Reid v. Donelan , 819 F.3d 486 ( 2016 )

United States Court of Appeals
For the First Circuit
Nos. 14-1270, 14-1803,
14-1823
MARK 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.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge]
Before
Howard, Chief Judge,
Selya and Stahl, Circuit Judges.
Elianis N. Perez, Senior Litigation Counsel, with whom
Joyce Branda, Acting Assistant Attorney General, Civil Division,
William C. Peachey, Director, Office of Immigration Litigation,
District Court Section, Colin A. Kisor, Deputy Director, and
Regan Hildebrand, Senior Litigation Counsel, Officer of
Immigration Litigation, District Court Section, were on brief,
for appellant.
Anant K. Saraswat and Swapna C. Reddy, Law Student Intern,
with whom Mark C. Fleming, Wilmer Cutler Pickering Hale and Dorr
LLP, Ahilan T. Arulanantham, Michael Tan, ACLU Immigrants'
Rights Project, Nicole Hallett, Supervising Attorney, Michael
Wishnie, Supervising Attorney, Conchita Cruz, Law Student
Intern, Grace Kao, Law Student Intern, Lunar Mai, Law Student
Intern, My Khanh Ngo, Law Student Intern, Ruth Swift, Law
Student Intern, and Jerome N. Frank Legal Services, were on
brief, for appellee.
April 13, 2016
STAHL, Circuit Judge. Under 8 U.S.C. § 1226(c),
aliens who have committed certain criminal offenses are subject
to mandatory detention after serving their criminal sentence and
pending their removal proceedings. Petitioner, a lawful
permanent resident, committed such offenses, served his
sentence, and then was held under § 1226(c) without an
individualized showing that he posed a flight risk or danger to
society and without an opportunity to seek release on bond.
After eight months, Petitioner challenged his continuing
detention and filed a class action on behalf of himself and
similarly situated noncitizens held for over six months.
The district court held that detention pursuant to
§ 1226(c) for over six months was presumptively unreasonable and
granted summary judgment to the class, thereby entitling each
class member to a bond hearing. With respect to Petitioner, the
court also held, in the alternative, that the individualized
circumstances of his case rendered his detention unreasonable.
Finally, the court declined to mandate certain procedural
protections for the class members' bond hearings. We affirm the
judgment with respect to Petitioner, vacate the judgment with
respect to the class members, and remand the class action for
reconsideration of the district court's class certification.
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I. Facts & Background
The U.S. Department of Homeland Security ("DHS")
generally has the discretionary authority to detain an alien
during removal proceedings. 8 U.S.C. § 1226(a). An alien that
U.S. Immigration and Customs Enforcement ("ICE") decides to
detain under § 1226(a) may seek a bond hearing before an
immigration judge ("IJ") to show that he or she is not a flight
risk or a danger. 8 C.F.R. § 236.1(c)(8). For aliens who have
committed certain criminal or terrorist offenses, however,
Congress made detention during removal proceedings mandatory,
except for witness protection purposes. 8 U.S.C. § 1226(c).
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 properties.
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.
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After being released from criminal custody on November
13, 2012, Reid was detained by ICE under § 1226(c) without bond
pending immigration removal proceedings. Reid conceded the
factual allegations underlying his removability charges, but
sought relief from removal on two grounds: (1) that the
Convention Against Torture ("CAT") applied, and (2) that removal
was a disproportionate punishment for his crimes.
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 application 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 further proceedings related to Reid's CAT claim. On
December 17, 2013, the IJ again denied Reid's CAT claim. Reid
appealed again and, on December 29, 2014, the BIA found error
and remanded the case once more.
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
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the District of Massachusetts. Reid contends that he and other
similarly situated noncitizens cannot be held under § 1226(c) in
prolonged detention without an individualized bond hearing to
ascertain individual flight or safety risk. Reid argues that
§ 1226(c) contains an implicit "reasonableness" requirement and
should be read to authorize mandatory detention only up to six
months, at which time the government must provide a bond
hearing. At the bond hearing, Reid argues, the government must
bear the burden of presenting clear and convincing evidence that
detention remains necessary. What is more, Reid contends that
the government must employ the least restrictive means available
to prevent the alien's flight or danger to the community.
