                     FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

SYLVESTER OWINO, Sylvester                  
Otieno-Owino,
               Petitioner-Appellant,
                 v.
JANET NAPOLITANO,* Secretary of                      No. 08-56392
the Department of Homeland                             D.C. No.
Security; ERIC H. HOLDER Jr.,                      3:07-cv-02267-
Attorney General, Attorney                            WQH-POR
General; ROBIN BAKER, Director of
                                                       OPINION
San Diego Field Office U.S.
Immigration and Customs
Enforcement; JOHN A. GARZON
Officer-In-Charge,
            Respondents-Appellees.
                                            
         Appeal from the United States District Court
           for the Southern District of California
         William Q. Hayes, District Judge, Presiding

                    Argued and Submitted
              June 23, 2009—Seattle, Washington

                        Filed August 4, 2009

      Before: Betty B. Fletcher, Raymond C. Fisher and
              Ronald M. Gould, Circuit Judges.

                        Per Curiam Opinion

   *Janet Napolitano is substituted for her predecessor, Michael Chertoff,
as Secretary of the Department of Homeland Security, pursuant to Fed. R.
App. P. 43(c)(2).

                                 10637
                    OWINO v. NAPOLITANO                10639


                        COUNSEL

James Fife, Federal Defenders of San Diego, Inc., San Diego,
California, for the petitioner-appellant.

Karen P. Hewitt, United States Attorney; Tom Stahl, Assis-
tant United States Attorney, Chief, Civil Division; Samuel W.
Bettwy (argued), Assistant United States Attorney, San
Diego, California, for the respondent-appellees.


                         OPINION

PER CURIAM:

   Sylvester Owino, a native and citizen of Kenya, has been
civilly detained by the Department of Homeland Security
10640                OWINO v. NAPOLITANO
(“DHS”) since November 7, 2005, during which time Owino
has been challenging the government’s efforts to remove him
from the United States. Owino appeals the district court’s
denial of his habeas petition under 28 U.S.C. § 2241. He
argues that his continuing detention has become illegal under
Zadvydas v. Davis, 533 U.S. 678, 701 (2001), because there
is “good reason to believe that there is no significant likeli-
hood of removal in the reasonably foreseeable future,” such
that no civil detention statute can constitutionally authorize
his detention. The district court disagreed. We have jurisdic-
tion under 28 U.S.C. §§ 1291, 2241(a), and we reverse and
remand.

   In a separate appeal, filed concurrently herewith, Owino v.
Holder, 06-74297, we have reviewed the Board of Immigra-
tion Appeals’ (“BIA”) final order of removal and more fully
set forth the factual and procedural background of Owino’s
immigration law claims. In that related case, we have
remanded Owino’s claim for deferral of removal under the
Convention Against Torture (“CAT”) to the IJ on an open
record, and that disposition bears significantly on our disposi-
tion of Owino’s appeal in this case. Now that Owino is “[a]n
alien whose case is being adjudicated before the agency for a
second time — after having fought his case in this court,”
Casas-Castrillon v. Dep’t of Homeland Sec., 535 F.3d 942,
948 (9th Cir. 2008), his case is squarely governed by the rule
of Casas-Castrillon. Thus, whether Owino’s continued deten-
tion complies with Zadvydas depends on whether he “faces a
significant likelihood of removal to [Kenya] once his judicial
and administrative review process is complete.” Casas-
Castrillon, 535 F.3d at 948. We remand in this case so the
district court can make that determination in the first instance.
If the district court determines that Owino’s detention is
authorized, Casas-Castrillon also governs Owino’s entitle-
ment to a bond hearing. See id. at 951-52. Finally, because the
record is insufficient to decide whether Owino’s detention is
authorized by statute, the district court must hold an evidenti-
ary hearing and appoint counsel. See Chauncey v. Second
                    OWINO v. NAPOLITANO                 10641
Judicial Dist. Ct., 453 F.2d 389, 390 (9th Cir. 1971) (per
curiam).

