These summaries are not intended as legal advice. Please contact a licensed attorney to discuss the specifics of your case.
Viewing entries tagged
prolonged detention
The Eighth Circuit has determined that year-long detention of a non-citizen without a bond hearing is permissible so long as the non-citizen’s removal proceedings remain pending on appeal.
The full text of Banyee v. Garland can be found here: https://ecf.ca8.uscourts.gov/opndir/24/09/222252P.pdf
The Supreme Court has determined that there is no statutory requirement to provide a bond hearing to an individual subject to a reinstated order of removal. The Court left open the possibility that such hearings might be required by the Constitution.
The full text of Johnson v. Arteaga-Martinez can be found here:
The First Circuit has determined that not all persons detained under section 1226(c) have a constitutional right to a hearing concerning the reasonableness of their continued detention after they have been detained longer than six months, find that such analyses must be conducted on a case-by-case basis.
The full text of Reid v. Donelan can be found here:
The Third Circuit has reaffirmed that a mandatory detainee under 236(c) can bring an as-applied constitutional challenge to prolonged detention. A district court hearing a habeas claim in these circumstances should consider four factors: 1) the length of detention; 2) whether detention is likely to continue; 3) the reasons for delay; and 4) whether the conditions of confinement are meaningfully different from criminal detention. Once a bond hearing is ordered in a prolonged detention setting, the government bears the burden of proving by clear and convincing evidence that the detainee is a flight risk or a danger to the community.
The full text of German Santos v. Warden Pike County Correctional Facility can be found here:
The Ninth Circuit has determined that its prior decision in Diouf II survives the Supreme Court’s decision in Jennings v. Rodriguez. The class of petitioners at issue are individuals with reinstated removal orders. final orders of removal that have not been executed, and who have review of denied motions to reopen pending before the federal appellate court, and who have been detained for at least six months without a bond hearing. The court found that Government must provide class members with an individualized bond hearing after six months of detention when a class member’s release or removal is not imminent, and that the Department of Homeland Security must bear the burden of proving that continued detention is warranted by clear and convincing evidence. The court held that the class members are not entitled to subsequent custody reviews every six months thereafter.
The decision in Flores Tejada v. Godfrey can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2020/04/07/18-35460.pdf
The decision in Aleman Gonzalez v. Barr can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2020/04/07/18-16465.pdf
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:
The Ninth Circuit has remanded its seminal prolonged detention case, Rodriguez v. Marin, to the District Court for further proceedings. The case was remanded to the Ninth Circuit from the Supreme Court, who reversed the Ninth Circuit’s statutory construction, but who left open the possibility that the Constitution compels regular bond hearing for immigration detainees.
On remand, the District Court must address:: (1) whether the class certified by the district court should remain certified for consideration of the constitutional issue and available class remedies; (2) whether classwide injunctive relief is available under 8 U.S.C. § 1252(f)(1); (3) whether a Rule 23(b)(2) class action (a) remains the appropriate vehicle in light of Walmart Stores, Inc. v. Duke, 564 U.S. 338 (2011), and (b) whether such a class action is appropriate for resolving Petitioners’ due process claims; (4) whether composition of the previously identified subclasses should be reconsidered; (5) the minimum requirements of due process to be accorded to all claimants that will ensure a meaningful time and manner of opportunity to be heard; and (6) a reassessment and reconsideration of both the clear and convincing evidence standard and the six-month bond hearing requirement.
The full text of Rodriguez v. Marin can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/11/19/13-56706.pdf
The Second Circuit has determined that a petitioner seeking federal judicial review of a removal order, who has obtained a stay of removal from the federal court, is detained under section 236(c) of the INA, not section 241 of the INA. Recognizing that the state of prolonged detention bond case law is in flux since the Supreme Court's decision in Jennings v. Rodriguez, the Court remanded the case to determine if the Constitution mandates providing the petitioner with a bond hearing.
The full text of Hechavarria v. Sessions can be found here:
The Supreme Court has determined that immigrants detained as arriving aliens or as mandatory detainees due to certain criminal convictions are not entitled to bond hearings under the statutory language which authorizes their detention. In addition, discretionary detainees who are not granted bond because they cannot prove they are not a flight risk or danger to the community are not entitled to periodic reviews of their detention. The Court remanded the case to the Ninth Circuit to address whether the due process protections of the Constitution mandate bond hearings for these detainees.
The decision in Jennings v. Rodriguez can be found here:
https://www.supremecourt.gov/opinions/17pdf/15-1204_f29g.pdf
The Eleventh Circuit has ruled that the prolonged detention of non-citizens with criminal records without bond hearings raising serious due process concerns. Though the court declined to adopt a bright line rule requiring a bond hearing at any particular time period (i.e. after 6 months of detention), it did hold that a habeas petition could be filed when detention is no longer reasonable in light of the goals of the mandatory detention statute (preventing flight and future criminal acts). The court outlined several factors to be considered in this analysis: 1) the amount of time that the criminal alien has been in detention without a bond hearing; 2) why the removal proceedings have become protracted (i.e. did the non-citizen request repeated continuances or file frivolous applications); 3) whether it will be possible to remove the criminal alien after there is a final order of removal; 4) whether the alien’s civil immigration detention exceeds the time the alien spent in prison for the crime that rendered him removable; and 5) whether the facility for the civil immigration detention is meaningfully different from a penal institution for criminal detention.
The court noted there would be little chance that a non-citizen's detention would be unreasonable before the 6 month mark, but would probably become unreasonable by the 1 year mark. However, even at that time, the non-citizen will bear the burden of proving that he is not a flight risk or a danger to the community.
The full text of Sopo v. Attorney General can be found here:
http://media.ca11.uscourts.gov/opinions/pub/files/201411421.pdf
