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U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals


Office ofthe Clerk

5107 Leesburg Nee, Suite 2000


Falls Church, Vtrgmia 22041

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Godinez, Raul E OHS/ICE Office of Chief Counsel - SFR
Law Office of Raul E. Godinez P.O. Box 26449
P. O. Box 39701 San Francisco, CA 94126-6449
Los Angeles, CA 90039

Name: C -G ,J A 683

Date of this notice: 5/19/2017

Enclosed is a copy of the Board's decision and order in the above-referenced case.

Sincerely,

Cynthia L. Crosby
Acting Chief Clerk

Enclosure

Panel Members:
Malphrus, Garry D.
Grant, Edward R.
Adkins-Blanch, Charles K.

Userteam: Docket

For more unpublished BIA decisions, visit


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Cite as: J-C-G-, AXXX XXX 683 (BIA May 19, 2017)
U.S. Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals


Office ofthe Clerk

5107 Leesburg Pike, Suite 2000


Falls Church. Virg1ma 22041

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C -G ,J OHS/ICE Office of Chief Counsel SFR
O/ 683 P.O. Box 26449
MESA VERDE CCF San Francisco, CA 94126-6449
425 GOLDEN STATE AVENUE
BAKERSFIELD, CA 93301

Name: C -G ,J A 683

Date of this notice: 5/19/2017

Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being
provided to you as a courtesy. Your attorney or representative has been served with this
decision pursuant to 8 C.F.R. 1292.S(a). If the attached decision orders that you be
removed from the United States or affirms an Immigration Judge's decision ordering that you
be removed, any petition for review of the attached decision must be filed with and received
by the appropriate court of appeals within 30 days of the date of the decision.

Sincerely,

cl
Cynthia L. Crosby
Acting Chief Clerk

Enclosure

Panel Members:
Malphrus, Garry D.
Grant, Edward R.
Adkins-Blanch, Charles K.

schwarzl.
Userteam: D ': :'j

Cite as: J-C-G-, AXXX XXX 683 (BIA May 19, 2017)
...

U.S. Department of Justice Decision of the Board of Immigration Appeals


Executive Office for Immigration Review

Falls Church, Virginia 22041

File: 683-San Francisco, CA Date:


MAY 1 9 2017
In re: J C -G a.k.a.

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IN BOND PROCEEDINGS

APPEAL

ON BEHALF OF APPLICANT: Raul E. Godinez, Esquire

APPLICATION: Change in custody status

The applicant, a native and citizen of Mexico, appeals the December 9, 2016, bond order of
the Immigration Judge denyjng the request for a redetermination of custody status based on a lack
of jurisdiction. The record will be remanded for further proceedings.

The Board reviews an Immigration Judge's findings of fact under the "clearly erroneous"
standard. 8 C.F.R. 1003.l(d)(3)(i); Matter ofS-H-, 23 I&N Dec. 462, 464-65 (BIA 2002). The
Board reviews questions of law, discretion, and judgment -and all other issues in appeals from
decisions of Immigration Judges-de novo. 8 C.F.R. 1003.l(d)(3)(ii).

The issue in this case is whether the applicant is among the members of the class of detained
aliens recently determined by the United States Court of Appeals for the Ninth Circuit to be entitled
to a custody redetermination hearing every 6 months to determine if they remain a danger to the
community or a flight risk. Rodriguez v.Robbins, 804 F.3d 1060 (9th Cir. 2015) (Rodriguez Ill),
cert. granted sub nom. Jennings v. Rodriguez, 136 S. Ct. 2489 (2016). As detailed in the
December 16, 2016, bond memorandum, the Immigration Judge determined that the applicant,
because he is subject to reinstatement of a prior removal order pursuant to section 241(a)(5) of the
Immigration and Nationality Act, 8 U.S.C. 123 l(a)(5), is being detained under section 24l(a) of
the Act and is thus not a member of this class. See id. at 1086 ("the 123l(a) subclass does not
exist"). However, we are persuaded by the clear language in Rodriguez III that the applicant,
whose removal is subject to a pending petition for review before the Ninth Circuit, is not being
detained pursuant to section 24l(a) of the Act, and he is thus entitled to the bond redetermination
hearing mandated by that decision. A brief review of the Rodriguez litigation and the Ninth's
Circuit's recent holding will demonstrate why this is the case.

