Tijani v. Willis

Jose, Cal., 762 elude that the errors affected a substantial 901 F.2d City San (“Considered (9th Cir.1990) together, right parties of the and constituted revers- required warranting error that a remand ible new trial.12 We is no doubt effect of the two accordingly of the cumulative reverse the district court’s light errors.”); Mailloux En judgment proceed- material Gordon and remand for further Newark, ters., Ins. Co. Inc. v. Firemen’s ings disposition. consistent with this Cir.1966) (“We (9th N.J., F.2d AND REVERSED REMANDED. reversed; although too must be conclude it reversal, if considered requiring the errors harmless,

separately, perhaps were Many prejudicial.”).

cumulative effect was similarly held circuits have

of our sister may error in a civil trial

that cumulative if trial even each

suffice to warrant new may prejudi alone not be standing error TIJANI, Monsuru O. Petitioner- Haik, See, Beck v. 377 F.3d e.g., cial. Appellant, Cir.2004) (“Since (6th jury .-a reaches v. as a light of the evidence its verdict Wayne WILLIS, Director, K. Interim In whole, analyze try it makes no sense to Immigration Enforcement, terior isolation, deciding in artificial when errors Department of United States Home harmless.”); they Frymire- were whether Security; Caryl Thompson, OIC, land Marwick, 2 F.3d Brinati v. KPMG Peat Respondents-Appellees. (7th Cir.1993); Malek v. Fed. Ins. (2d Co., Cir.1993); Hendler 994 F.2d No. 04-55285. (Fed. States, 952 F.2d v. United Appeals, United States Court of Cir.1991); Infinity Group but see SEC Ninth Circuit. Cir.2000). (3d Co., 212 F.3d multiple ex- This case involved medical Argued and Submitted Jan. testifying perts on both sides Filed Dec. proper interpretation of the MRI reports MRA and whether Defendant’s reports of the interpretation

mistaken tumor,

showing demyelina- rather than

tion, was a breach of his standard care. side jury required to decide which believe, credibility of wit- assessing weight much determining

nesses and how say give the views of each. We cannot than not that the probable

that “it is more

jury have reached the same verdict” would testimony

if Dr. had not been lim- Gross’s testimony

ited and if Mr. had Bowser’s con- Obrey,

been. 400 F.3d at 701. We evidentiary belated discov- we on these because of Plaintiffs' counsel's 12. Because reverse errors, prosthetic ery that Defendant Amstutz had we need not consider Plaintiffs’ fur- eye. argument trial was warranted ther that a new

NOONAN, Judge: Circuit date, Tijani today’s As of has been de- prived liberty by government of his years eight a of over two and ' inflict- deprivation months. This has been any adjudication ed not as the result of application as a bureaucratic crime but authority Attorney conferred on 1226(c). Despite General powers Congress may the substantial aliens, regard exercise in to it is constitu- tionally Congress may doubtful that au- imprisonment thorize this duration for lawfully admitted resident aliens who are Zadvydas to removal. See v. Davis, 678, 690, (2001). 150 L.Ed.2d 653 The case is dis- Kim, tinct from Demore v. L.Ed.2d

