By Sarah Flinn
For over 100 years, the Supreme Court has recognized the federal government’s authority to detain any migrant during removal proceedings. Wong Wing v. United States, 163 U.S. 228, 235 (1896). In a 2011 decision, however, the U.S. Court of Appeals for the Third Circuit held that this authority is not unlimited and courts must ensure that detention while removal proceedings are pending is “reasonably necessary to secure removal.” Diop v. ICE/Homeland Sec., 656 F.3d 221, 234 (3d Cir. 2011). The Third Circuit further adds that there is a point beyond which the detainment is no longer reasonable because the burden on a migrant’s freedom outweighs the presumption that the migrant will flee. Id. at 232. In a recent decision, the Third Circuit concluded that detention certainly became unreasonable after one year and likely well before then—around the six month mark. Chavez-Alvarez v. Warden York County Prison, No. 14-1402, 2015 U.S. App. LEXIS 5732, slip op. at *20 (3d Cir. April 09, 2015).
This case involves a migrant, Jose Juan Chavez-Alvarez, who arrived in the United States from Mexico as a young child and is now a lawful permanent resident. Id. at *4. In 2000, while serving in the U.S. Army, Mr. Chavez-Alvarez was convicted of a number of offenses by a Court-Martial: giving false official statements, sodomy, and violating the general article (a catch-all provision encompassing “all disorders and neglects to the prejudice of good order and discipline in the armed forces). Id. He was sentenced to eighteen months imprisonment, but was released after serving thirteen months. Id. Over ten years after Mr. Chavez-Alvarez was released from prison, he was arrested by ICE agents and charged with being removable for having been convicted of an aggravated felony, INA § 237(a)(2)(A)(iii). Id. at 5. Pursuant to INA § 236(c), 8 U.S.C. § 1226(c), Mr. Chavez-Alvarez was ordered detained without bond. Id.
While this is an extremely powerful tool, the Supreme Court has clearly held that the government has constitutional authority to detain migrants, without an opportunity for bond, pending removal proceedings. Demore v. Kim, 538 U.S. 510, 531 (2003). Mandatory detention, the Court emphasized, is intended to ensure that deportable criminal migrants do not flee prior to or during the removal proceedings and are actually removed if so ordered. Id. at 528. As do a number of other circuits, the Third Circuit reads the Demore decision as limiting the mandatory detention statute’s reach by requiring that the detention be reasonably necessary to secure removal. Diop, 656 F.3d at 234. Importantly, detention can become unreasonable despite the fact that the government has done nothing to unreasonably delay the proceedings. Diop, 656 F.3d at 223.
Mr. Chavez-Alvarez had been detained for almost three years without a bond hearing when the Third Circuit issued its opinion determining that his detention was unreasonable, stating that it “strain[ed] any common-sense definition of a limited or brief civil detention.” Chavez-Alvarez, No. 14-1402, slip op. at *19. In part, the court stated that the unreasonableness of Mr. Chavez-Alvarez’s detention is due solely to the length of time that he has been detained without an individualized determination in regards to his flight risk and dangerousness. The court asserted that after this amount of time the Government could clearly make a sufficient determination about whether Mr. Chavez-Alvarez posed a flight risk or a danger to the community if released. Id.
In an interesting and potentially significant twist, the court also highlights another concern regarding Mr. Chavez-Alvarez’s detention: the fact that he is being held at the York County Prison along with criminal convicts serving punitive terms of imprisonment. Id. at *20. Located south of Harrisburg, Pennsylvania, York County Prison houses pretrial detainees undergoing criminal prosecution, some convicted offenders, and immigration detainees. The Third Circuit has a hard time seeing how merely calling Mr. Chavez-Alvarez’s detention “civil” makes it any different from the penal measures currently imposed on the other inmates at the York County Prison. Id. The court mentions that because Mr. Chavez-Alvarez’s detention so closely resembles the punitive sentences imposed on 
criminal inmates, the lengthier his sentence becomes, the more cause for concern. Id. While the court mentions that the circumstances of Mr. Chavez-Alvarez’s detention are only a factor in the determination of whether his detention without a bond hearing has become unreasonable, they first importantly recognize that “merely calling a confinement ‘civil detention’ does not, of itself, meaningfully differentiate it from penal measures.” Id.
Ultimately, the Third Circuit concludes that the length of time Mr. Chavez-Alvarez has been detained along with the conditions of his detainment require that he receive an individualized bond hearing to determine whether it is necessary to continue his detention. Id. at *21.
Sarah Flinn is a current 1L student at the University of Denver. She will be completing an externship with the Attorney General’s Office in Santiago, Chile for Summer 2015 and plans to continue studying Immigration when she returns. Ultimately, she hopes to work in the field of Immigration helping Latina youth that have been trafficked to the United States.
It is worth noting that Mr. Chavez’s petition for review from the BIA was sustained. See http://www2.ca3.uscourts.gov/opinarch/141630p.pdf. The court concluded noting that the government’s argument “barely passes the laugh test”. For this, Mr. Chavez was forced to spend three years in jail. I think there can be little doubt that DHS, the detained docket courts and the BIA have been using detention as a “docket control device” and are some what callous to the absurdity of their own reasoning.