                      I.   BACKGROUND

   DHS began detaining Owino at the end of his three-year
prison sentence for second degree robbery. DHS then began
removal proceedings based on the robbery conviction, and
Owino sought relief from removal under several theories. An
immigration judge (“IJ”) denied Owino’s requests for relief
and ordered him removed. The BIA dismissed Owino’s
appeal of that decision on August 2, 2006, leaving him subject
to a final order of removal. Owino then filed a petition for
review of the BIA’s decision in this court. As noted above, we
have now resolved that appeal in the related case, Owino v.
Holder, 06-74297.

   Owino requested a stay of removal from this court when he
filed his petition for review in the related case. Although we
denied Owino’s request, thereby clearing the way for Owino’s
removal, DHS’s efforts to remove Owino have so far been
unsuccessful. The government attributes DHS’s inability to
remove Owino to his refusal to cooperate. Shortly after the
BIA dismissed Owino’s appeal in August 2006, an Immigra-
tion and Customs Enforcement (“ICE”) officer presented
Owino with travel forms so he could apply for permission to
return to Kenya. Owino refused to sign the forms, in the mis-
taken belief that by signing them he would abandon any
appeal of the BIA’s decision. He contends that he eventually
signed the appropriate travel forms once he learned through
his counsel that cooperation with removal efforts would not
abandon his appeal, but that ICE ignored his attempts to coop-
erate.

  Owino filed his habeas petition in this case after 25 months
of detention, alleging that his civil confinement had become
unauthorized by statute under Zadvydas, 533 U.S. at 699-701,
and requesting either release or a bond hearing. While
10642                OWINO v. NAPOLITANO
Owino’s habeas petition was pending, the government filed a
declaration from Deportation Officer Eliana Hayes. Hayes
stated that she spoke to an officer at the Kenyan consulate
about Owino’s case. According to Hayes, the consulate first
said that Kenya would not accept Owino “until there are no
longer any appeals pending,” but one day later changed
course and advised that “Owino need only tell the consulate
that he would like to return home and they would issue him
a travel document regardless of what is pending.” Owino
nonetheless refuses to tell the consulate he would like to
return to Kenya, because he says it would be a lie.

   The district court denied Owino’s habeas petition on the
parties’ filings without holding an evidentiary hearing. The
court found that Owino’s continued detention was authorized
by 8 U.S.C. § 1231(a)(1)(C), which applies to aliens under a
final order of removal who “fail[ ] or refuse[ ] to make timely
application in good faith for travel or other documents neces-
sary to the alien’s departure.” Id. The district court found that
(a)(1)(C) applied because Owino initially refused to sign
travel forms and later refused to express his willingness to
repatriate, as the Kenyan consulate required. In addressing
Owino’s argument that his detention was invalid under Zadvy-
das, the district court applied our decision in Lema v. INS, 341
F.3d 853, 857 (9th Cir. 2003). Under Lema, an alien who has
not cooperated with removal efforts and therefore falls under
subsection (a)(1)(C) also cannot meet his burden to “show
there is no significant likelihood of removal in the reasonably
foreseeable future.” Id. at 857; see also Zadvydas, 533 U.S.
at 701.

                         II.   REMAND

  [1] Owino challenges the district court’s application of 8
U.S.C. § 1231(a)(1)(C) and Lema to his detention. We need
not decide whether the district court properly found Owino’s
detention authorized by § 1231, because in Owino’s related
appeal we have granted his petition for review and remanded
                         OWINO v. NAPOLITANO                         10643
his CAT claim for further proceedings before the agency.1
The district court applied the § 1231 framework because
Owino was then under a final order of removal. See Prieto-
Romero v. Clark, 534 F.3d 1053, 1059-60 & n.5 (9th Cir.
2008) (explaining that an alien’s detention falls under § 1231
beginning when the court of appeals denies him a stay of
removal). Now, however, while administrative proceedings
are pending on remand, Owino will not be subject to a final
order of removal, so § 1231 cannot apply. See Casas-
Castrillon, 535 F.3d at 947; Prieto-Romero, 534 F.3d at 1060.
Instead, Owino is “[a]n alien whose case is being adjudicated
before the agency for a second time — after having fought his
case in this court.” Casas-Castrillon, 535 F.3d at 948. We
held in Casas-Castrillon that detention of an alien in this pos-
ture falls under 8 U.S.C. § 1226(a), which applies to detention
“pending a decision on whether the alien is to be removed
from the United States.” See id. at 947-48.

