Reid v. Donelan ( 2021 )

United States Court of Appeals
For the First Circuit
Nos. 19-1787, 19-1900
MARK ANTHONY REID; ROBERT WILLIAMS, on behalf of himself and
others similarly situated; LEO FELIX CHARLES, on behalf of
himself and others similarly situated,
Petitioners, Appellants/Cross-Appellees,
v.
CHRISTOPHER J. DONELAN, Sheriff, Franklin County, Massachusetts;
LORI STREETER, Superintendent, Franklin County Jail & 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; ALEJANDRO MAYORKAS*, Secretary of the
Department of Homeland Security; DENIS C. RIORDAN, Director,
Immigration and Customs Enforcement Boston Field Office; MERRICK
B. GARLAND, Attorney General; JEAN KING, Acting Director of the
Executive Office for Immigration Review; EXECUTIVE OFFICE FOR
IMMIGRATION REVIEW; DAVID DUBOIS, Sheriff, Strafford County, New
Hampshire; CHRISTOPHER BRACKETT, Superintendent, Strafford
County House of Corrections; TAE D. JOHNSON, Acting Director,
Immigration and Customs Enforcement,
Respondents, Appellees/Cross-Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
* Pursuant to Fed. R. App. P. 43(c)(2), Secretary of Homeland
Security Alejandro Mayorkas, Attorney General Merrick B. Garland,
Acting Director Jean King, and Acting Director Tae D. Johnson have
been substituted as respondents.
Before
Lynch, Lipez, and Kayatta,
Circuit Judges.
Anant K. Saraswat and Michael Tayag, with whom Michelle Nyein,
Wolf, Greenfield & Sacks, P.C., Grace Choi, Kayla Crowell, Aseem
Mehta, Alden Pinkham, Bianca Rey, Marisol Orihuela, Michael
Wishnie, Jerome N. Frank Legal Services Organization, Michael K.T.
Tan, and ACLU Immigrants' Rights Project were on brief, for
appellants/cross-appellees.
William Tong, Attorney General of the State of Connecticut,
Clare Kindall, Solicitor General of the State of Connecticut,
Joshua Perry, Special Counsel for Civil Rights, Kathleen Jennings,
Attorney General of the State of Delaware, Keith Ellison, Attorney
General of the State of Minnesota, Aaron D. Ford, Attorney General
of the State of Nevada, Hector H. Balderas, Attorney General of
the State of New Mexico, Letitia James, Attorney General of the
State of New York, Ellen F. Rosenblum, Attorney General of the
State of Oregon, Thomas J. Donovan, Jr., Attorney General of the
State of Vermont, Maura Healey, Attorney General of the
Commonwealth of Massachusetts, Mark R. Herring, Attorney General
of the Commonwealth of Virginia, and Karl A. Racine, Attorney
General of the District of Columbia, on brief for the States of
Connecticut, Delaware, Minnesota, Nevada, New Mexico, New York,
Oregon, and Vermont, the Commonwealths of Massachusetts and
Virginia, and the District of Columbia, amici curiae.
Alina Das, Rebecca Suldan, and Washington Square Legal
Services, Immigrant Rights Clinic, on brief for Boston College
Immigration Clinic, Boston University School of Law, Immigrants'
Rights and Human Trafficking Program, Detention Watch Network,
Families for Freedom, Greater Boston Legal Services, Harvard Law
School Crimmigration Clinic, Immigrant Defense Project, Immigrant
Legal Resource Center, Lawyers for Civil Rights, National
Immigration Project of the National Lawyers Guild, and Suffolk
University Law School Immigration Clinic, amici curiae.
Kevin P. Martin, Madelaine M. Cleghorn, and Goodwin Procter
LLP, on brief for The American Immigration Lawyers Association,
amicus curiae.
Sarah H. Paoletti and Transnational Legal Clinic, University
of Pennsylvania Law School, on brief for International Law
Professors and Human Rights Clinicians, amici curiae.
James J. Beha II and Morrison & Foerster LLP, on brief for
Retired Immigration Judges and Board of Immigration Appeals
Members, amici curiae.
Nina Rabin and Immigrant Family Legal Clinic, UCLA School of
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Law, on brief for 35 Scholars and Researchers in Sociology,
Criminology, Anthropology, Psychology, Geography, Public Health,
Medicine, Latin American Studies, and Law, Whose Work Relates to
Incarceration, Detention, and the Effect of U.S. Immigration
Detention and Removal Policies on Migrant Populations, amici
curiae.
Jonathan D. Selbin, Jason L. Lichtman, Katherine I. McBride,
Elizabeth J. Cabraser, Andrew R. Kaufman, and Lieff Cabraser
Heimann & Bernstein, LLP, on brief for Civil Law Professors, amici
curiae.
Lauren E. Fascett, Senior Litigation Counsel, Civil Division,
Office of Immigration Litigation, with whom Joseph H. Hunt,
Assistant Attorney General, Civil Division, William C. Peachey,
Director, District Court Section, Office of Immigration
Litigation, Elianis N. Perez, Assistant Director, Sarah S. Wilson,
Senior Litigation Counsel, Appellate Counsel Section, Office of
Immigration Litigation, and Catherine M. Reno, Trial Attorney,
Civil Division, Office of Immigration Litigation, were on brief
for appellees/cross-appellants.
October 26, 2021
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KAYATTA, Circuit Judge. This class action, brought on
behalf of noncitizen detainees held without possibility of release
pending the completion of their removal proceedings, comes before
this court for a second time. See Reid v. Donelan, 819 F.3d 486(1st Cir. 2016), cert. denied, 138 S. Ct. 1547 (2018), withdrawn,
Nos. 14-1270, 14-1803, 14-1823, 2018 WL 4000993 (1st Cir. May 11,
2018). On this occasion, we affirm the district court's ruling
that there is no per se constitutional entitlement to a bond
hearing after six months of detention. We otherwise vacate the
district court's declaratory and injunctive relief as advisory and
remand for entry of judgment. Our reasoning follows.
I.
Petitioners represent a certified class of noncitizens
who have been detained by the Department of Homeland Security's
(DHS) Immigration and Customs Enforcement (ICE) division in
Massachusetts and New Hampshire pursuant to 8 U.S.C. § 1226(c) for
more than six months without a bond hearing.1 Section 1226(c),
often called the mandatory detention provision, "carves out a
statutory category of aliens who may not be released" during
removal proceedings, outside of certain limited circumstances.
1 At the close of discovery in the district court case, 113
individuals had vested into the class; of those, 104 had received
bond hearings as a result of the district court's injunction in
this case. By the time briefing was submitted in this appeal, the
number of class members had risen to 158.
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Jennings v. Rodriguez, 138 S. Ct. 830, 837 (2018) (emphasis in
original). Under section 1226(c), the government "shall take into
custody" any noncitizen who is inadmissible or deportable based
on, among other things, a conviction for certain crimes involving
moral turpitude, controlled substance offenses, aggravated
felonies, certain firearm offenses, or certain acts associated
with terrorism. 8 U.S.C. § 1226(c)(1). The statute allows release
of a noncitizen properly subject to mandatory detention under
section 1226(c) "only for witness protection purposes and only
[then] if the alien shows he is not a danger to the community or
a risk of flight." Reid v. Donelan, 390 F. Supp. 3d 201, 214 (D.
Mass. 2019); see also 8 U.S.C. § 1226(c)(2).
The district court judge to whom the case was first
assigned observed that the absence of any provision for release on
bond from a prolonged detention might call the statute's
constitutionality into question. The district court therefore
read into section 1226(c) a requirement that detainees receive an
individualized bond hearing once further detention becomes
"unreasonable." Reid v. Donelan, 991 F. Supp. 2d 275, 277—78 (D.
Mass. 2014). The court then further considered whether
"reasonableness" should be assessed for each detainee based on his
or her individual circumstances or whether the statute shall be
read as requiring a "bright-line rule" limiting detention without
a bond hearing to six months for all persons detained under
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section 1226(c). Id. at 279—80. The court concluded that the
statute should be read as mandating an individualized bond hearing
after no more than six months of detention. Id. at 279. In the
alternative, the court found that even if no bright-line rule
applied, Reid's own individual circumstances required an
opportunity for a bond hearing, citing the length of his fourteen-
month detention, the uncertainty of his removal, and the absence
of any dilatory tactics by Reid himself. Id. at 282.
On appeal, this court reversed the holding that
section 1226(c) included a bright-line rule that all persons
detained must receive an individualized bond hearing after six
months of detention. Reid, 819 F.3d at 491, 496. We agreed,
though, that the statute included "an implicit reasonableness
limitation," the length of which would turn on the individual
circumstances presented by each detainee. Id. at 494, 496, 502.
At the same time, we reviewed and affirmed the district court's
alternative holding that section 1226(c) required an
individualized bond hearing in Reid's own case. Id. at 501.
Importantly for our present purposes, we observed that
"the bright-line rule was an essential predicate to class
certification." Id. In vacating the class certification order,
we left it for the district court in the first instance to decide
on remand whether "it is feasible to redefine the class." Id. at
502.
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The Supreme Court subsequently issued its decision in
Jennings v. Rodriguez, rejecting the contention that
section 1226(c) can be read as requiring bond hearings after six
months of immigration detention. The Court found that
section 1226(c) clearly precludes release on bond prior to the end
of removal proceedings (except for witness protection purposes).
138 S. Ct. at 846-47. The Court reasoned that the canon of
constitutional avoidance had no role to play when the statute
itself spoke clearly on the matter at hand. Id. at 847. Whether
the statute for that reason might be unconstitutional under some
circumstances, the Court did not decide. See id. at 851.
Following Jennings, we withdrew our 2016 opinion and
vacated the judgment. See Reid v. Donelan, Nos. 14-1270, 14-1803,
14-1823, 2018 WL 4000993, at *1 (1st Cir. May 11, 2018). In so
doing, we affirmed the district court's judgment as to named
plaintiff Mark Reid himself,2 vacated the judgment as to the class
members, and remanded the case to the district court for
"reconsideration of the certification order." Id.2 The district court made only one ruling specific to Reid:
that even if there was no presumption that detention over six
months was unreasonable, the individualized circumstances of
Reid's case rendered his continued detention unreasonable. The
district court ordered a hearing. After the hearing, Reid posted
bond and was released, following 400 days of civil detention.
Reid, 819 F.3d at 492.
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Following remand, a second district court judge took
over the case. After briefing and argument, the district court
allowed the addition of two new named plaintiffs to replace Reid.
Reid v. Donelan, No. 13-30125-PBS, 2018 WL 5269992, at *3 (D. Mass.
Oct. 23, 2018). The court also allowed plaintiffs to pursue a new
theory: that "the Due Process Clause or Excessive Bail Clause
requires that they at least have the chance to plead their case
after six months at an individualized bond or reasonableness
hearing." Id. at *5. Based on this new constitutional version of
a bright-line six-month rule, the district court allowed the case
to proceed as a class action. Analogizing to the earlier ruling
certifying a class to advocate for relief based on an implied
statutory requirement of a bright-line six-month rule, the court
reasoned that the new theory similarly posed a common question
that could generate a right to relief as a matter of law without
reference to varying individual circumstances. Id. at *5—6. "A
holding that the Constitution provides a right to a reasonableness
hearing during a prolonged detention would resolve all class
members' claims at once." Id. at *6.3 The district court also
expanded the class slightly to include "[a]ll individuals who are
or will be detained within the Commonwealth of Massachusetts or
3 The "reasonableness hearing" sought by plaintiffs would
take place before an immigration judge, who would determine
"whether the continued denial of a bond hearing was reasonable."
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the State of New Hampshire pursuant to 8 U.S.C. § 1226(c) for over
six months and have not been afforded an individualized bond or
reasonableness hearing." Id. at *8.4
After cross-motions for summary judgment "on whether
mandatory detention of the class members under 8 U.S.C. § 1226(c)
for over six months violates the Fifth Amendment Due Process Clause
or the Eighth Amendment Excessive Bail Clause," the district court
partially granted and partially denied each side's motion and
issued a declaratory order and a permanent injunction. Reid, 390
F. Supp. 3d at 209–10, 227–28.
Most significantly for present purposes, the district
court rejected petitioners' contention that every detainee must
have the opportunity for a hearing after no more than six months
of detention. Instead, the court reasoned, determining the length
of time that might constitutionally pass without a bond hearing
requires "a fact-specific analysis" that turns on each
"noncitizen's individual circumstances." Id. at 209.
Rather than stopping at that point, the district court
also issued declaratory and injunctive relief in favor of all class
members, irrespective of their individual circumstances. That
4 The class was defined originally as "all individuals who
are or will be detained within the Commonwealth of Massachusetts
pursuant to § 1226(c) for over six months and are not provided an
individualized bond hearing." Reid v. Donelan, 297 F.R.D. 185,
187 (D. Mass. 2014).
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relief established detailed substantive and procedural rules
whereby individual detainees might pursue release. The court
decreed that detention without a bond hearing "is likely to be
unreasonable if it lasts for more than one year [during removal
proceedings before the agency], excluding any delays due to the
alien's dilatory tactics." Looking even further ahead to possible
bond hearings themselves, the district court also ordered the
government to follow the "procedural rules mandated by due process
at a bond hearing." Id. at 226. In the district court's view,
those rules meant that in any bond hearing held for a class member
whose individual circumstances warranted such a hearing, the
government must prove the noncitizen "either dangerous by clear
and convincing evidence or a risk of flight by a preponderance of
the evidence." Id. at 228. The immigration court would not be
allowed "to impose excessive bail, must evaluate the alien's
ability to pay in setting bond, and must consider alternative
conditions of release such as GPS monitoring that reasonably assure
the safety of the community and the alien's future appearances."
Id.
Both sides appeal.
II.
We begin with a jurisdictional digression not raised by
any party. In 2014, the district court ordered the government to
conduct a bond hearing as to Mark Reid; after the hearing took
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place, Reid posted bond and was released after 400 days of civil
detention. Reid, 819 F.3d at 492. After detaining new class
representative Leo Charles for more than a year, the government
announced he was not properly subject to mandatory detention and
released him the day before the government's brief in his case was
due. And the government deported the last class representative,
Robert Williams, after eleven months of mandatory detention, but
he then won his petition for review. Petitioners point to no facts
at all showing that renewed detention is imminent, or even likely.
The government in turn disavows any intent to detain them further.
Their claims are therefore at this point moot.
Nevertheless, post-certification mootness of the
individual claims of a class representative regarding an actual
prior detention does not necessarily moot either the claims of the
class or the case as a whole. See Sosna v. Iowa, 419 U.S. 393,
402 (1975) ("[While] there must be a live controversy at the time
[a c]ourt reviews [a] case," "[t]he controversy may exist . . .
between a named defendant and a member of the class represented by
the named plaintiff, even though the claim of the named plaintiff
has become moot."); Genesis Healthcare Corp. v. Symczyk, 569 U.S.
66, 74 (2013) (citing Sosna for the proposition that "a class
action is not rendered moot when the named plaintiff's claim
becomes moot after the class has been duly certified" (emphasis in
original)). "The Court reasoned [in Sosna] that when a district
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court certifies a class, 'the class of unnamed persons described
in the certification acquire[s] a legal status separate from the
interest asserted by [the named plaintiff].'" Genesis Healthcare
Corp., 569 U.S. at 74–75 (quoting Sosna, 419 U.S. at 399–402). We
therefore proceed to the merits of the appeal.5
III.
We consider next petitioners' argument that the district
court erred in refusing to hold that all persons detained under
section 1226(c) have a constitutional right to a hearing
concerning the reasonableness of their continued detention after
they have been detained longer than six months. For the following
reasons, we agree with the district court.
First, we adhere to the notion that "the Due Process
Clause imposes some form of 'reasonableness' limitation upon the
duration of detention . . . under [section 1226(c)]," Reid, 819
F.3d at 494. We nevertheless also continue to view the Supreme
Court's ruling in Demore v. Kim, 538 U.S. 510, 530–31 (2003), "as
implicitly foreclosing our ability to adopt a firm six-month rule"
5 The government does not argue that the failure to designate
a new class representative should affect this appeal, nor does it
challenge the adequacy of the currently named class
representatives under Rule 23(a) of the Federal Rules of Civil
Procedure. In the absence of prejudice to the defendant, courts
have consistently granted plaintiffs leave to substitute named
representatives when a class has already been certified and the
certified representative becomes unavailable. 1 McLaughlin on
Class Actions: Law & Practice § 4:36 (17th ed. 2020).
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equally applicable to all section 1226(c) detainees, Reid, 819
F.3d at 497.6 Jennings, which caused the withdrawal of our previous
opinion in this case, did nothing to call that view into question.
It requires no reading of tea leaves to see that Demore
is fatal to the claim here that every single person detained for
six months must be entitled to a bond hearing. The detainee in
Demore, Hyung Joon Kim, had already been detained for six months,
yet the Court reversed the lower court's order requiring the
government to hold a bond hearing. Demore, 538 U.S. at 531. It
is simply not possible to read Demore as anticipating that the
Court's opinion would have been different if Kim's detention had
lasted one day more.
That is not to say that Demore categorically blessed
six-month detentions. The Supreme Court had been advised
(incorrectly, it would appear)7 that section 1226(c) detention
6 Petitioners in Demore challenged the constitutionality of
detention pursuant to section 1226(c). The Court denied the
challenge, due in part to what the Court viewed as "the limited
time period necessary for . . . removal proceedings." Demore, 538
U.S. at 526.
