NY Fed. District Court: Mandatory detention statute has its limits

In a Memorandum and Order issued last week, the U.S. District Court for the Southern District of New York concluded that a person who is mandatorily detained under INA § 236(c) is entitled to an individualized bond hearing if removal is not likely in the reasonably foreseeable future. Monestime v. Reilly, No. 10 Civ. 1374 (WHP), slip op. (S.D.N.Y. April 9, 2010). Judge William H. Pauley III issued this order.

Patrick Monestime, a Haitian citizen detained by ICE since August 6, 2009 requested habeas relief in light of the fact that the federal government has ceased all deportations to Haiti as a result of the recent earthquake. According to Judge Pauley, Monestime was initially granted bond by an Immigration Judge, but DHS appealed to the BIA and the BIA vacated the IJ’s bond order. Monestime, No. 10 Civ. 1374 (WHP), slip op. at 2. “On January 29, 2010, the IJ denied Monestime’s [second] bail application, finding him subject to mandatory detention and ordered him removed to Haiti.” Monestime, No. 10 Civ. 1374 (WHP), slip op. at 2.

Meanwhile, on January 12, 2010 DHS announced that it had stopped all removals to Haiti. Monestime, No. 10 Civ. 1374 (WHP), slip op. at 3. On February 19, Monestime petitioned the federal district court for habeas relief and for an injunction that would prevent ICE from transferring him outside the jurisdiction of ICE’s New York Field Office. Monestime, No. 10 Civ. 1374 (WHP), slip op. at 3.

In considering Monestime’s habeas application, the Court, relying on the Supreme Court’s decision in Demore v. Kim, 538 U.S. 510 (2003), explained that mandatory detention is “’based upon the Government’s concerns over the risks of flight and danger to the community…and the ultimate purpose behind the detention is premised upon the alien’s deportability.’” Monestime, No. 10 Civ. 1374 (WHP), slip op. at 7 (quoting Demore, 538 U.S. at 532 (Kennedy, J., concurring)). The Court added, “DHS can only determine whether Monestime poses a risk of flight or danger to the community through an individualized bond hearing.” Monestime, No. 10 Civ. 1374 (WHP), slip op. at 8.

Importantly, the Court explained that “[u]nder § 1231(a) [INA § 241(a)], when an alien is ordered removed, he is to be deported within 90 days and the Attorney General must detain him during this ‘removal period.’” Monestime, No. 10 Civ. 1374 (WHP), slip op. at 6. In contrast, “if an alien will not be deported within 90 days or if he challenges a removal order in federal court, he is subject to discretionary detention under § 1226(a) [INA § 236(a)]. Section 1226(a) detainees must be afforded a meaningful opportunity to challenge the necessity of their detention through a hearing, and an alien may be released on bond or conditional parole if he is neither a danger to the community nor a flight risk.” Monestime, No. 10 Civ. 1374 (WHP), slip op. at 6-7.

By the time of the Court’s order, Monestime had already been detained over eight months. In addition, he was being held for eight-year-old convictions; therefore, “there appear to be no public safety factors justifying his prolonged detention.” Monestime, No. 10 Civ. 1374 (WHP), slip op. at 7. As immigration attorneys know, these two characteristics are not unusual. The likelihood of Monestime being removed in the reasonably foreseeable future, however, is more unusual: “Because of the recent catastrophe in Haiti, Monestime faces a likelihood of indefinite detention by ICE.” Monestime, No. 10 Civ. 1374 (WHP), slip op. at 8. Though this is by no means a common situation, there are likely other Haitians in similar situations.

The Court did not order Monestime released. Rather, it concluded that “an individualized hearing on the necessity of his detention is constitutionally required.” The Court ordered a bond hearing before an IJ to be held within two weeks. Monestime, No. 10 Civ. 1374 (WHP), slip op. at 10. The Court also ordered ICE to keep Monestime within the jurisdiction of its New York Field Office until that hearing occurs. Monestime, No. 10 Civ. 1374 (WHP), slip op. at 10.

In placing a time limit on the Monestime’s detention, the Court followed several other “[c]ourts [that] have concluded that Sections 1226(a) [INA § 236(a)], 1226(c) [INA § 236(c)] and 1231(a) [INA § 241(a)] each require an individualized bond hearing at some juncture of an alien’s detention.” Monestime, No. 10 Civ. 1374 (WHP), slip op. at 8-9 (citing Demore, 538 U.S. at 530-31; Zadvydas v. Davis, 533 U.S. 678, 700-02 (2001); Casas-Castrillon v. Dep’t of Homeland Security, 535 F.3d 942, 950-51 (9th Cir. 2008); Garcia v. Shanahan, 615 F. Supp. 2d 175, 179-81 (S.D.N.Y. 2009); Scarlett v. U.S. Dep’t of Homeland Security Bureau of Immigration, 632 F. Supp. 2d 214, 221-23 (W.D.N.Y. 2009); D’Alessandro v. Mukasey, 628 F. Supp. 2d 368, 385 (W.D.N.Y. 2009); Fuller v. Gonzales, No. 04 Civ. 2039 (SRU), 2005 WL 818614, at *6 (D. Conn. April 8, 2005)). I have written about some of these decisions—Akinola v. Weber and Alli v. Decker .