On January 9, 2014, the district court granted Reid's
habeas petition and held that § 1226(c) only authorizes
mandatory detention for a reasonable period of time. Reid v.
Donelan (Reid I), 991 F. Supp. 2d 275, 278-79 (D. Mass. 2014).
The court further held that detention over six months was
presumptively unreasonable absent individualized justification.
Id. at 279-81. The court also noted that even if no such
presumption applied, the individualized circumstances of Reid's
case rendered his continued detention unreasonable. Id. at 281-
82. The court ordered the government to set a hearing and to
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determine whether conditions could be placed upon Reid's release
to reasonably account for any flight or safety risks. Id. at
282. On February 25, 2014, Reid posted bond and was released
after 400 days of civil detention, subject to electronic
monitoring, monthly reporting, and other conditions.
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 § 1226(c) only justifies mandatory detention for a period
of six months, at which time the detention becomes presumptively
unreasonable absent an individualized showing at a bond hearing.
Id. at 88. However, the court declined to adopt any specific
procedural protections for the bond hearings themselves. Id. at
92-93. The court observed that aliens detained under § 1226(a)
bore the burden of proof at their bond hearings, and
"individuals who committed a § 1226(c) predicate offense should
not receive more protections than § 1226(a) detainees." Id. at
92.
The government appeals the lower court's determination
that § 1226(c) contains an implicit reasonableness requirement,
that any detention under § 1226(c) is presumptively unreasonable
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after six months, and that Reid's specific detention had become
unreasonable. Reid cross-appeals the lower court's class
determination that bond hearings for aliens held pursuant to
§ 1226(c) do not require specific procedural protections.
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 (2003) (citing 8 U.S.C.
§ 1252(a) (1982)). Over time, Congress became concerned that
criminal aliens too often obtained release and were thereby able
to evade removal and continue committing crimes. See id. at
518-21. In response, "Congress limited the Attorney General's
discretion over custody determinations with respect to
deportable aliens who had been convicted of aggravated felonies"
and then expanded the definition of "aggravated felonies" in
subsequent legislation to subject more criminal aliens to
mandatory detention. Id. at 520-21. "At the same time,
however, Congress . . . authorize[d] the Attorney General to
release permanent resident aliens during their deportation
proceedings where such aliens were found not to constitute a
flight risk or threat to the community." Id. at 521.
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The current take on this mandatory detention theme can
be found in 8 U.S.C. § 1226(c), which requires the Attorney
General1 to take criminal aliens into custody "when released"2
from criminal custody and only permits the release of such
aliens for limited witness protection purposes. See 8 U.S.C.
§ 1226(c). Whatever the merits of this approach may be as a
matter of policy, we must ensure that the statute falls within
constitutional limits.
The constitutionality of the categorical detention
scheme embodied in § 1226(c) was first put to the test in
Demore. In Demore, the petitioner launched a broad attack on
the statute, arguing "that his detention under § 1226(c)
violated due process because the [government] had made no
determination that he posed either a danger to society or a
1
Although the relevant statutory sections refer to the
Attorney General, the Homeland Security Act of 2002, Pub. L. No.
107-296, 116 Stat. 2135 (2002), transferred all immigration
enforcement and administration functions vested in the Attorney
General, with few exceptions, to the Secretary of Homeland
Security.
2
The instant case asks what § 1226(c) requires after a
criminal alien has been brought into custody. This case does
not touch upon what the statute requires at the commencement of
such detention. This circuit recently considered the meaning of
the statute’s "when . . . released" provision in Castañeda v.
Souza, 810 F.3d 15 (1st Cir. 2015) (en banc).
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flight risk." 538 U.S. at 514. In other words, the petitioner
argued that his detention was unconstitutional from the outset
due to the categorical nature of the mandatory detention regime.
