The Third Circuit has held that a reinstated order of removal against a person who has initiated withholding-only proceedings is administratively final. Therefore, this person’s detention is governed by 8 USC § 1231(a). The court further determined that it “may be the case that the Due Process Clause prohibits prolonged detention under § 1231(a)(6) without a bond hearing.” However, the court ultimately stated that “[i]n order to avoid determining whether Guerrero Sanchez’s detention violates the Due Process Clause, we adopt the Ninth Circuit’s limiting construction of § 1231(a)(6) that an alien facing prolonged detention under that provision is entitled to a bond hearing before an immigration judge and is entitled to be released from detention unless the government establishes that the alien poses a risk of flight or a danger to the community. Critically, our holding today necessarily applies to all aliens detained under § 1231(a)(6), not just those, like Guerrero-Sanchez, who have reinstated removal orders under § 1231(a)(5) and are pursuing withholding-only relief.” The court held that the Department of Homeland Security would have the burden in these bond proceedings of demonstrating by clear and convincing that the non-citizen is a flight risk or a danger to the community. Finally, the court determined that detention becomes prolonged at the six-month mark, triggering the need for this bond hearing.
The full text of Guerrero-Sanchez v. Warden York County Prison can be found here: