Black v. Decker G.M. v. DeckerBlack v. Decker G.M. v. Decker
20-3224; 22-70
Black v. Decker; G.M. v. Decker
In the United States Court of Appeals For the Second Circuit
August Term, 2022
(Argued: January 5, 2023 Decided: May 31, 2024)
No. 20-3224
CAROL WILLIAMS BLACK, Petitioner-Appellee,
-v.-
DIRECTOR THOMAS DECKER, IN HIS OFFICIAL CAPACITY AS DIRECTOR OF NEW YORK FIELD OFFICE OF U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, ALEJANDRO MAYORKAS, SECRETARY OF U.S. DEPARTMENT OF HOMELAND SECURITY, SHERIFF PAUL ARTETA, IN HIS OFFICIAL CAPACITY AS SHERIFF OF ORANGE COUNTY, NEW YORK, Respondents-Appellants.
No. 22-70
KEISY G.M., Petitioner-Appellant,
-v.-
THOMAS DECKER, NEW YORK FIELD OFFICE DIRECTOR FOR U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, ALEJANDRO MAYORKAS, Respondents-Appellees,
DAVID L. NEIL, Defendant-Appellee.*
Before: CHIN and CARNEY, Circuit Judges.†
These tandem appeals arise from habeas petitions brought under
constitutional guarantee of due process precludes a noncitizen‘s unreasonably prolonged detention under section 1226(c) without a bond hearing, and that Mathews v. Eldridge, 424 U.S. 319 (1976), supplies the proper framework for determining when and what additional procedural protections are due. In Black‘s case, we conclude that the district court properly required the government to show, at such a hearing, the necessity of his continued detention by clear and convincing evidence; it also correctly directed the IJ, in setting bond and establishing appropriate terms for potential release, to consider Black‘s ability to pay and alternative means of assuring appearance. We therefore affirm the district court‘s judgment granting habeas relief as to Black. As to G.M., we conclude that his detention had become unreasonably prolonged and accordingly reverse the district court‘s judgment denying habeas relief.
AFFIRMED, with respect to No. 20-3224, and REVERSED, with respect to No. 22-70.
In No. 20-3224:
Adedayo Idowu, Law Offices of Adedayo O. Idowu, New York, NY, for Carol Williams Black, Petitioner-Appellee.
AMY BELSHER (Guadalupe Aguirre, Terry Ding, Christopher Dunn, on the brief), New York Civil Liberties Union Foundation, New York, NY, as Amicus Curiae for Carol Williams Black, Petitioner-Appellee.
MARY ELLEN BRENNAN (Christopher Connolly, on the brief), Assistant U.S. Attorneys, Of Counsel, for Damian Williams, U.S. Attorney for the Southern District of New York, for Respondents-Appellants.
In No. 22-70:
JULIE DONA (Aadhithi Padmanabhan, Laura Kokotailo, on the brief), The Legal Aid Society, New York, NY; Estelle M. McKee, Fei Deng, Student Counsel, Jordyn Manly, Student Counsel, Emma Sprotbery, Student Counsel, on the brief, Asylum and Convention Against Torture Clinic, Cornell Law School, Ithaca, NY, for Keisy G.M., Petitioner-Appellant.
MARY ELLEN BRENNAN (Jessica F. Rosenbaum, Benjamin H. Torrance, on the brief), Assistant U.S. Attorneys, Of Counsel, for Damian Williams, U.S. Attorney for the Southern District of New York, for Respondents-Appellees.
CARNEY, Circuit Judge:
Black and Williams each sought habeas relief, asserting that the prolonged detentions by the government—Black, for seven months, and G.M., for twenty-one months—without any bond hearing violated their Fifth Amendment rights to due
appeals the district court‘s judgment granting Black‘s petition; G.M., for his part, appeals the district court‘s judgment denying his.
On de novo review, we conclude that a noncitizen‘s constitutional right to due process precludes his unreasonably prolonged detention under section 1226(c) without a bond hearing. We further decide that Mathews v. Eldridge, 424 U.S. 319 (1976), supplies the proper framework for determining when and what additional procedural protections are due such a detainee. In Black‘s case, the district court properly required the government to show at such a bond hearing, by clear and convincing evidence, the necessity of his continued detention. It further correctly directed the immigration judge (“IJ“), in setting his bond and establishing appropriate terms for his potential release, to consider his ability to pay and alternative means of assuring appearance. As to Black, we therefore affirm the district court‘s judgment. As to G.M., we conclude that his detention had become unreasonably prolonged, and accordingly, we reverse.
BACKGROUND2
I. Factual and Procedural History
A. Carol Williams Black
Black is a native and citizen of Jamaica who was admitted to the United States as an LPR in 1983 at the age of twenty-one. He has lived here for the past forty years.