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 (1993)). Yet, the Court also
noted that "[d]etention is necessarily a part of [the]
deportation procedure," id. at 524 (alteration in original)
(quoting Carlson v. Landon, 342 U.S. 524, 538 (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,
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justifiably concerned that deportable criminal aliens who are
not detained continue to engage in crime and fail to appear for
their removal hearings in large numbers, may require that
persons such as respondent be detained for the brief period
necessary for their removal proceedings." Id. at 513 (emphasis
added). This was no passing remark. See id. at 526 ("[T]he
Government may constitutionally detain deportable aliens during
the limited period necessary for their removal proceedings."
(emphasis added)). Indeed, the Court took pains to point out
the specific durations that it envisioned were encompassed by
its holding: "[T]he detention at stake under § 1226(c) lasts
roughly a month and a half in the vast majority of cases in
which it is invoked, and about five months in the minority of
cases in which the alien chooses to appeal." Id. at 530.
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
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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 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 v.
Davis, 533 U.S. 678, 690 (2001). Because of the limited nature
of the holding in Demore, every federal court of appeals to
examine § 1226(c) has recognized that the Due Process Clause
imposes some form of "reasonableness" limitation upon the
duration of detention that can be considered justifiable under
that statute. See Lora v. Shanahan, 804 F.3d 601, 606 (2d Cir.
2015); Rodriguez v. Robbins (Rodriguez I), 715 F.3d 1127, 1138
(9th Cir. 2013); Diop v. ICE/Homeland Sec., 656 F.3d 221, 232-33
(3d Cir. 2011); Ly v. Hansen, 351 F.3d 263, 269-70 (6th Cir.
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2003). And, each circuit has found it necessary to read an
implicit reasonableness requirement into the statute itself,
generally based on the doctrine of constitutional avoidance.
See Lora, 804 F.3d at 614; Rodriguez I, 715 F.3d at 1138; Diop,
656 F.3d at 235; Ly, 351 F.3d at 270.
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 a 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 continued detention became unreasonable or
unjustified," id. at 532 (Kennedy, J., concurring).
Yet, the courts of appeals have split on the method
for enforcing this statutory reasonableness requirement. The
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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
"appl[ied] 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
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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 § 1226(c) must be
provided a bond hearing once his or her detention reaches the
six-month mark, because any categorical and mandatory detention
beyond that timeframe is presumptively unreasonable. Id. at
616. The detainee may continue to be held if an IJ determines
that the individual does, in fact, pose a flight risk or danger
to society, but the categorical nature of the detention expires.
Id.
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
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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
period reasonably necessary to secure the alien's removal." Id.
at 682.
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."
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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 § 1226(c) based on the superficial similarities of the
problems posed, such a presumption has no place here. Unlike
the "post-removal-period detention" at issue in Zadvydas, which
had "no obvious termination point," a "detention pending a
determination of removability" under § 1226(c) has "a definite
termination point." Demore, 538 U.S. at 529 (quoting Zadvydas,
533 U.S. at 697). Just because the conclusion of removal
proceedings may not be imminent does not mean the conclusion is
not reasonably foreseeable. Why does this distinction matter?
Because the six-month presumption developed in Zadvydas would
never be triggered under the circumstances found here.
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
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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
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permanent." Id. at 691. Because 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.
This brings us to the character of the
"reasonableness" inquiry itself. As the Diop court pointed out,
"[r]easonableness, by its very nature, is a fact-dependent
inquiry requiring an assessment of all of the circumstances of
any given case." 656 F.3d at 234. The reasonableness of
continued detention under § 1226(c) must be measured "primarily
in terms of the statute's basic purpose." Zadvydas, 533 U.S. at
699. Although the statute's purpose at first glance is to
protect public safety and ensure that aliens appear for their
removal proceedings, we think the purpose is a bit more nuanced
than that. If an individualized determination of flight and
safety risk were sufficient, for example, there would be little
reason to pass § 1226(c) at all.
