RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 20a0229p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT WALTER MELARA MARTINEZ, ┐ Petitioner-Appellant, │ │ > No. 19-3908 v. │ │ │ CHRISTOPHER LAROSE, et al., │ Respondents-Appellees. │ ┘ Appeal from the United States District Court for the Northern District of Ohio at Youngstown. No. 4:19-cv-01411—Jack Zouhary, District Judge. Argued: January 30, 2020 Decided and Filed: July 27, 2020 Before: SILER, GIBBONS, and THAPAR, Circuit Judges. _________________ COUNSEL ARGUED: Andrew A. Lyons-Berg, MCDERMOTT WILL & EMERY, LLP, Washington, D.C., for Appellant. Brian C. Ward, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. ON BRIEF: Andrew A. Lyons-Berg, Paul W. Hughes, MCDERMOTT WILL & EMERY, LLP, Washington, D.C., Gino J. Scarselli, Richmond Heights, Ohio, Brian J. Hoffman, BRIAN J. HOFFMAN, LLC, Wooster, Ohio, Kenneth D. Myers, Cleveland, Ohio, for Appellant. Brian C. Ward, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. SILER, J., delivered the opinion of the court in which THAPAR, J., joined, and GIBBONS, J., joined in part. GIBBONS, J. (pp. 15–16), delivered a separate opinion concurring in part and dissenting in part. No. 19-3908 Martinez v. LaRose, et al. Page 2 _________________ OPINION _________________ SILER, Circuit Judge. Petitioner Walter Melara Martinez (Melara) presents us with a question of statutory interpretation that has divided our sister circuits: Are aliens in withholding- only proceedings detained pursuant to 8 U.S.C. § 1226 or 8 U.S.C. § 1231? This question is significant because aliens detained under § 1226(a) are entitled to bond hearings before an immigration judge (IJ) under the federal regulations, while aliens detained under § 1231(a) do not have a right to a bond hearing. In addition to the statutory interpretation issue, Melara argues that after two years of confinement, his continued detention—absent an individualized determination before a neutral decision maker—violates his due process rights. The district court dismissed the case. In resolving the statutory interpretation question, we hold that § 1231(a) provides the authority for detaining aliens in withholding-only proceedings. Further, because Melara’s removal is reasonably foreseeable, his continued detention does not violate due process at this time under the framework set out in Zadvydas v. Davis, 533 U.S. 678 (2001). Therefore, we affirm the district court’s dismissal of Melara’s petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. I. In 2008, Melara, a native and citizen of El Salvador, entered the United States illegally and was removed to El Salvador after being apprehended. Following his deportation to El Salvador, Melara lived with his common-law wife, Rosalia, in a rural area outside of the city of La Libertad and had two children. In 2016, Rosalia and the couple’s two children immigrated legally to the United States and became lawful permanent residents. The couple planned for Rosalia to return to El Salvador in 2017 to marry Melara so he could begin the legal immigration process. No. 19-3908 Martinez v. LaRose, et al. Page 3 However, after Rosalia’s departure to America, ...
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