Prieto-Romero v. Clark

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JOSE MANUEL PRIETO-ROMERO, 
Petitioner-Appellant,
v.
A. NEIL CLARK, Officer in Charge,
Detention and Removal No. 07-35458
Operations: Northwest Detention
Center; MICHAEL CHERTOFF,  D.C. No.
CV-06-00786-RSL
Secretary of Homeland Security;
MICHAEL B. MUKASEY,* Attorney OPINION
General of the United States; and
any and all other persons
exercising direct legal custody
over the petitioner,
Respondents-Appellees.

Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, District Judge, Presiding

Argued and Submitted
January 7, 2008—Pasadena, California

Filed July 25, 2008

Before: Jerome Farris, Raymond C. Fisher and
Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Fisher

*Michael B. Mukasey is substituted for his predecessor, Alberto R.
Gonzales, as Attorney General of the United States, pursuant to Fed. R.
App. P. 43(c)(2).

9285
9288 PRIETO-ROMERO v. CLARK

COUNSEL**

**Oral argument in this appeal was consolidated with Casas-Castrillon
v. Lockyer, No. 07-56261, Diouf v. Mukasey, No. 07-55337, and Seoeth
v. Mukasey, Nos. 07-55549 & 07-56403. James Fife, Federal Public
Defenders of San Diego, Inc., San Diego, California, argued for the
petitioner-appellant; and Thomas H. Dupree, Department of Justice, Civil
Division/Appellate Staff, Washington, DC, argued for the respondents-
appellees in Casas-Castrillon. Ahilan T. Arulanantham, ACLU Founda-
 PRIETO-ROMERO v. CLARK 9289
Matt Adams (argued), Northwest Immigrant Rights Project,
Seattle, Washington, for the petitioner-appellant.

Gjon Juncaj (argued), Department of Justice, Office of Immi-
gration Litigation, Washington, DC; Jeffrey C. Sullivan,
United States Attorney, Priscilla To-Yin Chan, Assistant
United States Attorney, Western District of Washington, Seat-
tle, Washington, for the respondents-appellees.

Judy Rabinovitz, ACLU Foundation, New York, New York;
Cecillia D. Wang, ACLU Foundation, San Francisco, Califor-
nia; Ahilan T. Arulanantham, Ranjana Natarajan, ACLU
Foundation of Southern California, Los Angeles, California;
Jayashri Srikantiah, Stanford Law School Immigrants’ Rights
Clinic, Stanford, California, for amicus curiae American Civil
Liberties Foundation and American Civil Liberties Union
Foundation of Southern California.

Rachael Keast, Florence Immigrant and Refugee Rights Proj-
ect, Florence, Arizona; Nancy Morawetz, Heidi Altman,
Mandy Hu, Washington Square Legal Services, Inc., New
York, New York, for amicus curiae Florence Immigrant and
Refugee Rights Project, et al.

OPINION

FISHER, Circuit Judge:

This appeal from the district court’s denial of Jose Manuel
Prieto-Romero’s habeas corpus petition concerns whether the

tion of Southern California, Los Angeles, California, argued for the
petitioner-appellee; and Thomas H. Dupree, Department of Justice, Civil
Division/Appellate Staff, Washington, DC, argued for the respondents-
appellants in Diouf. Judy Robinovitz, ACLU Foundation, New York, New
York, argued for the petitioner-appellee; and Gjon Juncaj, Department of
Justice, Office of Immigration Litigation, Washington, DC, argued for the
respondents-appellants in Soeoth.
9290 PRIETO-ROMERO v. CLARK
government may continue to detain a legal permanent resident
of the United States for over three years while he seeks
administrative and judicial review of his removal order. We
hold that this continued civil detention, although lengthy, is
authorized by statute, and so we affirm the district court.

The facts of this case are straightforward and not disputed
by either party. Prieto-Romero, a native and citizen of Mex-
ico, has been a legal permanent resident of the United States
since 1981. He was served with a notice to appear and
detained by the Department of Homeland Security in Febru-
ary 2005. An immigration judge (“IJ”) found that Prieto-
Romero was a removable alien because he had been convicted
of an aggravated felony in 1989. See 8 U.S.C. § 1227(a)(2)
(A)(iii) (providing for removal of an alien convicted of an
aggravated felony, as defined by § 1101(a)(43)(A)).1 Prieto-
Romero appealed the IJ’s ruling to the Board of Immigration
Appeals (“BIA”), which affirmed the removal order in Sep-
tember 2005. He then filed a timely petition for review in the
Ninth Circuit Court of Appeals. We entered a stay of removal
pending consideration of his petition for review, which
remains unresolved as of the filing of this opinion. See
§ 1252(b).

From February 2005 until the present, Prieto-Romero has
remained in the continuous custody of the federal govern-
ment. Concurrent with the government’s issuance of the
notice to appear, the Attorney General determined that Prieto-
Romero should be placed in detention. Pursuant to Depart-
ment of Homeland Security (“DHS”) regulations, Prieto-
Romero requested and received a bond redetermination hear-
ing in May 2005 before an IJ, who declined to grant bond. In
July 2005, after Prieto-Romero successfully appealed the IJ’s
ruling to the BIA, the IJ again denied bond, finding that
Prieto-Romero “constitutes a flight risk.” Prieto-Romero
1
Hereinafter, all citations are to Title 8 of the United States Code unless
otherwise noted.
 PRIETO-ROMERO v. CLARK 9291
appealed once more to the BIA, but the BIA affirmed his
removal order before it had a chance to reach the merits of his
bond appeal. See 8 C.F.R. § 1236.1(d)(3). Between February
2006 and May 2006, DHS officials conducted a file custody
review and concluded that Prieto-Romero should remain in
detention “pending the result of [his petition for review]
before the Ninth Circuit Court of Appeals.”