   [2] We remand to the district court so it may decide in the
first instance whether Owino’s detention is authorized by 8
U.S.C. § 1226(a). As in Casas-Castrillon, the district court
must decide whether Owino “faces a significant likelihood of
removal to [Kenya] once his judicial and administrative
review process is complete.” Id. at 948.2 If, under the Casas-
  1
     Owino argues that § 1231(a)(1)(C) does not apply, in part because he
has made good faith efforts to seek asylum in third countries. Owino
claims deportation officers have impeded his efforts by denying his
requests for assistance in replacing his lost passport. We do not reach the
merits of Owino’s § 1231 argument. We do note, however, that the gov-
ernment at oral argument expressed its willingness to assist Owino in this
regard, and we restate our view that to the extent informal resolution of
Owino’s request for assistance is possible, the parties should not delay in
making efforts to replace Owino’s passport.
   2
     Having disposed of Owino’s petition under § 1231(a)(1)(C) and our
cases applying that subsection, the district court had no occasion to decide
whether Owino faces a significant likelihood of removal once his judicial
and administrative review process is complete. We decline to make that
determination in the first instance, and we express no view about the mer-
its of Owino’s habeas petition under Casas-Castrillon.
10644                   OWINO v. NAPOLITANO
Castrillon standard, Owino can show that he is not signifi-
cantly likely to be removed, “the court should hold continued
detention unreasonable and no longer authorized by statute”
and grant the writ. Zadvydas, 533 U.S. at 699-700.3 If, how-
ever, the district court determines that Owino’s continuing
detention is authorized, then under Casas-Castrillon’s holding
with respect to constitutionally required bond hearings, the
court must “grant the writ unless, within 60 days, the govern-
ment provides [Owino] with ‘a hearing . . . before an Immi-
gration Judge with the power to grant him bail unless the
government establishes that he is a flight risk or will be a dan-
ger to the community.’ ” Casas-Castrillon, 535 F.3d at 952
(quoting Tijani v. Willis, 430 F.3d 1241, 1242 (9th Cir.
2005)).

III.    EVIDENTIARY HEARING AND APPOINTMENT OF COUNSEL

   [3] The parties have already proffered some arguments rel-
evant to whether Owino faces a significant likelihood of
removal once his administrative and judicial review process
is complete. The government relies on the Hayes declaration
to show Owino can be removed at the completion of adminis-
trative and judicial review, whereas Owino disputes whether
his removal will be possible, and argues that the Hayes decla-
ration only illustrates the Kenyan consulate’s shifting and
unpredictable official position about the prerequisites of
returning to Kenya. We hold that, under these circumstances,
the question of whether Owino faces a significant likelihood
of removal cannot be resolved without an evidentiary hearing.
See Chauncey, 453 F.2d at 390 (remanding § 2241 petition for
evidentiary hearing because record on appeal insufficient to
decide whether to grant the writ); cf. Blackledge v. Allison,
  3
    If Owino prevails on remand under the Casas-Castrillon standard, his
detention will no longer be authorized by 8 U.S.C. § 1226(a). We are not
presented here with any other statutory section pertaining to civil deten-
tion, so we express no opinion regarding whether Owino’s detention might
be covered by another statute.
                     OWINO v. NAPOLITANO                   10645
431 U.S. 63, 82 n.25 (1977) (noting that, in the context of a
§ 2254 petition, “[w]hen the issue is one of credibility, resolu-
tion on the basis of affidavits can rarely be conclusive, but
that is not to say they may not be helpful” (quotation marks
omitted)). On remand, the district court may accept evidence
other than the Hayes declaration relevant to whether Owino
is entitled to habeas relief. Cf. Casas-Castrillon, 535 F.3d at
949 (noting that the lack of a repatriation agreement or an
administrative finding that the alien is entitled to relief from
removal are relevant).

   [4] Given that Owino has been civilly detained since
November 2005, we urge the district court to expedite the
hearing. The district court shall also appoint counsel because
“[t]he rules governing habeas proceedings mandate the
appointment of counsel if necessary for the effective utiliza-
tion of discovery procedures, or if an evidentiary hearing is
required.” Weygandt v. Look, 718 F.2d 952, 954 (9th Cir.
1983) (citation omitted).

  REVERSED AND REMANDED.