(2003), the alien deporta- where conceded bility. deciding avoid

To the constitutional is- sue, authority interpret we conferred 1226(c) by § applying expedited to re- years moval of criminal aliens. Two and eight process expeditious; months of is not court, and the foreseeable government’s where brief Hirsch, Nest, & Steven A. Keker Van appeal of the removal was last filed LLP, Francisco, CA, Lucas Guttentag, San time, month after two extensions of is a n - Rights Project, Immigrants’ ACLU Oak- year or more. Rabinovitz, land, CA, Judy ACLU Im- remand to the district court with We York, Project, NY, migrants’ Rights New grant the writ directions unless the petitioner. for the government days within 60 of this order Lam, Attorney, United States Carol C. hearing provides before Stahl, Attorney, Tom Assistant Immigration Judge power with the Cordero, Jr., Ernest Assistant U.S. Attor- him grant bail unless the es- Office, ney, Attorney’s San United States flight that he is a or will tablishes risk CA, Diego, respondents-appellants. for the danger community. Cooper See Oklahoma, (1996). 1373, 134 L.Ed.2d 498 and REMANDED. REVERSED TASHIMA, Judge, concurring: Circuit NOONAN, TASHIMA, Judge opinion I concur in Noonan’s re- Before: CALLAHAN, Judges. versing the denial of habeas relief and Circuit (BIA Joseph, in In re 22 I. & N. Dec. 799 grant Immigration Court requiring 1999), contrary that is both opinion, His howev- hearing. Tijani bail er, shortsighted alludes to the standards the Constitution and barely a hear- conduct of such govern policy. Joseph concerned the should matter must be established facts ing, Immigra- § or what proper scope of or denial of grant tion, order to warrant (“INA”), Nationality Act release, proving has the burden or who 1226(c), commonly § known as INA’s facts, by proof. what standard “mandatory provision. detention” Section I that because believe separately I write 236(c) Attorney to take directs the General to duty give guidance more we have custody facing into certain aliens are who court below so that and to the agency release un- deportation prohibits man- carry respective out their they can all the narrowest of circumstances. der but dates. statutes, relatively most As with impris- Tijani has now been Monsuru 236(c) many § simple mandate of leaves for almost by government the federal oned unanswered, questions important the most detention is years. His and one-half two who, exactly, under the of which is falls conviction;' nor of a criminal not the result The statute states statute’s provisions. removal. faces imminent is it because he only applies being de- The reason deportable by reason of an alien who “is may be tained is because specified having committed” a number of subject to removal. he is prove able to offenses, criminal but does not define those deten- that his indefinite Tijani contends precision, nor does it define offenses with a reason is not constitutional- tion for such imple- deportable” what “is means. Now, deciding instead of ly permissible. help; menting regulations also do little presented by ap- this squarely issues they provide opportunity an alien with the habeas majority opinion grants peal, the properly is “not includ- to establish that he relief, deciding the issues but without reach, they say but ed” the statute’s join Judge I Noo- the merits. raised on what, that alien precisely, nothing about because, I ex- majority opinion nan’s (2005). 8 C.F.R. 1003.19 must show. See below, not believe that plain do constitutionally per- detention is indefinite finally gave BIA a mean- Joseph, missible; therefore, that he is entitled to The BIA ingful question. to this answer release. by initial determination concluded that the Immigration Bureau of and Customs I. (“BICE”)1 an alien fell Enforcement 236(c) entitled to the reach of was within A. 22 I. & Joseph, deal of deference. great Thus, held that at 800. the BIA N. Dec. the Board At the heart of this case lies (“BIA’s”) the reach of who wishes to avoid decision an alien Immigration Appeals’ Security Security. See Homeland Immigration Homeland Joseph was decided the 1. When ("INS”) was the 116 Stat. Service Pub.L. No. and Naturalization ofAct case, charge regulating primary agency immi- by although As is illustrated gration. on March INS, INS ceased to exist the BIA Joseph decision refers to the its were trans- and most of functions reviewing apply it when has continued Security to either the Bureau of Border ferred by detention BICE. BICE, Department of units of the both 236(c) on the individual the required place to show BICE burden was - protecting rights. his or her fundamental “-substantially unlikely to establish” charges that rendered the alien Addington The first of decisions is these mandatory detention. Id. Texas, (1979), in L.Ed.2d 323 which the Court in California of of- Tijani was convicted ruling vacated the Texas Court’s been that have never found fenses person civilly that a could be committed trigger mandatory BIA to court or by a upon finding based of mental illness Nonetheless, deter- detention. BICE preponderance of the evidence. that his offenses fell within the mined In reaching 99 S.Ct. 1804. and held him in mandato- reach of conclusion, upon the Court elaborated upon ry detention. Based proof, “function standard standard, Immigration Judge both concept is embodied the Due Process (“U”) BIA affirmed deter- and the BICE’s 423, Id. at 99 S.Ct. 1804. Ac- Clause.” later, nearly Today, mination. 30 months Court, cording primary function mandatory remains was to allocate the risk of an erroneous continue to sort out while courts whether among litigants upon decision based actually fall within his offenses the reach competing rights and interests involved. statute. of the Thus, case, in a civil because the inter-

