Maxi Dinga SOPO, Petitioner-Appellant, v. U.S. ATTORNEY GENERAL, Secretary, U.S. Department of Homeland Security, Ice Field Office Director, Atlanta Region, Stewart DC Warden, Respondents-Appellees.
No. 14-11421
United States Court of Appeals, Eleventh Circuit.
June 15, 2016
825 F.3d 1199
Michael K.T. Tan, Judy Rabinovitz, American Civil Liberties Union of New York State (NYCLU), New York, NY, for American Civil Liberties Union, Amicus Curiae.
Eunice Hyunhye Cho, Southern Poverty Law Center, Atlanta, GA, Rebecca Sharpless, University of Miami School of Law, Coral Gables, FL, for Alabama Coalition for Immigrant Justice, et al., Amici Curiae.
Rebecca Sharpless, University of Miami School of Law, Coral Gables, FL, for 31 Social Science Researchers and Professors, et al., Amici Curiae.
Before HULL and JILL PRYOR, Circuit Judges, and CONWAY,* District Judge.
HULL, Circuit Judge:
From 2004 to 2010, Maxi Dinga Sopo resided lawfully in the United States as an asylee from Cameroon. In 2010, he pled guilty to bank fraud and became removable as an aggravated felon. After Sopo completed his criminal sentence, U.S. Immigration and Customs Enforcement (“ICE“) took custody of him. Since February 2, 2012, Sopo has been in ICE detention, pursuant to
In 2013, Sopo filed a
In this appeal, we address an issue of first impression in this circuit. During their removal proceedings, are criminal aliens, like Sopo, detained under
All other circuits reaching this issue have concluded that the mandatory civil detention of criminal aliens under
Our analysis of this issue proceeds in nine parts. We recount Sopo‘s: (1) personal background; (2) protracted removal proceedings; and (3) federal habeas case. We then discuss (4) the federal statutory framework governing the civil detention of criminal aliens and (5) Supreme Court decisions analyzing the constitutionality of immigration detention statutes, which leads us to conclude, as a matter of constitutional avoidance, that
I. BACKGROUND
Sopo‘s immigration case is not before us and remains pending in separate proceedings now before the BIA. Sopo has been before the immigration judge (“IJ“) and BIA three times, and his case is once again before the BIA for a fourth round of review. In this part and the next, we describe Sopo‘s removal proceedings and criminal conviction, as they provide the backdrop for his mandatory detention that has lasted four years.
A. Asylum Application and Interview
Sopo is a native and citizen of Cameroon and a member of the Bali tribe. In May 2003, Sopo fled from his home country to the United States. After he arrived in the United States, Sopo applied for asylum based on his political affiliations. On August 23, 2004, the United States Citizenship and Immigration Services (“USCIS“) granted Sopo‘s application for asylum.
In his application and the asylum interview, Sopo explained that he had held leadership positions in the Bali Catholic Youth Association (“BCYA“) and the Southern Cameroons National Council (“SCNC“). In 2000, Sopo was arrested during an SCNC event. The police took his clothes and starved and beat him. At least twice a day, the police hung him upside-down from a metal pole, strapped electrical nodes to his feet, and shocked him with increasing voltage.
After about a week of imprisonment, Sopo “went into shock.” The police abandoned him at a hospital, where he stayed for two weeks. Later in 2000, the police arrested Sopo‘s mother, and starved, beat, and raped her in an attempt to get information about Sopo. She got out of prison by signing a pledge to give Sopo to the authorities.
In March 2002, Sopo was arrested during a BCYA meeting. The police beat him, caned him, made him drink his own urine, and told him he would never leave prison until he renounced his SCNC and BCYA activities. After about a week, Sopo became ill and was released to go to the hospital. In September 2002, the police raided Sopo‘s house, arrested him again, and kept him in prison for two months. He faced more beatings during that stay.
In January 2003, Sopo obtained an American visa under his real name, but police officers at the airport refused to let him leave Cameroon because there were outstanding warrants against him. He then obtained a visa under a false name and left Cameroon in May 2003. After obtaining asylum in 2004, Sopo settled in Seattle, Washington, with his wife, who left Cameroon with him, and their daughter, who was born in the United States shortly after their arrival.
B. Criminal Charges
In March 2008, Sopo began assisting people in obtaining loans to buy used cars. Sopo planned for the loan applicants to use the cars in connection with his business. In order to obtain the loans, Sopo instructed the applicants to include false information about their employment and salary. At least four people obtained car loans at Sopo‘s instruction.
Sopo served some portion of his federal sentence at a prison in Georgia. On January 17, 2012, ICE served him with a notice to appear (“NTA“), alleging that his bank-fraud convictions were aggravated felonies that made him removable under
II. REMOVAL PROCEEDINGS
A. Initial Hearings and December 19, 2012 IJ Decision
On February 2, 2012, ICE transferred Sopo to an immigration detention facility in Georgia. At a February 13, 2012 master calendar hearing, Sopo appeared pro se, and the IJ adjourned to give him more time to obtain legal counsel, as well as to allow the government to file an amended NTA.
At the February 27, 2012 master calendar hearing, Sopo informed the IJ that he did not receive the government‘s amended NTA in time to discuss the charges with an attorney. The IJ granted him a second continuance.
At the March 14, 2012 master calendar hearing, Sopo, pro se, conceded the charge of removability. Sopo announced his intent to apply for withholding of removal and relief under the United Nations Convention Against Torture (“CAT“).1 The IJ provided him with the necessary application forms.
During the April 16, 2012 hearing, Sopo stated that he instead wanted to resubmit his 2004 asylum application to serve as his request for withholding of removal and CAT relief. Sopo stated that he did not have a copy of the prior application because the government had not yet responded to his Freedom of Information Act (“FOIA“) request. The IJ set a deadline for Sopo to file a copy of the prior asylum application, and also ordered the parties to brief whether Sopo was eligible for a waiver under
At the May 16, 2012 hearing, Sopo filed an application for a
At a June 21, 2012 hearing, Sopo was still without his FOIA documents, and the government refused to file a copy of Sopo‘s previous asylum application to expedite the case. The IJ ordered Sopo to file a completed asylum application by June 28, 2012—regardless of whether he received the FOIA documents.
At the June 28, 2012 hearing, Sopo stated that he would not file a new asylum application because the IJ did not have the authority to make him fill out a second form when the first one was in his file. Consistent with prior warnings, the IJ responded by deeming Sopo‘s claims to withholding of removal and CAT relief abandoned, and scheduled a hearing on Sopo‘s application for a
On November 2, 2012, the IJ held a merits hearing on Sopo‘s application for a
On December 19, 2012, the IJ issued a written decision. The IJ indicated that, despite the previous IJ‘s abandonment ruling, she had decided to consider Sopo‘s 2004 asylum application as a request for withholding of removal and CAT relief. The IJ found that Sopo was a credible witness, but denied withholding of removal, CAT relief, and adjustment of status with a
B. First Appeal to BIA and October 23, 2013 Remand
Sopo appealed to the BIA. In an October 23, 2013 opinion, the BIA noted, as a threshold matter, that the IJ had failed to terminate Sopo‘s asylee status. The BIA ordered a remand and instructed the IJ to determine, in the first instance, whether Sopo‘s asylee status should be terminated. The BIA advised that, if the IJ terminated Sopo‘s asylee status, the IJ would also need to re-examine CAT relief and could choose to “revisit her findings regarding whether the respondent merits a waiver under section 209 as a matter of discretion, taking into account her updated findings” on CAT relief. The BIA affirmed the denial of withholding of removal.2
C. Hearings on Remand and March 5, 2014 IJ Decision
At the December 5, 2013 hearing on remand, the IJ ordered briefing on whether Sopo‘s asylee status should be revoked.
During a January 9, 2014 hearing, the government filed (1) the sworn statement of Nicky Church of the United Kingdom (“UK“) Border Agency of the Home Office; and (2) a motion alleging that Sopo was in the UK at points in 2000 and 2002, which contradicted key statements in Sopo‘s original asylum application. In her statement, Church indicated that Sopo‘s fingerprints matched the fingerprints of a Cameroonian national who was arrested in the UK at various times in 2000 and 2002.
At the January 16, 2014 hearing, Sopo submitted evidence, and the government filed a formal USCIS notice of intent to terminate Sopo‘s asylee status. At the January 23, 2014 hearing, Sopo presented additional evidence. On February 10, 2014, the IJ held a merits hearing.
On March 5, 2014, the IJ issued a written decision, which terminated Sopo‘s asylee status, denied CAT relief, and reaffirm
D. Second Appeal to BIA and August 22, 2014 Remand
Sopo appealed the IJ‘s decision to the BIA a second time. Sopo argued that the IJ failed to rule on the admissibility of the Church statement before adding it to the record and that a remand was necessary to avoid a due process violation.
On August 22, 2014, the BIA remanded Sopo‘s case to the IJ. It held that the IJ properly terminated Sopo‘s asylee status, but erred in relying on the Church statement to deny CAT relief. The BIA stated that Sopo should have been afforded an opportunity at his hearings to examine and object to the government‘s evidence.
E. Hearings on Remand and February 25, 2015 IJ Decision
On October 8, 2014, the parties appeared on remand in a different immigration court. The presiding IJ determined that the case should be transferred back to the IJ who entered the decision that the BIA reviewed. On November 6, 2014, the parties appeared for calendaring before the proper IJ.
At a December 1, 2014 hearing, Sopo filed a motion requesting to cross-examine Church and, alternatively, contended that her signed statement was inadmissible and fraudulent. At a January 13, 2015 merits hearing, Sopo explained why the Church statement was fabricated and premised on forged documents.
On February 25, 2015, the IJ issued a written decision denying CAT relief for the third time. The IJ determined that the Church statement was admissible, but gave it little weight because the government failed to carry its evidentiary burden of showing why Church was unavailable to testify at the merits hearing. As a result, the IJ rescinded her previous determination and concluded that Sopo was credible. Nevertheless, the IJ found that Sopo had still failed to show that he was entitled to CAT relief.
F. Third Appeal to BIA and August 3, 2015 Affirmance
Sopo‘s third appeal to the BIA argued that the IJ erred in (1) denying his CAT claim and (2) failing to reconsider the denial of his application for a
In an August 3, 2015 order, the BIA affirmed Sopo‘s order of removal. The BIA determined that: (1) Sopo had not shown that he qualified for CAT relief; and (2) the
G. Petition for Review Before this Court
On August 10, 2015, in this Court, Sopo filed a petition for review and a motion for stay of removal. On September 14, 2015, over the government‘s opposition, this Court granted Sopo‘s motion for a stay of removal.
Partway through briefing on the petition for review, the government filed a motion to remand Sopo‘s case to the BIA. The government conceded that the BIA had applied an erroneous legal standard in affirming the IJ‘s denial of CAT relief, and
On February 2, 2016, this Court granted the government‘s motion, vacated the BIA‘s order, and remanded the case to the BIA for further proceedings on Sopo‘s applications for CAT relief and a
III. SECTION 2241 PETITION
In May 2013, against the backdrop of his ongoing administrative removal proceedings, Sopo filed a pro se
The government filed a motion to dismiss, claiming that Sopo‘s continued detention without a bond hearing was not unlawful because
A magistrate judge issued a report and recommendation (“R&R“), recommending dismissal of the
The district court overruled Sopo‘s objections to the R&R, adopted the magistrate judge‘s R&R, and dismissed Sopo‘s
IV. STATUTORY FRAMEWORK
We first describe the relevant statutes in
Understanding these statutes is key to reading the two major Supreme Court cases about immigration detention and to our deciding this case.
A. Section 1226(a) and Non-Criminal Aliens During Removal Proceedings
The Attorney General has the discretion to detain a non-criminal alien “pending a decision on whether the alien is to be removed from the United States.”
In connection with
B. Section 1226(c) and Criminal Aliens During Removal Proceedings
Although the Attorney General has broad discretion to release non-criminal aliens during their removal proceedings, the INA limits the Attorney General‘s discretion in the case of criminal aliens. In relevant part,
Under
Because the Supreme Court‘s framework for analyzing the constitutionality of immigration detention statutes turns on subtle distinctions between the types of detention at play, we examine
C. Section 1231 and the 90-Day Removal Period
- (i) The date the order of removal becomes administratively final.
- (ii) If the removal order is judicially reviewed and if a court orders a stay of the removal of the alien, the date of the court‘s final order.
- (iii) If the alien is detained or confined (except under an immigration pro
cess), the date the alien is released from detention or confinement.
During the 90-day “removal period,” the statute mandates that “the Attorney General shall detain the alien.”
Notably, if the Attorney General is unable to remove an alien within the 90-day removal period,
However, if the Attorney General is unable to remove a criminal alien within the 90-day removal period, she may continue detaining the criminal alien as a matter of discretion. See
In sum, the statutory framework in
V. DISCUSSION
A. Supreme Court Decisions
In Zadvydas v. Davis, 533 U.S. 678, 688-89, 121 S.Ct. 2491, 2498, 150 L.Ed.2d 653 (2001), the Supreme Court addressed
This case arose after the government failed to remove petitioner Zadvydas, a criminal alien, during that 90-day removal window. Id. at 684, 121 S.Ct. at 2496. Zadvydas was born to Lithuanian parents in a displaced persons camp in Germany, and neither Germany nor Lithuania regarded him as a citizen. Id. at 684, 121 S.Ct. at 2495-96. Both countries refused to
The government maintained that
The Supreme Court stated that immigration proceedings and detention “are civil, not criminal, and ... nonpunitive in purpose and effect.” See id. at 690, 121 S.Ct. at 2499. Under the Due Process Clause, civil detention is permissible only when there is a “special justification” that “outweighs the individual‘s constitutionally protected interest in avoiding physical restraint.” Id. (quotation marks omitted). The Supreme Court could discern no special justification for indefinitely holding criminal aliens in civil detention who were not especially dangerous, and who had little chance of actually being removed. Id. at 690-91, 121 S.Ct. at 2499.
The Supreme Court reiterated the rule that “[i]t is a cardinal principle of statutory interpretation ... that when an Act of Congress raises a serious doubt as to its constitutionality, this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.”6 Id. at 689, 121 S.Ct. at 2498 (quotation marks omitted). As “[a] statute permitting indefinite detention of an alien would raise a serious constitutional problem” under the Fifth Amendment‘s Due Process Clause, the Supreme Court determined that Congress must have included an implicit temporal limitation in
The Supreme Court further instructed that the reasonableness of the length of a criminal alien‘s detention should be measured “primarily in terms of the statute‘s basic purpose.” Id. at 699, 121 S.Ct. at 2504. It provided a bright-line rule for administrative ease, and held that, after six months in post-removal-order status, if the criminal alien provides “good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the Government must respond with evidence sufficient to rebut that showing.” Id. at 701, 121 S.Ct. at 2505. If the government does not meet its burden, the criminal alien must be released from confinement. See id.
Two years after Zadvydas, the Supreme Court took up Demore, which examined the mandatory detention statute at issue here—
First, the Supreme Court emphasized that the purpose of the mandatory detention in
As the Immigration and Naturalization Service (“INS“) was unable to identify, much less remove, criminal aliens, Congress provided for mandatory detention. Id. at 518, 521, 123 S.Ct. at 1715-16. The Supreme Court observed that, unlike the detention of the petitioner in Zadvydas (where it was impossible to effectuate
Second, the Supreme Court stressed the length of the detention in distinguishing between
The Supreme Court concluded: “In sum, the detention at stake under
Based on these critical observations, the Supreme Court held that “Congress ... may require that persons ... be detained for the brief period necessary for their removal proceedings,” without the opportunity to argue for bond.7 See id. at 513, 123 S.Ct. at 1712 (emphasis added).
While Demore upheld
B. Implicit Temporal Limitation in § 1226(c)
Because Demore upheld the constitutionality of
Reading Demore and Zadvydas together, and as a matter of constitutional avoidance, five other circuits have rejected the government‘s position and construed
In so holding, these circuits have acknowledged the realities of immigration detention and how the entire process of removal proceedings has lengthened. Prior to Demore, in 2001, the average time that an alien was detained while awaiting a final order of removal or release, under any statutory detention provision, was 39 days. Lora, 804 F.3d at 605. By 2003, the year of Demore, criminal aliens specifically were spending an average of 47 days in detention. Id. While the government has not provided statistics in recent years, academic researchers estimate that in 2012 the average amount of time an alien with a criminal conviction spent in removal proceedings (and likely in detention) was 455 days. See Mark Noferi, Cascading Constitutional Deprivation: The Right to Appointed Counsel for Mandatorily Detained Immigrants Pending Removal Proceedings, 18 Mich. J. Race & L. 63, 81 (2012) (relying on data from Syracuse University‘s Transactional Records Access Clearinghouse). This represents a dramatic increase since the Supreme Court decided Demore a decade earlier and since Congress enacted
These other circuits have concluded that Congress constitutionally can require mandatory detention during a criminal alien‘s removal proceedings as a general rule, but
Sopo‘s case illustrates how protracted some removal proceedings have become in recent years due, in part, to the complexity of immigration issues. ICE‘s continuous mandatory detention of Sopo without a bond hearing has lasted for four years, including through two BIA remands to the IJ, and patently raises serious constitutional concerns. Therefore, as a mat
We now turn to the more challenging issue of discerning the trigger point at which a detained criminal alien‘s removal proceedings and concomitant mandatory detention become unreasonably prolonged, triggering the need for an individualized bond hearing.
VI. TRIGGER POINT
A. Approaches of Other Circuits
Courts throughout the country have adopted one of two general approaches for evaluating when a criminal alien‘s due process rights are violated by mandatory civil detention without a bond hearing under
The Second and Ninth Circuits use the bright-line approach. The Ninth Circuit requires that, at the six-month mark, the government shall provide all criminal aliens detained under
At the bond hearing stage, the Ninth Circuit requires the government to “prove by clear and convincing evidence that [a criminal] alien is a flight risk or a danger to the community to justify denial of bond.” Rodriguez, 804 F.3d at 1087 (quotation marks omitted). The Second Circuit requires the government, at the bond hearing before an IJ, to carry the burden of proof to establish by clear and convincing evidence that the criminal alien is a flight risk or a danger to the community. Lora, 804 F.3d at 616.
For the case-by-case approach, we look to the First, Third, and Sixth Circuits, which have rejected a bright-line rule and held that whether detention of a criminal alien has become unreasonable depends on the factual circumstances of the case. Those courts have held that, because each criminal alien‘s removal proceedings raises a unique set of facts and issues, making the length of the proceedings unpredictable, it would be unwise to set a universal or bright-line timeline for when mandatory detention shifts from being reasonable to unreasonable. See Reid, 819 F.3d at 496 (rejecting a bright-line six-month rule on multiple grounds, including the fact that the Zadvydas six-month period “was predicated on there being no foreseeable hope of removal,” the detention was “potentially permanent,” and “there were simply no metrics by which to judge just how much longer towards eternity could be considered ‘reasonable,‘” warranting a bright-line rule (quotation marks omitted)); Diop, 656 F.3d at 232-33 (noting that the inquiry into whether detention has become unreasonable “will necessarily be a fact-dependent inquiry that will vary depending on
These three circuit courts instruct that a criminal alien may file a
Under this configuration, if the district court grants the criminal alien‘s
The First Circuit‘s Reid decision contains the most extensive discussion of why an individualized case-by-case approach adheres more closely to the relevant legal precedent. The First Circuit reasoned that, “while the Second and Ninth Circuits claim to have read an implicit ‘reasonableness limitation’ into
The First Circuit concluded that, “[t]aken together, Zadvydas, Demore, and the inherent nature of the ‘reasonableness’ inquiry weigh heavily against adopting a six-month presumption of unreasonableness.” Id. It added that the practical advantages of the bright-line approach are “persuasive justifications for legislative or administrative intervention, not judicial decree.” Id. at 498.
B. Adoption of the Case-by-Case Approach
We join the First, Third, and Sixth Circuits and adopt the case-by-case approach. To begin with, “[r]easonableness, by its very nature, is a fact-dependent inquiry requiring an assessment of all of the circumstances of any given case.” Diop, 656 F.3d at 234. A bright-line approach strips away the essence of a reasonableness standard.
For example, Justice Kennedy‘s concurrence in Demore examined the factual specifics of the case at hand. It did not at
Further,
In opposing a bright-line rule, the government also points out that, were we to impose a strict cutoff, a criminal alien could deliberately cause months of delays in the removal proceedings to obtain a bond hearing and then abscond and avoid removal altogether. Aliens in post-removal-period detention, on the other hand, do not have the opportunity to engage in such gamesmanship.
In addition, the complex course of events during removal proceedings is markedly different from the limited nature of what must happen in the 90-day removal period. To implement the last discrete step of removal to another country, the government follows roughly the same process for each alien. It gathers travel documents and arranges for transportation. The government controls that removal process. The detained alien cannot go back home or anywhere without the government doing its job. The
But even then, as the First Circuit emphasized, the Supreme Court in Zadvydas did not actually adopt a six-month cutoff. As to this point, the First Circuit explained:
The [Supreme] Court pointed out that not every alien to be removed would be released after six months. To the contrary, an alien may be held in confinement until it has been determined that there is no significant likelihood of removal in the reasonably foreseeable future. If six months had passed and the alien had demonstrated no significant likelihood of removal in the reasonably foreseeable future, then the government was required to respond with evidence sufficient to rebut that showing. If the government could demonstrate a reasonably foreseeable termination point, the detention continued.
Reid, 819 F.3d at 496 (citations omitted) (quotation marks omitted).
In contrast to the 90-day removal period, removal proceedings involve many more exigencies and the conduct of the criminal alien can equally affect the duration of that alien‘s removal proceedings. Even though criminal aliens have aggravated felonies making them promptly removable, criminal aliens may apply for different forms of purely discretionary relief. Some ask for multiple continuances, some choose to file frivolous appeals while others do not, and each IJ has a docket with different demands. There is little consistency in the pace of immigration proceedings from case to case. This difference necessitates a different approach to detention of criminal aliens during removal proceedings—one flexible enough to account for the circumstances of each case.
This brings us to the nature of the reasonableness inquiry itself.
C. Reasonableness Factors for the District Courts to Consider in § 2241 Cases
As instructed by Zadvydas and Demore, we begin with the core principle that “the reasonableness of any given detention pursuant to
First, one critical factor is the amount of time that the criminal alien has been in detention without a bond hearing. Given that Congress and the Supreme Court believed that most removal proceedings would be completed within five months, and the Supreme Court provided for a six-month rule in Zadvydas, “the constitutional case for continued detention without inquiry into its necessity becomes more and more suspect as detention continues past those thresholds.” See id. (emphasis added). Accordingly, there is little chance that a criminal alien‘s detention is unreasonable until at least the six-month mark.
Looking to the outer limit of reasonableness, we suggest that a criminal alien‘s detention without a bond hearing may often become unreasonable by the one-year mark, depending on the facts of the case. See Chavez-Alvarez v. Warden York Cty. Prison, 783 F.3d 469, 478 (3d Cir. 2015) (“[B]eginning sometime after the six-month timeframe considered by Demore, and certainly by the time [the alien] had been detained for one year, the burdens to [the alien‘s] liberties outweighed any justification for ... detaining] him without bond to further the goals of the statute.“). The need for a bond inquiry is likely to arise in the six-month to one-year window, at which time a court must determine whether the purposes of the statute—preventing flight and criminal acts—are being fulfilled, and whether the government is incarcerating the alien for reasons other than risk of flight or dangerousness. See Demore, 538 U.S. at 532-33, 123 S.Ct. at 1722 (Kennedy, J., concur-
A second factor in the reasonableness evaluation is why the removal proceedings have become protracted. Courts should consider whether the government or the criminal alien have failed to participate actively in the removal proceedings or sought continuances and filing extensions that delayed the case‘s progress. See id. at 532, 123 S.Ct. at 1722 (Kennedy, J., concurring); Diop, 656 F.3d at 234; Ly, 351 F.3d at 272. Errors by the immigration court or the BIA that cause unnecessary delay are also relevant. See Leslie v. Att‘y Gen. of the U.S., 678 F.3d 265, 269 (3d Cir. 2012); Diop, 656 F.3d at 234; Ly, 351 F.3d at 272; cf. Demore, 538 U.S. at 532, 123 S.Ct. at 1722 (Kennedy, J., concurring).
We are not saying that aliens should be punished for pursuing avenues of relief and appeals. See Ly, 351 F.3d at 272 (“[A]ppeals and petitions for relief are to be expected as a natural part of the process. An alien who would not normally be subject to indefinite detention cannot be so detained merely because he seeks to explore avenues of relief that the law makes available to him.“). However, the district court may examine the record to determine whether the alien sought repeated or unnecessary continuances, or filed frivolous claims and appeals. See Diop, 656 F.3d at 234 (“[T]he reasonableness determination must take into account a given individual detainee‘s need for more or less time.... “). Evidence that the alien acted in bad faith or sought to deliberately slow the proceedings in hopes of obtaining release cuts against the alien. See Chavez-Alvarez, 783 F.3d at 476; Ly, 351 F.3d at 272.
Courts conducting this reasonableness analysis have considered three more factors, including: (3) whether it will be possible to remove the criminal alien after there is a final order of removal; (4) whether the alien‘s civil immigration detention exceeds the time the alien spent in prison for the crime that rendered him removable; and (5) whether the facility for the civil immigration detention is meaningfully different from a penal institution for criminal detention. See Chavez-Alvarez, 783 F.3d at 478; Ly, 351 F.3d at 271. The government has ready access to this type of information.
Similarly, the First Circuit has listed these as factors a court might examine, inter alia: “the total length of the detention; the foreseeability of proceedings concluding in the near future (or the likely duration of future detention); the period of the detention compared to the criminal sentence; the promptness (or delay) of the immigration authorities or the detainee; and the likelihood that the proceedings will culminate in a final removal order.” Reid, 819 F.3d at 500. We agree with the First Circuit that “[t]here may be other factors that bear on the reasonableness of categorical detention, but we need not strain to develop an exhaustive taxonomy here. We note these factors only to help resolve the case before us and to provide guideposts for other courts conducting such a reasonableness review.” Id. at 501.
Our list of factors is not exhaustive. The reasonableness inquiry is necessarily fact intensive, and the factors that should be considered will vary depending on the individual circumstances present in each case. See Diop, 656 F.3d at 232-33 (“At a certain point, continued detention becomes unreasonable.... This will necessarily be a fact-dependent inquiry that will vary depending on individual circumstances.“).