In September 2012, the United States District Court for the Central District of California
Western Division issued an Order and Preliminary Injunction in Rodriguez v. Robbins, No. 2:07-
CV-03239 (C.D. Cal. Sep. 13, 2012), ajf'd, 715 F.3d 1127 (9th Cir. 2013) (Rodriguez II), requiring
the government to identify all class members detained pursuant to 8 U.S.C. 1226 and 1225(b)
of the Act and to provide each of them with a bond hearing before an Immigration Judge with
power to grant their release. See also Rodriguez v. Hayes (Rodriguez/), 578 F.3d 1032 (9th Cir.
2009), amended by 591 F.3d 1105 (9th Cir. 2010).

Cite as: J-C-G-, AXXX XXX 683 (BIA May 19, 2017)
.. .

683

Subsequently, in August 2013, the United States District Court for the Central District of
California Western Division issued an Order and Permanent Injunction clarifying that detainees
incarcerated for re[in]statement under 8 U.S.C. 123l(a)(5), detainees held for proceedings
initiated by an administrative removal order under 8 U.S.C. 1228(b) (expedited removal), and
detainees held under the general immigration statute after entering the United States through the
Visa Waiver Program are also members of the previously certified class of individuals entitled to
a bond hearing. See Rodriguez v. Holder, No. 2:07-CV-03239, 2013 WL 5229795 (C.D. Cal. Aug.

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6, 2013). The court indicated that members of all four subclasses-those detained under 8 U.S.C.
1225(b), 1226(a), 1226(c), and 123l(a)-should be afforded bond hearings after 6 months of
detention, consistent with Rodriguez II.

The appeal of the District Court's decision in Rodriguez v. Holder, supra, was considered in
Rodriguez Ill, in which the Ninth Circuit affirmed the first three subclasses but not the subclass
detained pursuant to 123l(a). In Rodriguez Ill the Ninth Circuit noted that "the class is defined,
in relevant part, as non-citizens who are detained 'pending completion of removal proceedings,
including judicial review."' Id. at 1086. The Ninth Circuit stated that the petitioners in that case
had described the 123l(a) subclass as consisting of individuals who had received a stay of
removal from the Board or a court. However, the Ninth Circuit stated that, if an individual's
removal has been stayed "pending further administrative review, then the order of removal is not
yet 'administratively final."' Id. The Ninth Circuit concluded that 1231(a) was inapplicable to
an individual whose removal has been stayed. Id. at 1085-86. The Ninth Circuit cited its previous
precedents holding that 123l(a) does not apply while administrative proceedings or judicial
review are pending. See Owino v. Napolitano, 575 F.3d 952, 955 (9th Cir. 2009); Prieto-Romero
v. Clark, 534 F.3d 1053, 1059 (9th Cir. 2008); Casas-Castrillon v. DHS, 535 F.3d 942, 947 (9th
Cir. 2008).

We conclude that the clear language of Rodriguez III noted above compels us to reject the
interpretation of the applicant's class membership adopted by the Immigration Judge. We note
that the Immigration Judge did not claim in his bond memorandum that the removal of individuals
such as the applicant would not be stayed while the Ninth Circuit considered a petition for review.
This is the central point underlying the Ninth Circuit's determination that the 123l(a) subclass
does not exist. In this regard, the Ninth Circuit states that individuals with pending administrative
proceedings or judicial review are not being detained pursuant to 123l(a). See Rodriguez Ill,
supra, at 1086; see also Owino v. Napolitano, supra; Prieto-Romero v. Clark, supra; Casas
Castrillon v. DHS, supra. Further, as the Rodriguez III court found the general detention statute
at 1226(a) governs the 1225(b) and 1226(c) subclass members, 1226(a) would also govern
those individuals whose removal has been stayed pending further judicial review, such as the
applicant, once they had been detained for 6 months. See Rodriguez III, supra, at 1079, 1082;
see also Rodriguez II, supra, at 1139 (noting that its decision in Dioufv. Napolitano, 634 F.3d
1081, 1086 (9th Cir. 2011), "strongly suggested that immigration detention becomes prolonged at
the six-month mark regardless of the authorizing statute").

To the extent that the Immigration Judge's decision relied on unpublished decisions of the
Board, such decisions are not binding and have no precedential value. See Matter ofEcheverria,
25 l&N Dec. 512, 519 (BIA 2011).

Thus, for the aforementioned reasons, we will remand the record for the Immigration Judge to
provide the applicant with a bond hearing.

Cite as: J-C-G-, AXXX XXX 683 (BIA May 19, 2017)

683
I

AccGrdingly, the following order will be entered.

ORDER: The record is remanded to the Immigration Judge for a new bond hearing in
accordance with the above decision and the issuance of a new decision.

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Board Member Garry D. Malphrus respectfully dissents without separate opinion.

Cite as: J-C-G-, AXXX XXX 683 (BIA May 19, 2017)
UNITED ST ATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
SAN FRANCISCO, CALIFORNIA

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In re: ) File Number: A 683
J C , )
) In Custody Redetermination
) Proceedings
Respondent. )
) Date: December 16, 2016
)
) MEMORANDUM

The respondent is a native and citizen of Mexico. He entered the United States illegally
in the 1970's and has never obtained legal status. Respondent testified that he has been removed
on six separate occasions. After his last return and arrest, he was found to have a "reasonable
fear" of persecution, but after a hearing in withholding only proceedings his applications for
relief were denied and he was ordered returned to OHS for removal. His appeal of that decision
was dismissed by the BIA on October 14, 2016. He has a petition for review pending before the
Court of Appeals for the Ninth Circuit.

I. BACKGROUND

The applicant has requested a bond hearing before an Immigration Judge. As a practical
matter, only two sections of the INA are potential sources of DHS's authority to detain
respondent: 236 or 241. See Rodriguez v. Robbins, 715 F.3d 1127 (9th Cir. 2013) (Rodriguez
II) (holding that individuals detained under INA 236 are entitled to a bond hearing after 6
months) or Diouf v. Napolitano, 634 F.3d 1081 (9th Cir. 2011) (DioufII) (holding that
individuals detained under INA 241 are entitled to a bond hearing after 6 months).

II. ANALYSIS

A. The Respondent Is Not Within the Rodriguez v. Robbins Class

Respondent previously sought release on bond under Rodriguez v. Robbins, 804 F.3d
1060 (91h Cir. 2015). This court conducted a bond hearing and issued a decision denying bond
on June 16, 2016. The BIA dismissed respondent's bond appeal on August 24, 2016.

At the time of the previous bond hearing, It was the court's understanding that aliens in
respondent's position were eligible for bond hearings under Rodriguez v. Robbins, despite

1
objections OHS had lodged to bond hearings for aliens in withholding only proceedings in other
cases.

However, in a series of recent cases the Board of Immigration Appeals has sustained appeals
filed by OHS challenging decisions by Immigration Judges to conduct bond hearings for persons

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in withholding only proceedings. As the Board has explained, an Immigration Judge's authority
to redetermine custody conditions is limited to aliens who have been issued a Notice to Appear
and placed in removal proceedings under section 240 of the INA, 8 U.S.C. 1229a. See Matter
of A-W-, 25 I&N Dec. 45, 46-47 (BIA 2009); 8 C.F.R. 1003.19, 1236.l(d)(l).