Id. B. minor and ests involved are because “soci- ety has a minimal concern with the out- was, plainly The BIA’s come,” litigants share the risk of error put, wrong. There can be no doubt that roughly equally preponderance under the liberty one of the most funda- individual is of the evidence standard. Id. In a criminal by rights protected mental the Constitu- case, hand, on the other “the interests of Davis, Zadvydas tion.2 See v. magnitude” the defendant of such are. 678, 2491, 690, 121 S.Ct. 150 L.Ed.2d 653 society “our imposes almost the entire risk (2001) (“Freedom imprisonment— from upon by insisting of error itself’ on the detention, custody, from or beyond a reasonable doubt standard. Id. physical other forms of restraint —lies at at 99 S.Ct. 1804. liberty the heart of the Due [the Process] protects.”). Joseph, principles, Clause which was de- Based on these the Court prior Zadvydas, gives right required cided held that Constitution Instead, weight. showing by little or no it establishes of mental illness clear least system by by plac- convincing of “detention default” and evidence before an individ- ing fully prove liberty on the alien to ual’s the burden could be constrained. Id. at Noting that he should not be detained. When 99 S.Ct. 1804. that it “re- right stake, peatedly recognized such fundamental how- has that civil commit- ever, on ment for Supreme purpose signifi- Court has insisted constitutes a heightened procedural protections deprivation liberty cant that requires guard against deprivation process protection,” the erroneous of due id. at right. particular, Supreme improper the Court found it to ask rejected ... again equally Court has time and laws individual to share with “[t]he Amendment, (“The 2. There can also be no doubt that the Due Fifth as well as the Four- Amendment, protects immigrants protects every Process Clause as well as teenth [alien] Diaz, life, liberty deprivation property v. from citizens. See Mathews 77, (1976) law.”). process 48 L.Ed.2d 478 without due 83,112 ty Id. at possible (quot of error when the interest. S.Ct. 1780 society the risk v. Salerno, ing significantly individual United States injury to the (1987)). 755, 107 any possible harm to L.Ed.2d 697 greater than “[fjreedom Thus, state,” again, 99 S.Ct. 1804. the Once because from bodi id. ly always process that “due re- restraint has been at the core of concluded Court liberty justify protected confinement the Due quires the state Process Clause,” than a mere pre- convincing more substantial clear evidence was proof civilly Id. at needed commit of the evidence.” the. ponderance individual. S.Ct. 1780. 99 S.Ct. 1804. Finally, in Cooper, the Court unanimous- Addington,

Since rejected principle ly presumption reaffirmed the a state-law that a repeatedly places heightened competent bur- defendant was to stand trial that “due unless that in- proof proceed- on the State civil defendant established his den of competence by clear convincing in which the ‘individual interests at evi- ings 350, 355-56, particularly important ... dence. 116'S.Ct. stake are both mere, Stating than of 1373.' no perceive more substantial loss “we sound ” Oklahoma, allocating criminal 517 U.S. basis defen- money.’ Cooper large 134 L.Ed.2d 498 dant share of the risk which (1996) Kramer, a clear Santosky accompanies convincing evi- (quoting 1388, standard,” the 71 L.Ed.2d dence Court held that the S.Ct. (1982)) (internal quotation process. marks omit- Oklahoma law violated due Id. at ted). 366,116 Santosky, example, In for the Court S.Ct. a New York law that allowed considered illustrate, As the above cases the Su- parental rights upon

the state to terminate preme consistently adhered to Court by prepon- “permanent neglect” of proof of -principle the the risk erroneous 747, evidence. 455 U.S. derance of the deprivation right may of a fundamental not di- 102 S.Ct. 1388. Because the statute Rather, on placed be the individual. when liberty rectly the “fundamental affected right, a fundamental such as individual care, parents of natural in the interest stake, liberty, government is at must child,” custody, management of their bear the lion’s share of the burden. In- 753, 1388, the Court held id. S.Ct. deed, those cases which the Court has procedur- greater that it needed to include permissible found detention schemes protection preponderance than the of al emphasized procedures have available evidence standard. Id. at rights. For ex- protect the individual’s S.Ct. 1388. Salerno, up- ample, Louisiana, Act, held the Bail which allowed in Foucha v. Reform Again, (1992), to detain arrestee 118 L.Edüd 437 upon' showing by gov- trial pending a statute the Court found unconstitutional that “no release conditions ‘will placed civilly on committed individuals ernment reasonably safety ... of proving they of were not a assure the burden ” person community.’ and the danger public allowing to the before other Bail (quoting 107 S.Ct. 2095 release. 112 S.Ct. 1780. U.S. 3142). 1984,18 In society liberty the Reform Act of U.S.C. Noting our is “[i]n Act, norm, emphasized prior upholding to trial or with- the Court was, narrowly citing crafted it carefully exception,” trial limited how out is the placed pre- limitations” on system “stringent court that such a failed time held detention, trial id. at liber- adequately protect the individual’s to no on the of only to the “most serious little risk broad shoulders its applicability id., crimes,” requirement proof of government.3 convincing evi- by clear and dangerousness One need look no further than dence, and its id. at parallel petition per- for review to find a judicial safeguards, id. Joseph fect illustration of the standard’s unconstitutional allocation the burden application blanket the Jo- Both the proof.4 petition now has re- and the breadth of its reach seph standard view of the merits of the IJ’s removal narrowly contrast stand stark pending before court. The order this design of the Bail Reform Act. tailored Cf. questions his case raises are no means Foucha, 81, 112 504 U.S. at easy; took the IJ almost seven months (“Unlike sharply focused scheme at decision; just the BIA took issue his short Salerno, scheme of issue .in the Louisiana months; and, of an additional 13 in his limited.”); carefully confinement is court, petition for review before Zadvydas, 533 U.S. at S.Ct. 2491 government has not his motion contested scepticism (expressing about Yet, stay for a of removal review. procedural protections where the “sole application based the blanket of the all- alien are found in available to the adminis- standard, Joseph Tija- but-insurmountable proceedings, where the alien trative bears ni has remained in detention the entire proving danger- he is not the burden pending. case time his has been Under ous”). circumstances, these his detention for cases, light of the above nearly simply months inconsistent unconstitutional, just, it standard is not with due of law. egregiously The standard not so. on the defendant to places the burden C.

