In a disheartening move that is likely to create more impediments to migrants trying to escape detention pending removal proceedings, the U.S. Court of Appeals for the First Circuit overturned a district court decision that imposed substantial limits on the federal government’s use of INA § 236(c), the so-called mandatory detention statute. Reid v. Donelan, No. 14-1270, slip op. (1st Cir. April 13, 2016). The court held that migrants detained unreasonably are entitled to an individualized hearing, but it tossed out the district court’s conclusion that the Fifth Amendment Due Process Clause requires DHS to bring all detainees before an immigration judge for a bond hearing once they have been locked up for six months.
As I wrote previously when I analyzed the district court’s order, this case raises two important questions: whether § 236(c) includes an implied reasonableness limitation and, if so, how to determine whether continued detention is reasonable. The district court answered the first question in the affirmative and, in response to the second issue, held that everyone detained for more than six months—members of a class that the district court certified—were entitled to a bond hearing where an immigration judge could decide if they should be released.
The First Circuit took a significant step back. The court affirmed a reasonableness limitation on Congress’s use of categorical, mandatory detention through § 236(c). Id. at 11. At the same time, it parted ways with the district court’s chosen means of determining what constitutes reasonable continued detention. Instead of following the district court, Second Circuit (discussed here and here), and Ninth Circuit in drawing a bright-line at six months, the First Circuit sided with two other federal circuits—the Third and Sixth. Those circuits, the court concluded, “have the better of the argument” in the existing circuit split. Id. at 14. A bright-line rule is warranted when “there [is] simply no metrics by which to judge just how much longer towards eternity could be considered ‘reasonable,’” the court explained in a long passage attempting to distinguish the indefinite detention after a final order of removal has been issued that the Supreme Court found problematic in Zadvydas v. Davis, 533 U.S. 678 (2001). Under § 236, the court went on, “individualized reasonableness review remains feasible” even after detention has become prolonged. Id. at 17-18.
To be sure, the First Circuit acknowledged that there are serious practical obstacles that arise from an individualized review requirement. In the court’s words, “From a more practical standpoint…the approach employed by the Third and Sixth Circuits has little to recommend it.” Id. at 20. This is a damning characterization rooted in a realistic view of an interpretation of § 236(c) that puts the burden on detained (and often unrepresented) migrants to prove that their imprisonment is not reasonable. But ultimately, in the court’s estimation, it is a losing characterization because practicality must give way to Congress’s wishes when those wishes are legally permissible as it concludes they are here. Id. at 23.
Importantly, the court outlines a roadmap to change by legislators or administrative agencies. “[I]t is quite possible,” the court writes in a footnote that reads like an invitation, “that the government is less captive to § 1226(c)’s [INA § 236(c)] categorical command than it believes. Because we read an implicit reasonableness limitation into the statute itself, the statute authorizes a bond hearing as soon as continued, mandatory detention has reached the point of being constitutionally unreasonable. Whether (and how) the government may rely upon this implicit component of the statute to streamline its detention procedures…poses a question for another day.” Id. at 23 n.3. Here’s hoping that ICE will accept the invitation to “streamline” immigration detention.
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