Prieto-Romero filed the instant petition for habeas corpus
under 28 U.S.C. § 2241 in June 2006. At that time, his admin-
istrative proceedings before the IJ and BIA had been complete
for approximately one year. In his petition for habeas corpus,
Prieto-Romero argued that his prolonged detention violates
both his substantive and procedural due process rights and is
not authorized by any statute. In February 2007, the district
court ordered DHS to hold an additional bond hearing for
Prieto-Romero where he would bear the burden of proof; at
the hearing, the IJ was to make an “individualized determina-
tion as to whether petitioner is a flight risk or a danger to the
community,” “consider all the factors relevant to discretionary
detention under [§ 1226(a)]” and, in so doing, “consider all
the relevant factors provided in 8 C.F.R. § 241.4(f).”2 In this
third bond hearing, the IJ set bond at $15,000, an amount
Prieto-Romero has been unable to pay. The district court
thereafter denied Prieto-Romero’s petition for habeas corpus
and he has now appealed that order. We have jurisdiction
under 28 U.S.C. §§ 1291 and 2253(a).

In his petition, Prieto-Romero principally argues that the
Attorney General does not currently have the authority to
detain him because his detention has become prolonged and
indefinite and is therefore not authorized by any statute. See
Zadvydas v. Davis, 533 U.S. 678, 696, 699-700 (2001). To
2
8 C.F.R. § 241.4(f) lists factors that DHS officials should “weigh[ ] in
considering whether to recommend further detention or release” of an
alien subject to detention under § 1231(a)(6), not one subject to detention
under § 1226(a). See infra note 10 and accompanying text.
9292 PRIETO-ROMERO v. CLARK
determine whether Congress has authorized his detention, we
must first identify the statutory provision that purports to con-
fer such authority on the Attorney General. This requires that
we locate Prieto-Romero within the complex statutory frame-
work of detention authority provided by Sections 236 and 241
of the Immigration and Naturalization Act, codified at 8
U.S.C. §§ 1226 and 1231. We hold, first, that the Attorney
General’s authority to detain aliens such as Prieto-Romero is
found in § 1226(a). Second, we hold that Prieto-Romero’s
detention remains authorized under this statute because his
repatriation to Mexico is practically attainable in the event his
petition for review of his administratively final order of
removal is ultimately denied. Lastly, we reject Prieto-
Romero’s suggestion that any purported procedural defects in
his bond hearings violated his due process rights. Accord-
ingly, we affirm the district court.

I.

[1] Prieto-Romero and the government dispute whether the
Attorney General’s authority to detain Prieto-Romero derives
from § 1226(a), under which the Attorney General has the
discretionary authority to detain an alien “pending a decision
on whether the alien is to be removed from the United States,”
or § 1231(a)(2) and (a)(6), under which the Attorney General
has the authority to detain aliens “during” and “beyond” their
“removal period.” Where an alien falls within this statutory
scheme can affect whether his detention is mandatory or dis-
cretionary, as well as the kind of review process available to
him if he wishes to contest the necessity of his detention. We
hold that the Attorney General’s statutory authority to detain
Prieto-Romero, whose administrative review is complete but
whose removal is stayed pending the court of appeals’ resolu-
tion of his petition for review, must be grounded in § 1226(a).
 PRIETO-ROMERO v. CLARK 9293
A.

[2] The parties agree that § 1226(a) provided the statutory
authority for the Attorney General’s initial detention of
Prieto-Romero.3 The Attorney General may issue a warrant of
arrest concurrently with the notice to appear. See § 1226(a);
see also 8 C.F.R. § 236.1(a). After an alien is detained, the
DHS district director makes an initial custody determination
and may allow the alien’s release on bond. See 8 C.F.R.
§ 236.1(d). If the alien objects to the director’s bond determi-
nation, he may request a bond redetermination hearing before
an IJ at any time before the issuance of an administratively
final order of removal. See id.; see also 8 C.F.R. § 1003.19(c).
The alien may appeal the IJ’s bond decision to the BIA, see
8 C.F.R. § 236.1(d)(3), but discretionary decisions granting or
denying bond are not subject to judicial review, see § 1226(e).
Before Prieto-Romero filed his habeas corpus petition, he had
received two bond hearings before an IJ under this regime.
The BIA vacated the IJ’s first denial of bond because the IJ
erroneously placed sole reliance on a presumption that aggra-
vated felons are unsuitable for bond. At the second hearing,
the IJ again denied Prieto-Romero release on bond, finding
him a flight risk. Prieto-Romero concedes that he was subject
to detention under § 1226(a) during this process while the IJ
and BIA were considering the merits of his removal order.
3
Ordinarily, the Attorney General does not have the authority to release
on bond aliens who are allegedly removable for having committed aggra-
vated felonies. See § 1226(c)(1)(B). Although Prieto-Romero was charged
with being removable as an aggravated felon, he was never subject to
mandatory detention under § 1226(c) because he “was released from his
criminal custody on or before October 8, 1998,” and therefore “eligible for
consideration for bond under the general bond provisions of” § 1226(a).
In re Adeniji, 22 I. & N. Dec. 1102, 1116 (BIA 1999). Briefly, § 303(b)(2)
of the Illegal Immigration Reform and Immigrant Responsibility Act of
1996, Pub. L. No. 104-208, 110 Stat. 3009, 3009-586, specified that the
“provisions of § 1226(c) shall apply to individuals released after such
[transition] periods,” as might be declared by the Attorney General. An
alien, like Prieto-Romero, who was “released from his non-Service custo-
dial setting (i.e., from criminal custody)” before October 8, 1998, the date
the transition period ended, was not “subject to mandatory detention under
[§ 1226(c)].” Id. at 1107, 1111.
9294 PRIETO-ROMERO v. CLARK
B.

