Pham v. Chavez

WHETHER 8 U.S.C. § 1231(a) OR 8 U.S.C. § 1226 GOVERNS DETENTION DURING REINSTATED REMOVAL ORDERS

Pham argues that 8 U.S.C. § 1231(a) governs the detention of an alien who has been ordered to be removed from the United States, rather than 8 U.S.C. § 1226, which governs the detention of an alien who is still awaiting a decision on removal. Brief for Petitioner, Matthew Albence et al. at 12. Pham contends that because Chavez is subject to reinstated orders of removal, and requests for withholding and CAT protection do not affect the validity or finality of the removal orders, 8 U.S.C. § 1231(a) is the governing provision. Id. at 12–13. In support of this argument, Pham refers to numerous instances within 8 U.S.C. § 1231(a) that reference the detention of aliens that have been “ordered removed,” as opposed to 8 U.S.C. § 1226's reference to the pending decision of “whether the alien is to be removed.” Id. at 13–16. Pham contends that Chavez's removal is no longer pending, but has been ordered, and that this is true regardless of Chavez seeking statutory withholding and CAT protection, which leave the underlying removal order intact. Id. at 16. Pham also argues that the context and structure of the two provisions confirm that 8 U.S.C. § 1231(a) is the governing provision. Id. at 17.

Pham contends that Congress intended for the detention of aliens with reinstated removal orders to be governed by 8 U.S.C. § 1231, because the statutory provisions addressing reinstatement of removal orders and statutory withholding of orders are placed within 8 U.S.C. § 1231, rather than 8 U.S.C. § 1226. Id. Likewise, Pham also refers to the sequential organization of the statute as a whole, where the sections preceding 8 U.S.C. § 1226 govern the initial removal order, but the sections surrounding 8 U.S.C. § 1231 govern when that removal order has been reinstated. Id. Pham further notes that when Congress adopted the current reinstatement statute in 1996, it sought to clarify the removal procedures for illegal reentrants specifically to ensure aliens subject to orders of removal were actually removed. Id. at 19. Pham argues that applying 8 U.S.C. § 1231(a) better serves this purpose by ensuring that aliens remain subject to conditions of removal, while applying 8 U.S.C. § 1226 would allow aliens to demand a bond determination hearing, and an appeal, in an opportunity to be released from their order. Id. at 20.

On the other hand, Chavez argues that 8 U.S.C. § 1226 applies before the government's decision to remove a person from the United States, during which an immigration judge has discretion to order detention, while 8 U.S.C. § 1231(a) only applies after the decision for removal has been made and the removal period has begun. Brief for Respondents, Maria Angelica Guzman Chavez et al. at 15. Chavez contends that during withholding proceedings, the question of whether the government will remove the person from the United States is still pending, as no final decision as to removal has been made yet, because the individual still is entitled to certain legal challenges. Id. at 15–16. In addition, Chavez contends that there is a distinction between whether the government has legal authority to remove a person, and whether there are still legal obstacles that may prevent that exercise of authority, which occur before the government obtains such removal authority. Id. at 17, 23. Chavez notes, specifically, that during withholding proceedings, the government does not yet have the authority to execute removal orders. Id. at 23–24. Therefore, Chavez argues that 8 U.S.C. § 1226 applies to this proceeding, because there remains a question as to whether the government has authority for removal. Id. at 17. Chavez also cites 8 U.S.C. § 1231's language in support of this argument, which is said to apply “during the removal period,” which only begins when there is an obligation to execute the removal of an individual, rather than when the removal is still being challenged in some manner. Id. at 18–19.

Further, Chavez argues that Congress intended 8 U.S.C. § 1226 to apply to these proceedings because 8 U.S.C. § 1226 provides for detention authority during immigration proceedings and challenges to the order of removal, which align with Congress's intention to balance the liberty of noncitizens with the interests of detention. Id. at 21–22. This is contrasted with 8 U.S.C. § 1231, which requires mandatory detention as one step in the execution of the removal order. Id. at 22. Chavez also argues that the duration of withholding proceedings suggests that 8 U.S.C. §1226 should apply. Id. at 26. Chavez notes that 8 U.S.C. §1231(a)’s removal period is prescribed to be only 90 days long, while withholding proceedings typically last longer than 90 days. Id. at 26. Finally, Chavez argues that interpreting the statutory structure of 8 U.S.C. § 1231(a) to read as a final removal order would conflict with the specific protections establishing withholding proceedings in 8 U.S.C. § 1231(b). Id. at 33.