In sum,
VII. BOND REGULATIONS
When detained criminal aliens become entitled to a bond hearing, the agency shall conduct a bond inquiry under the procedures outlined in
First, as we indicate above, subsection (c) of
Second, our reluctance to formulate from scratch the bond procedures to be used, and our decision to instead defer to the agency‘s preexisting regulations, comports with basic principles of administrative law. Courts afford agencies considerable deference in their policy realms and do not rewrite or create regulations for them to follow. See Bureau of Alcohol, Tobacco & Firearms v. Fed. Labor Relations Auth., 464 U.S. 89, 98 n.8, 104 S.Ct. 439, 444 n.8, 78 L.Ed.2d 195 (1983) (“[A]n agency acting within its authority to make policy choices consistent with the congressional mandate should receive considerable deference from courts.... “); Defs. of Wildlife v. U.S. Dep‘t of the Navy, 733 F.3d 1106, 1115 (11th Cir. 2013) (“The court‘s role is to ensure that the agency came to a rational conclusion, not to conduct its own investigation and substitute its own judgment for ‘the administrative agency‘s decision.” (quotation marks omitted)). DHS has already determined how to fairly and efficiently administer bond hearings, and we do not disturb its reasoned judgment.10
Third, while Sopo asks us to shift the burden of proof to the government, that would give criminal aliens a benefit that non-criminal aliens do not have. See Reid v. Donelan, 22 F.Supp.3d 84, 92-93 (D. Mass. 2014) (explaining why the bond regulations that apply to non-criminal aliens should apply to criminal aliens once they become entitled to a bond hearing), aff‘d in part and vacated in part, 819 F.3d 486 (1st Cir. 2016).11 We recognize that, by the time a criminal alien becomes eligible for a bond hearing, he has already experienced a lengthy detention. That detention, however, occurs because Congress enacted the mandatory detention statute in
Accordingly, the agency shall follow
The IJs and the BIA already have experience applying these regulations and have standards to guide them in implementing the regulations. See, e.g., In re Guerra, 24 I. & N. Dec. 37, 40 (BIA 2006) (announcing nine factors for IJs to evaluate when determining if an alien poses a danger or is likely to abscond). We are confident that criminal aliens will have an adequate opportunity to obtain release under the existing regulations that apply to non-criminal aliens.
Having settled on the reasonableness standard and the logistics of bond, we turn back to Sopo and his
VIII. SOPO‘S DETENTION
Application of the above reasonableness factors to Sopo‘s case is straightforward. As to the first factor, Sopo has been in continuous detention for four years without a bond hearing, at least three-and-a-half of which have been under
As to the second factor—cause of delay—the government did not respond to Sopo‘s FOIA request for months. The
While Sopo refused to file a new asylum application form in 2012, insisted on retrieval of his 2004 form, and requested continuances, the delays he caused were negligible compared to the amount of time it took for his case to move back and forth between the IJ and the BIA three times. Importantly too, Sopo‘s civil immigration detention is in a prison-like facility and is now longer than his prison time for bank fraud.
“[T]here can be no question that [Sopo‘s] detention ... without further inquiry into whether it was necessary to ensure his appearance at the removal proceedings or to prevent a risk of danger to the community, [is] unreasonable and, therefore, a violation of the Due Process Clause.” Diop, 656 F.3d at 234-35. Accordingly, we order the government to grant Sopo an individualized bond inquiry within ten days of the filing date of this opinion.
IX. CONCLUSION
In conclusion, we vacate the district court‘s order denying Sopo‘s
VACATED AND REMANDED WITH INSTRUCTIONS.
JILL PRYOR, Circuit Judge, concurring in part and dissenting in part:
I concur in the majority‘s decision to vacate the district court‘s order denying Maxi Dinga Sopo‘s
I. A Criminal Alien‘s Detention under § 1226(c) Becomes Unreasonably Prolonged after Six Months.
A. Background on the Constitutionality of Criminal Alien Detention
The Supreme Court has yet to address directly the constitutionality of unreasonably prolonged detention under
Applying the doctrine of constitutional avoidance, the Supreme Court read
After Zadvydas, in Demore v. Kim the Supreme Court considered a facial challenge to the constitutionality of the statute at issue here, § 1226(c). 538 U.S. 510, 514 (2003). The Court ruled that Congress could, consistent with due process, require the detention of a criminal alien during her removal proceedings without first providing a bond hearing. Id. at 513. Critically, however, the Court held that the government could only “constitutionally detain deportable aliens during the limited period necessary for their removal proceedings.” Id. at 526 (emphasis added). It did not address whether Congress could authorize prolonged detention of aliens beyond the period reasonably necessary to complete their removal proceedings.
Justice Kennedy provided the fifth vote for the majority in Demore. His concurring opinion clarified his position that, although the Due Process Clause allows detention without a bond hearing under
Outside of Justice Kennedy‘s concurrence in Demore, the Supreme Court has never addressed whether under
Under either approach, once the duration of an alien‘s detention is determined to be unreasonable, the government must provide an opportunity for the alien to obtain release on bond, usually via an individualized bond hearing before an immigration judge. See, e.g., Lora, 804 F.3d at 616; Diop, 656 F.3d at 233. Significantly, the mere fact that the government has detained an alien for an unreasonable amount of time does not mean that the alien is entitled to release. See, e.g., Rodriguez v. Robbins, 804 F.3d 1060, 1077 (9th Cir. 2015), petition for cert. filed sub nom., Jennings v. Rodriguez, 84 USLW 3562 (U.S. Mar. 25, 2016) (No. 15-1204).). At that point, the government may continue to detain the alien if, after a hearing, it is determined that “detention is still necessary to fulfill [
The variance among circuits about how best to circumscribe constitutionally-problematic detention under
In the face of this disagreement among the circuits, the majority opinion adopts the case-by-case approach, as well as the various rationales of the First, Third, and Sixth Circuits for doing so. Thus, the majority opinion holds that a criminal alien may file a
After considering the majority opinion as well as the approaches and reasoning of other circuits, I disagree with the majority‘s adoption of the case-by-case approach and would instead follow the Second and Ninth Circuits in adopting the bright-line approach, which I conclude is the best method for analyzing prolonged detention of criminal aliens. To explain why, I will begin by discussing why I believe the bright-line approach is superior to the case-by-case approach. I will then address separately the First Circuit‘s concern that legal precedent compels the adoption of the case-by-case approach, even in the face of that approach‘s infirmities.
