331 F. Supp. 3d 255
S.D. Ill.2018Background
- Petitioner Dalbido Antonio Gil Cabral, a 26-year-old lawful permanent resident, was transferred to civil immigration detention on January 22, 2018, and charged removable under 8 U.S.C. § 1226(c).
- DHS alleged multiple prior convictions (attempted robbery, turnstile jumping, petit larceny) as grounds for mandatory detention; one conviction remained on appeal.
- Gil Cabral has close U.S.-based family ties, is a parent to a U.S. citizen child, and has asserted defenses including asylum, withholding, and CAT relief.
- He was held in Bergen County Jail under conditions like a penal institution and had been detained over seven months at the time of the petition; his next immigration merits hearing was set more than three months later (over nine months in custody total).
- The petitioner moved for release or a bond hearing under the Fifth Amendment; the government maintained § 1226(c) mandated detention pending removal and that detention during proceedings is constitutional.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 1226(c) applies while petitioner contests removability | Gil Cabral: "is deportable" does not apply because he contests deportability | Government: § 1226(c) authorizes detention pending a decision; challengers can be subject to mandatory detention | Court: § 1226(c) applies; contesting removability does not exempt him |
| Whether § 1226(c) is facially or as-applied unconstitutional for detainees who challenge removability | § 1226(c) raises constitutional concerns as applied to those who contest removability | § 1226(c) detention during proceedings has long been upheld as constitutional | Court: § 1226(c) is not facially unconstitutional; detention during proceedings can be constitutional |
| Whether prolonged mandatory detention without a bond hearing violates due process | Any detention over six months is per se unconstitutional; alternatively, his individual facts require relief | Jennings forecloses a categorical six-month rule; detention may be permissible but fact-specific | Court: Rejected categorical six-month rule; on fact-specific inquiry, ordered bond hearing or release because detention had become unreasonable |
Key Cases Cited
- Wang v. Ashcroft, 320 F.3d 130 (2d Cir. 2003) (district courts may grant habeas to noncitizens in custody in violation of federal law)
- Demore v. Kim, 538 U.S. 510 (2003) (upholding constitutionality of detention during removal proceedings in certain circumstances)
- Lora v. Shanahan, 804 F.3d 601 (2d Cir. 2015) (addressing procedures for detainees under § 1226(c))
- Jennings v. Rodriguez, 138 S. Ct. 830 (2018) (rejected automatic six‑month periodic bond hearings under § 1226 and left due-process scope open)
- Zadvydas v. Davis, 533 U.S. 678 (2001) (due process protects against prolonged, indefinite post-removal-order detention)
- Morrissey v. Brewer, 408 U.S. 471 (1972) (due process is flexible and requires procedural protections as circumstances demand)