Before his detention in 2019, he lived in Mount Vernon, New York, with his wife of almost ten years and his stepdaughter. He owned and ran a boat repair business and was the sole income provider for his family. He was able, after working for ten years, to buy the home that he had been living in since 2007.
On December 4, 2019, ICE served Black with a Notice to Appear (“NTA“) and took him into custody. The NTA charged him as removable under
ICE further determined that this criminal history made Black subject to detention under section 1226(c).3 See
asylum and withholding of removal. On June 20, 2023, the IJ ordered removal; Black‘s appeal to the BIA is currently pending.
In June 2020, Black filed an amended petition for habeas relief under
B. Keisy G.M.6
G.M. was born in the Dominican Republic in 1988. In 2011, he entered the United States as an LPR, and has mostly lived in the Bronx since then. In 2012, he was involved in a fight outside a restaurant in New York City; it led to state charges against him for
robbery and possession of stolen property. He was released on bail during the criminal proceedings. In May 2015, he pleaded guilty to second-degree assault in connection with that incident and was sentenced to two years’ imprisonment
Four years later, on October 5, 2020, ICE arrested G.M. at his home and served him with an NTA charging him with removability under
In March 2021, the IJ denied G.M.‘s application for CAT deferral, but in December 2021, on appeal, the BIA remanded for further analysis of G.M.‘s claims that he would likely be tortured if he was returned to the Dominican Republic. In June 2022, the IJ again denied CAT relief, and G.M. again appealed. Since then, both G.M. and the government have submitted further briefing to the BIA, but no decision has issued.
G.M. sought habeas relief in May 2021, after about seven months of detention, alleging that his continued detention without a bond hearing violated his due process rights. Using the same multifactor test that Judge Schofield applied in Black‘s case, the district court reached a different conclusion and in November 2021 denied G.M.‘s petition. G.M., 2021 WL 5567670, at *7–13. By that time, G.M. had been detained for thirteen months and twenty-four days.
In July 2022, G.M. was released under a nationwide injunction entered in Fraihat v. ICE, 445 F. Supp. 3d 709 (C.D. Cal. 2020), rev‘d and remanded, 16 F.4th 613 (9th Cir. 2021).7 He ultimately spent twenty-one months in detention, and never received a bond hearing.
II. The Government‘s Detention Authority Under 8 U.S.C. § 1226
Section 1226 of title 8 authorizes the government to detain a noncitizen “pending a decision on whether the alien is to be removed from the United States.”
Under section 1226(c), however, noncitizens who have committed one of certain
custody” any such noncitizen. Id. (emphasis added). It addresses and allows release in extremely limited circumstances: “only if the Attorney General decides . . . that release of the alien from custody is necessary for [witness protection purposes].” Id.
The Supreme Court has held that detention under section 1226(c) without an initial bond determination does not, on its face, violate the detainee‘s due process rights where detention is “for the limited period of . . . removal proceedings.” Demore v. Kim, 538 U.S. 510, 531 (2003). In Demore, Hyung Joon Kim, an LPR who had been detained under section 1226(c) for six months, challenged the constitutionality of the statute, arguing that detention with “no determination that he posed either a danger to society or a flight risk” violated his due process rights. Id. at 514, 530–31. The Supreme Court disagreed. Finding that Congress was “justifiably concerned” that criminal noncitizens
would “fail to appear for their removal hearings in large numbers,” the Court held that Congress “may,” consistent with due process restrictions on government power, “require that persons such as respondent be detained for the brief period necessary for their removal proceedings” without an initial bond hearing. Id. at 513–14.10
The Supreme Court has also ruled that section 1226(c) itself authorizes prolonged
Read together, then, Demore and Jennings instruct that (1) due process does not require an initial bond determination for those detained under section 1226(c), and (2)
section 1226‘s text cannot be construed to require a bond hearing after any particular fixed period of detention.
Critically, however, Demore and Jennings leave open the question whether prolonged detention under section 1226(c) without a bond hearing will at some point violate an individual detainee‘s due process rights. They also do not teach what procedures due process may require, and whether due process principles (as opposed to section 1226(c)‘s terms) may properly be understood to call for a bright-line rule as to timing or in any other respect. Indeed, the Court—having reached a statutory decision—remanded Jennings to the Ninth Circuit for consideration of the constitutional arguments in the first instance. Id. at 312.11 We now face the same questions.
DISCUSSION
We review de novo a district court‘s grant or denial of a habeas petition brought under
Black and G.M. agree that the government may detain noncitizens under section 1226(c) without an initial bond determination and that section 1226(c) applies to them. Both argue that their prolonged detentions without a bond hearing violated their due process rights. They urge that precedent supports adoption of a bright-line rule requiring a bond hearing after a section 1226(c) detention passes the six-month mark.12
The government counters that, while in “an extraordinary case” a section 1226(c) detainee may have grounds to bring an as-applied constitutional challenge to the statute, neither Black‘s nor G.M.‘s appeal presents such a case. Black Gov‘t Br. at
We consider, first, whether a noncitizen‘s right to due process precludes his unreasonably prolonged detention under section 1226(c) without a bond hearing. Concluding that it does, we then address how a court is to determine whether a noncitizen‘s detention has become so prolonged that such rights are fairly placed at issue. Finally, we address the procedures and standards applicable to Black‘s bond hearing.