[3] Prieto-Romero contests the legality of his present deten-
tion, however, now that the BIA has affirmed his removal
order and his petition for review is pending before the court
of appeals pursuant to § 1252(a)(1). We must therefore decide
what statutory authority governs an alien’s detention at this
stage of his legal challenge to his removal. As Prieto-
Romero’s case demonstrates, an alien whose removal order is
administratively final is not necessarily immediately deported.
When an alien files a petition for review of an administra-
tively final order of removal, we have the authority to enter
a judicial stay of removal. See § 1252(b)(3)(B). Approxi-
mately two of Prieto-Romero’s three years in federal custody
have passed while he has been awaiting a decision of our
court on his petition for review.

[4] The statutory scheme governing the detention of such
aliens is not a model of clarity. The government argues that
aliens such as Prieto-Romero are detained under the Attorney
General’s grant of authority in § 1231(a). Prieto-Romero
responds that aliens whose judicial review is ongoing have
not yet entered their “removal period,” and hence cannot be
detained under § 1231(a), which provides for detention only
“during” and “beyond” the “removal period.” The distinction
has real consequences for the alien, because detention under
§ 1231(a)(2), for example, is mandatory but limited to a set
period of time, whereas detention under § 1226(a) is discre-
tionary and the necessity of detention can be reviewed by an
IJ and the BIA.4 We agree with Prieto-Romero and hold that
4
Detention “during” the removal period is mandatory. See § 1231(a)(2).
Detention “beyond” the removal period is discretionary and subject only
to an administrative post-order custody review process. See § 1231(a)(6);
8 C.F.R. § 241.4. The government has not specified whether it believes
§ 1231(a)(2) or 1231(a)(6) is applicable to aliens in Prieto-Romero’s posi-
tion, instead referring generally to its “§ 1231(a)” authority. In any event,
an alien detained under either provision of § 1231(a), unlike an alien
detained under § 1226(a), cannot obtain a bond hearing before an IJ. Cf.
8 C.F.R. § 236.1(c)(8).
 PRIETO-ROMERO v. CLARK 9295
§ 1231(a) does not provide authority to detain an alien whose
removal order is administratively final, but whose removal
has been stayed by a court of appeals pending its disposition
of his petition for review. Such aliens may be detained, how-
ever, pursuant to § 1226(a), which allows the Attorney Gen-
eral to detain any alien “pending a decision on whether the
alien is to be removed from the United States.”

Our conclusion follows from the plain language of the stat-
ute. Section 1231(a) authorizes detention in only two circum-
stances. “During the removal period,” the Attorney General
“shall” detain the alien. See § 1231(a)(2) (emphasis added).
“[B]eyond the removal period,” the Attorney General “may”
detain an alien who falls within one of three categories speci-
fied by the statute. See § 1231(a)(6) (emphasis added). The
“removal period” itself ordinarily lasts 90 days, but does not
begin until the latest of the following:

(i) The date the order of removal becomes admin-
istratively final.

(ii) If 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.

(iii) If the alien is detained or confined (except under
an immigration process), the date the alien is
released from detention or confinement.

§ 1231(a)(1)(B) (emphasis added). The statute makes clear
that when a court of appeals issues a stay of removal pending
its decision on an alien’s petition for review of his removal
order, the removal period begins only after the court denies
the petition and withdraws the stay of removal.5 See
5
The provision is inartfully drafted, as one cannot say when the “latest”
of the three events will occur until those events have either taken place or
it is known that they can no longer ever take place. Consequently, the time
9296 PRIETO-ROMERO v. CLARK
§ 1231(a)(1)(B)(ii); cf. Andrade v. Gonzales, 459 F.3d 538,
543 (5th Cir. 2006) (explaining that Ҥ 1231(a)(1)(B)(ii) only
applies to those cases in which [the court of appeals] also
issued a stay of removal”). Because § 1231(a) authorizes
detention only “[d]uring the removal period,” § 1231(a)(2),
and “beyond the removal period,” § 1231(a)(6), it clearly does
not provide any authority before the removal period. There-
fore, the plain language of § 1231(a) provides no authority to
detain aliens such as Prieto-Romero whose removal order is
administratively — but not judicially — final. See Wang v.
Ashcroft, 320 F.3d 130, 147 (2d Cir. 2003); Bejjani v. INS,
271 F.3d 670, 689 (6th Cir. 2001), abrogated on other
grounds by Fernandez-Vargas v. Gonzales, 548 U.S. 30
(2006).

The government attempts to elide the obvious implication
of § 1231(a)’s silence on detention authority before the
removal period has begun — that no such authority exists —
by pointing to § 1252(b)(8), which provides:

between an alien’s filing of a petition for review and this court’s issuance
of a stay of removal falls within a lacuna in the statutory text. We consider
it unlikely that Congress would have intended that DHS’s removal efforts
begin as soon as an alien’s removal order is administratively final, see
§ 1231(a)(1)(B)(i), terminate when this court stays removal, see
§ 1231(a)(1)(B)(ii), and begin anew if and when we finally deny the peti-
tion for review. The more sensible reading of the statute is that if an alien
files a timely petition for review and requests a stay, the removal period
does not begin until the court of appeals (1) denies the motion for a stay
or (2) grants the motion and finally denies the petition for review. See
Mariscal-Sandoval v. Ashcroft, 370 F.3d 851, 856 (9th Cir. 2004)
(explaining that we would vacate stay of removal only upon issuance of
mandate because the “ ‘finality of an appellate order hinges on the man-
date’ ”) (quoting United States v. Foumai, 910 F.2d 617, 620 (9th Cir.
1990)); De Leon v. INS, 115 F.3d 643, 644 (9th Cir. 1997) (adopting rule
that “filing of a motion for stay . . . will stay a petitioner’s deportation
temporarily until the court rules on the stay motion”); see also 9th Cir.
General Order 6.4(c).
 PRIETO-ROMERO v. CLARK 9297
This subsection [establishing a petition for review as
the exclusive means for judicial review of an order
of removal] . . . does not prevent the Attorney Gen-
eral, after a final order of removal has been issued,
from detaining the alien under section 1231(a) of this
title. . . .