Respondents who are in withholding only proceedings following reinstatement of a prior


removal order pursuant to section 241(a)(5) of the Act, 8 U.S.C. 123l(a)(5), and issuance of a
Notice of Referral are not in removal proceedings under section 240. See Fernandez-Vargas v.
Gonzales, 548 U.S. 30, 35 (2006) (noting that section24l(a)(5) of the Act "explicitly insulates the
removal orders from review, and generally forecloses discretionary relief from the terms of the
reinstated order"); see also Morales-Izquierdo v. Gonzales, 486 F.3d 484, 491 (9th Cir. 2007)
(noting that Congress intended reinstatement under section 24l(a)(5) "to be a different and far
more summary procedure than removal" under section 240 of the Act).

The Board has also rejected the theory that Dioufv. Napolitano, 63 4 F.3d 1081 (9th Cir.
2011), vests the Immigration Court with jurisdiction over such custody redetermination requests.
That case holds that aliens who have a pending judicial petition for collateral review of a final
removal order and have been detained for 6 months or longer under section 24l(a)( 6) of the Act
are entitled to a bond hearing. Dioufv. Napolitano, supra, at 1085-86.

But respondents in withholding only proceedings are not in removal proceedings under
section 240 of the Act and are not seeking direct or collateral review of a final removal order.
Instead, they are seeking withholding of a final removal order under section 24l(a)( 5) of the Act,
and will remain subject to the reinstated removal order even if withholding of removal is
ultimately granted. See 8 C.F.R. 1208. 16(t); Fernandez-Vargas v. Gonzales, supra, at 3 5; see
also Lanza v. Ashcroft, 3 89 F.3d 917, 933(9th Cir. 2004) (providing that a grant of withholding
of removal only prohibits removal to the country of risk, but does not prohibit removal to a non
risk country).

Finally, the Board has noted that while the United States Court of Appeals for the Ninth
Circuit has held that certain aliens are required to be provided custody redetermination hearings
after 180 days in detention, aliens detained under section 24l(a) of the Act are specifically
excluded from that class. See Rodriguez v. Robbins, 804 F.3d 106 0 (9th Cir. 2015), cert. granted
sub nom. Jennings v. Rodriguez, No. 15- 1204, --- S.Ct. ----, 2016 WL 1182403 (Mem)
(U.S. June 20, 2016).

Here, the respondent, whose detention is authorized by section 24l(a) of the Act, is not
part of the certified class in Rodriguez v. Robbins, supra, and is not eligible for a custody

2
redetennination hearing pursuant to the permanent injunction issued in that case. One important
aspect of the reasoning set forth above merits additional discussion, as set forth below.

B. Immigration Judges Are Prohibited From Conducting Bond Hearings Under INA
241.

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Congress, through legislation, has crafted numerous statutory provisions that permit the
Attorney General to detain aliens during various types of proceedings to detennine whether or
not to remove the alien from the United States. See INA 235 (arriving aliens), 236 (criminal
and aliens subject to a warrant pending ..a decision on whether the alien is to be removed from
the United States"), 236A (terrorist aliens), 241 (aliens ordered removed), 503 (terrorist aliens).

The Supreme Court has indicated, notwithstanding that authority, that prolonged detention of
aliens may run afoul of core constitutional concerns that the Fifth Amendment is intended to
protect. See Zadvydas v. Davis, 533 U.S. 678, 689, 699 (2001) (reading an ..implicit limitation"
into INA 241(a)(6), requiring the government to provide evidence showing that removal is
likely in the "reasonably foreseeable future"); see also Demore v. Kim, 538 U.S. 510, 532 (2003)
(Kennedy, J., concurring) ("since the Due Process Clause prohibits arbitrary deprivations of
liberty, a lawful permanent resident alien ... could be entitled to an individualized determination
as to his risk of flight and dangerousness if the continued detention became unreasonable or
unjustified.").

The Ninth Circuit, has gone further, and has held that aliens detained under INA
235(b), 236(a), (c), see Rodriguez v. Robbins, 804 F.3d 1060,1080-90 (9th Cir. 2015) (Rodriguez
Ill), and INA 241, see DioufII, 634 F.3d at l 092, are automatically entitled to a bond hearing,
before a neutral adjudicator, after six months of detention. At that hearing, the Ninth Circuit has
placed the burden on the government to establish "that the alien poses a risk of flight or danger to
the community," DioufII, 634 F.3d at 1092.

1. The Applicant is Detained Under INA 24l(a)(6)

The Ninth Circuit has never addressed which statute governs the detention of an alien in
withholding only proceedings and the District Courts that have addressed the issue are divided.
Compare Mendoza v. Asher, 2014 WL 8397145 (W.D. Wash. 2014) (holding that INA 236(a)
is the detention statute while withholding of removal proceedings are pending), with Acevedo
Rojas v. Clark, 2014 WL 6908540 (W.D. Wash. 2014) (holding that INA 241(a) is the
detention statute during withholding only proceedings).

The Second Circuit has addressed the issue, holding that a "removal order is not final
during the pendency of[] withholding only proceedings," so that aliens detained during
withholding only proceedings are held under INA 236(a). Guerra v. Shanahan, 831 F.3d 59,
62 (2d Cir. 2016). The Second Circuit's analysis focused on the fact that an alien in withholding

3
only proceedings is in a process to determine whether the alien is to be removed from the United
States. Id.

The court finds that reasoning unpersuasive in light of the nature and structure of the
withholding of removal statutory provision, INA 24l(b)(3). Unlike a removal proceeding, in a

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withholding of removal proceeding an immigration judge does not make a finding on
removability. That has already been done, and the removal order put back into effect. An order
granting withholding of removal is a directive to OHS to refrain from executing the order of
removal already in place; it is a "restriction on removal to a country where alien's life or
freedom would be threatened." Simply put, without an administratively final order of removal,
there would be nothing to withhold.

In addition, even where removal is restricted, "the Attorney General shall remove the
alien [to an alternative country]." INA 24l(b)( 2)(E); see 8 C.F.R. 1208. 16(f) ("Nothing in
this section or 1208.17 shall prevent the [OHS] from removing an alien to a third country other
than the country to which removal has been withheld or deferred") which could not take place
absent an existing removal order.

The Second Circuit's holding that individuals in withholding-only proceedings are


detained under INA 236 rather than INA 24l(a)(6) is also inconsistent with the words of the
statute and their place in the overall statutory scheme. See Utility Air Regulatory Group v. EPA,
134 S. Ct. 242 7, 2441( 2014); cf Rodriguez Ill, 804 F.3d at 1086 (rejecting "non-citizens who
are detained 'pending completion of removal proceedings, including judicial review"' as a class
because it "does not exist") .

The Second Circuit also adopted its holding to prevent "tiers of finality," with judicial
review finality being separate from the finality that permits detention under INA 241. Guerra,
831 F.3d at 63. However, the Second Circuit's reasoning does not prevent bifurcation: it merely
relocates it to immigration court, which must then re-construe the jurisdictional requirements of
8 C.F.R. 1208.3 l(a) . It makes little sense to the court that the jurisdictional hook-a final
administrative order of removal-that triggers a reasonable fear determination and a subsequent
review before an immigration judge is, actually, not administratively final.

This court's interpretation is also consistent with the Ninth Circuit's holding that an alien
pursuing withholding of removal does not have a final order of removal only, "for the purposes
of timely petitioning for judicial review," in order to "preserve judicial review over petitions
challenging administrative determinations made pursuant to 8 C.F.R. 208.3 l(e) or (g)[.]"
Ortiz-Alfaro v. Holder, 694 F.3d 955, 958 (9th Cir. 2012).