I. A noncitizen‘s right to due process precludes his unreasonably prolonged detention under section 1226(c) without a bond hearing.
The Supreme Court long ago held that the Fifth Amendment entitles noncitizens to due process in removal proceedings. Reno v. Flores, 507 U.S. 292, 306 (1993). The Constitution establishes due process rights for “all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001). Accordingly, and as the Supreme Court recognized in Zadvydas, “[a] statute permitting indefinite detention of an alien would raise a serious constitutional problem.” Id. at 690. In light of the constitutional concerns identified by the Supreme Court and this Court in connection
with the Executive‘s detention of noncitizens, and the authorities discussed below, we conclude that due process bars the Executive from detaining such individuals for an unreasonably prolonged period under section 1226(c) without a bond hearing.
In Zadvydas, for example, the Court heard a noncitizen‘s challenge to prolonged detention under
Even in Demore, where the Court upheld the facial constitutionality of detention under section 1226(c) without a bond
two key distinctions between section 1226(c) detention and section 1231(a)(6) detention, the detention authority at issue in Zadvydas.
First, it observed that the noncitizens in Zadvydas—having been ordered removed but still being detained in the United States—“were ones for whom removal was ‘no longer practically attainable,‘” depriving detention of “its purported immigration purpose” of facilitating removal. Id. at 527.
Second, the Court pointed out that “the period of detention at issue in Zadvydas was ‘indefinite’ and ‘potentially permanent,‘” while “the detention [in Demore] is of a much shorter duration.” Id. at 528. It cited data presented by the government to the effect that, for 85% of section 1226(c) detainees, “removal proceedings are completed in an average time of 47 days and a median of 30 days,” and that “[i]n the remaining 15% of cases, in which the alien appeals the decision . . ., appeal takes an average of four months, with a median time that is slightly shorter.”14 Id. The Court‘s emphasis on this “limited” period of detention strongly suggests a view that, while it found detention without an initial bond determination to be facially constitutional, “indefinite” and “potentially permanent” detention without a bond hearing would violate due process. Id. at 529-31.
More than a decade later, this Court applied Zadvydas and Demore to a challenge to prolonged detention under section 1226(c) without a bond hearing—the same type of challenge we now address. In Lora v. Shanahan, Alexander Lora was detained under
section 1226(c) based on a drug-related conviction. 804 F.3d 601, 605 (2d Cir. 2015). After four months in detention, he sought habeas relief, challenging on due process grounds his continued detention without a bond hearing. Id. This Court, heeding the Demore Court‘s “[e]mphas[is] [on] the relative brevity” of section 1226(c) detention “in most cases,” read Supreme Court precedent as having “made clear that the indefinite detention of a non-citizen raises serious constitutional concerns.” Id. at 604, 606 (internal quotation marks and alterations omitted). We avoided those concerns, however, and followed Zadvydas by reading into section 1226(c) “an implicit temporal limitation” requiring that detainees be afforded a bond hearing after six months. Id. at 606.
The Supreme Court‘s subsequent decision in Jennings invalidated Lora‘s statutory approach. See Shanahan v. Lora, 583 U.S. 1165 (2018). But in doing so, the Court did not answer the question whether due process places any limits on the government‘s detention authority under section 1226(c).15 The Court‘s reversal of our statutory holding
Our post-Jennings decision in Velasco Lopez v. Decker, concerning the government‘s discretionary detention authority under section 1226(a), highlighted the gravity of these concerns.16 Velasco Lopez was taken into detention under section
On appeal, we decided his petition on constitutional grounds. Recognizing the Jennings Court‘s admonition that section 1226(a) may not be read as implicitly imposing any specific procedural protections, id. at 851, we concluded that “Velasco Lopez‘s prolonged incarceration, which had continued for fifteen months without an end in sight or a determination that he was a danger or flight risk, violated due process,” id. at 855. Notably, we rejected the government‘s contention that Jennings foreclosed all relief for Velasco Lopez, observing that the Court in Jennings had “expressly declined to reach the constitutional issues.” Id. at 857.
Accepting the government‘s assertion that the Constitution “provides no basis for requiring bond hearings whenever the detention of a criminal noncitizen under § 1226(c)” exceeds any set duration, G.M. Gov‘t Br. at 31, we nonetheless read Zadvydas, Demore, Jennings, and Velasco Lopez to suggest strongly that due process places some
limits on detention under section 1226(c) without a bond hearing. We cautioned accordingly in Lora (as mentioned above) that “serious constitutional concerns” would arise absent “some procedural safeguard in place for immigrants detained for months without a hearing.” 804 F.3d at 614. The Constitution does not permit the Executive to detain a noncitizen for an unreasonably prolonged period under section 1226(c) without a bond hearing; at some point, additional procedural protections—like a bond hearing—become necessary.
II. We evaluate procedural due process challenges to prolonged section 1226(c) detention under the Mathews framework.
When do additional procedural protections become constitutionally necessary? We begin by surveying other courts’ approaches to this question post-Jennings. We then conclude that the Mathews
A. Courts’ Approaches Post-Jennings
As described, neither the Supreme Court nor this Court has squarely decided a due process challenge to an individual‘s prolonged detention under section 1226(c). After Jennings, courts have taken a variety of approaches.
1. The S.D.N.Y. Approach
Courts in the Southern District of New York have used a multifactor, case-by-case analysis to determine whether the section 1226(c) petitioner‘s detention has become “unreasonable or unjustified.” E.g., Cabral v. Decker, 331 F. Supp. 3d 255, 261 (S.D.N.Y. 2018); see also Jack v. Decker, No. 21-cv-10958, 2022 WL 4085749, at *10 (S.D.N.Y. Aug. 19, 2022) (collecting cases taking this approach). In Cabral, Judge Koeltl highlighted that the Jennings court “left open the possibility that individual detentions without bond hearings might be so lengthy as to violate due process” and stressed the Jennings
Court‘s emphasis on “the flexible nature of the Due Process Clause.” 331 F. Supp. 3d at 260. Observing that courts in the district had taken a “case-by-case approach to petitions for bail hearings,” and rejecting the argument that the Constitution mandates a hearing in every case at six months, he identified the factors that had been considered as follows:
- (1) the length of time the petitioner has been detained;
- (2) the party responsible for the delay;
- (3) whether the petitioner has asserted defenses to removal;
- (4) whether the detention will exceed the time the petitioner spent in prison for the crime that made him removable;
- (5) whether the detention facility is meaningfully different from a penal institution for criminal detention;
- (6) the nature of the crimes committed by the petitioner; and
- (7) whether the petitioner‘s detention is near conclusion.
Id. at 261 (spacing altered).
2. The Third Circuit Approach
Since Jennings, the Third Circuit is the only federal court of appeals to have squarely ruled on the questions posed here.17 See German Santos v. Warden Pike County
Corr. Facility, 965 F.3d 203 (3d Cir. 2020). There, petitioner German Santos was detained under section 1226(c) for over two-and-a-half years without a
Like the S.D.N.Y. courts, the Third Circuit “explicitly declined to adopt a presumption of reasonableness or unreasonableness of any duration.” Id. at 211. Instead, it undertook a “highly fact-specific inquiry” that considered four factors: “the duration of detention,” “whether the detention is likely to continue,” “the reasons for the delay,” and “whether the alien‘s conditions of confinement are meaningfully different from criminal punishment.” Id. at 210–11 (internal quotation marks and alterations omitted). Applying these factors, the court concluded that German Santos‘s detention had become unreasonably long and ordered a bond hearing at which the government must justify continued detention by clear and convincing evidence. Id. at 212-14.
3. The Velasco Lopez Approach
Our October 2020 decision in Velasco Lopez bears on our determination here. As discussed, Velasco Lopez dealt with a Deferred Action for Childhood Arrivals recipient‘s challenge to his prolonged detention under the government‘s discretionary section 1226(a) authority. 978 F.3d at 847. We identified the “dispositive” issue there as “whether Velasco Lopez‘s ongoing incarceration posed due process concerns at the time of his habeas filing and whether additional procedural protections then became necessary.” Id. at 851.
We held that the three-factor balancing test established in Mathews, 424 U.S. at 335, applied.18 See Velasco Lopez, 978 F.3d at 851. The Supreme Court in Mathews identified three factors bearing on the constitutional need for procedural protections: (1) “the private interest that will be affected by the official action“; (2) “the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards“; and (3) “the Government‘s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Mathews, 424 U.S. at 335. Applying these factors to Velasco Lopez‘s