Instead, the statute was passed "against a backdrop of
wholesale failure by the INS to deal with increasing rates of
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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
§ 1226(c) is its categorical and mandatory treatment of a
certain class of criminal aliens. Measuring reasonableness by
this basic purpose requires a different inquiry than the flight-
and-safety-risk evaluation conducted in an individualized bond
hearing. Therefore, arguing that aliens receive the equivalent
of an individualized "reasonableness" review at their bond
hearings entails a certain judicial sleight-of-hand. See
Rodriguez I, 715 F.3d at 1139. It is a supposed finding of
"unreasonableness" under the implicit statutory limitation that
entitles the alien to a bond hearing in the first place. In
other words, while the Second and Ninth Circuits claim to have
read an implicit "reasonableness limitation" into § 1226(c), we
think it more accurate to say that they have simply read an
implicit "six-month expiration" into § 1226(c).
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
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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 predictability").
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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
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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.
Moreover, the federal courts' involvement is
wastefully duplicative. Not only may "the underlying removal
proceedings justifying detention . . . be nearing resolution by
the time a federal court of appeals is prepared to consider
them," id., but it is also likely that the evidence and
arguments presented in a "reasonableness" hearing before a
federal court are likely to overlap at the margins with the
evidence and arguments presented at a bond hearing before an
immigration court. This inefficient use of time, effort, and
resources could be especially burdensome in jurisdictions with
large immigration dockets. See Lora, 804 F.3d at 615-16.
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
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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
continued detention sufficiently serves the categorical purpose
of the statute. This is not, as the government contends, simply
3
To be clear, it is quite possible that the government is
less captive to § 1226(c)'s categorical command than it
believes. Because we read an implicit reasonableness limitation
into the statute itself, the statute authorizes a bond hearing
as soon as continued, mandatory detention has reached the point
of being constitutionally unreasonable. Whether (and how) the
government may rely upon this implicit component of the statute
to streamline its detention procedures for aliens who have been
detained under § 1226(c) for a prolonged period of time poses a
question for another day.
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a question of asking "whether there are significant,
unjustifiable delays in the proceedings ordered at the
government's request or other evidence demonstrating that the
government is not actively engaged in prosecution of the removal
case."
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
§ 1226(c) could result in a "potentially lengthy detention."
Id. Thus, the Demore majority disclaimed any suggestion that
its decision somehow sanctioned categorical custody beyond a
matter of months.
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
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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 § 1226(c) undoubtedly prevents
flight and protects the public, this argument involves the same
stratagem used by the Ninth Circuit in finding bond hearings
sufficient to satisfy the implicit reasonableness requirement.
The basic purpose of § 1226(c) is not merely flight and danger
prevention. After all, an alien who, at a bond hearing, is
found likely to abscond or harm society could clearly remain in
detention. The specific purpose of § 1226(c) is to
categorically deny bond hearings to a class of aliens who may
pose these threats. An inquiry into the reasonableness of
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categorical detention must, therefore, be measured by reference
to Congress' use of "reasonable presumptions and generic rules"
about danger and flight risk. Demore, 538 U.S. at 526 (quoting
Flores, 507 U.S. at 313).
Categorical detention is only permitted 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 8 U.S.C.
§ 1226(c) is based upon the Government's concerns over the risks
of flight and danger to the community, the ultimate purpose
behind the detention is premised upon the alien's
deportability." (citation omitted)); see also Ly, 351 F.3d at
271-72 ("The actual removability of a criminal alien . . . has
bearing on the reasonableness of his detention prior to removal
proceedings."). In other words, there is a difference between
the "foreseeability" of proceedings ending and the
"foreseeability" of proceedings ending adversely. As the
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likelihood of an imminent removal order diminishes, so too does
the government's interest in detention without a bond hearing.
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
4
These non-exhaustive factors are similar to those advanced
by the Ly court. See Flores-Powell v. Chadbourne, 677 F. Supp.