(Emphasis added.) We reject the government’s assertion that
the statutory cross-reference to § 1231(a) implicitly authorizes
the detention of any alien whose removal order is administra-
tively final, even when the alien is not subject to the Attorney
General’s detention authority “[d]uring” and “beyond” the
removal period. Cf. § 1231(a)(2), (a)(6). Section 1252(b)(8)
merely clarifies that a pending petition for review does not, by
itself, detract from the detention authority otherwise conferred
by § 1231(a)(2) and (a)(6). For instance, when an alien files
a petition for review of his removal order and we decline to
grant a stay of removal, see § 1252(b)(3)(B), the removal
period commences immediately, see § 1231(a)(1)(B)(ii),
“[d]uring” which time the alien may be detained under
§ 1231(a)(2). When the court of appeals has issued a stay,
however, the alien may not be detained under any subsection
of § 1231(a) unless and until the court finally denies the
alien’s petition for review. See § 1231(a)(1)(B)(ii).6

The government also urges that § 1231(a)(1)(C), which
“extend[s]” the “removal period” beyond its presumptive 90-
day limit if “the alien fails or refuses to make timely applica-
tion in good faith for travel or other documents necessary to
the alien’s departure or conspires or acts to prevent the alien’s
6
The beginning of the removal period is not delayed by every judicially
entered stay, because the exclusive means for judicial review of a removal
order is a petition for review filed with the appropriate court of appeals.
See §§ 1231(a)(1)(B)(ii), 1232(a)(5). Therefore, the entry of a stay of
removal for any other reason — for example, a stay entered while a court
reviews an alien’s § 2241 habeas petition or petition for review of the
BIA’s denial of a motion to reopen — does not prevent the removal period
from beginning.
9298 PRIETO-ROMERO v. CLARK
removal,” can be construed to authorize Prieto-Romero’s
detention. We disagree. Rather than functioning as an inde-
pendent source of detention authority, § 1231(a)(1)(C) merely
authorizes the government to continue detaining an alien
“[d]uring the removal period.” See § 1231(a)(2). Conse-
quently, § 1231(a)(1)(C) cannot be invoked to justify the
detention of an alien whose removal period has not yet begun.
Moreover, we are highly skeptical about the government’s
suggestion that an alien’s attempt to seek judicial relief from
deportation constitutes “conspir[ing] or act[ing] to prevent
[his] removal.” See § 1231(a)(1)(C). We have previously held
that an alien engages in such behavior when he willfully
refuses to cooperate with the government in processing his
deportation papers. See Lema v. INS, 341 F.3d 853, 856 (9th
Cir. 2003) (alien refused to “cooperate fully and honestly with
officials to secure travel documents”); Pelich v. INS, 329 F.3d
1057, 1059 (9th Cir. 2003) (alien refused to fill out passport
application). Such acts of obstruction are clearly of a different
nature than an alien’s attempt to make use of legally available
judicial review and remedies.7

The government’s remaining arguments are unpersuasive.
It urges us to follow the Eleventh Circuit’s statement in De La
7
Our conclusion is bolstered by a comparison between the language of
§ 1231(a)(1)(C) and § 1324d(a), which provides for penalties of up to
$500 a day for “[a]ny alien subject to a final order of removal who . . .
conspires to or takes any action designed to prevent . . . the alien’s depar-
ture.” (Emphasis added.) Because it is a “well-established principle of stat-
utory construction that ‘the same words or phrases are presumed to have
the same meaning when used in different parts of a statute,’ ” United
States v. Various Slot Machines on Guam, 658 F.2d 697, 703 n.11 (9th
Cir. 1981) (internal citation omitted), the civil penalty statute and
§ 1231(a)(1)(C) are most naturally interpreted to reach the same behavior.
The government’s preferred interpretation of § 1231(a)(1)(C)’s “conspires
or acts to prevent” language therefore raises serious equal protection and
due process concerns because it would effectively condition an alien’s
right to judicial review of his removal order on his ability to pay the civil
penalty imposed by § 1324d. See M.L.B. v. S.L.J., 519 U.S. 102, 120-24
(1996). We decline to endorse it.
 PRIETO-ROMERO v. CLARK 9299
Teja v. United States, 321 F.3d 1357, 1363 (2003), that
§ 1231(a) “controls the detention and removal of an alien sub-
ject to a final order of removal.” De La Teja, however, does
not support the argument the government advances here.
There, a habeas corpus petition was brought by an alien who
had not appealed his removal order to the BIA or to the court
of appeals. See id. at 1365. Because the IJ had issued a
removal order but the alien’s time for seeking review of that
order had expired, the Eleventh Circuit correctly concluded
that the alien’s removal period had begun, providing the nec-
essary prerequisite for detention authority under § 1231(a)(2)
and (a)(6). See § 1231(a)(1)(B)(i)-(ii); 8 C.F.R. § 241.1(b). De
La Teja does not support the government’s argument that
aliens who do have petitions for review pending before the
court of appeals may be detained under the authority granted
by § 1231(a).

