Case No. 19-897 | 4th Cir.
January 11, 2021
Preview by Nick Contarino, Online Editor
The Immigration and Nationality Act (“INA”) sets out a comprehensive scheme for the detention and removal of noncitizens unlawfully located in the territory of the United States. 8 U.S.C. § 1101 et seq. (2018) The Act provides a streamlined method for removing noncitizens unlawfully located within the United States “who have previously been removed from the United States under a final order of removal.” Brief for the Petitioners at 2, Pham v. Guzman Chavez, No. 19-897 (U.S. filed Aug. 21, 2020). There are two methods by which noncitizens can avoid or defer removal. First, noncitizens can avoid removal if they show that their removal to a country would cause them to subsequently face persecution tied to their “race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A)). Second, a noncitizen may avoid or defer removal if they can establish that they would face torture if removed to the country in question. See Brief for the Petitioners at 3–4 (citing Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85 [hereinafter CAT]).
The respondents are noncitizens previously removed from the United States who were allegedly “persecuted, tortured, or threatened . . . in the countries to which they had been removed” and who allegedly would face similar harm if they were to be removed again. Brief for Respondents at 8, Pham v. Guzman Chavez, No. 19-897 (U.S. filed Nov. 4, 2020). After they were detained, the respondents sought individualized bond hearings under § 1226 of the INA. Id. Section 1226(a) governs the detention of noncitizens “pending a decision on whether the alien is to be removed from the United States.” 8 U.S.C. § 1226(a). The government denied that the respondents were entitled to such hearings, arguing that their detention was actually governed by § 1231(a) of the INA. See Brief for the Petitioners at 8. Section 1231(a)(1)(A) reads: “Except as otherwise provided in this section, when an alien is ordered removed, the Attorney General shall remove the alien from the United States.” The issue for the Court is whether § 1231(a) or § 1226 governs the detention of the respondents given that they are subject to a reinstated removal order and are pursuing its withholding or deferral under § 1231(b)(3) and CAT.
Section 1231(a)(5) states that if a noncitizen who previously exited the United States under an order of removal reenters the United States illegally, then their removal order is automatically reinstated, the order is not subject to review, and the noncitizen is ineligible for relief under the INA. 8 U.S.C. § 1231(a)(5). The government argues that because the respondents’ removal orders have been reinstated in virtue of their illegal reentry into the United States, they have “by definition[] been ‘ordered removed.’” Brief for the Petitioners at 11. The government contends that the fact that respondents are currently pursuing statutory withholding under the INA and CAT is irrelevant, as any withholding decision would only affect “where and when [respondents’] removal may occur,” not the fact that respondents have already been ordered removed. Id. The government argues that a plain reading of the text supports its position, and additionally state that the Court should afford Chevron deference to their interpretation of the provisions. Id. at 11–12.
The respondents argue § 1226 governs because of the pendency of the respondents’ § 1231(b)(3) and CAT protection proceedings. See Brief for Respondents at 12–13. The respondents state that Congress specifically designed § 1226 to govern such proceedings and that the government’s contrary position is an implausible construction of the statute. Id. The respondents assert that the “text and placement of the reinstatement provision,” 8 U.S.C. § 1231(a)(5), demonstrates that the INA “does not establish that the ‘removal period’ begins for noncitizens well before the INA authorizes removal anywhere.” Id. at 13. They further state that construing the INA so that the removal period does not begin until the INA would otherwise authorize removal advances the legitimate purposes of the INA while “avoid[ing] routine constitutional violations,” unlike the government’s alternative construction. Id. at 13–14. Finally, in response to the government’s plea for Chevron deference, the respondents first note that the government failed to raise that argument in their petition for certiorari and further assert that Chevron deference is baseless given that no applicable regulation applies under the facts of the case. Id. at 15.