2d 455, 471 (D. Mass. 2010) (summarizing the factors from Ly,
351 F.3d at 271-72, that are suggestive of unreasonable delay:
"(1) the overall length of detention; (2) whether the civil
detention is for a longer period than the criminal sentence for
the crimes resulting in the deportable status; (3) whether
actual removal is reasonably foreseeable; (4) whether the
immigration authority acted promptly to advance its interests;
and (5) whether the petitioner engaged in dilatory tactics in
the Immigration Court").
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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:
[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.
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 timeframe, 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
categorical detention far less reasonable. (Of course, an IJ
might still find such an alien too risky to release at an
individualized bond hearing.)
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
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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 authorities; 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
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.
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articulated above, and we agree with the district court's
holding that Reid's detention had become unreasonable under
§ 1226(c).
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, rendered 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 8 U.S.C. § 1226(c) for over six
months and have not been afforded an individualized bond
hearing." Reid v. Donelan, 297 F.R.D. 185, 194 (D. Mass. 2014).
The court subsequently granted summary judgment to this class on
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the basis of its previous decisions adopting the six-month
bright-line rule. See Reid II, 22 F. Supp. 3d at 88-89. It
then examined the appropriate relief, which included a request
by Reid that the court mandate certain procedural protections at
bond hearings--protections that exceed those currently
contemplated by regulations implementing bond hearings under 8
U.S.C. § 1226(a). The court declined to impose these additional
procedural protections, concluding that due process did not
require them. See id. at 92-93. Reid cross-appeals this
conclusion, offering a bevy of weighty constitutional arguments.
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 disposition.
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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 (1977), or judicial
decision, see Hartman v. Duffey, 19 F.3d 1459, 1470, 1474-75
(D.C. Cir. 1994)--cast substantial doubt on the composition of
the class, it is appropriate to remand for reconsideration of
the class certification. This prudential procedure recognizes
that serious concerns about premature adjudication of
constitutional questions arise where the legitimacy of a class
is called into question by changes in the law. See Kremens, 431
U.S. at 128, 136-37; Smook v. Minnehaha County, 457 F.3d 806,
815 (8th Cir. 2006). Those concerns are heightened where, as
here, we lack information about the status of the unnamed class
members, including whether they have been afforded bond
hearings, whether any of them have been denied bond under the
challenged procedures, and the justification for those denials.
Remand (rather than dismissal) is also fairer to the class
members, especially since the government has not appealed the
class certification order, and we have no briefing from the
parties about the impact our case-by-case rule has on the class
as a whole.
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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 Fed. R. Civ. P. 23; Kremens,
431 U.S. at 134-35; Hartman, 19 F.3d at 1474. It may well be
that no suitable class can be formed, and that the due process
concerns presented by the bond procedures must be raised by an
individual denied bond under these standards, in which case
decertification of the present class is the appropriate course.
See Smook, 457 F.3d at 815.
In concluding, we wish to emphasize that our
decision to read an implicit reasonableness requirement into
§ 1226(c) cannot be read so broadly as to unwind § 1226(c)'s
mandatory detention requirement. There is no doubt that a
challenge like Demore's would still fail today. Categorical and
mandatory detention for a brief, reasonable duration remains
constitutional, and any challenge to such detention at the
outset or early stages of categorical custody must be dismissed
without hesitation. As long as the statute remains in effect,
Demore so requires.
Yet, at a certain point the constitutional imperatives
of the Due Process Clause begin to eclipse the claimed
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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 we 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.
5
Because our affirmance in this case is limited to the
particular facts presented by Reid's petition, we have no
occasion to consider here whether another petitioner might be
able to challenge the individualized reasonableness of his
continued categorical detention before the immigration courts
rather than the federal courts. The regulatory and statutory
regime does not explicitly address the propriety of such an
approach, and the parties before us have not fully briefed or
argued the issue. Given the shortcomings of case-by-case habeas
review identified above, however, it would be appropriate for
the executive (or the legislature, as the case may be) to
consider explicitly permitting detainees in the position of the
petitioner to seek a reasonableness review before a federal
court or before an IJ more familiar with the intricacies of the
case and the particulars of the underlying removal proceedings.
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