B. The Bright-Line Approach is Superior to the Case-by-Case Approach.
The case-by-case approach tasks courts with considering a variety of factors in deciding whether a criminal alien has been detained for an unreasonable length of time and thus is entitled to a bond hearing. In theory, the ability to take multiple factors into account when deciding whether an alien‘s detention has become unreasonably prolonged allows courts applying this approach to consider the unique exigencies and circumstances of each alien‘s case. In practice, however, this methodology—while versatile—is unlikely to result in predictable or consistent outcomes.
The Supreme Court recognized as much in the context of
Importantly, the risk that the case-by-case approach will result in unpredictable, inconsistent, or arbitrary outcomes itself raises serious due process concerns. “In its commonest form, substantive due process doctrine reflects the simple but far-reaching principle ... that government cannot be arbitrary.” Richard H. Fallon, Jr., Some Confusions About Due Process, Judicial Review, and Constitutional Remedies, 93 Colum. L. Rev. 309, 310 (1993); accord Wolff v. McDonnell, 418 U.S. 539, 558, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) (“The touchstone of due process is protection of the individual against arbitrary action of government.“). Indeed, to the extent that the case-by-case approach results in unpredictable or inconsistent outcomes, it could be regarded as “incompatible with the Rule of Law.” Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1179 (1989).
We should take these concerns particularly seriously because the arbitrary outcomes in these proceedings threaten to deprive
Although the majority opinion acknowledges these due process concerns, it says very little to assuage them, pushing them aside with the general assertion that “federal courts have the institutional competence to make fact-specific determinations, and they have great experience applying reasonableness standards.” Maj. Op. at 1217. I do not doubt of course the competence of courts to make fact-specific determinations or apply reasonableness standards in general. But I must acknowledge the mounting evidence demonstrating that, in the specific context of
The bright-line approach does not raise these due process concerns. Instead, it offers predictability in application and consistency in result that the case-by-case approach could never hope to achieve. After six months, an alien detained under
Significantly, the case-by-case approach provides no appreciable benefit to offset the inconsistency, unpredictability, and confusion it begets. The primary advantage of a case-by-case approach is—unsurprisingly—flexibility. But the bright-line approach provides comparable flexibility; it simply comes into play at a different stage of the process.4 Under the bright-
In fact, all of the factors the majority opinion instructs courts to consider when applying the case-by-case approach, as well as any other relevant facts and circumstances, could just as well be considered by an immigration judge deciding whether to release a
What‘s more, the majority opinion never adequately explains why flexibility is necessary in deciding the threshold question of whether an alien should receive a bond hearing. The majority advocates a flexible approach because removal proceedings are “complex” and “involve many ... exigencies.” Maj. Op. at 1216. While I do not quibble with the majority opinion‘s characterization of the removal process, it seems to me that where flexibility is truly required is in determining whether to release an alien on bond. The complexity of removal proceedings does not explain the necessity of flexibility in deciding the antecedent question of when a detainee becomes entitled to a bond hearing, particularly because the primary consequence of that decision would be the provision of such a hearing.5
The majority argues that a flexible approach to deciding when a bond hearing must be held is preferable because “were we to impose a strict cutoff, a criminal alien could deliberately cause months of delays in the removal proceedings to obtain a bond hearing and then abscond and avoid removal altogether.” Maj. Op. at 1216. But this concern conflates the question of whether an alien is entitled to a bond hearing with the question of whether that alien is entitled to release. Again, under the bright-line approach, an alien who deliberately delayed her removal proceedings
Plainly stated, the bright-line approach provides a clear rule of application regarding when
