Macksuel Alves da Silva v. Pamela Bondi et al.

Summary

The court held that Macksuel Alves da Silva, who had been released after a credible-fear determination and lived in the United States for approximately nine years, was subject to detention under 8 U.S.C. § 1226 rather than mandatory detention under § 1225(b)(1). The court granted his habeas petition and ordered the respondents to provide an individualized bond hearing before an immigration judge within seven calendar days, with the government bearing the burden of proof by clear and convincing evidence. The respondents’ motion to dismiss was denied.

Holdings

1. A noncitizen who was released on bond and allowed to remain present in the United States for approximately nine years, and who was never paroled, is detained under 8 U.S.C. § 1226 when later apprehended inside the country, rather than being subject to mandatory detention under 8 U.S.C. § 1225(b)(1)(A).
2. Alves da Silva was entitled to an individualized bond hearing before an immigration judge.
3. At the individualized bond hearing, the government must prove by clear and convincing evidence that petitioner is a danger to the community or a flight risk; the immigration judge must consider alternatives to detention and, if setting bond, petitioner's ability to pay.
4. Matter of M-S- did not establish that petitioner was subject to mandatory detention under section 1225 because it did not address a noncitizen who had been allowed to remain present in the United States for years before being re-detained, and the court independently interpreted the governing statutes.

Questions Presented

1. Whether a noncitizen who was initially detained under 8 U.S.C. § 1225(b)(1)(A), released on bond after a positive credible-fear determination, and allowed to remain in the United States for years is subject to mandatory detention under section 1225 rather than detention under section 1226 when later re-detained.
2. Whether the petitioner was entitled to an individualized bond hearing before an immigration judge.
3. Whether respondents' motion to dismiss should be granted.

Disposition

writ_granted