We also reject the suggestion that we should accord Chev-
ron deference to the BIA’s construction of § 1231. See Chev-
ron, U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984). In In re
Joseph, 22 I. & N. Dec. 660, 668 (BIA 1999), the BIA stated
without analysis that § 1231 “controls the detention and
release of aliens after an administratively final order.” The
BIA had no occasion in that case to consider whether the fil-
ing of a timely petition for review and the entering of a stay
of removal delays the onset of § 1231(a) authority. In any
event, Congress has “directly spoken to the precise question
at issue” and its intent is readily ascertainable using the tradi-
tional tools of statutory interpretation. Chevron, 467 U.S. at
842-43 & n.9; see FDA v. Brown & Williamson Tobacco
Corp., 529 U.S. 120, 131-33 (2000). We will not defer to the
BIA when its construction of a statute defies its “plain and
sensible meaning.” Kankamalage v. INS, 335 F.3d 858, 862
(9th Cir. 2003). As a matter of text and of logic, § 1231(a)
does not provide detention authority over an alien who has
been granted a stay of removal pending a court of appeals’
resolution of his petition for review of his removal order.
9300 PRIETO-ROMERO v. CLARK
[5] Although § 1231(a) does not authorize the Attorney
General to detain aliens such as Prieto-Romero, the Attorney
General still retains discretionary detention authority under
§ 1226(a), which permits detention “pending a decision on
whether the alien is to be removed from the United States.”
It is reasonable to consider the judicial review of a removal
order as part of the process of making an ultimate “decision”
as to whether an alien “is to be removed.” Because Prieto-
Romero filed a petition for review and our court entered a
stay, his detention is governed by § 1226(a); only if we enter
a final order denying his petition for review will the statutory
source of the Attorney General’s detention authority shift
from § 1226(a) to § 1231(a).

II.

Having determined that the government’s authority to
detain Prieto-Romero must derive from § 1226(a), we now
turn to the question of whether Prieto-Romero is entitled to
habeas corpus relief.

A.

Section 1226(a) on its face authorizes the detention of
aliens during the removal order review process. Prieto-
Romero contends, however, that Congress did not intend to
authorize prolonged and indefinite detention under that stat-
ute, and therefore that the principle of constitutional avoid-
ance requires us to read an implicit limitation into the
Attorney General’s detention authority. Prieto-Romero’s more
than three-year detention certainly qualifies as prolonged by
any measure. We conclude, however, that it is not an indefi-
nite one. We hold that he faces a significant likelihood of
removal in the reasonably foreseeable future because the gov-
ernment can repatriate him to Mexico if his pending bid for
judicial relief from his administratively final removal order
proves unsuccessful. Therefore, his continued detention
remains statutorily authorized by § 1226(a).
 PRIETO-ROMERO v. CLARK 9301
In Zadvydas v. Davis, 533 U.S. 678 (2001), the Supreme
Court considered a challenge to the prolonged detention of
two aliens who were being held in post-removal period deten-
tion at the discretion of the Attorney General under
§ 1231(a)(6). These aliens had been ordered removed by the
government and all administrative and judicial review was
exhausted, but their removal could not be effectuated because
their designated countries either refused to accept them or the
United States lacked a repatriation treaty with the receiving
country. See id. at 684-86. Acknowledging that a statute per-
mitting the indefinite detention of aliens would “raise a seri-
ous constitutional problem,” the Court concluded that
Congress had not expressly authorized the continued deten-
tion of aliens beyond a period reasonably necessary to secure
the alien’s removal from the country. Id. at 690, 699-700.
Thus, the Court held that after a presumptively reasonable six-
month period of post-removal period detention, the alien was
entitled to release if he successfully demonstrated that there
was “good reason to believe there is no significant likelihood
of removal in the reasonably foreseeable future.” Id. at 701.

[6] Prieto-Romero argues that Zadvydas squarely controls
his case, because Congress could not have authorized his
three-year detention under any immigration statute. We partly
agree: that an alien is being held under § 1226(a), and not
§ 1231(a)(6), does not render Zadvydas inapplicable. Zadvy-
das held that § 1231(a)(6) did not contain any clear “indica-
tion of congressional intent to grant the Attorney General the
power” to indefinitely detain. Id. at 697. It would be incon-
gruous for us to conclude, in the absence of clear evidence,
that Congress intended other detention statutes to authorize
the indefinite detention of aliens, where such detention would
clearly pose the same constitutional concerns.8 Therefore,
8
See, e.g., Demore v. Kim, 538 U.S. 510, 527-29 (2003) (rejecting Zad-
vydas challenge to detention under § 1226(c) because detention during
removal proceedings facilitated removal and was of a short and definite
duration, not “indefinite” or “potentially permanent”); Nadarajah v. Gon-
9302 PRIETO-ROMERO v. CLARK
without clear congressional direction to the contrary, we con-
clude that § 1226(a), like § 1231(a)(6), also does not authorize
indefinite detention. Consistent with Zadvydas, we construe
the Attorney General’s detention authority under § 1226(a) as
limited to the “period reasonably necessary to bring about
[an] alien’s removal from the United States,” even if contin-
ued detention in any particular litigant’s case would not pose
a constitutional problem. Id. at 689; see also Clark v. Marti-
nez, 543 U.S. 371, 381 (2005).

[7] We nonetheless reject Prieto-Romero’s bid for habeas
relief because, as the government forcefully argues, Prieto-
Romero’s detention continues to be authorized by § 1226(a),
even as interpreted to avoid the constitutional problem of
indefinite detention recognized by Zadvydas. Although his
removal has certainly been delayed by his pursuit of judicial
review of his administratively final removal order, he is not
stuck in a “removable-but-unremovable limbo,” as the peti-
tioners in Zadvydas were. See Jama v. Immigration and Cus-
toms Enforcement, 543 U.S. 335, 347 (2005). Here there is no
evidence that Prieto-Romero is unremovable because the des-
tination country will not accept him or his removal is barred
by our own laws. Cf. Zadvydas, 533 U.S. at 697. To the con-
trary, the government introduced evidence showing that repa-
triations to Prieto-Romero’s country of origin, Mexico, are
routine and that the government stands ready to remove
Prieto-Romero as soon as judicial review is complete. Prieto-
Romero does not dispute this evidence, but urges us to con-
clude that his detention is statutorily unauthorized under Zad-
vydas because the government cannot demonstrate to any
degree of certainty when Prieto-Romero’s judicial review will

zales, 443 F.3d 1069, 1076-77 (9th Cir. 2006) (reading Zadvydas statutory
limitation into 8 U.S.C. § 1225(b)(1)(B)(ii) and (b)(2)(A)); Khotesouvan
v. Morones, 386 F.3d 1298, 1301 (9th Cir. 2004) (rejecting Zadvydas chal-
lenge to detention under § 1231(a)(2), where aliens had filed “habeas peti-
tions during the 90-day removal period”).
 PRIETO-ROMERO v. CLARK 9303
end. Therefore, he argues, his ultimate deportation is a simi-
larly “unforeseeable” event, and his detention likewise indefi-
nite.

