In an order issued earlier this week, Judge John E. Jones III of the U.S. District Court for the Middle District of Pennsylvania held that the mandatory detention statute, INA § 236(c), 8 U.S.C. § 1226(c), does not allow DHS to detain individuals indefinitely without a bond hearing. Alli v. Decker, No. 4:09-CV-0698, slip op. (Aug. 10, 2009). The two individuals in this case had been detained for 9 and 20 months respectively. Demore v. Kim, 538 U.S. 510 (2003), in which the Supreme Court held that INA § 236(c) does not violate due process, and Zadvydas v. Davis, 533 U.S. 678 (2001), in which the Court held that detention 6 months after the issuance of a final order of removal is presumptively unreasonable, Judge Jones concluded that unreasonably long detention under § 236(c) is constitutionally questionable: “The Court construes § 1226(c) as authorizing mandatory detention for the period of time reasonably necessary to promptly initiate and conclude removal proceedings.” Alli v. Decker, No. 4:09-CV-0698, slip op. at 7. According to the district court,
“In this case, the Court concurs with the growing consensus within this district and, indeed it appears throughout the federal courts, that prolonged detention of aliens under § 1226(c) raises serious constitutional concerns. See, e.g., Tijani v. Willis, 430 F.3d 1241, 1242 (9th Cir. 2005); Ly v. Hansen, 351 F.3d 263, 267-68 (6th Cir. 2003); Prince v. Mukasey, 593 F. Supp. 2d 727, 734 (M.D. Pa. 2008). Although mandatory detention under § 1226(c) serves the statutory purpose of guaranteeing an alien’s presence at removal proceedings, prolonged detention contravenes the intent of Congress that such proceedings proceed expeditiously.” Alli v. Decker, No. 4:09-CV-0698, slip op. at 7.
Detention pursuant to § 236(c) is allowed only as reasonably necessary to effectuate removal. The district court succinctly held that “When it [detention under § 236(c)] moves beyond the brief and limited period reasonably necessary to accomplish removal proceedings, mandatory detention is inconsistent with both the due process required by the Constitution and the statutory purposes of the INA.” Alli v. Decker, No. 4:09-CV-0698, slip op. at 8.
Though urged by the non-citizens to find that detention for more than 6 months is unreasonable, the district court avoided devising a bright line test or other firm deadline at which detention under § 236(c) becomes constitutionally unreasonable. Instead, it granted immigration detainees held under § 236(c) the ability to seek habeas review in federal district court:
“If an alien detained pursuant to § 1226(c) makes a showing via a habeas petition that detention is no longer reasonable, the alien must be afforded a hearing before the habeas court at which the government bears the burden of justifying continued detention based on traditional bail factors such as the alien’s risk of flight and potential danger to the community.” Alli v. Decker, No. 4:09-CV-0698, slip op. at 11-12.
Importantly, the district court placed the burden on the government to prove that the non-citizen represents a flight risk or danger to the community if released. Alli v. Decker, No. 4:09-CV-0698, slip op. at 12.
In determining whether to grant or deny bond, courts must rely on a non-exclusive range of factors. First, courts should consider whether detention has continued beyond the average times necessary for completion of removal proceedings that were upheld by the Supreme Court in Demore. Alli v. Decker, No. 4:09-CV-0698, slip op. at 16; see Demore, 538 U.S. at 530 (“the detention at stake under § 1226(c) lasts roughly a month and a half in the vast majority of cases in which it is invoked, and about five months in the minority of cases in which the alien chooses to appeal”). Second, consider the “probable extent of future removal proceedings.” Alli v. Decker, No. 4:09-CV-0698, slip op. at 17. Third, consider “the likelihood that removal proceedings will actually result in removal.” Alli v. Decker, No. 4:09-CV-0698, slip op. at 19. Lastly, consider “the conduct of both the alien and the government during removal proceedings”—namely, continuances and appeals requested by the non-citizen or the government that have prolonged § 236(c) detention. Alli v. Decker, No. 4:09-CV-0698, slip op. at 19-20.
Because the district court recognized the novelty of this interpretation of INA § 236(c) it explained its rationale:
“Supervision of the reasonableness of detention through the habeas process also provides justified protection of the alien’s liberty interest and conserves judicial resources. If the remedy for unreasonable detention were an order directing a bond hearing under §1226(a), an alien who has already demonstrated that his detention is no longer reasonable would remain detained pending an initial custody determination by the DHS district director, 8 C.F.R. § 236.1(d)(1), a hearing before an immigration judge, id., the IJ’s decision, and a potential appeal to the BIA, id. § 236.1(d)(3). In addition, because discretionary bond decisions are not subject to direct judicial review, see 8 U.S.C. § 1226(e), the only recourse for an alien dissatisfied with the outcome of his bond hearing would be to return to court again and file another habeas action. Cf. Ly, 351 F.3d at 272. A bond hearing before the habeas court avoids this circuitous and potentially lengthy process. The habeas court’s determining whether a petitioner is entitled to release also serves the “‘historic purpose of the writ,’ namely, ‘to relieve detention by executive authorities without judicial trial.’” Zadvydas, 533 U.S. at 699 (quoting Brown v. Allen, 344 U.S. 443, 533 (1953) (Jackson, J., concurring)).” Alli v. Decker, No. 4:09-CV-0698, slip op. at 12.
Essentially, the district court elected to use the habeas writ because it provides quick judicial action regarding detention. That, in fact, is its purpose.
Since this order was issued by a district court it obviously lacks precedential authority. Nonetheless, it provides a very good roadmap for other attorneys interested in challenging the mandatory detention statute, INA § 236(c). More importantly, it gives other federal courts a reasonable strategy to follow.
Mandatory indefinite detention without an individualized hearing is anathema to most ordinary principles of due process. In his order, Judge Jones explained the difficulty of dealing with this statute in these words: “the constitutionally problematic statute has forced the respondents to repeatedly interpose arguments that torture both law and logic in opposing habeas petitions of the type sub judice. We have fashioned a resolution that is admittedly imperfect, but which represents the best we can do given the statutory and jurisprudential minefield facing us.” Alli v. Decker, No. 4:09-CV-0698, slip op. at 31. It is hard to imagine that Judge Jones is the only federal judge who is frustrated by the mandatory detention statute.