317 F. Supp. 3d 626
D.D.C.2018Background
- Two Brazilian nationals (Lucimar De Souza and Eduardo Junqueira) were arrested by ICE at CIS (USCIS) offices while pursuing marriage‑based immigration relief; both had final removal orders and were detained post‑removal period.
- ICE detained each for roughly four months without providing the notice and opportunity to submit materials required by 8 C.F.R. § 241.4 (post‑order custody‑review regulation); ICE conceded noncompliance at the May 8, 2018 hearing.
- ICE initially argued § 241.4 did not apply to aliens arrested after the 90‑day removal period or that courts could not grant relief until six months of detention (relying on Zadvydas). Later ICE accepted § 241.4 applies but maintained it may wait 90 days after arrest to conduct review.
- The court held the regulatory procedures in § 241.4 implement procedural due process and that ICE was bound to follow them; failure to follow them entitled the detainees to habeas relief under 28 U.S.C. § 2241.
- The court distinguished substantive due process (Zadvydas’s six‑month presumption for reasonableness) from procedural due process and concluded procedural violations can warrant immediate judicial relief; it ordered the court, not ICE, to decide promptly whether petitioners should be released.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Availability of habeas for post‑removal detention | De Souza/Junqueira: § 2241 is available to challenge statutory and constitutional defects in post‑removal detention | ICE: § 1252 limits review; relief premature under Zadvydas until six months | Court: § 2241 remains available for statutory and constitutional challenges to post‑removal detention (Zadvydas confirms this) |
| Applicability of 8 C.F.R. § 241.4 to aliens first detained after the 90‑day removal period | Petitioners: § 241.4 applies and was intended to provide post‑order procedural protections to such detainees | ICE (initially): § 241.4 does not apply to those not detained during the removal period; later: applies but review may occur 90 days after arrest | Court: § 241.4 implements procedural due process for post‑order detainees and applies to petitioners; ICE violated it |
| Effect of Zadvydas’s six‑month presumption on remedy | Petitioners: Even if Zadvydas creates a six‑month substantive presumption, procedural violations of § 241.4 can justify immediate relief | ICE: Zadvydas makes detention presumptively reasonable for six months; habeas petitions before six months are not ripe | Court: Zadvydas addressed substantive due process; it does not foreclose habeas relief for procedural due process violations before six months |
| Appropriate remedy for § 241.4 procedural violation | Petitioners: Court should order release or immediate judicial review rather than permit ICE another flawed review period | ICE: Remedy should be an ICE custody review with 30 days’ notice (on or about June 3) | Court: ICE repeatedly violated procedures and demonstrated inability to comply; equitable habeas relief is appropriate and the court will promptly decide release rather than allow another ICE review |
Key Cases Cited
- Zadvydas v. Davis, 533 U.S. 678 (recognizes liberty interest of detained aliens and presumes detention reasonable up to six months)
- Boumediene v. Bush, 553 U.S. 723 (habeas corpus is a fundamental check on executive detention)
- Accardi v. Shaughnessy, 347 U.S. 260 (agency regulations have the force of law and must be followed)
- United States v. Nixon, 418 U.S. 683 (executive bound by duly promulgated regulations; courts enforce them)
- Nelson v. INS, 232 F.3d 258 (1st Cir.) (agency must follow regulations that provide procedural protections)
- Diop v. INS (ICE), 656 F.3d 221 (3d Cir.) (statute allowing detention still requires individualized procedures)
- Demore v. Kim, 538 U.S. 510 (upholding certain congressionally mandated detention but recognizing need for individualized procedures)
- Mathews v. Eldridge, 424 U.S. 319 (framework for procedural due process balancing)