Mаrk Anthony REID, Petitioner, Appellee/Cross-Appellant, v. Christopher DONELAN, Sheriff, Franklin County, Massachusetts; David A. Lanoie, Superintendent, Franklin County Jail and House of Correction; Thomas M. Hodgson, Sheriff, Bristol County, Massachusetts; Joseph D. McDonald, Jr., Sheriff, Plymouth County, Massachusetts; Steven W. Tompkins, Sheriff, Suffolk County, Massachusetts; Jeh Charles Johnson, United States Secretary of Homeland Security; Dorothy Herrera-Niles, Director, Immigration and Customs Enforcement, Boston Field Office; John T. Morton, Director of Immigration and Customs Enforcement; Eric H. Holder, Jr., Attorney General; Juan Osuna, Director of the Executive Office for Immigration Review; Executive Office for Immigration Review, Respondents, Appellants/Cross-Appellees.
Nos. 14-1270, 14-1803, 14-1823
United States Court of Appeals, First Circuit.
April 13, 2016.
819 F.3d 486
STAHL, Circuit Judge.
Under
The district court held that detention pursuant to
I. Facts & Background
The U.S. Department of Homeland Security (“DHS“) generally has the discretionary authority to detain an alien during removal proceedings.
Mark Anthony Reid (“Reid” or “Petitioner“) came to the United States in 1978 as a lawful permanent resident. Between 1978 and 1986, Reid served in the U.S. Army, pursued post-secondary education, was employed as a loan originator, worked in construction, and owned and rented several propertiеs. Following a conviction for narcotics possession in 1986, however, Reid amassed an extensive criminal record, including larceny, assault, drug and weapon possession, failure to appear, interfering with an officer, driving on a suspended license, selling drugs, violation of probation, and burglary.
After being released from criminal custody on November 13, 2012, Reid was detained by ICE under
At several IJ hearings held between February 13, 2013 and March 11, 2013, Reid presented evidence in support of his application for relief from removal. On April 5, 2013, the IJ denied Reid‘s applicаtion and ordered him removed to Jamaica. Reid filed a notice of appeal to the Board of Immigration Appeals (“BIA“) on May 5, 2013. On October 23, 2013, nearly half a year after the IJ‘s decision and nearly a full year after Reid‘s detention began, the BIA reversed and remanded the case for
Between his first appeal and the BIA‘s first remand, Reid filed the present habeas corpus petition along with a class-action complaint in the United States District Court for the District of Massachusetts. Reid contends that he and other similarly situated noncitizens cannot be held under
On January 9, 2014, the district court granted Reid‘s habeas petition and held that
On May 27, 2014, the district court granted summary judgment in the related class action and ordered bond hearings for all class members. Reid v. Donelan (Reid II), 22 F. Supp. 3d 84, 93-94 (D. Mass. 2014). The court reiterated its holding that
The government appeals the lower court‘s determination that
II. Analysis
Until the late 1980s, the Attorney General had broad authority to take aliens into custody during their removal proceedings and to release those aliens in his discretion. See Demore v. Kim, 538 U.S. 510, 519, 123 S. Ct. 1708, 155 L. Ed. 2d 724 (2003) (citing
The current take on this mandatory detention theme can be found in
The constitutionality of the categorical detention scheme embodied in
The Supreme Court rejected the challenge and upheld the statute in a narrowly framed ruling. The Court recognized the constitutional pressures at play, calling it “well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings.” Id. at 523 (quoting Reno v. Flores, 507 U.S. 292, 306, 113 S. Ct. 1439, 123 L. Ed. 2d 1 (1993)). Yet, the Court also noted that “[d]etention is necessarily a part of [the] deportаtion procedure,” id. at 524 (alteration in original) (quoting Carlson v. Landon, 342 U.S. 524, 538, 72 S. Ct. 525, 96 L. Ed. 547 (1952)), and that Congress may employ “reasonable presumptions and generic rules” when legislating with respect to aliens, id. at 526 (quoting Flores, 507 U.S. at 313). Accordingly, the Court left a limited degree of constitutional space to Congress’ categorical judgment that, “even with individualized screening, releasing deportable criminal aliens on bond would lead to an unacceptable rate of flight.” Id. at 520.