It is true that Prieto-Romero’s detention lacks a certain end
date, but this uncertainty alone does not render his detention
indefinite in the sense the Supreme Court found constitution-
ally problematic in Zadvydas. The Court emphasized that the
“basic purpose” of the immigration detention is “assuring the
alien’s presence at removal” and concluded that this purpose
was not served by the continued detention of aliens whose
removal was not “reasonably foreseeable.” Id. at 699.
Removal was not reasonably foreseeable in Zadvydas because
no country would accept the deportees, or the United States
lacked an extradition treaty with their receiving countries.
Similarly, in Clark, an alien’s removal to Cuba was not rea-
sonably foreseeable when the government conceded “that it is
no longer even involved in repatriation negotiations with
Cuba.” See 543 U.S. at 386. In both cases, the Court recog-
nized that the government’s purported interest in detaining an
alien was severely diminished when there was no significant
likelihood that the alien could be removed. See Demore, 538
U.S. at 527 & n.10 (observing that detentions at issue in Zad-
vydas did not serve a feasible immigration purpose). The “in-
definite and potentially permanent” civil detention of such an
alien would clearly pose serious substantive due process con-
cerns. See Zadvydas, 533 U.S. at 696. Because Congress did
not clearly intend “to authorize long-term detention of unre-
movable aliens,” however, the Court held that this constitu-
tional threat could be avoided by construing the statute as not
authorizing detention once removal is no longer reasonably
foreseeable. Id. at 697-99.

We similarly relied on the likely impossibility of removal
in Nadarajah v. Gonzales, 443 F.3d 1069 (9th Cir. 2006),
where we held that an alien’s continued detention was not
authorized by statute. In Nadarajah, the BIA had “awarded
[Nadarajah] asylum twice, as well as protection under the
9304 PRIETO-ROMERO v. CLARK
Convention Against Torture,” and yet his detention continued
for over five years while the government appealed the out-
come of these agency proceedings. Id. at 1071, 1081. We held
that Nadarajah had successfully demonstrated that there was
no significant likelihood of his removal in the reasonably
foreseeable future, because as a result of the asylum and CAT
findings, “the government is not entitled to remove Nadarajah
to Sri Lanka, and no other country has been identified to
which Nadarajah might be removed,” thus forming a “power-
ful indication of the improbability of his foreseeable remov-
al.” Id. at 1081-82. Nadarajah, like Zadvydas and Clark, thus
involved the detention of an alien whom the government
could not lawfully remove.

Prieto-Romero urges us to read Nadarajah to mean that an
alien’s removal is no longer “reasonably foreseeable,” and
hence his detention is unauthorized by statute, whenever there
is some degree of uncertainty as to when his detention will
conclude. See id. at 1081 (noting that an alien’s detention did
not cease to be indefinite merely because his case had been
referred to the Attorney General for review “at some point”).
Because no one can say exactly when Prieto-Romero’s peti-
tion for review will be resolved, he argues he is in the same
situation as the alien in Nadarajah. We are not persuaded that
Nadarajah supports such a broad contention. Prieto-Romero
has been found removable by both the IJ and the BIA, but has
sought judicial relief from that removal order, thereby delay-
ing his deportation. Judicial review, unlike the administrative
process the government invoked in Nadarajah, is subject to
strict procedural rules.9 That independent, external constraint
9
In Nadarajah, the government referred the alien’s case to the Attorney
General for review. See 443 F.3d at 1081. This referral was “an unusual
move,” id. at 1075, preventing judicial review of the BIA’s decision, see
8 C.F.R. § 1003.1(d)(7), (h)(1)(ii); Ren v. Gonzales, 440 F.3d 446, 448
(7th Cir. 2006); In re E-L-H-, 23 I. & N. Dec. 814, 820 (BIA 2005). It is
not clear that the Attorney General ever accepted Nadarajah’s case; at the
very least, there was no “established timeline” for decision. Nadarajah,
 PRIETO-ROMERO v. CLARK 9305
is “satisfactor[y] assur[ance],” cf. Nadarajah, 443 F.3d at
1081, that Prieto-Romero’s petition for review will be
resolved with reasonable expedition. See Zadvydas, 533 U.S.
at 697 (explaining that “determination of removability” has an
“obvious termination point”); Jama v. Ashcroft, 362 F.3d
1117, 1117 (8th Cir. 2004) (“[W]e believe that the Court will
decide the [alien’s immigration case] in a reasonable time and
that it would be wrong to conclude that there is no significant
likelihood that the government will prevail.”). There is noth-
ing, such as a lack of a repatriation agreement with his home
country or a finding that he merits mandatory relief from
removal, that would prevent Prieto-Romero’s removal to
Mexico if he is ultimately unsuccessful in his petition for
review.