Because the respondent is subject to an administratively final order of removal, he


entered the 90-day removal period when his removal order was reinstated. See INA
24l(a)( l )(B)(i); Dioufv. Mukasey, 542 F.3d 12 2 2, 1229 (9th Cir. 2008) (Diouf l) ("Oiours

4
removal period [] began on ... the date his removal order became administratively final unless
[INA 24l(a)(l)(ii) or (iii)] dictate a later date."); see also Rodriguez III, 804 F.3d at 1086.

In DioufI the Ninth Circuit held that the Attorney General's authority to continue to

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detain the applicant switches at the end of the removal period from INA 24l(a)(2) to the
general detention authority under INA 24l(a)(6) . Diouf I, 542 F.3d at 1232. In light of the
foregoing, the court finds that the applicant is being detained under INA 24l(a)(6) , and that
under the statute she is entitled to a review of her custody status of some kind, because the
authority to detain under the statute is by its terms discretionary.

2. This Court Lacks Jurisdiction to Conduct a Bond Hearing in Withholding


Only Proceedings

Immigration Judges have limited, clearly articulated jurisdiction to conduct removal


proceedings under INA 240 specifically, "to administer oaths, receive evidence, and
interrogate, examine, and cross-examine the alien and any witnesses. The immigration judge
may issue subpoenas for the attendance of witnesses and presentation of evidence." INA
240(b)( l ); see Matter ofA-W-, 2 5 I&N Dec. 45 (BIA 2009 ) ("It is well established . .. that the
Immigration Judges only have the authority to consider matters that are delegated to them by the
Attorney General and the Immigration and Nationality Act."); 8 C.F.R. 1003.lO(b) (discussing
the power of Immigration Judges in "hearings under section 240 of the Act and such other
proceedings as the AttomeY, General may assign to them ") .

The controlling regulations expressly prohibit an immigration judge from conducting


bond hearings in certain types of proceedings, including for "unremovable aliens." 8 C.F.R.
1003.19(h)(4) . In contrast, the Attorney General, "shall have such authorities and function under
[the INA] and all other laws relating to the immigration and naturalization of aliens," and
"shall establish such regulations, prescribe such forms of bond, reports, entries, and other
papers, issue such instructions, review such administrative determinations in immigration
proceedings, delegate such authority, and perform such other acts as the Attorney
General determines to be necessary for carrying out this section." INA 103(g)(l)-(2);
see, e.g., Matter ofKhan, 26 I&N Dec. 797, 801 (BIA 2016) (finding that "even if the
Attorney General has [authority to issue a U-visa waiver], we cannot conclude that such
authority extends to Immigration Judges without taking the governing regulations and the
authority of Immigration Judges into account.") . In removal proceedings the court's
jurisdiction attaches when DHS serves a Notice to Appear on an alien and files it with the
Court. See 8 C.F.R. 1003.14(a).

In withholding only proceedings, no Notice to Appear is ever filed and the jurisdiction of
an Immigration Judge is limited to "a determination of whether the alien is eligible for asylum or
withholding of removal or deferral of removal, and whether asylum shall be granted in the
exercise of discretion." 8 C.F.R. 1208.2(c)(2) -(3); see 8 C.F.R. 1208.3 l(e) (same) . Further,

"[d]uring such proceedings, all parties are prohibited from raising or considering any other
issues, including but not limited to issues of admissibility, deportability, eligibility for waivers,
and eligibility for any other form of relief." 8 C.F.R. 1208.2(c)(3)(i).

While the court agrees that respondent is entitled to a review of his custody status, the

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court cannot find any statutory or regulatory provision - the only sources of the court's
authority - authorizing an Immigration Judge to conduct bond hearings for individuals in
withholding only proceedings. On the contrary, the regulation at 8 C.F.R.1236.l(d)(l)
specifically divests this court to review the custody status of aliens subject to a final order of
removal.

3. Diou/ II Does Not Require a Bond Hearing Before an Immigration Judge in


Withholding Only Proceedings

Diouf II relies on the canon of constitutional avoidance to require periodic bond hearings
before an Immigration Judge because "prolonged detention under INA 24l(a)(6), without
adequate procedural protections, would raise 'serious constitutional concerns."' DioufII, 634
F.3d at 1086. It is therefore necessary to briefly address this doctrine.