The “limited” scope of this categorical sanction, however, was plainly evident. The Court made the brevity of the detention central to its holding: “We hold that Congress, justifiably concerned that deportable criminal aliens who are not detained continue to engage in crime and fail
In a concurring opinion, Justice Kennedy drove the point of temporal limitations home, noting that an alien “could be entitled to an individualized determination as to his risk of flight and dangerousness if the continued detention became unreasonable or unjustified.” Id. at 532 (Kennedy, J., concurring). “Were there to be an unreasonable delay by the [government] in pursuing and completing deportation proceedings, it could become necessary then to inquire whether the detention is not to facilitate deportation, or to protect against risk of flight or dangerousness, but to incarcerate for other reasons.” Id. at 532-33.
The case before us tests the assumption upon which Demore was based, and asks whether Congress may employ categorical, mandatory detention for “the period necessary for removal proceedings” when that period turns out not to be so “brief” after all.
The concept of a categorical, mandatory, and indeterminate detention raises severe constitutional concerns. “Freedom
This is not, as the government contends, contrary to congressional intent. “[C]ourts interpret statutes with the presumption that Congress does not intend to pass unconstitutional laws.” Diop, 656 F.3d at 231. In this case, “while Congress did express a desire to have certain criminal aliens incarcerated during removal proceedings, it also made clear that such proceedings were to proceed quickly.” Ly, 351 F.3d at 269; see also Diop, 656 F.3d at 235 (“We do not believe that Congress intended to authorize prolonged, unreasonable detention without а bond hearing.“). This reading similarly accords with Demore‘s authorization of only a “brief” or “limited” detention, 538 U.S. at 513, 526, and Justice Kennedy‘s stipulation that an individualized determination would become necessary “if the con-
Yet, the courts of appeals have split on the method for enforcing this statutory reasonableness requirement. The Third and Sixth Circuits have held that individualized review is necessary in order to determine whether the detention has become unreasonable. See Diop, 656 F.3d at 233 (noting that the inquiry into whether detention has become unreasonable “will necessarily be a fact-dependent inquiry that will vary depending on individual circumstances” and “declin[ing] to establish a universal point at which detention will always be considered unreasonable“); Ly, 351 F.3d at 271 (“A bright-line time limitation ... would not be appropriate.... [C]ourts must examine the facts of each case[] to determine whether there has been unreasonable delay in concluding removal proceedings.“). “Under this approach, every detainee must file a habeas petition challenging detention, and the district courts must then adjudicate the petition to determine whether the individual‘s detention has crossed the ‘reasonableness’ threshold, thus entitling him to a bail hearing.” Lora, 804 F.3d at 614; see also Ly, 351 F.3d at 272.
The Second and Ninth Circuits, on the other hand, have “applied a bright-line rule to cases of mandatory detention” and have held that “the government‘s statutory mandatory detention authority under Section 1226(c) ... [is] limited to a six-month period, subject to a finding of flight risk or dangerousness.” Lora, 804 F.3d at 614 (alterations in original) (quoting Rodriguez I, 715 F.3d at 1133). Under this interpretation, every alien held pursuant to
In this circuit split, we sense a tension between legal justifications and practical considerations. From a strictly legal perspective, we think that the Third and Sixth Circuits have the better of the argument. This view is informed by our analysis regarding the source of the six-month rule, the nature of the reasonableness inquiry itself, and the circumstances surrounding the Supreme Court‘s Demore decision.
