Summary
The Ninth Circuit held that individuals facing prolonged immigration detention under 8 U.S.C. § 1231(a)(6) are entitled to an individualized bond hearing before an immigration judge. Release on bond is required unless the government establishes that the individual is a flight risk or a danger to the community. The court reversed the district court’s denial of the petitioner’s motion for a preliminary injunction.
Topics
Practice areas
Questions Presented
- Whether an alien facing prolonged detention under 8 U.S.C. § 1231(a)(6) is entitled to an individualized bond hearing before an immigration judge.
- Whether the alien must be released on bond unless the government establishes that he is a flight risk or a danger to the community.
- Whether DHS post-order custody reviews provide constitutionally adequate procedural safeguards for aliens facing prolonged detention under § 1231(a)(6).
- Whether Chevron deference should be given to DHS regulations that do not require an in-person hearing before a neutral decisionmaker.
Holdings
- An alien facing prolonged detention under 8 U.S.C. § 1231(a)(6) is entitled to an individualized bond hearing before an immigration judge.
- The alien is entitled to release on bond unless the government establishes that the alien poses a risk of flight or a danger to the community.
- DHS post-order custody reviews are adequate for the initial period through approximately 180 days, but after detention becomes prolonged they are not alone sufficient because they do not require an in-person hearing before a neutral decisionmaker and place the burden on the alien.
- Chevron deference does not require acceptance of DHS regulations when the agency's interpretation raises serious constitutional concerns.
Key quotations
“We hold that an individual facing prolonged immigration detention under 8 U.S.C. § 1231(a)(6) is entitled to release on bond unless the government establishes that he is a flight risk or a danger to the community.” (634 F.3d at 1082)
“To address these concerns, aliens who are denied release in their 180-day reviews must be afforded the opportunity to challenge their continued detention in a hearing before an immigration judge.” (634 F.3d at 1092)
Factual background
Amadou Lamine Diouf, a Senegalese citizen admitted on a student visa, remained in the United States after his visa expired and pleaded guilty to misdemeanor marijuana possession. After removal proceedings, he received a voluntary-departure order and an alternate removal order, but did not depart. ICE detained him beginning in March 2005 after he failed to report for removal, and he remained detained while pursuing a motion to reopen and judicial review. DHS custody reviews continued his detention based on his criminal history and alleged flight risk, but an immigration judge later found that he was neither a danger to the community nor a flight risk and released him on bond.
Procedural history
Diouf was detained pending execution of a final removal order and remained detained for more than 22 months. The district court initially ordered a bond hearing, and an immigration judge released Diouf on bond. In a prior appeal, the Ninth Circuit held that Diouf was detained under § 1231(a)(6), vacated the injunction, and remanded for determination of whether such detainees were entitled to bond hearings. On remand, the district court held that prolonged detainees under § 1231(a)(6) were not entitled to bond hearings and denied preliminary relief. The Ninth Circuit reversed and remanded.
Remand instructions
Reverse the district court's order denying Diouf's motion for a preliminary injunction and remand for proceedings consistent with the requirement that aliens facing prolonged detention under § 1231(a)(6) receive an individualized bond hearing before an immigration judge.