[8] Prieto-Romero foreseeably remains capable of being
removed — even if it has not yet finally been determined that
he should be removed — and so the government retains an
interest in “assuring [his] presence at removal.” See Zadvydas,
533 U.S. at 699. His continued detention, while lengthy, is not
indefinite. It remains authorized by § 1226(a) because it is
consistent with the implicit limitation that Zadvydas requires
us to read into the Attorney General’s statutory detention
authority. Other circuits have come to the same conclusion.
See Lawrence v. Gonzales, 446 F.3d 221, 227 (1st Cir. 2006)
(holding alien’s prolonged post-removal detention “was nec-
essary to bring about [his] removal” when it “occurred pursu-

443 F.3d at 1075. The Attorney General’s review process can take years,
even when the request for review is ultimately denied and the BIA’s deci-
sion is allowed to stand. See, e.g., In re A-H-, 23 I. & N. Dec. 774 (BIA
2005) (five years); In re Luviano-Rodriguez, 23 I. & N. Dec. 718 (BIA
2005) (nine years); In re Marroquin-Garcia, 23 I. & N. Dec. 705 (BIA
2005) (eight years); In re E-L-H-, 23 I. & N. Dec. 700 (BIA 2004) (seven
years); In re C-Y-Z-, 23 I. & N. Dec. 693 (BIA 2004) (seven years and
review denied). Understandably, the government’s assertion that review
would end “someday” was little real comfort. Nadarajah, 443 F.3d at
1081.
9306 PRIETO-ROMERO v. CLARK
ant to his own procuring of stays incident to his legal
challenges”); Soberanes v. Comfort, 388 F.3d 1305, 1311
(10th Cir. 2004) (holding alien’s detention during judicial
review not indefinite because it has a “definite and evidently
impending termination point”); cf. Ly v. Hansen, 351 F.3d
263, 265 n.1 & 271 (6th Cir. 2003) (holding alien’s detention
unreasonable where there was “no chance of actual, final
removal” because his home country, Vietnam, “has not and
does not accept deportees because there is no repatriation
agreement”). We therefore hold that § 1226(a) permits Prieto-
Romero’s continuing detention while he pursues judicial
review of his administratively final order of removal.

B.

[9] Prieto-Romero raises a second challenge to the legality
of his detention: whether the government may detain him for
a prolonged period, all the while placing upon him the burden
of proving that he is not a flight risk or danger to the commu-
nity. As the Supreme Court recognized, there is little question
that the civil detention of aliens during removal proceedings
can serve a legitimate government purpose, which is “pre-
venting deportable . . . aliens from fleeing prior to or during
their removal proceedings, thus increasing the chance that, if
ordered removed, the aliens will be successfully removed.”
Demore, 538 U.S. at 528. Even if Prieto-Romero’s continued
detention is permitted by statute, however, due process
requires “adequate procedural protections” to ensure that the
government’s asserted justification for physical confinement
“outweighs the individual’s constitutionally protected interest
in avoiding physical restraint.” See Zadvydas, 533 U.S. at
690-91 (internal quotation marks omitted). There is an impor-
tant difference between whether detention is statutorily autho-
rized and whether it has been adequately determined to be
necessary as to any particular person.

Prieto-Romero received two bond hearings while his case
was pending before the IJ and BIA and a third at the direction
 PRIETO-ROMERO v. CLARK 9307
of the district court. At the third hearing, the IJ found him eli-
gible for bond. Prieto-Romero thus had an opportunity to con-
test the necessity of his detention before a neutral decision-
maker and an opportunity to appeal that determination to the
BIA. See 8 C.F.R. § 236.1(d); Matter of Guerra, 24 I. & N.
Dec. 37 (BIA 2006). Prieto-Romero argues that the three
bond hearings he has received were deficient in only one
respect, which was that DHS regulations place the burden of
proof on the alien to show that he merits release on bond
because he is neither a flight risk nor a danger to the commu-
nity. See Matter of Guerra, 24 I. & N. Dec. at 40. He argues
that Tijani v. Willis, 430 F.3d 1241 (9th Cir. 2005), does not
permit the government to conduct a bond hearing with the
burden of proving non-dangerousness on the alien.

In Tijani, we held that an alien who had been subjected to
mandatory detention under § 1226(c) could not continue to be
detained during his judicial review process unless he was
afforded an individualized hearing before an immigration
judge. Id. at 1242. Unlike the alien in Tijani, Prieto-Romero
was at no point subject to mandatory detention under
§ 1226(c). Id. The alien in Tijani, unlike Prieto-Romero, had
never received any individualized bond determination during
his nearly three-year detention. Applying the doctrine of con-
stitutional avoidance, we concluded that Tijani’s continued
mandatory detention was not authorized under § 1226(c) and
that the government had to provide Tijani “a hearing . . .
before an Immigration Judge with the power to grant him bail
unless the government establishes that he is a flight risk or
will be a danger to the community.” Id.