prove physically that he not be should makes, detained, 1. it that burden all but In light of the due concerns Addington insurmountable. Unlike above, reject progeny, Joseph places it’s standard described this court should Joseph Mandatory relatively 3. The standard’s allocation of risk also detention lasts for a 4. entirely separate problem. By creates an sub- majority brief in the vast of cases in who, jecting immigrants Tijani, Kim, like raise dif- applied. which it is Demore v. 538 U.S. questions pro- ficult of law in their removal 155 L.Ed.2d 724 ceedings proceedings to while those detention conducted, (2003) ("[I]n of the cases in which aliens 85% being Joseph are standard 236(c) ], pursuant [§ are detained to immigrants precisely forces those to endure proceedings completed average are an time in Tijani what has endured: detention that lasts days days.”). 47 and median of 30 But prolonged period years. for a of months or Tijani's unique; situation is no means oth Indeed, majority Tijani's the vast deten- er federal courts have also considered habeas nearly 22 tion—over of the 30 months that challenges brought by immigrants who have elapsed so occurred while have far —has 236(c) lengthy pe been detained under for ap- BIA and this court have considered his See, Hansen, e.g., Ly riods of time. below, peals. explain As I such detention (6th Cir.2003) (500 days F.3d right. violates the Constitution of its own Gonzales, release); detention before Fuller v. Narrowing Joseph standard so that man- (D.Conn.2005) (two 2005 WL 818614 at *1 datory applied only detention is to those who release). years of detention before provisions are more certain to fall under its guarding would be a sensible means against such collateral viola- constitutional tions. Instead, any special govern- considerable to weight it should standard. detention,” 236(c) pro- de- mental interest in is “more apply to interpret Only liberty tective of a more narrow fashion. detained alien’s interest tention in a than those in currently who could not raise administered immigrants “proved against Joseph hearings,” their .re- INS’ and has argument “substantial” justice subject mandatory practice workable in the criminal movability should Demore, system”). at 578- It the alien’s gives liberty detention. See J., dissenting). rights adequate and ensures (Breyer, respect only relatively is not more re- the alien’s detention will be interpretation This Constitution, time, it At the provides is also more brief. same it spectful of the language. government leeway chosen to detain those Congress’ aliens consistent with (“Title press who lack their legal S.Ct. 1708 incentive Id. claims, Attorney likely most General aré therefore the tells ... custody any alien who abandon those claims and flee.6 ‘take into added), not one deportable’ (emphasis who not, category.”). into that

may, may fall Tijani easily meets argument” standard believe that The “substantial standard, argument despite substantial balance between an strikes the best alien’s government’s intervening finding in BIA’s liberty decision him re- interest certainly De movable.7 almost has a regulating immigration.5 terest See more, winning argument that he is not 123 S.Ct. 1708 removable 538 U.S. (the committed J., having aggravated (Breyer, dissenting) “substantial felo- ny.8 upon relied question “gives law or fact” standard evidence IJ flight danger to Clearly government’s interest here is risk or will be a the commu- Congress power nity.” Slip op. (citing Cooper, has "broad over at 16266 substantial. 1373). immigration” allows U.S. at naturalization and' unaccepta- it to rules that would be "make[ ] Demore, 7. The BIA’s December applied ble if citizens.” Diaz, change finding Tijani Tija- (quoting removable did 1883).' position appeal. ni’s continues Pursuant to this custody, to remain in detained without power, BICE Congress created § possibility release under of many too its that immi- address concern yet Specifically, the INA. he has not entered grants fleeing immigration were from 90-day period under 8 generally his removal U.S.C. proceedings. id. at 123 See 1231(a) .stayed § this court has his immigrants because While it is clear that the BIA’s may provision during removal review of de- under this a be detained 1231(a)(1)(B) ("The § See processing cision. relatively for and re- brief moval, period begins latest of Congress on the I do not believe intend- ed, (ii) following: ju- ... removal order is' power, impose pro- If the that it has the dicially stay court orders a longed reviewed and if a simply on an alien because alien, deportable. the date may ultimately of the removal of the alien Cf. 701, order”). Zadvydas, court's final U.S. at 121 S.Ct. 2491 533 believe, however, ("We do have reason to applies 8. This circuit the test announced in Congress previously doubted the constitution- States, Taylor v. months.”). United 110 ality more than six of detention for (1990), to L.Ed.2d 607 deter- pred- constitutes a majority opinion reject does not mine whether a conviction such Rather, under the INA. See argument standard. it icate offense for removal substantial (9th Ashcroft, question Tokatly v. F.3d simply than does not reach other Cir.2004). applies granted Taylor, a court first tersely Tijani should be bail Under to state looking "categorical” analysis, establishes that he is “unless reaching contrary for conclusion was the volved Connecticut statute in all identical judgment Tijani’s abstract of from respects material to the California statute conviction, showing Tijani issue, was or- reached this conclusion. See $28,000. pay dered to restitution of almost Kinney, Matter 10 I. & N. Dec. show, judgment The abstract of does not (BIA 1964) (“The intent the false however, jury that a found that upon statement be relied necessarily is not loss, caused this amount of circuit’s an intent to do evil or work fraud because case requires. Taylor, law See ... one who intends that there be reliance 2143; Tokatly Ashcroft, v. upon may his false statement nevertheless Further, 371 F.3d at 620. appears pay also intend to gbods his .is to be requiring no California law that a obtain.”). attempting to determine jury the amount restitution. This case stands in stark contrast to our 1202.4(f) (“In § every Code CaLPenal Cf Carty, recent case of in ’which we found case in which a victim has suffered eco- that willful failure to file California state nomic loss as a result of the defendant’s income taxes involving was a crime moral conduct, the court shall require that turpitude. 395 F.3d at 1085. Unlike defendant make restitution to the victim 532a(l), § CaLPenal Code statute ....”) added). (emphasis easily This con- Carty- explicitly required a finding of “in- argument Tija- stitutes substantial evade,” tent to which the court found to be ni’s conviction under CaLPenal Code synonymous with “intent to defraud.” Id. 532a(l) § does not amount to an aggravat- 1083, 1085; (“[I]n- at' see also id. at 1085 felony. ed tent to generally evade has been held to argument As to the that a violation of fraud.”). require proof contrast, 532a(l) CaLPenal Code constitutes a 532a(l) CaLPenal Code contains no such crime of moral turpitude, also requirement. argument. Tija- raised a substantial For briefing, Without further it is difficult to ni’s turpitude, conviction to involve moral determine conclusively whether a violation it Carty must involve fraud. v. See Ash 532a(l) of CaLPenal Code constitutes a (9th croft, Cir.2005) 395 F.3d Indeed, crime of turpitude. moral Tijani’s (“Crimes turpitude of moral are of basical arguments may ultimately not be convinc- ly types, two involving fraud and ing. Nonetheless, a surely closer look is those involving grave acts of baseness or required. moral turpitude argu- INS, depravity.”); Rodriguez-Herrera ment, therefore, easily rises to the level (9th Cir.1995); 52 F.3d Goldesh “substantial.” INS, (9th Cir.1993). tein v. 8 F.3d 532a(l) nothing Yet in CaLPenal Code D. requires Rather, intent to defraud. it is perfectly plausible person could be has been detained for the last 30 532a(l) convicted under in spite without in months of fact the that he can tent to defraud Indeed, whatsoever. arguments the raise substantial against his re- only precedent BIA’s point, which in- moval that necessitate a hard look. Such fact statutory of conviction and the approach,” asking definition cal whether the documen- of the offense to judicially determine if the offense tation or noticeable facts that the predicate Taylor, jury amounts to a “actually required offense. 495 was to find” show that statutory U.S. at 110 S.Ct. 2143. If the the defendant was convicted of all the ele- predicate Id.; definition predicate is broader than the Tokatly, of- ments of the offense. fense, employs categori- court a “modified 371 F.3d at 620.

