review purposes until the conclusion
of the alien’s withholding-only proceedings. Id.
Holding that Padilla-Ramirez’s reinstated order is
administratively final for detention purposes poses no such
PADILLA-RAMIREZ V. BIBLE 15
constitutional difficulty, so the avoidance canon need not
dictate the outcome here. In such a situation, the normal
presumption that a particular word has the same meaning in
different parts of a statute can give way if the provision at
issue points toward a different meaning. See Sun v. Ashcroft,
370 F.3d 932, 939–40 (9th Cir. 2004). As explained above,
the text and structure of the Act indicate that Congress
intended for section 1231(a) to govern detention of aliens
subject to reinstated removal orders. Ortiz-Alfaro therefore
does not control the outcome of this case.
Our recent decision in Ayala v. Sessions, 855 F.3d 1012
(9th Cir. 2017), is no different. That case came to us in a
somewhat problematic procedural posture. After the
government reinstated the alien’s expedited order of removal,
she expressed a fear of returning to Guatemala. Id. at 1016.
An asylum officer determined that she had not stated a
reasonable fear of persecution or torture, and an IJ affirmed
the officer’s conclusion. Id. The alien then moved to reopen
and reconsider that decision, which the IJ denied. Id. at 1017.
The denial order indicated that it was final unless appealed to
the Board within thirty days. Id. So the alien appealed to the
Board, but the Board lacked jurisdiction to review the appeal
and dismissed it on that basis. Id. The alien then petitioned
for review in this court. Id.
We faced a jurisdictional dilemma. Although the petition
had been filed within four days of the Board’s dismissal of
the alien’s appeal, more than thirty days had elapsed since the
IJ’s denial of the motion to reopen. Id. Thus, whether we had
jurisdiction depended on which of the two orders constituted
a “final order” for purposes of judicial review. See 8 U.S.C.
§ 1252(b)(1). We held that the Board’s dismissal of the
alien’s appeal was the final order for three reasons, two of
16 PADILLA-RAMIREZ V. BIBLE
which are relevant here. First, because the IJ’s denial of the
motion to reopen effectively (and misleadingly) instructed her
to appeal to the Board, administrative proceedings did not
conclude until the Board issued its order. Ayala, 855 F.3d at
1019. Second, holding that the IJ’s denial was the final order
would have cost the alien her only opportunity for judicial
review of the adverse reasonable fear determination. Id.
Citing Ortiz-Alfaro, we reiterated that we generally will not
“apply[] rules in a manner that effects such a total deprivation
of judicial review.” Id. (The third reason involved a practical
concern about delays caused by appeals that the Board
undisputably lacks jurisdiction to review, which does not bear
on this case. Id. at 1019–20.)
Ayala tracks Ortiz-Alfaro in all important respects, as
both cases addressed the finality of reinstated orders for
purposes of judicial review and were decided in large part to
preserve the petitioners’ ability to obtain such review. Our
statement in Ayala that “a removal order is considered final
only when ‘all administrative proceedings have concluded,’”
id. at 1019, quoting Abdisalan v. Holder, 774 F.3d 517, 526
(9th Cir. 2014) (en banc), as amended (Jan. 6, 2015), broke
no new ground. Ortiz-Alfaro stands for the same
proposition—that a reinstated removal order is not “final” for
judicial-review purposes until the relevant administrative
proceedings conclude. The question in Ayala was simply at
what point those proceedings had ended. Accordingly, Ayala
offers no more support than Ortiz-Alfaro for adopting Padilla-
Ramirez’s preferred interpretation of finality in the detention
context.
PADILLA-RAMIREZ V. BIBLE 17
D.
We are not the first federal appellate court to consider this
issue. In Guerra v. Shanahan, 831 F.3d 59 (2d Cir. 2016), the
Second Circuit, guided by the text of section 1226(a) and
circuit precedents, held that an alien subject to a reinstated
removal order is detained pursuant to section 1226(a) during
withholding-only proceedings. Id. at 62–64. This holding, of
course, is contrary to our conclusion that section 1231(a)
applies to aliens like Padilla-Ramirez. Although we are wary
to create a circuit split, we must part company with our sister
circuit here.
For the reasons already explained, we respectfully
disagree with the Second Circuit’s reading of section 1226(a).
In concluding that “the purpose of withholding-only
proceedings is to determine precisely whether ‘the alien is to
be removed from the United States,’” id. at 62, quoting 8
U.S.C. § 1226(a), the court did not paint with a fine enough
brush. The purpose of such proceedings instead is to
determine whether the alien is to be removed to a particular
country (in Padilla-Ramirez’s case, El Salvador). No judge,
agency, or court will be called upon to decide whether
Padilla-Ramirez may be “removed from the United States.”
8 U.S.C. § 1226(a) (emphasis added). Even if the cumulative
effect of the government’s removal efforts is that he cannot
be removed from the country—which is entirely speculative
at this point—he would be no different than the alien in
Zadvydas.
The cases cited by the Second Circuit do not convince us
otherwise. First, the court attempted to draw an analogy to
asylum-only proceedings, whereby an alien obtains entry to
the country by waiving his right to challenge removal except
18 PADILLA-RAMIREZ V. BIBLE
by applying for asylum. Guerra, 831 F.3d at 63 & n.2, citing
Kanacevic v. INS, 448 F.3d 129 (2d Cir. 2006). In Kanacevic,
the Second Circuit held that it had jurisdiction to review a
denial of asylum notwithstanding the absence of a “final
order of removal,” 8 U.S.C. § 1252(a)(1), because such a
denial “is the functional equivalent of a removal order” in
asylum-only proceedings, Kanacevic, 448 F.3d at 134–35.