To justify employing a six-month presumption, the Second and Ninth Circuits point to the Supreme Court‘s decision in Zadvydas. There, the Court was faced with a particularly thorny problem. Aliens who had been deemed unlawfully present, had completed removal proceedings, and had a final removal order entered against them were subject to detention during a 90-day statutory “removal period” while the government secured their physical removal from the country. 533 U.S. at 682. If the government failed to remove the alien from the country during this time period, the government could continue to detain them for successive periods so long as they posed a risk to the community or were unlikely to comply with the order of removal when such physical removal became possible. Id. The trouble arose when, for one reason or another, there was simply no country willing to accept the alien and no reasonably foreseeable point at which the detained individual would ever be released from this theoretically interim detention. Id. at 684-86. The question thus became “whether [the] post-removal-period statute authorize[d] the Attorney General to detain a removable alien indefinitely beyond the removal period or only for a
There, as here, the solution was to read an implicit reasonableness limitation into the statute to avoid constitutional conflict. Id. at 689. The Court held that “if removal is not reasonably foreseeable,” then “continued detention ... [is] no longer authorized by [the] statute.” Id. at 699-700. The Court then went one step further and adopted a six-month presumption: “After [a] [six]-month period, once the 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.
Although it is tempting to transplant this presumption into
In adopting a bright-line six-month rule, the Second and Ninth Circuits have looked past the primary lesson of Zadvydas and fixated on a secondary, backup rule. In Zadvydas, the Court read an implicit reasonableness limitation into the statute and then noted that judges evaluating such cases “should measure reasonableness primarily in terms of the statute‘s basic purpose.” 533 U.S. at 699. When faced with a detention with no reasonably foreseeable end, the statute‘s purpose—“namely, assuring the alien‘s presence at the moment of removal“—was drawn into doubt, making continued detention “unreasonable and no longer authorized by [the] statute.” Id. at 699-700.
This primary holding was then buttressed by a secondary bright-line six-month rule. The 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.” Id. at 701. 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.” Id. If the government could demonstrate a reasonably foreseeable termination point, the detention continued.
Thus, the secondary six-month rule was predicated on there being no foreseeable hope of removal. Unlike in this case, the confinement at issue in Zadvydas was “potentially permanent.” Id. at 691. Becausе the detention in such cases had to stop at some point, and there were simply no metrics by which to judge just how much longer towards eternity could be considered “reasonable,” a bright-line rule was warranted. That is why we think it inappropriate to import the six-month presumption from Zadvydas into a statute where individualized reasonableness review remains feasible.
Instead, the statute was passed “against a backdrop of wholesale failure by the INS to deal with increasing rates of criminal activity by aliens” and “near-total inability to remove deportable criminal aliens” due to “the agency‘s failure to detain [such] aliens during their deportation proceedings.” Demore, 538 U.S. at 518-19. Thus, the animating force behind
Finally, we view Demore as implicitly foreclosing our ability to adopt a firm six-month rule. In Demore, the Supreme Court declined to state any specific time limit in a case involving a detainee who had already been held for approximately six months. See 538 U.S. at 530-31 (noting that most removal proceedings usually require one to five months, and that the respondent had been “detained for somewhat longer than the average—spending six months in INS custody prior to the ... habeas relief“); Ly, 351 F.3d at 271 (noting that Demore “specifically authorized such detention in the circumstances there“). The Demore Court also briefly discussed facts specific to the detainee, such as his request for a continuance of his removal hearing. 538 U.S. at 531 & n.15. Taken together, Zadvydas, Demore, and the inherent nature of the “reasonableness” inquiry weigh heavily against adopting a six-month presumption of unreasonableness.
From a more practical standpoint, however, the approach employed by the Third and Sixth Circuits has little to recommend it. Reid and his amici point to a plethora of problems raised by the method. First, the approach has resulted in wildly inconsistent determinations. See Lora, 804 F.3d at 615 (collecting cases and noting that “the pervasive inconsistency and confusion exhibited by district courts ... when asked to apply a reasonableness test on a case-by-case basis weighs, in our view, in favor of adopting an approach that affords more certainty and prediсtability“).
Second, the failure to adopt a bright-line rule may have the perverse effect of increasing detention times for those least likely to actually be removed at the conclusion of their proceedings. See Rodriguez v. Robbins (Rodriguez II), 804 F.3d 1060, 1072 (9th Cir. 2015) (“Non-citizens who vigorously pursue claims for relief from removal face substantially longer detention periods than those who concede removability.“). Moreover, federal habeas litigation itself is both complicated and time-consuming, especially for aliens who may not be represented by counsel. See Lora, 804 F.3d at 615 (“[A six-month] rule avoids the random outcomes resulting from individual habeas litigation in which some detainees are represented by counsel and some are not, and some habeas petitions are adjudicated in months and others are not adjudicated for years.“).
Third, even courts that have adopted the individualized habeas approach have questioned the federal courts’ “institutional competence” to adjudicate these issues and the consequences of such an interpretation. See Ly, 351 F.3d at 272 (noting that the habeas approach raises “a question of institutional competence” since “federal courts are obviously less well situated to know how much time is required to bring a removal proceeding to conclusion“). As the Third Circuit has lamented, federal courts are faced with a “moving target” in such cases because petitioners presumably cannot challenge their detention until it becomes unreasonable, but, even if the petitioner prematurely lodges a challenge, the detention may become unreasonable during the pendency of the claim. See Diop, 656 F.3d at 227.
Morеover, the federal courts’ involvement is wastefully duplicative. Not only may “the underlying removal proceedings justifying detention ... be nearing resolu-
Finally, Reid and his amici stress the harms suffered by detainees and their families when detainees are held in prolonged detention. While perhaps beyond our judicial cognizance, we do not mean to diminish the real, human consequences of being held for prolonged periods of time in civil confinement away from family, friends, and loved ones.
Despite the practical advantages of the Second and Ninth Circuits’ approach, however, we have surveyed the legal landscape and consider ourselves duty-bound to follow the trail set out by the Third and Sixth Circuits. A bright-line rule may offer significant benefits, but these are persuasive justifications for legislative or administrative3 intervention, not judicial decree. In the end, we think the Third and Sixth Circuits’ individualized approach adheres more closely to legal precedent than the extraordinary intervention requested by Petitioner.
In conducting this individualized reasonableness inquiry, the district court must evaluate whether the alien‘s contin-
The government‘s view of reasonableness fails for two reasons. First, while the Demore Court did not find any specific duration dispositive, the holding was premised on the notion that proceedings would be resolved within a matter of months, including any time taken for appeal by the detainee. See 538 U.S. at 529. The majority emphasized that “[t]he very limited time of the detention at stake under § 1226(c) [was] not missed by the dissent,” which referred to proceedings taking “several months.” Id. at 529 n.12. The majority then employed a “but see” citation with respect to the dissent‘s warning that
The Third Circuit‘s Diop decision provides a clear example of why the government‘s reading must fail. In that case, “[t]he Government doggedly pursued Diop‘s detention and removal for three years.” Diop, 656 F.3d at 228. The government did not “delay” proceedings, and yet the detention still reached an unreasonable duration. As that court noted, “individual actions by various actors in the immigration system, each of which takes only a reasonable amount of time to accomplish, can nevertheless result in the detention of a removable alien for an unreasonable ... period of time.” Id. at 223. Total duration matters to a person held in civil confinement, and due process demands a better answer than “we haven‘t gotten around to it yet.”
The second problem with the government‘s suggested reading is its failure to focus on the categorical nature of the detention. While detention under
Categorical detention is only permittеd for a short time as “a constitutionally valid aspect of the deportation process.” Id. at 523 (emphasis added). As Justice Kennedy noted in his Demore concurrence, the government‘s categorical denial of bond hearings is premised upon the alien‘s presumed deportability and the government‘s presumed ability to reach the removal decision within a brief period of time. See id. at 531 (Kennedy, J., concurring) (“While the justification for
Thus, a court looking to measure the reasonableness of continued categorical detention must examine the presumptions upon which that categorical treatment was based (such as brevity and removability). As the actualization of these presumptions grows weaker or more attenuated, the categorical nature of the detention will become increasingly unreasonable. For example, 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.4
There 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.