B. The Mathews framework applies.
Here, we conclude that due process challenges to prolonged detention under
The Supreme Court has also, in other contexts, applied Mathews to examine the adequacy of procedures provided to individuals in custody, including noncitizens legally present in the United States. See, e.g., Hamdi v. Rumsfeld, 542 U.S. 507, 528-29 (2004) (applying Mathews to assess whether due process entitled enemy combatant to evidentiary hearing to contest the basis for his detention); Landon v. Plasencia, 459 U.S. 21, 34 (1982) (observing that Mathews governs evaluation of noncitizen‘s claim that she was denied due process at her exclusion hearing); Addington v. Texas, 441 U.S. 418, 425-33 (1979) (observing that Mathews applies to assess adequacy of procedural safeguards for people subject to civil commitment).20
As the Ninth Circuit put it, Mathews “remains a flexible test,” and takes account of individual circumstances. Rodriguez Diaz, 53 F.4th at 1206. It allows for what might appear to be “conflicting outcomes.” Id. Applying Mathews comports with the Supreme Court‘s guidance in Jennings that “‘due process is flexible,’ ... and ... ‘calls for such procedural protections as the particular situation demands.‘” 583 U.S. at 314 (alteration omitted) (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). And it can account for those concerns that the S.D.N.Y. and the Third Circuit have considered when deciding when detention has become unreasonably prolonged, and the detainee entitled to a bond hearing.
Thus, Mathews provides the proper framework to assess Black‘s and G.M.‘s respective due process challenges.
The government offers three reasons not to apply the Mathews framework here. We find none persuasive. First, it contends that Velasco Lopez does not govern. It stresses that Velasco Lopez was detained under
None of this suggests to us that Mathews should not apply to Petitioners’ claims here. That Velasco Lopez dealt with
Second, the government argues that Demore applies directly here and forecloses our application of Mathews. But we do not read Demore so broadly. Demore upheld the government‘s authority under
Third, the government posits that “the Mathews framework does not necessarily apply simply because a case involves a procedural due process claim.” Black Gov‘t Reply Br. at 17-18. It seeks support in the observation that “the Supreme Court has not referred to the Mathews balancing test in any case involving a challenge to immigration detention—including Demore—since [Landon],” G.M. Gov‘t Br. at 27-28. Largely for the reasons already discussed, however, this contention, too, fails. Demore did not present a due process challenge of the sort we now address. And the absence of a Mathews reference in any immigration detention decision since Landon means little when, so far as we can see, the Court has not had any subsequent occasion to address such a constitutional challenge at all.22 We agree with the government that not all procedural due process challenges require courts to apply the Mathews framework. See Dusenbery, 534 U.S. at 167-68. But the Mathews framework is apt for Petitioners’ challenges.
As a final note, we find it troubling that the government offers no alternative framework for application here. Rather, it states only that “in an extraordinary case, a noncitizen detained under
In adopting the flexible Mathews framework to assess, case by case, whether an individual‘s prolonged
Demore and Zadvydas imply, we agree, that any immigration detention exceeding six months without a bond hearing raises serious due process concerns.23 We nevertheless conclude that the Supreme Court‘s pronouncements in this context do not support imposing a bright-line rule as a matter of constitutional law.
The Supreme Court‘s jurisprudence regarding the government‘s authority to detain removable noncitizens under
And Jennings, while also decided on statutory grounds, similarly suggests that a bright-line rule would be inappropriate in the constitutional context. The Court‘s remand order cautioned that “[d]ue process ... calls for such procedural protections as the particular situation demands.” 583 U.S. at 314 (emphasis added) (internal quotation marks omitted).
Here, too, the flexible due process analysis counsels against establishing a bright-line rule. Instead, courts hearing due process challenges to prolonged
III. Due process entitled Black and G.M. to individualized bond hearings to determine whether their continued detentions were justified.
Turning to Black‘s and G.M.‘s claims, we evaluate their respective circumstances under the Mathews factors: (1) “the private interest that will be affected by the official action“; (2) “the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards“; and (3) “the Government‘s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Mathews, 424 U.S. at 335.
A. Their Private Interests
In both cases, “the private interest affected by the official action is the most significant liberty interest there is—the interest in being free from imprisonment.” Velasco Lopez, 978 F.3d at 851 (citing Hamdi, 542 U.S. at 529). As we have previously observed, “[c]ase after case instructs us that in this country liberty is the norm and detention ‘is the carefully limited exception.‘” Id. (quoting United States v. Salerno, 481 U.S. 739, 755 (1987)). True, in Velasco Lopez, we contrasted
Moreover, much like someone detained under
In addition, the private interests of both Petitioners were seriously affected by their prolonged detention. Black‘s seven-month-long detention led unsurprisingly to serious financial difficulties for his family. He was the sole income provider before his detention; he helped keep up their mortgage payments; and he cared for his wife as she experienced ongoing health issues. Similarly, G.M.‘s family relied on him for financial support, and his mother counted on him for help in managing her medical conditions. G.M. is a father to three young children, two of whom were at his home when he was arrested by ICE. His third child was born while he was in ICE custody; when he filed his habeas petition, he had yet to meet her. G.M. also experienced his own health difficulties (in part leading to his Fraihat release), and his legal preparations were significantly delayed by COVID-19 restrictions at his detention facility. Many of these difficulties persisted throughout G.M.‘s twenty-one-month detention—a detention that outstripped by
For these reasons, we conclude that the first Mathews factor weighs heavily in favor of Black and G.M.
