US Dist Ct: Mandatory detention presumptively unreasonable after 6 months

The federal government may invoke the INA’s mandatory detention provision, INA § 236(c), to keep individuals in removal proceedings locked up without bringing them before an immigration judge for a bond hearing. After that, the U.S. District Court for the District of Massachusetts concluded, immigration officials must provide detainees with bond hearings. Reid v. Donelan, No. 13-cv-30125-MAP, slip op. (D. Mass. Jan. 9, 2014) (Ponsor, J.).

This case involved an LPR detained for 14 months by the time the court issued its order in January. During this time, he lost a claim for protection under the Convention Against Torture before an immigration judge, successfully appealed it to the Board of Immigration Appeals, lost again on remand to the IJ, and was preparing to appeal once more to the BIA. Reid, No. 13-cv-30125-MAP, slip op. at 4-5.

The district court had little difficulty concluding that the mandatory detention provision is subject to a reasonableness requirement. Relying on an earlier district court decision, Bourguignon v. MacDonald, 667 F. Supp. 2d 175 (D. Mass. 2009), the court explained that the Supreme Court’s two leading cases regarding immigration detention “suggest a ‘reasonableness’ limit in § 1226(c) [INA § 236(c)].” Reid, No. 13-cv-30125-MAP, slip op. at 7 (discussing Demore v. Kim, 538 U.S. 510 (2003) and Zadvydas v. Davis, 533 U.S. 678 (2001)). In Zadvydas, the Supreme Court drew a line at six months: detention lasting less than that is presumptively reasonable, but detention lasting longer becomes ever less reasonable. Reid, No. 13-cv-30125-MAP, slip op. at 7. In Demore, meanwhile, the crucial fifth vote came from Justice Kennedy who, according to the district court, “explicitly identified a ‘reasonableness’ requirement that limited the scope of [236(c).” Reid, No. 13-cv-30125-MAP, slip op. at 8. Together, these decisions left the district court to conclude that § 236(c) must be read to include a reasonableness requirement. Without such a limitation, the court added, an individualized hearing would be necessary “to avoid the Fifth Amendment due process problem that prolonged detention…would present.” Id. at 8-9.

Having determined that detention pursuant to § 236(c) can occur for a reasonable duration only, the district court moved to the “thornier” issue of deciding what constitutes “reasonable.” Id. at 10. Without question, this is not an easy task. The court notes that two options appear in existing federal case law. The Third and Sixth Circuits require that individuals detained pursuant to § 236(c) file a habeas petition in federal court, after which a federal judge performs an individualized, fact-specific inquiry to determine whether the detention is reasonable. Id. at 10 (citing Diop v. ICE/Homeland Security, 656 F.3d 221, 234 (3d Cir. 2011)and Ly v. Hansen, 351 F.3d 263, 272 (6th Cir. 2003)). [I previously blogged about Diop here.] In contrast, the Ninth Circuit adopted a “bright-line rule” under which § 236(c) detention is limited to six months; anything longer without an individualized hearing is presumptively unreasonable. Id. at 10-11 (citing Rodriguez v. Robbins, 715 F.3d 1127, 1133 (9th Cir. 2013)).

Presented with these alternatives, the court followed the Ninth Circuit’s approach and adopted a bright-line rule set at six months. This approach, the court explained, “follows in line with Supreme Court precedent, satisfies due process, and avoids the unnecessary administrative burden of holding two, repetitive hearings—a habeas proceeding to determine if a bond hearing is required and then the bond hearing itself.” Id. at 11.

Of particular interest is the fact that the court took a very realistic view of immigration detention and the burden of challenging ICE’s detention to lock someone up while removal proceedings are ongoing. Many detainees, the court noted, do not have the ability to pursue a habeas action. First they would need to know enough about the United States legal system to know that there might be recourse in federal court when it’s not even possible to ask an immigration judge to consider release. Id. at 15. Second, they would have to find the money to pay for an attorney “or [be] fortunate enough to receive pro bono assistance.” Id. As the court explained quoting Valparaiso law professor Geoffrey Heeren, “Simply put, ‘litigation is unlikely to be a viable solution for most immigrants in prolonged detention.” Id. at 15-16 (quoting Geoffrey Heeren, Pulling Teeth: The State of Mandatory Immigration Detention, 45 Harvard Civil Rights-Civil Liberties Law Review 601, 603 (2010)).

Overall this is a breathtakingly refreshing analysis. We’ll see if it holds up on appeal.

Update: On February 10, 2014, Judge Ponsor “certif[ied] a class of all individuals who are or will be detained within the Commonwealth of Massachusetts pursuant to § 1226(c) for over six months and are not provided an individualized bond hearing.” This is a promising turn of events. Reid v. Donelan, No. 13-CV-30125-MAP (D. Mass. Feb. 10, 2014)