Prieto-Romero v. Clark, ___ F.3d ___, 2008 WL 2853396 (9th Cir. Jul. 25, 2008) (noncitizen whose removal order is administratively final, but removal is stayed pending court of appeals' resolution of petition for review, is subject to detention under 8 U.S.C. 1226(a), but not 1231(a)(2) or (a)(6) -- which only grants attorney general authority to detain aliens "during" and "beyond" their "removal period"; 1226(a) does not authorize prolonged and indefinite detention, but denial of habeas corpus petition is affirmed where the government's civil detention of LPR for over three years, was authorized by statute, while he sought administrative and judicial review of his removal order, because noncitizen still faced a significant likelihood of removal in the reasonably foreseeable future because government could repatriate alien if judicial relief were denied, thus alien's detention was not unconstitutionally indefinite).



Some implications of this decision:



1. Noncitizen detained under 236(c) fall under 236(a) once the case moved to federal judicial review (and subsequent remand), and thus can request a bond.



2. Counsel can argue that noncitizens for whom removal is not "practically attainable," including those granted relief under the Convention Against Torture are not subject event to 236(a)



3. Counsel can argue that this case trumps, in some cases, the power of USICE to stay an IJs grant of bond pending appeal.



Thanks to Kara Hartzler