[10] Prieto-Romero contends that Tijani requires all aliens
to receive bond hearings where the government bears the bur-
den of establishing ineligibility for release. We need not
resolve the issue because Prieto-Romero cannot demonstrate
prejudice. See Getachew v. INS, 25 F.3d 841, 845 (9th Cir.
1994) (holding that due process violations in immigration pro-
ceedings are susceptible to harmless error analysis). The dis-
9308 PRIETO-ROMERO v. CLARK
trict court directed the IJ in the third hearing to consider the
“relevant factors provided in 8 C.F.R. § 241.4(f)” when mak-
ing an “individualized determination as to whether [Prieto-
Romero] is a flight risk or a danger to the community.” That
regulation lists a number of factors that DHS officials weigh
in determining whether to recommend that an alien be
detained beyond the removal period under § 1231(a)(6).10 As
we explained above, Prieto-Romero was actually being
detained under § 1226(a), so the IJ should instead have looked
to the factors set forth at Matter of Guerra, 24 I. & N. Dec.
at 40. However, because both 8 C.F.R. § 241.4(f) and Matter
of Guerra direct attention to whether an alien will be a flight
risk or a danger to the community, Prieto-Romero, unlike
Tijani, has already received an individualized determination
of the governmental interest in his continued detention by a
neutral decisionmaker.11 In setting bond at $15,000 at Prieto-
10
These factors include: “(2) The detainee’s criminal conduct and crimi-
nal convictions . . . (5) Favorable factors, including ties to the United
States such as the number of close relatives residing here lawfully; . . . (7)
The likelihood that the alien is a significant flight risk or may abscond to
avoid removal, including history of escapes, failures to appear for immi-
gration or other proceedings, . . . and other defaults; and (8) Any other
information that is probative of whether the alien is likely to — (i) Adjust
to life in a community, (ii) Engage in future acts of violence, (iii) Engage
in future criminal activity, (iv) Pose a danger to the safety of himself or
herself or to other persons or to property, or (v) Violate the conditions of
his or her release from immigration custody pending removal from the
United States.” See 8 C.F.R. § 241.4(f).
11
The record does not support Prieto-Romero’s contention that the IJ
defied the district court’s order by verifying that he “would not have the
resources to pay the bond” and then purposely setting a high bond amount
to prevent his release, thereby turning a blind eye to the facts in the record
that suggested he was not a flight risk. To the contrary, the district court
expressly found “that the IJ . . . complied with [its] Order” to make an “in-
dividualized determination as to whether [Prieto-Romero] is a flight risk
or a danger to the community.” See Amanda J. ex rel. Annette J. v. Clark
County School Dist., 267 F.3d 877, 887 (9th Cir. 2001) (district court’s
factual findings reviewed for clear error, even when finding based on writ-
ten record). The IJ acknowledged that Prieto-Romero had “significant
 PRIETO-ROMERO v. CLARK 9309
Romero’s third bond hearing, the IJ necessarily found — even
with the burden of proof on the alien — that Prieto-Romero
did not present a flight risk or a danger to the community, and
thus merited release from custody. Prieto-Romero is not enti-
tled to habeas relief, because he cannot show that the alleged
due process violation adversely affected the IJ’s determina-
tion that he was eligible for bond.

C.

Lastly, Prieto-Romero complains that the IJ set an exces-
sively high bond amount. The statute does not permit us to
reach the merits of this claim. Section 1226(e) provides: “The
Attorney General’s discretionary judgment regarding the
application of this section shall not be subject to review. No
court may set aside any action or decision by the Attorney
General under this section regarding the detention or release
of any alien or the grant, revocation, or denial of bond or
parole.”

[11] Prieto-Romero relies on Doan v. INS, 311 F.3d 1160,
1162 (9th Cir. 2002), where we suggested that “serious ques-
tions may arise concerning the reasonableness of the amount
of the bond if it has the effect of preventing an alien’s
release.” Doan’s conclusion is not inconsistent with
§ 1226(e), because an alien who contends that an unreason-

equities in terms of his family, longstanding employment, and general
contributions to the community.” Balanced against this was Prieto-
Romero’s lack of personal assets and the “extremely high rate of failure
to appear” for aliens facing removal. The IJ then decided, “apply[ing] all
of the above [statutory] factors as well as the order of the . . . District
Court,” that bond in the amount of $15,000 was appropriate. Prieto-
Romero had a full and fair bond hearing and a reasonable opportunity to
present arguments on his behalf. Cf. Larita-Martinez v. INS, 220 F.3d
1092, 1095 (9th Cir. 2000); Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.
2000). Therefore, we have no occasion to decide whether an alien could
assert a due process challenge to a bond hearing conducted arbitrarily, or
otherwise in violation of law.
9310 PRIETO-ROMERO v. CLARK
able bond amount precludes her release from detention that is
statutorily unauthorized does not challenge the “Attorney
General’s exercise of discretion[, but rather] the extent of the
Attorney General’s authority” under the Immigration and Nat-
uralization Act, which is not a matter of discretion, and there-
fore a fit subject for judicial review. See Zadvydas, 533 U.S.
at 688; see also Demore, 538 U.S. at 516-17. Because Prieto-
Romero’s detention does not run afoul of the implicit statu-
tory limitation announced in Zadvydas, he remains lawfully
detained under § 1226(a), and Doan does not license us to
review the reasonableness of the amount of bond, even if
Prieto-Romero cannot afford to post it. Prieto-Romero would
have us second-guess the IJ’s discretionary assessment of the
bond amount required to secure his presence at removal in the
event that his petition for review is denied. We have no
authority to entertain his challenge. See § 1226(e).

CONCLUSION

An alien whose removal order is administratively final, but
whose removal is stayed pending the court of appeals’ resolu-
tion of his petition for review, may be subject to detention
under § 1226(a), but not § 1231(a)(2) or (a)(6). Section
1226(a) does not manifest a clear congressional intent to
authorize prolonged and indefinite detention; applying the
canon of constitutional avoidance, we construe the statute as
not authorizing such detention. All the same, we reject Prieto-
Romero’s Zadvydas challenge to his three-year detention
under § 1226(a). His detention remains statutorily authorized,
because he has not established that there is no significant like-
lihood of his removal in the reasonably foreseeable future.
The government will be able to remove him to Mexico in the
event that his petition for review of his administratively final
order of removal is denied. Prieto-Romero has not been
denied procedural due process while in custody. He received
a bond hearing that afforded him an individualized determina-
tion of the government’s interest in his continued detention by
a neutral decisionmaker. The IJ concluded that Prieto-Romero
 PRIETO-ROMERO v. CLARK 9311
was not a flight risk or a danger to the community, and so
merited release on bond. The IJ’s subsequent discretionary
judgment that a $15,000 bond was necessary to ensure that
Prieto-Romero appears at removal is not subject to judicial
review.

AFFIRMED.