B. The Risk of an Erroneous Deprivation of Their Interests and the Probable Value of Additional Procedural Safeguards
The second Mathews factor is “the risk of an erroneous deprivation of such [private] interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards.” Mathews, 424 U.S. at 335. It, too, weighs heavily in favor of Black and G.M. The only interest to be considered at this part of the Mathews analysis is that of the detained individuals—not the government. See Hamdi, 542 U.S. at 530. Here, the almost nonexistent procedural protections in place for
At the threshold, two general observations are in order with respect to
Further, as we remarked with concern in Lora,
These concerns were vindicated in the years after we decided Lora: Before Jennings vacated Lora in 2018, data showed that 62% of
It is in this context that we consider Black‘s and G.M.‘s respective circumstances under the second Mathews factor.
In Black‘s case, no doubt remains that these minimal procedures led to an unwarranted detention. For the almost twenty years since his criminal conviction in March 2000, he led a peaceful life, helping to support his family. When he ultimately had the bond hearing ordered by the district court, he was released because the government could not justify his continued detention. As to Black, therefore, rather than worrying of a “risk” of erroneous deprivation, we can be virtually certain that his prolonged detention was unjustified.
In G.M.‘s case, the record appears to show that for the four years after he completed his sentence (and while on bail pending the criminal proceedings), he led a lawful life. When, in 2014, G.M.‘s roommate was murdered in front of G.M. and his family, G.M. assisted law enforcement with the investigation and eventually testified at the trial of the murderer. During his four post-release years of freedom, he maintained steady employment and helped to provide for his family. And since his Fraihat release, no further criminal issues involving him have been brought to this Court‘s attention. Taken together with the general concerns noted above, G.M.‘s circumstances similarly suggest a high likelihood that he was subject to an erroneous deprivation of liberty as his
In the absence of any meaningful initial procedural safeguards, it appears to us that almost any additional procedural safeguards at some point in the detention would add value. The most obvious of these—and that sought by Petitioners—would be an individualized bond hearing at which an IJ can consider the noncitizen‘s dangerousness and risk of flight. As borne out by the bond hearings held under our decision in Lora, we expect that many detained noncitizens would be released after a bond hearing conducted to satisfy their due process protections.
We therefore conclude that the second Mathews factor, too, weighs heavily in favor of Black and G.M.
C. The Government‘s Interest
The third Mathews factor considers “the Government‘s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Mathews, 424 U.S. at 335. The government has identified two primary interests in support of unlimited mandatory detention: (1) ensuring the noncitizen‘s appearance at proceedings, and (2) protecting the community from noncitizens who have been involved in crimes that Congress has determined differentiate them from others. These interests are legitimate and their importance well-established. See Demore, 538 U.S. at 518-21, 527-28 (noting that
The government contends that these concerns persist unaltered until the noncitizen‘s removal proceedings are complete. But the additional procedural safeguards we would allow here under Mathews do nothing to undercut those interests. At any ordered bond hearing, the IJ would assess on an individualized basis whether the noncitizen presents a flight risk or a danger to
Just as in Velasco Lopez, here, too, “the Government has not articulated an interest in the prolonged detention of noncitizens who are neither dangerous nor a risk of flight.” 978 F.3d at 854. To require that the Government justify continued detention “promotes the Government‘s interest—one we believe to be paramount—in minimizing the enormous impact of incarceration in cases where it serves no purpose.” Id. Where the noncitizen poses no danger and is not a flight risk, all the government does in requiring detention is “separate[] families and remove[] from the community breadwinners, caregivers, parents, siblings and employees.” Id. at 855; see also Rosales-Mireles v. United States, 585 U.S. 129, 139 (2018) (observing that “any amount of actual jail time ... has exceptionally severe consequences for the incarcerated individual and for society which bears the direct and indirect costs of incarceration” (internal quotation marks and alterations omitted)); Mathews, 424 U.S. at 347 (instructing that “the public interest” drives analysis of the third factor).
Both cases here illustrate this effect. Black was separated from his family, who relied on him as the sole income provider. G.M. lived peacefully with his mother, assisting with her medical needs while helping care for his two sons. By detaining them for many months without an individualized assessment, the government eliminated vital support for Petitioners’ families and, potentially, served no public interest.
