PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 18-6086 MARIA ANGELICA GUZMAN CHAVEZ; DANIS FAUSTINO CASTRO CASTRO; JOSE ALFONSO SERRANO COLOCHO, Petitioners - Appellees, and CHRISTIAN FLORES ROMERO; WILBER A. RODRIGUEZ ZOMETA, Petitioners, v. RUSSELL HOTT, Field Office Director, U.S. Immigration and Customs Enforcement; DOJ EXECUTIVE OFFICE FOR IMMIGRATION REVIEW; RONALD D. VITIELLO, Acting Director, U.S. Immigration and Customs Enforcement; WILLIAM P. BARR, Attorney General, Respondents - Appellants, and BRENDA COOK, Court Administrator, Executive Office for Immigration Review, Baltimore Immigration Court, Respondent. ------------------------------ AMERICAN IMMIGRATION COUNCIL; AMERICAN IMMIGRATION LAWYERS ASSOCIATION, Amici Supporting Appellees. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Leonie M. Brinkema, District Judge. (1:17-cv-00754-LMB-JFA) No. 18-6419 ROGELIO AMILCAR CABRERA DIAZ; JENNRY FRANCISCO MORAN BARRERA; RODOLFO EDUARDO RIVERA FLAMENCO, on behalf of themselves and all others similarly situated, Petitioners - Appellees, v. RUSSELL HOTT, Field Office Director, U.S. Immigration and Customs Enforcement; WILLIAM P. BARR, Attorney General, Respondents - Appellants. ------------------------------ AMERICAN IMMIGRATION COUNCIL; AMERICAN IMMIGRATION LAWYERS ASSOCIATION, Amici Supporting Appellees. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Leonie M. Brinkema, District Judge. (1:17-cv-01405-LMB-MSN) Argued: March 21, 2019 Decided: October 10, 2019 Before FLOYD, HARRIS, and RICHARDSON, Circuit Judges. Affirmed by published opinion. Judge Harris wrote the opinion, in which Judge Floyd joined. Judge Richardson wrote a dissenting opinion. 2 ARGUED: Scott Grant Stewart, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellants. Paul Whitfield Hughes, III, MAYER BROWN LLP, Washington, D.C., for Appellees. ON BRIEF: Chad A. Readler, Acting Assistant Attorney General, William C. Peachey, Director, Gisela A. Westwater, Assistant Director, Brian C. Ward, Senior Litigation Counsel, Lauren E. Fascett, Ari Nazarov, Civil Division, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellants. Simon Yehuda Sandoval-Moshenberg, Rachel Colleen McFarland, LEGAL AID JUSTICE CENTER, Falls Church, Virginia; Mark Stevens, MURRAY OSORIO PLLC, Fairfax, Virginia; Adam Hudes, MAYER BROWN LLP, Washington, D.C., for Appellees. Trina Realmuto, Boston, Massachusetts, Karolina J. Walters, AMERICAN IMMIGRATION COUNCIL, Washington, D.C., for Amici Curiae. 3 PAMELA HARRIS, Circuit Judge: The petitioners in this case are a class of noncitizens subject to reinstated removal orders, which generally are not open to challenge. The petitioners may, however, pursue withholding of removal if they have a reasonable fear of persecution or torture in the countries designated in their removal orders. Availing themselves of that right, these petitioners sought withholding of removal, and they are being detained by the government while they await the outcome of their “withholding-only” proceedings. The question before us is whether they have the right to individualized bond hearings that could lead to their release during those proceedings. Answering that question requires that we determine the statutory authority under which the government detains noncitizens who seek withholding of removal after a prior removal order has been reinstated. The petitioners argue that their detention is governed by 8 U.S.C. § 1226, which authorizes detention “pending a decision on whether the alien is to ...
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