C. Legal Precedent Does Not Compel the Adoption of the Case-by-Case Approach.
The majority opinion adopts the case-by-case approach not only for the reasons discussed above, but also because the majority “agree[s] with the First Circuit that the [case-by-case approach] adheres more closely to legal precedent.” Maj. Op. at 1217. Like the Third and Sixth Circuits, the First Circuit applied the case-by-case approach to analyze the reasonability of a criminal alien‘s prolonged detention under
The First Circuit‘s analysis turned on a subtle parsing of the statutory purposes undergirding
As I read it, the First Circuit‘s opinion posited that a
According to the First Circuit, assessing whether the government may continue detaining an alien as a categorical matter requires conducting an individualized inquiry into the “reasonable presumptions and generic rules” upon which Congress relied in deciding that mandatory detention was necessary. Id. at 499 (internal quotation mark omitted). Courts evaluating the categorical nature of an alien‘s detention under
But even accepting the First Circuit‘s characterization of the reasonableness inquiry, I fail to see how existing precedent inexorably compels courts to adopt the case-by-case approach. The flaw in the First Circuit‘s reasoning is its assumption that the presumptions supporting Congress‘s categorical treatment of
To the contrary, the categorical nature of
Nor is the bright-line approach inconsistent with Demore, as the First Circuit implied. Id. While it is true that “[i]n Demore, the Supreme Court declined to state any specific time limit,” id., I do not infer from that omission that a bright-line rule would be inappropriate. The petitioner in Demore mounted a facial challenge to
The First Circuit also observed that “[t]he Demore Court ... briefly discussed facts specific to the detainee, such as his request for a continuance of his removal hearing” and inferred from this brief discussion that, given the opportunity, the Court would have adopted the case-by-case approach. Reid, 819 F.3d at 497. But the Supreme Court was not discussing those facts in the context of deciding whether the detainee‘s individual circumstances warranted a bond hearing. See Demore, 538 U.S. at 529-30. As I have already explained, the Supreme Court had no reason to pass on that issue because Demore concerned a facial challenge to the constitutionality of
Justice Kennedy‘s concurrence in Demore is also consistent with the bright-line approach. His concurring opinion noted that “[w]ere there to be an unreasonable delay ... in pursuing and completing deportation proceedings,” a criminal alien might be entitled to a bond hearing. Id. at 532, 123 S.Ct. 1708 (Kennedy, J. concurring). Nothing in the opinion suggested that the inquiry regarding whether there has been an unreasonable delay must be conducted on an individualized basis.7
At bottom, and for the reasons I have already discussed, I do not believe we are compelled by legal authority to adopt the case-by-case approach. And I see no reason to ignore the “practical” concerns that plague it. Because, as the First Circuit recognized, if not mandated by legal precedent the case-by-case approach has “little to recommend it,” Reid, 819 F.3d at 497, I would adopt the Second and Ninth Circuits’ bright-line approach.
II. After Six Months the Government Should Have to Demonstrate the Necessity of Continued Detention by Clear and Convincing Evidence.
Even where, as in this context, some period of prolonged detention is constitutionally permissible, “due process requires ‘adequate procedural protections’ to ensure that the government‘s asserted justification for physical confinement ‘outweighs the individual‘s constitutionally protected interest in avoiding physical restraint.‘” Casas-Castrillon v. Dep‘t of Homeland Sec., 535 F.3d 942, 950 (9th Cir. 2008) (quoting Zadvydas, 533 U.S. at 690). The majority opinion applies the bond procedures governing non-criminal aliens detained under
Noticeably absent from the majority opinion‘s discussion of the appropriate burden of proof is any mention of what it previously described as “the profound liberty interest at stake,” Maj. Op. at 1212—a striking omission considering the Supreme Court‘s instruction that “due process places a heightened burden of proof on the State in civil proceedings in which the individual interests at stake are both particularly important and more substantial than mere loss of money.” Cooper v. Oklahoma, 517 U.S. 348, 363, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996) (alterations and internal quotation marks omitted). It would be hard to overstate the importance of the interest at stake here. “Freedom from imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty that [the Due Process] Clause protects.” Zadvydas, 533 U.S. at 690.
Because of the harsh practical realities of confinement, the Supreme Court has historically afforded very strong procedural protections to individuals facing prolonged civil detention. See Kansas v. Hendricks, 521 U.S. 346, 357, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997) (noting that the Supreme Court has upheld civil detention, but only “provided the confinement takes place pursuant to proper procedures and evidentiary standards“); Rodriguez, 804 F.3d at 1074-76 (citing cases). Consistent with this principle, “[t]he Court‘s civil detention case law ... emphasizes that due process requires that the government bear the burden of proving the need for detention, at least by ... ‘clear and convincing’ evidence.”9 Anello, supra, at 378; see also Addington v. Texas, 441 U.S. 418, 427, 433, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979) (requiring clear and convincing evidence in the context of civil commitment for the mentally ill). Why would due process countenance a different standard here? I would require that the government prove the necessity of a
The majority opinion identifies scant legal support for its proposition that the government may continue to detain criminal aliens past the point when the detention becomes unreasonably prolonged unless the aliens can demonstrate a reason not to do so. Indeed, the majority opinion fails even to acknowledge that, in placing the burden of proof on the detainee, it departs from the reasoned judgment of every other circuit to have addressed the issue, two of which have adopted clear and convincing evidence as the appropriate burden of proof.10 See Lora, 804 F.3d at 616
A heavy burden of proof is particularly appropriate in the context of
Second, placing the burden of proof on criminal aliens at bond hearings will likely leave many in detention unnecessarily. According to data provided by the American Civil Liberties Union, nearly 70% of the 1,680 bond hearings conducted in the Central District of California from October 2012 to April 2014 resulted in the alien‘s release.12 This data suggests that mandatory detention under
For its part, the majority opinion identifies three reasons why applying existing
Second, the majority opinion states that applying existing regulations under
The majority opinion‘s third—and most intuitively appealing—justification for its position is that shifting the burden of proof to the government for criminal aliens detained under
Significant deprivations of liberty warrant significant procedural protections. Given the fundamental liberty interests at stake here, we should prohibit unreasonably prolonged detention under
III. Conclusion
“In our society liberty is the norm, and detention ... the carefully limited exception.” United States v. Salerno, 481 U.S. 739, 755, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). Despite that promise, aliens detained pursuant to
I find such meager procedural protections plainly insufficient in the light of the fundamental liberty interests at stake. I would adopt the Second and Ninth Circuits’ bright-line approach and hold that, to avoid constitutional concerns,
Notes
The First Circuit also has not addressed the burden of proof applicable to bond hearings provided to