3 Cir: Limits § 236(c) mandatory detention to reasonable period

The U.S. Court of Appeals for the Third Circuit held that INA § 236(c) authorizes mandatory detention only for a reasonable period of time. Diop v. ICE, No. 10-1113, slip op. (3d Cir. Sept. 1, 2011) (Fuentes, Chagares, and Pollak, JJ.). Judge Fuentes wrote the panel’s decision.

This case involved a petition for writ of habeas corpus brought by an individual who was convicted in 1995 of Pennsylvania possession of a controlled substance with the intent to manufacture or deliver it and in 2005 of reckless endangerment. Diop, No. 10-1113, slip op. at 4.

After being placed in removal proceedings and charged “as a removable alien who had entered the United States unlawfully and as an alien convicted of a crime involving moral turpitude” based on the 2005 conviction and as “an alien convicted of a crime relating to a controlled substance” based on his 1995 conviction, an immigration judge subsequently “denied his application for withholding of removal because his 1995 conviction was ‘probably’ for a ‘particularly serious crime,’ which would make him ineligible for that kind of relief….” Diop, No. 10-1113, slip op. at 2-5.

Years later the 1995 drug conviction was vacated based on retroactive application of Padilla v. Kentucky, 130 S. Ct. 1473 (2010), by a Pennsylvania state court. Diop, No. 10-1113, slip op. at 7.

Over the course of several years, Diop “was detained for 1,072 days—two years, eleven months, and five days.” Diop, No. 10-1113, slip op. at 3. This was such a busy period that the court devoted five pages to chronicling the various stages of Diop’s removal proceeding. Diop, No. 10-1113, slip op. at 3-8. As the court summarized, “Finally, on February 24, 2011, after 1072 days of detention, four rulings by an immigration judge, three rulings by the BIA, a state court ruling on his 1995 conviction and a subsequent pending appeal to the intermediate state court, a ruling by a federal district court judge on his habeas petition, and an appeal to this court, Diop was freed.” Diop, No. 10-1113, slip op. at 8.

Despite the fact that Diop was no longer in custody at the time of the Third Circuit’s decision on his habeas petition, the court determined that his petition was not moot because it “falls within the special mootness exception for cases that are ‘capable of repetition’ while evading review.” Diop, No. 10-1113, slip op. at 9. The reason it’s capable of repetition, the court explained, is that it “is far from remote” that Padilla will be deemed not retroactive by a higher state court on appeal, thereby overturning the vacatur of his 1995 conviction. Diop, No. 10-1113, slip op. at 11.

Because Diop’s case is properly before the court, it then turned to deciding whether INA § 236(c) authorized the 1,072 days of detention Diop experienced. It does not, the court concluded, unless he is provided an individualized hearing.

Discussing the Supreme Court’s cases on mandatory detention, Zadyvdas v. Davis, 533 U.S. 678 (2001), and Demore v. Kim, 538 U.S. 510 (2003), the Third Circuit panel explained that § 236(c) must conform to the Fifth Amendment Due Process Clause. In the panel’s words, “Under the Supreme Court’s holding, Congress did not violate the Constitution when it authorized mandatory detention without a bond hearing for certain criminal aliens under § 1226(c) [INA § 236(c)….However, the constitutionality of this practice is a function of the length of the detention. At a certain point, continued detention becomes unreasonable and the Executive Branch’s implementation of § 1226(c) becomes unconstitutional unless the Government has justified its actions at a hearing inquiring into whether continued detention is consistent with the law’s purposes of preventing flight and dangers to the community.” Diop, No. 10-1113, slip op. at 18.

In short, the Third Circuit determined that § 236(c) authorizes mandatory detention for a certain (undefined) period of time before the length of incarceration becomes unreasonable without an individualized hearing to determine whether the prisoner is a flight risk or poses a danger to the community. Diop, No. 10-1113, slip op. at 22. Importantly, the court “decline[d] to establish a universal point at which detention will always be considered unreasonable.” Diop, No. 10-1113, slip op. at 19.

Despite not identifying a bright line at which detention shifts from being presumptively reasonable to presumptively unreasonable, “the constitutional case for continued detention without inquiry into its necessity becomes more and more suspect as detention continues past those thresholds” identified in Demore: one and a half months for most detainees and five months for cases in which the detainee appeals. Diop, No. 10-1113, slip op. at 22 (discussing Demore, 538 U.S. at 530).

Applying this analysis to Diop’s 1,072 days of imprisonment, the court concluded that his detention was unreasonable. Diop, No. 10-1113, slip op. at 20.