1249 release, dangerousness his flight as to risk of and possibility the detention without if more than fact that the continued detention became unrea- nothing the based on removable, clearly a may someday unjustified.”). sonable The Sixth he be Cir- rights. agreed position due cuit has with this in violation of his since (6th Hansen, Ly v. F.3d 263 Cir. II. 2003). why reason we is also another There record, in a posi- Given the this court is Tijani’s merits of conten should reach the Tijani’s argument tion to address the recently tions. Court has As the length sheer detention violates of his occasions, detention held incidental on two nearly Constitution now. months bear reasonable relation removal must has so far been detained have Demore, at to its See 538 U.S. purpose. reached the of unreasonableness. In point 1708; Zadvydas, at 123 S.Ct. time is length absolute terms the unrea- In 2491. Zadvydas, eighteen sonable—it is more than times that detention raised serious Court held (five average of detention length times goal when its questions constitutional —(cid:127) average when the alien chooses to longer prac “no preventing flight—was appeal), long five times as six tically due to unlikelihood attainable” the Supreme suggested months Zadvydas, of the ultimate removal. aliens’ Zadvydas. would be unreasonable See 2491.9 In De- at Zadvydas, more, hand, other the detention was on the goal to the “reasonably pre related” considering Even the individual factors both because alien was venting flight case, Tijani’s of time he the amount removable, and unquestionably pre thus been detained remains unreasonable. risk, flight and the time high sented a Tijani requested it is con While true limited, lasting on for a average tinuances, early pro those occurred Demore, days. mere cess, all contributed at have not S.Ct. 1708. BIA year-long delay since the heard his (delay at 272 appeal. Ly, in con- See 351 F.3d Kennedy As Justice noted however, help justify can currence, immigrant exists attributable to point Demore, detention); of detention so continued length which the becomes cf. 530-31, 123 (immigrant’s egregious longer it can no said to U.S. be request helped justify to an continuance “reasonably related” alien’s re- (Ken- than longer average” moval. 123 S.Ct. 1708 “somewhat detention). (“[Sjince addition, nedy, J., length Due his concurring) every opportunity to government had prohibits arbitrary depri- Process Clause permanent avoid additional detention liberty, a lawful res- be vations of proceedings his while he respondent ginning ident could be alien such See incarcerated in California. De to an determination was entitled individualized strong Zadvydas dangerous individuals 9. The offered anoth- justification er for the continued detention— procedural protections.” Id. at community.” "protecting Zadvydas, justification "protecting S.Ct. 2491. If the U.S. at The Court Demore, community” was' offered in justification squarely rejected this as a Court did discuss it. The detention in detention, finding "preventa- continued solely justified case on basis of was dangerousness” tive based on preventing flight. specially limited permissible "when more, (“BICE”). at 529-30 & n. and Customs Enforcement He Thus, longer specifically there no can be was charged being with remov- question Tijani’s 1227(a)(2)(A)(ii), § able- under continued detention based on his longer reasonably is no related to his de status as an alien convicted involving two crimes portation. turpitude, moral 1227(a)(2)(A)(iii), under 8 U.S.C. based m. on his status as an alien convicted of an aggravated felony. -reasons, foregoing For the it is clear Tijani BICE determined that was Tijani is entitled to be forth- released subject to mandatory pursuant deténtion completion with of his removal 1226(c), to 8 U.S.C. and should be held proceedings. without bond during proceed- the removal ings. Tijani contested the detention and CALLAHAN, Judge, Circuit dissenting: requested a hearing. bond-determination As I find the district court properly hearing IJ, A was held before an in accor- Tijani’s denied petition, Monsuro habeas I dance with the Immigration Board of Ap- dissent from the remand of this case to the (“BIA”) peals’ of In re district court. disagree further with the ”), (BIA 1999) (“Joseph 22 I. N.& Dec. 799 opinion’s suggestion that the result of a (en banc). The IJ affirmed the BICE’s Tijani’s hearing bail, must be release on determination, Tijani finding both that was concurring and with the opinion’s argu- “subject to mandatory custody” and that Tijani’s ment that extended detention is “pose[d] danger he property to the necessarily unconstitutional. others due to lengthy his criminal record.” 26, 2003, On June the BIA affirmed the Background A. Tijani IJ’s decision that subject was appreciation An requires of this case a mandatory detention. Tijani got brief review of how himself into Tijani then filed petition his habeas present his predicament. A native and the United States District Court for the Tijani citizen of Nigeria, arrived California, Southern District of arguing, United adjusted States 1980 and his alia, inter pose that he did not danger legal permanent status to resident in 1985. community and that deten- thereafter, Shortly Tijani started having tion violated the Due Process Clause of the trouble with the recently law. Most 21, 2004, Fifth January Amendment. On 9, 1999, June Tijani was convicted on the district court petition. denied twelve providing counts of false informa- It found that mandatory detention was tion on financial documents in violation of constitutional, Kim, citing Demore v. 532a(l). California Penal Code L.Ed.2d 9, 2003, April Tijani