The government also argues that the “fiscal and administrative burdens” of additional bond hearings would strain the immigration adjudication system yet provide little additional value. But just as the “burdens” argument failed to convince us in Velasco Lopez, we are not convinced here. Certainly, having to do something instead of nothing imposes an administrative and fiscal burden of some kind. But the Department of Justice reported an average cost of detaining noncitizens, in 2019, of $88.19 per prisoner per day.26 Other estimates have placed the cost as high as $134 per day. See Velasco Lopez, 978 F.3d at 854 n.11 (citing Dep‘t of Homeland Security, U.S. Immigration and Customs Enforcement Budget Overview 14 (2018)). So, retaining and housing detainees imposes substantial costs as well. And, as far as we can tell, ICE may readily access the records of other law enforcement agencies for information bearing on its case for detention where necessary. See
For these reasons, we conclude that this third factor, too, favors Petitioners.
* * *
Thus, applying the Mathews factors, we conclude that due process entitled Black and G.M. to individualized bond hearings by an IJ once their detentions became unreasonably prolonged.
IV. In the hearing it required for Black, the district court properly placed the burden on the government to justify Black‘s continued detention by clear and convincing evidence and directed the IJ to consider Black‘s ability to pay and alternatives to detention.
In Black‘s case, in addition to ordering a bond hearing, the district court held that “[t]he burden at the bond hearing is on the Government to justify by clear and convincing evidence that Petitioner poses a risk of flight or a danger to the community,” and that “the IJ must ... consider Petitioner‘s ability to pay and the availability of alternative means of assuring his appearance.” Black, 2020 WL 4260994, at *9. The government challenges each of these rulings, and we now address them.27
In this, the Mathews factors again serve as our guide. Our analysis above of the first and third factors applies with equal force to these questions. We elaborate briefly on the second Mathews factor—the risk of erroneous deprivation and the probable value of additional procedural safeguards—in evaluating the specific procedures that will be required at Black‘s bond hearing, should one again be needed. Mathews, 424 U.S. at 335. We conclude that the district court properly directed the government to justify Black‘s continued detention by clear and convincing evidence and the IJ to consider both Black‘s ability to pay and any alternatives to detention.
A. The district court properly determined that the government had to justify Black‘s continued detention by clear and convincing evidence.
Where the government seeks to continue depriving a person of their liberty—especially when a district court has already found that deprivation to be unconstitutionally prolonged—we must require the government to bear the burden of proving the need for continued detention. Otherwise, “the risk of an erroneous deprivation” of a detainee‘s liberty interest would remain unacceptably high. See Mathews, 424 U.S. at 335.28 In so concluding, we find persuasive the First Circuit‘s reasoning in the context of
First, noncitizens—detained or not—are not entitled to counsel in removal proceedings. See
Second, as demonstrated by G.M.‘s case, detained noncitizens may have a much harder time preparing their cases because of difficulties in communicating with counsel and gathering evidence. See Moncrieffe v. Holder, 569 U.S. 184, 201 (2013) (noting that detained noncitizens have difficulty locating witnesses and collecting evidence); Velasco Lopez, 978 F.3d at 852-53 (describing how Velasco Lopez was prevented from appearing in criminal proceedings while detained by ICE). Further, like G.M., most noncitizens appearing in immigration proceedings lack English proficiency and require an interpreter, making preparation of their cases more difficult while in detention—with or without a lawyer.32
Finally, as the First Circuit observed, “proving a negative (especially a lack of danger) can often be more difficult than proving a cause for concern.” Hernandez-Lara, 10 F.4th at 31 (citing Elkins v. United States, 364 U.S. 206, 218 (1960)). Requiring that detainees like Black prove that they are not a danger and not a flight risk—after the government has enjoyed a presumption that detention is necessary—presents too great a risk of an erroneous deprivation of liberty after a detention that has already been unreasonably prolonged.
The government raises two arguments in opposition. First, it points to the provision in
We read
The government‘s second argument is that, under BIA precedent, even those noncitizens discretionarily detained under
We find this argument unpersuasive. It is rooted neither in the text of
As for what that justification could be, we again view Velasco Lopez as instructive, and we require only that the government justify continued detention by clear and convincing evidence. See 978 F.3d at 855-57. Where an individual‘s liberty is at stake, the Supreme Court has consistently used this evidentiary standard for continued detention. See, e.g., United States v. Comstock, 560 U.S. 126, 129-31 (2010) (instructing that under a federal statute permitting continued confinement of “mentally ill, sexually dangerous federal prisoner[s]
B. The district court properly required the IJ to consider Black‘s ability to pay and alternatives to detention in setting a bond amount.
The district court in Black‘s case also properly required the IJ to consider Black‘s ability to pay and alternatives to detention when setting any bond amount. Once again, we are guided principally by our Mathews analysis. The “risk of an erroneous deprivation” of the noncitizen‘s liberty if alternatives to detention and ability to pay are not considered at the ordered bond hearing is the focus of our concern. See Mathews, 424 U.S. at 335. Our analysis is informed by the government‘s legitimate interests in protecting the public and in ensuring that noncitizens appear for their removal proceedings, and by the caution that any detention incidental to such interests must “bear[] [a] reasonable relation to” those interests. Zadvydas, 533 U.S. at 690 (internal quotation marks omitted) (second alteration by Zadvydas Court) (quoting Jackson v. Indiana, 406 U.S. 715, 738 (1972)).
