Diop v. Ice/Homeland Security, 2011 U.S. App. LEXIS 18202

IIRIRA 8 U.S.C. § 1226(c) requires mandatory detention of certain removable aliens for crimes involving moral turpitude or controlled substances, without a bond option or need for ongoing justification.
Cheikh Diop was detained for 1072 days (roughly 2 years, 11 months, 5 days) during removal proceedings beginning March 19, 2008.
Diop's criminal history included a 1995 drug conviction later implicated as a basis for detention and a 2005 recklessly endangering conviction; a 2010 vacatur of the 1995 conviction occurred after Padilla was decided.
Immigration proceedings involved multiple resets, hearings, and remands, with Diop pro se filings and, at times, attempts to obtain counsel, asylum, or withholding relief.
By early 2011, after a sequence of IJ and BIA rulings and a vacatur of the 1995 conviction, the government changed its position to treat Diop as immediately eligible for withholding of removal, and he was released on February 24, 2011.
The Third Circuit retained jurisdiction to review Diop’s habeas petition despite his release, addressing mootness and standing and concluding the case was capable of repetition and not moot.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 1226(c) permits prolonged detention without a bond hearing	Diop contends detention is unconstitutional after a prolonged period without a hearing.	Government argues detention lasts while removal proceedings are pending and does not require a bond hearing.	Detention beyond a reasonable period without a hearing violates due process.
Whether the case is moot or capable of repetition and thus has standing to proceed	Diop argues ongoing detention and procedural posture show a live controversy; single release does not moot the claim.	Government contends the case is moot once Diop is released and there is no ongoing injury.	Case falls within the capable-of-repetition, evading-review exception and remains justiciable.
Whether Diop’s prolonged pre-removal detention was reasonable under due process	Detention for nearly three years without an individualized inquiry was unreasonable.	Detention is permissible under the statute with an initial Joseph hearing and ongoing proceedings.	Detention was unreasonable; due process requires an individualized inquiry once detention becomes prolonged.

Demore v. Kim, 538 U.S. 510 (U.S. 2003) (upheld initial detention under § 1226(c) but noted need for timely proceedings and potential later review)
Carlson v. Landon, 342 U.S. 524 (U.S. 1952) (detention of aliens deemed deportable without initial individualized determination)
Zadvydas v. Davis, 533 U.S. 678 (U.S. 2001) (due process limits on post-removal detention; implied reasonable time constraint)
Murphy v. Hunt, 455 U.S. 478 (U.S. 1982) (mootness requires more than speculative future exposure to the challenged conduct)
Frumento v. United States, 552 F.2d 534 (3d Cir. 1977) (prompt, diligent action can prevent mootness in detention appeals)
Camreta v. Greene, 564 U.S. _ (U.S. 2011) (standing where officials have an ongoing stake in court rulings even when damages are unavailable)