The implication in Guerra is that the denial of withholding in
withholding-only proceedings is likewise the “functional
equivalent” of a final removal order.
Far from supporting the Second Circuit’s analogy,
Kanacevic underscores a critical distinction between asylum-
only proceedings and withholding-only proceedings: in the
former, the denial of asylum is the order of removal.
Consequently, there can be no removal order, final or
otherwise, until the alien’s claim for relief is resolved. Not so
in withholding-only proceedings, where a final removal order
has been not only entered but executed by the time a
withholding-only claim is made. Also, in contrast to
withholding-only proceedings, the removal order itself is at
issue in asylum-only proceedings, as evidenced by the fact
that the order (i.e., denial of asylum) is subject to judicial
review. See id. Finally, Kanacevic, like Ortiz-Alfaro and
Ayala, addressed finality for judicial-review purposes and
was motivated, at least in part, to ensure the availability of
such review. Id. at 135 (“Were we to . . . hold[] that the
disposition of asylum-only proceedings does not function as
a final order of removal . . . , we would create uncertainty
over exactly what procedure a Visa Waiver applicant could
pursue in order to obtain review of his or her asylum
proceedings in the Courts of Appeals”). Kanacevic therefore
is a poor fit in helping to decide this case.
PADILLA-RAMIREZ V. BIBLE 19
The second case relied on by the Second Circuit, Chupina
v. Holder, 570 F.3d 99 (2d Cir. 2009), stands only for the
unremarkable proposition that a removal order does not
become final for purposes of judicial review until all of an
alien’s claims for relief made during his original removal
proceedings are resolved. Id. at 103, citing 8 U.S.C.
§ 1101(a)(47)(B)(i), (ii); see also Abdisalan, 774 F.3d at 526.
That principle does not answer the question of what effect a
new claim for relief has after a final removal order has been
entered, executed, and immunized from reopening or review.
See 8 U.S.C. § 1231(a)(5). Indeed, Chupina’s holding—that
a denial of asylum was not a final removal order because the
Board had remanded the alien’s other claims for
relief—rested largely on the court’s recognition that the
original removal order would be in flux until the IJ and Board
resolved the remanded claims. 570 F.3d at 103. As discussed
above, a grant of withholding in Padilla-Ramirez’s case will
“in no way implicate[] the underlying . . . removal order.”
Ayala, 855 F.3d at 1018. Chupina’s reliance on the Act’s
definition of a final removal order, 570 F.3d at 103, which
“does not dictate a clear answer” in the reinstatement context,
Ortiz-Alfaro, 694 F.3d at 958, further distances that case from
the one before us. As a result, Chupina cannot bear the
weight that the Second Circuit has placed on it.
Finally, the Second Circuit fell back on “principles of
administrative law” to reject the “tiers of finality” that the
government urges in this case. Guerra, 831 F.3d at 63
(internal quotation marks omitted). The Second Circuit is
correct that only an agency action marking “the
consummation of the agency’s decisionmaking process”
qualifies as final agency action. Id., quoting U.S. Army Corps
of Eng’rs v. Hawkes Co., — U.S. —, 136 S. Ct. 1807, 1813
(2016). But its conclusion that no such consummation exists
20 PADILLA-RAMIREZ V. BIBLE
while withholding-only proceedings are ongoing again
misunderstands the decision at stake in those proceedings.
The agency already decided that Padilla-Ramirez “is to be
removed from the United States,” 8 U.S.C. § 1226(a), and a
different, more limited decision is now pending in his
withholding-only proceedings—namely, whether he may be
removed to El Salvador. The agency has consummated its
decision-making regarding the first issue, but not the second.
It therefore is consonant with settled administrative legal
principles to hold that Padilla-Ramirez’s reinstated removal
order (i.e., the agency’s decision that he “is to be removed
from the United States,” id.) is final for detention purposes
even though it lacks finality for purposes of judicial review of
his withholding-only claim.
IV.
As a general rule, “we decline to create a circuit split
unless there is a compelling reason to do so.” Kelton Arms
Condo. Owners Ass’n, Inc. v. Homestead Ins. Co., 346 F.3d
1190, 1192 (9th Cir. 2003). This is especially true where the
rules at issue “are best applied uniformly.” Id. The
Immigration and Nationality Act, a comprehensive federal
scheme that requires a nationally unified administration
program, certainly falls into this category. While this
consideration ordinarily would counsel in favor of adopting
the Second Circuit’s resolution of the issue before us, we
believe that the legislative intent on this point is in clear
opposition to that resolution. By its terms, section 1231(a)(5)
inoculates the prior removal orders underlying reinstatement
orders against any challenge, and withholding-only
proceedings do not override that proscription. Our own
decisions in Ortiz-Alfaro and Ayala, which addressed finality
for judicial-review purposes and turned principally on
PADILLA-RAMIREZ V. BIBLE 21
avoiding a construction that would severely inhibit or
eliminate that review, are not controlling in the detention
context. Nor are we persuaded by the Second Circuit’s
analysis in reaching the opposite conclusion in Guerra. So
even though it may create discord in our immigration system,
we must give effect to Congress’s purpose as we understand
it. The judgment of the district court is affirmed. If uniformity
is required, we are content to leave it to the Supreme Court to
harmonize the resulting split of authority.
AFFIRMED.