As an initial matter, a bond amount would be at issue only once the IJ has determined that the noncitizen does not pose a danger to the community. See Carlson v. Landon, 342 U.S. 524, 539-42 (1952) (finding no due process violation where there is cause to believe noncitizen‘s release would pose a safety risk); Matter of Guerra, 24 I. & N. Dec. at 38 (“An alien who presents a danger to persons or property should not be released during the pendency of removal proceedings.“). At that point, refusing to consider ability to pay and alternative means of assuring appearance creates a serious risk that the noncitizen will erroneously be deprived of the right to liberty purely for financial reasons. Cf. Bearden v. Georgia, 461 U.S. 660, 672-73 (1983) (holding that revocation of probation for failure to pay fines, without first considering ability to pay or alternatives to imprisonment, “would be contrary to the fundamental fairness required by the Fourteenth Amendment“).33
The government resists, arguing that “the district court‘s unqualified requirement that the immigration judge consider alternatives to detention and Black‘s ability to pay a bond improperly obligated the immigration judge to consider those factors notwithstanding a potential finding that Black ... posed a danger to the community.” Black Gov‘t Br. at 38-39. We do not read the district court‘s order in that way: it required only that “the IJ ... consider Petitioner‘s ability to pay and the availability of alternative means of assuring his appearance.” Black, 2020 WL 4260994, at *9 (emphasis added). The district court said nothing about considering ability to pay and alternative means of assuring appearance despite a finding that the noncitizen is a danger to the community. But to the extent the district court‘s order might be read as the government suggests, we stress that a showing of dangerousness by clear and convincing evidence would foreclose any possibility of bond. The IJ would then have no reason to consider financial circumstances or alternatives to detention.
The government next submits that ordering consideration of these factors interferes with the “‘broad discretion‘” to be afforded an IJ in determining a noncitizen‘s eligibility for release on bond. Black Gov‘t Br. at 39 (quoting Matter of Guerra, 24 I. & N. Dec. at 40). An IJ, it says, may consider financial circumstances and alternatives to detention, but has discretion to consider many different factors and “may choose to give greater weight to one factor over others, as long as the decision is reasonable.” Id. (quoting Matter of Guerra, 24 I. & N. Dec. at 40). We agree, and we do not read the district court‘s order as saying otherwise. The IJ does indeed have broad discretion in setting terms and can exercise that discretion by considering a multitude of relevant factors. Requiring that two of those factors be alternatives to detention and the noncitizen‘s ability to pay does nothing to constrain its discretion: the IJ is free to give as much or as little weight to these factors as appropriate, as long as some weight is given, and “as long as the decision is reasonable.” Matter of Guerra, 24 I. & N. Dec. at 40.
CONCLUSION
For the foregoing reasons, we conclude that the Fifth Amendment‘s guarantee of due process precludes a noncitizen‘s unreasonably prolonged detention under
We therefore AFFIRM the judgment of the district court in No. 20-3224, and we REVERSE the judgment of the district court in No. 22-70.
Notes
The Attorney General shall take into custody any alien who-
- (A) is inadmissible by reason of having committed any offense covered in section 1182(a)(2) of this title,
- (B) is deportable by reason of having committed any offense covered in section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title,
- (C) is deportable under section 1227(a)(2)(A)(i) of this title on the basis of an offense for which the alien has been sentenced to a term of imprisonment of at least 1 year, or
- (D) is inadmissible under section 1182(a)(3)(B) of this title or deportable under section 1227(a)(4)(B) of this title,
when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense.
On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States. Except as provided in subsection (c) and pending such decision, the Attorney General-
- (1) may continue to detain the arrested alien; and
- (2) may release the alien on-
- (A) bond of at least $1,500 with security approved by, and containing conditions prescribed by, the Attorney General; or
- (B) conditional parole; but
(3) may not provide the alien with work authorization (including an “employment authorized” endorsement or other appropriate work permit), unless the alien is lawfully admitted for permanent residence or otherwise would (without regard to removal proceedings) be provided such authorization.
The Fifth Circuit, in an unpublished opinion, also rejected a noncitizen‘s constitutional challenge to his continued detention under section 1226(c). In doing so, it focused instead on the statutory text, which as discussed above allows release in only extremely limited circumstances.
Wekesa v. United States Att‘y, No. 22-10260, 2022 WL 17175818, at *1 (5th Cir. Nov. 22, 2022). One panel member wrote in dissent that he “would instead hold that Wekesa‘s prolonged detention without a bond hearing implicates due process protections and must be analyzed further.” Id. at *2 (Dennis, J., dissenting).