Diouf v. Napolitano
634 F.3d 1081
| 9th Cir. | 2011Background
- Diouf, a Senegalese citizen, entered on a student visa in 1996; visa expired in 2002.
- Removal proceedings began in 2003; IJ ordered voluntary departure by June 24, 2003 with an alternate removal if not departed.
- Diouf married on June 17, 2003; he did not timely file motions to reopen or extend voluntary departure.
- ICE apprehended and detained Diouf on March 29, 2005 after he remained beyond the voluntary departure deadline.
- DHS conducted post-order custody reviews in 2005 and 2006, continuing detention based on flight risk concerns.
- The district court granted a bond hearing; a subsequent Ninth Circuit remand led to this panel’s reversal ordering a bond hearing and release on bond unless risk of flight or danger is shown.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §1231(a)(6) detainees are entitled to a bond hearing. | Diouf contends detainees under §1231(a)(6) deserve a bond hearing. | Government argues no bond hearing is required for §1231(a)(6). | Yes, entitled to bond hearing before an immigration judge. |
| Whether §1231(a)(6) detainees have the same safeguards as §1226(a) detainees. | Casas-Castrillon provides bond protections for prolonged detention. | Government distinguishes §1231(a)(6) from §1226(a). | Prolonged detention under §1231(a)(6) requires similar procedural safeguards as §1226(a). |
| Whether DHS custody reviews suffice under constitutional avoidance. | Regulations alone are insufficient; a neutral, in-person bond hearing is needed. | Regulations provide some safeguards and Chevron deference could apply. | DHS reviews do not suffice at prolonged detention; hold bond hearing before an immigration judge. |
Key Cases Cited
- Casas-Castrillon v. Dep't of Homeland Sec., 535 F.3d 942 (9th Cir. 2008) (prolonged detention requires bond hearing; due process concerns in prolonged detention)
- Zadvydas v. Davis, 533 U.S. 678 (U.S. 2001) (indefinite detention raises due process concerns; six-month norm discussed)
- Demore v. Kim, 538 U.S. 510 (U.S. 2003) (detention during removal proceedings; limited period context for detention)
- Dada v. Mukasey, 554 U.S. 1 (U.S. 2008) (motions to reopen as safeguards of rights in removal context)
- Tijani v. Willis, 430 F.3d 1241 (9th Cir. 2005) (bond-release standard referenced for flight risk/danger)
- Mathews v. Eldridge, 424 U.S. 319 (U.S. 1976) (balancing test for due-process procedural safeguards)
- Clark v. Martinez, 543 U.S. 371 (U.S. 2005) (consideration of constitutional avoidant construction when multiple readings exist)