NJ Fed. District Court: Mandatory detention under § 236(c) has its limits

In an unpublished decision, the U.S. District Court for the District of New Jersey held that the Court may consider granting habeas relief to an individual detained by the Department of Homeland Security under the INA’s mandatory detention provision. Akinola v. Weber, No. 09-3415, slip op. (D.N.J. Jan. 26, 2010). Judge William J. Martini issued the opinion and order.

This case involved a non-citizen held by DHS pending removal proceedings. Akinola, No. 09-3415, slip op. at 1. Akinola was subject to mandatory detention under INA § 236(c) due to several criminal convictions. Akinola v. Weber, No. 09-3415, slip op. at 3-4. Akinola was issued a Notice to Appear on August 25, 2008. After several delays—some attributable to Akinola and others to the government—a hearing was held on May 20, 2009. Akinola v. Weber, No. 09-3415, slip op. at 4-5. At that hearing, the Immigration Judge denied Akinola’s asylum, withholding of removal, and Convention Against Torture claims. Akinola v. Weber, No. 09-3415, slip op. at 5. The IJ did, however, grant Deferral of Removal. Akinola v. Weber, No. 09-3415, slip op. at 5.

Though Akinola and the government reserved their right to appeal, Akinola did not appeal. The government, however, did appeal the Deferral of Removal determination. Akinola v. Weber, No. 09-3415, slip op. at 5. While the government’s appeal went forward, Akinola met with a deportation officer in an effort to facilitate his Deferral of Removal. Akinola v. Weber, No. 09-3415, slip op. at 6-7.

Akinola filed a petition for a writ of habeas corpus with the federal district court on or about July 13, 2009. Akinola v. Weber, No. 09-3415, slip op. at 7. On October 16, 2009, the BIA issued its decision on the government’s appeal in favor of the government and remanded it to the IJ. Akinola v. Weber, No. 09-3415, slip op. at 7. Though the remanded removal proceedings were initially scheduled for November 24, 2009, for a reason not specified in this decision, a merits hearing was continued to January 25, 2010. Akinola v. Weber, No. 09-3415, slip op. at 8. “By that time, Akinola states that he will have been in detention for more than seventeen (17) months.” Akinola v. Weber, No. 09-3415, slip op. at 8.

After quickly dismissing Akinola’s contention that he was not subject to the mandatory detention provision because he was no longer in removal proceedings, the Court turned to “whether Akinola has established that he is being subjected to an unreasonably prolonged detention under [8 U.S.C.] § 1226(c) [INA § 236(c)] in violation of his right to due process.” Akinola v. Weber, No. 09-3415, slip op. at 10, 11.

Judge Martini first pointed out that the Supreme Court’s decision Demore v. Kim, 538 U.S. 510 (2003), held that mandatory detention during removal proceedings is constitutionally permissible. Akinola v. Weber, No. 09-3415, slip op. at 12.

The Court then provided a clear interpretation of how far Demore’s holding extends:

“In Demore, the Supreme Court recognized that § 1226(c) was intended only to ‘govern [] detention of deportable criminal aliens pending their removal proceedings,’ which the Court stressed typically ‘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’ his removal order to the BIA.” Akinola v. Weber, No. 09-3415, slip op. at 13 (quoting Demore, 538 U.S. at 527-28).

The Demore Court, Judge Martini explained later, “did not expressly contemplate the constitutionality of such prolonged detention” as experienced by Akinola. Akinola v. Weber, No. 09-3415, slip op. at 14.

Judge Martini was swayed by the fact that Akinola has been detained well over the 1.5 months found “typical” in Demore and more than the five months for cases that are appealed. Akinola’s detention, the Court explained, “has been prolonged for more than eight months [after the IJ issued the removal order], and continues to run because the Government chose to appeal deferral of removal.” Akinola v. Weber, No. 09-3415, slip op. at 13-14. Judge Martini explained that he was “mindful” that the government appealed to the BIA, not Akinola. Akinola v. Weber, No. 09-3415, slip op. at 14.

For these reasons the Court was not convinced that § 236(c) provided sufficient authority to continue to detain Akinola. As such, the Court ordered a hearing in the federal court to determine whether Akinola should be released. “At the time of the hearing, Respondents [the government] shall be prepared to provide justification for Akinola’s continued detention, including, but not limited to, evidence demonstrating his potential risk of flight and potential danger to the community in the event he is ordered released.” Akinola v. Weber, No. 09-3415, slip op. at 14-15.

This is another great victory. Judge Martini followed in the footsteps of a small but growing number of federal district courts that have imposed constitutional limits on DHS’s ability to keep people detained indefinitely under § 236(c) pending removal proceedings. Hopefully this growing body of cases will provide support for more federal district courts to take this courageous position.