Applying the rule we have adopted today to the case at bar, we affirm the district court‘s individualized holding with respect to Reid‘s particular habeas petition. In its alternative holding, the district court weighed “the length of detention; the period of detention compared to the criminal sentence; the foreseeability of removal; the prompt action of immigration аuthorities; and whether the petitioner engaged in any dilatory tactics.” Reid I, 991 F. Supp. 2d at 281. The court also noted that Reid had been detained for fourteen months, which was “well beyond the brief detainment contemplated in Demore.” Id. These factors aptly anticipated those articulated above, and we agree with the district court‘s holding that Reid‘s detention had become unreasonable under
Moreover, Reid‘s case had already been through one round of appeals and was pending another round at the time of the lower court‘s decision, making final resolution “certainly far enough out to implicate due process concerns.” Id. at 282. None of these appeals involved “dilatory tactics.” Id. Rather, Reid “raised a colorable claim against deportation and ... vigorously contest[ed] removal.” Id. Finally, it should be noted that although the IJ‘s initial order was adverse to Reid, the BIA‘s first decision, renderеd almost a year after detention began, reversed and remanded the IJ‘s determination, drawing into question Reid‘s presumed deportability.
With respect to the class claims, however, we must vacate the district court‘s summary judgment decision. The district court certified a class consisting of “[a]ll individuals who are or will be detained within the Commonwealth of Massachusetts pursuant to
Yet, Reid‘s personal situation does not warrant adjudication of these constitutional questions. Reid received a bond hearing pursuant to the district court‘s order and was granted bond. He has thus suffered no cognizable harm attributable to the challenged procedures, and the claim persists only with respect to the class that Reid represents. The problem, however, is that the district court‘s adoption of the bright-line rule was an essential predicate to class certification. Our ruling today, requiring an individualized approach, removes that predicate. The class is thus substantially overbroad in light of our dispоsition.
When a class representative lacks a live claim, and changes in the law—whether through legislative enactment, see Kremens v. Bartley, 431 U.S. 119, 130, 97 S. Ct. 1709, 52 L. Ed. 2d 184 (1977), or judi-
On remand, the district court may consider whether it is feasible to redefine the class, excluding those class members with moot claims and substituting class representatives with live claims as appropriate. See
In concluding, we wish to emphasize that our decision to read an implicit reasonableness requirement into
Yet, at a certain point the constitutional imperatives of the Due Process Clause begin to eclipse the claimed justifications for such bridling custodial power. When the duration of this categorical custody exceeds reasonable bounds, the implicit terms of the statute disclaim any pretense to bolster the state‘s unconstitutional bidding.5
III. Conclusion
For the foregoing reasons, the judgment is AFFIRMED as to Reid and VACATED as to the class members. Because wе reject the six-month presumption underlying the class certification and judgment, the class action is REMANDED for reconsideration of the certification order in a manner consistent with this decision.
Notes
Two clarifications are worth noting here. First, there is a difference between “dilatory tactics” and the exercise of an alien‘s rights to appeal. As the Ly court noted:
351 F.3d at 272. In Demore, the Supreme Court held that detention for a number of months remains appropriate “in the minority of cases in which the alien chooses to appeal.” 538 U.S. at 530 (emphasis added). When an alien appeals, and the appeal occurs within this limited time-frame, a presumption of removability remains and a presumption of promptness remains. Although there may come a time when promptness lapses, aliens may be detained for “several months” before this point is reached. Id. at 529 n.12. Of course, the same logic would not apply if a detainee prevails before an IJ and the government appeals. In such cases, the presumption of ultimate removability is weakened, rendering the alien‘s continued cаtegorical detention far less reasonable. (Of course, an IJ might still find such an alien too risky to release at an individualized bond hearing.)[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. Further, although an alien may be responsible for seeking relief, he is not responsible for the amount of time that such determinations may take. The mere fact that an alien has sought relief from deportation does not authorize the INS to drag its heels indefinitely in making a decision. The entire process, not merely the original deportation hearing, is subject to the constitutional requirement of reasonability.
Second, we think it worth noting that the Ninth Circuit, in Rodriguez II, recently rejected a proposal that an IJ consider “the likely duration of future detention and the likelihood of eventual removal” at bond hearings because consideration of those factors “would require legal and political analyses beyond what would otherwise be considered at a bond hearing.” 804 F.3d at 1089. While we agree that these factors are not relevant at a bond hearing, where the focus is on the alien‘s flight and safety risk, these factors are relevant when a federal court is conducting a reasonableness inquiry and determining whether a bond hearing needs to be held in the first place.