On (2003), when was Tijani sched- and that was to man- uled to paroled from prison, state he datory detention because particular his charged being deportable, with served conviction under California Penal Code with a appear 532a(l) notice to an Immigra- before constituted a crime of moral tur- (“IJ”), tion Judge and transferred into pitude. Tijani timely filed a ap- notice of custody of the Bureau of Immigration peal to this court.1 Meanwhile, Tijani's proceedings BIA, which, Tijani appealed on Decem- 5, 2003, continued. On November summarily an IJ or- ber affirmed the IJ’s dered removed from the United States. peti- decision of removal. has filed a Mandatory lenges scope mandatory Deten- to the of for detention The Standard B. 236(a) interpreted § tion Joseph.2 under in argues mandatory He that detention that, un- with the district court agree I permanent to res- should extend lawful Demore, mandatory pursu- detention der beyond 1226(c) period held a brief time idents of per is not se to 8 ant U.S.C. Demore, they little that Supreme In the because is likelihood unconstitutional. held: endanger community. flee’ or He will proceedings is during principles removal also contends that of procedural Detention of constitutionally permissible part prohibit mandatory due deten- See, e.g., Wong Wing process. [v. that lawful permanent tion of residents who States,] [228, 235, 16 163 U.S. United arguments. raise substantial (1896)] (“We 41 L.Ed. S.Ct. assuming scope Even that of detention, tempo it or think clear that 236(c) by pro- as interpreted Joseph is confinement, part of the means rary blematic,3 it by is no means that certain to necessary provisions to effect give to Tijani is entitled to release. In addition expulsion aliens or exclusion by IJ, having been denied relief an Landon, valid”); be Carlson v. would BIA, court, Tijani also district L.Ed. 547 Flores, by found removable both an IJ and (1952); 292, 113 been Reno (1993). Moreover, contrary posi- The BIA.’ L.Ed.2d respondent, a criminal by detention of Judge INS tion taken Tashima in his concur- conceded that he is de- alien who has Tija- ring opinion, persuaded by am not his for the limited portable, contentions that he did not commit an ni’s - by is proceedings, governed removal that aggravated felony and his conviction these cases. involving turpi- not for crime moral was 531, 123 Thus, S.Ct. 1708. prevail tude. even were to on 236(a) that is his claim unconstitutional course, Tijani, of is concerned with the it that requires showing because statute to him rather application prevail is to in the unlikely In constitutionality. par- abstract than its ticular, it is means proceedings, chal- no raises constitutional court, hearing, may 22. At the the detainee avoid for review with this is not tion which panel. mandatory demonstrating before this alien, not an was not convicted of he is Joseph, per- BIA held “a lawful crime, predicate that the is other- or INS 'prop- manent resident will not considered substantially unlikely to establish wise mandatory cate- erly included’ subject mandatory detention. is in fact he Immigration gory Judge when or the ’3.19(h)(2)(H)(2002); §CFR See 8 Matter of the[government] is Board convinced WL Joseph, 22 & N. Dec. I. substantially unlikely to establish at the merits (BIA 1999). respondent Because hearing, charge charges appeal, or deportable because that he conceded would otherwise the alien triggers § a conviction that 22 I. N. Dec. detention.” & sought Joseph hearing, no we have thus no adequacy occasion review Joseph 3. The Court’s reference hearings generally screening out suggests opinion that the BIA's is not Demore pursuant improperly who are detained clearly unconstitutional. Court noted: 1226(c). hearing” immediately pro- "Joseph This Demore, 1708 n. 3. 538 U.S. at he is vided to detainee who claims that 1226(c). Arg. by § not covered Tr. Oral

1252 clear that be he would entitled to release “potentially permanent,” U.S., at 690-691, under alternate standard for 2491, bail. 121 S.Ct. 150 L.Ed.2d

653, the detention here is of a much C. Duration of Detention shorter duration. Zadvydas distin- guished statutory argues provision further that the it was duration considering from of his detention under 8 1226 on U.S.C. these limit, very grounds, noting “post-removal- unconstitutional- constitutional detention, period if unlike any, pend- to the duration of an detention alien’s deten ing a 1226, however, determination removability tion under open was left ..., has no by point.” obvious termination Supreme in Demote. 697, Id., 678, 2491, 121 S.Ct. discussing prior opinion in Zadvydas v. added). Davis, (emphasis L.Ed.2d 653 2491, Un- 1226(c), der (2001), does detention L.Ed.2d 653 the Court noted first have a definite termination point, in the Zadvydas, challenging aliens majority of cases it their lasts than following final less orders of days the 90 we considered deportation presumptive- were ones for whom removal ly Zadvydas. valid in longer practically was “no attainable” and therefore detention did not serve pur 528-29, 123 S.Ct. 1708. This state- Demore, ported immigration purpose. may ment implying be read as a limit to 123 S.Ct. 1708. The Court the duration of a deter- further stated: mination of removability,4 or holding