CONSTITUTIONALITY OF 8 U.S.C. § 1231 AND APPROPRIATE DEFERENCE TO ICE

Pham also argues that the Supreme Court should defer to the government’s interpretation of an unclear statute that is administered by ICE. Brief for Petitioner at 36–37. Pham reasons that the government’s interpretation of the statutes was both reasonable and supported by policies in the Departments of Justice and Homeland Security. Id. at 37. Pham cites policy under those departments which instructed detention based on 8 U.S.C. § 1231 for individuals that received a renewed order of removal. Id. at 37–38. Pham contends that detention is valid as a part of the deportation procedure. Reply Brief of Petitioner, Tony Pham at 14. Pham contends that by returning to the United States, the noncitizens have shown that they are “unlikely to comply” with removal orders and detention is necessary to ensure compliance. Id. at 14–15. Pham cites Zadvydas v. Davis to argue that section 8 U.S.C. § 1231 is constitutionally permissible with restrictions to permit indefinite detention. Id. at 15. Pham reasons that Zadvydas resolved the constitutional issues of the statute as long as the government followed the restrictions that were put in place by the government. Id. Pham also denies that 8 U.S.C. § 1231 was designed to punish noncitizens given the protections established by ICE and the courts. Id. at 18. Pham argues that under the constitutional standard, policies may be designed for “exclusion or expulsion” of illegal immigrants. Id. at 19. Pham also argues that 8 U.S.C. § 1231 does not present a risk to the Due Process Clause of the Fifth Amendment. Id. at 16-17. Pham contends that Chavez overestimates the amount of time that noncitizens would spend in detention. Id. at 17. Pham cites evidence which shows that individuals will spend around four months in detention, which is less than the six-month limit established by Zadvydas. Id. Pham also argues that 8 U.S.C. § 1231 does not affect the “finality” or the time frame of the removal orders. Brief for Petitioner at 29. Pham reasons that two separate definitions of finality were reasonable, as the removal order remains valid despite the withholding hearing. Id. at 28. Pham contends that orders have already been reinstated and thus 8 U.S.C. § 1231 is appropriate to govern the detention of Chavez. Id. at 28–29.

Chavez counters that applying 8 U.S.C. § 1226 would eliminate constitutional problems. Brief for Respondents at 38. Chavez reasons that, under principles of statutory interpretation, courts should choose interpretations that do not place the statute at risk of a constitutional violation. Id. Chavez argues that if the Supreme Court rules in favor of Pham, the statute would likely violate the Due Process clause of the Fifth Amendment. Id. Chavez cites Zadvydas v. Davis to establish the principle that detaining illegal immigrants for a span of longer than six months without imminent deportation poses “grave constitutional concerns.” Id. at 38–39. Chavez contends that under 8 U.S.C. § 1231 immigrants would face detention for far more than six months. Id. at 39. Chavez cites a study to argue that withholding-only claims would result in noncitizens facing an average of three years of detention. Id. Chavez reasons that Pham’s interpretation would lead to regular Fifth Amendment challenges given the general longevity of the legal process. Id. at 40. Chavez argues that using 8 U.S.C. § 1226 presents a plausible alternative and thus the Supreme Court should consider which policy better protects constitutional rights. Id. at 41. Chavez contends that the United States Government has adopted Chavez’s interpretation of the statute before in other circumstances. Id. at 42. Chavez contends that the government and Pham intend to use 8 U.S.C. § 1231 as a punishment for illegal immigrants which Chavez argues is impermissible for a civil detention case. Id. at 43. Chavez also argues that detaining immigrants does not streamline the removal process as it does not consider the specific risk that individuals will not return for their day in court. Id. at 44. Chavez contends that the removal orders are not finalized as that finality is determined by the end of the withholding hearing. Id. at 25. Chavez reasons that the Supreme Court should not defer to ICE until all other methods of interpretation are used and there is no correct answer to the question. Id. at 46. Chavez concludes that the “plain text” and the purpose of 8 U.S.C. § 1226 show that it applies to Chavez’s situation. Id. at 49.