The canon of constitutional avoidance is supposed to be a straightforward "interpretive


tool, counseling that ambiguous statutory language be construed to avoid serious constitutional
doubts." FCC v. Fox Television Stations, Inc, 556 U.S. 502, 516 (2009) (citation omitted); see,
e.g., INS v. St. Cyr, 533 U.S. 289, 298-314 (2001). For the canon to be employed, the statutory
language must be ambiguous.

In Diouf II, the Ninth Circuit stated that:

We now extend Casas-Castrillon to aliens detained under 123 l (a)(6). We find


no basis for withholding from aliens detained under 123l(a)(6) the same
procedural safeguards accorded to aliens detained under 1226(a). As was the
case in Casas-Castrillon, prolonged detention under 123l(a)(6), without
adequate procedural protections, would raise "serious constitutional concerns."
Casas-Castrillon, 535 F.3d at 950. To address those concerns, we apply the
canon of constitutional avoidance and construe 1231(a)(6) as requiring an
individualized bond hearing, before an immigration judge, for aliens facing
prolonged detention under that provision. See id at 951.

6
r

The quoted language reveals a fundamental problem: the requirement that an


Immigration Judge conduct a bond hearing for individuals detained under INA 24l(a)(6) is a
judicial creation, untethered from the text of the constitution, the INA, or the controlling
regulations.

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In DioufII, the Ninth Circuit cited to Casas-Castrillon, 535F.3d at 951, for the
proposition that the bond hearing must be before an immigration judge, but a closer look at
Casas-Castrillon shows that the immigration judge requirement is not derived from the text of
the statute or controlling regulations. See 8 C.FR
. . 241. 4(c) (expressly delegating the Attorney
General's statutory authority under INA 24l(a)(6) to OHS). Casas-Castrillon never held that a
bond hearing must be before an immigration judge; rather, it stated that aliens subject to
..prolonged detention" must be able to challenge that detention "before a neutral decision maker,
such as an immigration judge. " 535F. 3d at 950 (emphasis added).

While the Ninth Circuit has held that bond hearings for detained aliens must be
conducted by a neutral adjudicator, there is no constitutional requirement that the adjudicator be
an Immigration Judge, while the regulations expressly and unambiguously take away the
authority oflmmigration Judges to conduct such hearings. 8 C.FR
.
. 1236. l(d)(l).

In 8 C.F.R. 241. 4(a)-(c ), the Attorney General made an express delegation to DHS of
the authority under INA Section 24l(a)(6)to redetermine the custody status of aliens detained
under that provision. Neither the language nor the reasoning of Casas-Castrillon or DioufII
permit this court to disregard regulations that unambiguously strip Immigration Judges of
authority to conduct bond hearings in withholding only proceedings. Accordingly the court finds
that it lacks jurisdiction to conduct a bond hearing for individuals, like this respondent, in
withholding only proceedings.

It may fairly be asked, why not just have Immigration Judges conduct these hearings?
After all, they are conducting other similar hearings, they are familiar with the cases and the law,
and they have the infrastructure to conduct the hearings. There is a simple and clear answer to
this question: the law forbids it.

It is most certainly within the authority of an Article III court to determine, as a matter of
constitutional law, that the procedures put in place by the Attorney General and the Secretary of
Homeland Security to periodically review an alien's custody status are insufficient to comport
with the Due Process Clause. In such a case, the appropriate remedy is to order the Executive
Branch to promulgate a procedure that does comport with Due Process, whether by amending
current regulations or by issuing new regulations setting forth a new procedure. But an
Executive Branch official cannot simply disregard valid federal regulations, in other words, do
an act the law forbids the official to do.

.

.

. '

ORDER: The motion for a custody redetermination hearing by this court is denied.

&:J/ie-4 f

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Immigration Judge