Zadvydas materially different from that because the removal proceedings are present case in a respect finite, second by definition there is no constitu- well. While the of detention at tional limit to the duration of detention in Zadvydas 1226(c).5 issue was “indefinite” and under Kennedy, concurring 4. Justice opinion, in his the IJ in his November 2003 order of (affirmed wrote: the BIA on December 30, 2004) since prohibits the Due Process Clause stressed that he arbi- found to be a trary deprivations liberty, danger per- community. lawful respondent manent resident alien such as detaining 5. The reasons for criminal aliens could be entitled to an individualized deter- pending removal do not diminish over the flight danger- mination as to his risk of duration of their detention. This is reflected ousness if the continued detention became following in the comments unjustified. Zadvydas, unreasonable or U.S., "Congress Court in Demore: also had before at. major it evidence that one of the causes of the 653; id., L.Ed.2d INS’ deportable failure to remove criminal (KENNEDY, 150 L.Ed.2d 653 agency's aliens was the failure to J., detain those ("[Alliens dissenting) are entitled to be during deportation aliens proceed- free from arbitrary detention that is or ca- (538 ings[;]” 1708) U.S. at pricious"). Were there to be an unreason- study Vera strongly supports “[t]he Institute delay by [government] able pursuing that, Congress’ concern completing even with individual- deportation proceedings, it screening, releasing deportable ized necessary could become criminal inquire then aliens on bond would lead unacceptable whether the to an detention is not to facilitate (id. 1708) deportation, flight[;]” rate of protect against or to risk of flight dangerousness, presented Congress and "[s]ome but to studies incarcerate suggested for other reasons. detention of criminal aliens during 538 U.S. at proceedings might 123 S.Ct. 1708. It should their removal be sug- way noted that there is little before us to the best to ensure their successful remov- gest Tijani's country.... continued following detention is not to al from this It was protect against dangerousness. I Reports Congress note that those enacted 8 U.S.C. long of how Judge regardless Noonan that we stitutional agree with (2) take,7 resolve issue proceedings not this that a new need not and should hear- simply hold at this I would ing pursuant panel’s time. must release, January court when the district Tijani’s pending result in com- petition, he Tijani’s habeas denied proceedings. of his pletion removal the duration of his had not shown § 1226 was unconstitu-

detention under not I would remand Accordingly,

tional.

this matter.

Rather, be better advised Tijani would agency or in anew before the seek relief in- where effects of district court passage tervening and the of time events RIVERA, Plaintiff-Appellant, Jack A. fully presented could be briefed. relevant Among concerns potentially other (a) im- are might be considered WEST, INC., corpo BAKER an Arizona intervening decisions the IJ pact ration; Construction, Baker Concrete (b) removable;6 Tijani is and the BIA that Inc., corporation, an Arizona dba Bak of time or above passage whether the Concrete, Inc., Defendants-Appel er any admin- decisions rise to alternate give lees. (c) Tijani; whether istrative remedies delays Tijani; any were attributable No. 03-17261. (d) give to an delays rise whether Appeals, United Court of States longer no serves implication that Ninth Circuit. purposes. purported immigration Submitted June 2005.*

D. Conclusion . Filed Dec. The nature of this is un- troubling case the fact that each member of derscored panel separately. agree

our written denial

with the court’s district and, petition accordingly,

habeas would district

remand the case to the court. As matter, panel how- has remanded

ever, I that it is not clear explained have

(1) pending detention of alien necessarily uncon- proceedings Attorney 7. Different would come into requiring the General to de- considerations deportable play gov- tain criminal aliens subset if there were evidence of their a determination removabili- unreasonably prolonging re- ernment

ty." Id. at 123 S.Ct. 1708. proceedings. moval * appropriate Judge panel case for sub- example, although dis- finds this 6. For Tashima (see concurrence), agrees argument pursuant footnote 7 of his oral mission without January 34(a)(2). in its letter FED'. R. P. APP. suggested thatTijani's may-now fall 1231(a) light under 8 U.S.C. the final order removal.

Case Details

Case Name: Tijani v. Willis

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Dec 12, 2005

Citation: 430 F.3d 1241

Docket Number: 04-55285

Court Abbreviation: 9th Cir.