7 In Jennings, the government informed the Court that the
statistics it provided in Demore had been incorrect, and that
"[d]etention normally lasts twice as long as the [g]overnment then
said it did." Jennings, 138 S. Ct. at 869 (Breyer, J.,
dissenting); see also id. at 860 (Breyer, J., dissenting) ("The
classes before us consist of people who were detained for at least
six months and on average one year.").
In the instant case, petitioners represent that the median
time class members spent in detention, prior to this appeal, is
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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." Demore, 538 U.S. at 530.
Furthermore, in describing Kim's six-month detention, the Court
observed that some portion of that detention was likely the result
of Kim's own request for a continuance in his remand proceedings.
Id. at 531 n.15. While the Court's holding implicitly rejected an
across-the-board rule that some hearing must always be held within
six months, the opinion would seem to leave open the possibility
that in most individual cases, detentions of six months (or of
even less time) might necessitate some type of hearing to see if
continued detention is reasonably necessary to serve the statute's
purposes. Indeed, in the very case before us, the government has
conceded "that mandatory detention under [section] 1226(c) without
a bond hearing violates the Due Process Clause when it becomes
unreasonably prolonged in relation to its purpose in ensuring the
removal of deportable criminal noncitizens." Reid, 390 F. Supp.
3d at 215.
Petitioners argue that another Supreme Court decision,
Zadvydas v. Davis, 533 U.S. 678, 701 (2001), nevertheless calls
363 days, with 25% detained for fewer than eight and a half months
and 25% detained for more than a year and a half. The four longest
terms of detention prior to this appeal were 1,541, 1,291, 1,101,
and 1,048 days -- in other words, between almost three years and
more than four years.
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for a per se six-month limit on detention without a bail hearing.
But Zadvydas was decided before Demore. And the petitioners in
Zadvydas challenged only their detention pending the execution of
their final orders of removal, see 533 U.S. at 682, which the Court
in Demore recognized as "materially different" from detention
under section 1226(c), see 538 U.S. at 527–28. So, too, is
petitioners' analogy to Sixth Amendment case law inapt, as the
district court explained. See Reid, 390 F. Supp. 3d at 218.
Petitioners also seek to analogize to Cheff v.
Schnackenberg, 384 U.S. 373, 380 (1966) (plurality opinion)
(ruling that "sentences exceeding six months for criminal contempt
may not be imposed by federal courts absent a jury trial or waiver
thereof"), United States v. Comstock, 560 U.S. 126, 131 (2010)
(describing a statute which, in contrast to section 1226(c),
requires "judicial hearings at the request of the confined person
at [six-]month intervals"), and Mathews v. Eldridge, 424 U.S. 319,
335 (1976) (describing general requirements for procedural due
process). But these analogies provide insufficient support for
rejecting the much more direct message strongly implied by Demore.
Petitioners alternatively contend that detention under
section 1226(c) beyond six months without an individualized
hearing violates the Excessive Bail Clause of the Eighth Amendment.
See U.S. Const. amend. VIII ("Excessive bail shall not be
required."). Some jurists have opined that "excessive" conditions
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may include "refusal to hold any bail hearing at all." See
Jennings, 138 S. Ct. at 862 (Breyer, J., dissenting); Carlson v.
Landon, 342 U.S. 524, 569 (1952) (Burton, J., dissenting);
Castañeda v. Souza, 810 F.3d 15, 44 (1st Cir. 2015) (en banc)
(Torruella, J., concurring) (noting "the ongoing,
institutionalized infringement of the right to bail"). But
petitioners point to no court that has treated the prohibition on
excessive bail as categorically requiring an opportunity for
release within a specific amount of time. Nor do they provide any
convincing reason to think that the Excessive Bail Clause would
require a bond hearing when the Due Process Clause does not.
Nor, finally, does our recent opinion in Hernandez-Lara
v. Lyons, 10 F.4th 19 (1st Cir. 2021), call for a different result.
The petitioner in that case was detained under section 1226(a),
not section 1226(c). We were therefore able to distinguish Demore
fairly, id. at 35–36, citing the "quite different" circumstances,
id. at 36, and noting that detention under section 1226(a) (of
persons not convicted of crimes triggering 1226(c) detention)
often lasted longer than the "brief" detention at issue in Demore,
id. at 30.
IV.
Having correctly ruled that six months of detention did
not on its own necessarily trigger a constitutional right to a
reasonableness hearing or bond hearing for a person already
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convicted of a crime that triggers detention under section 1226(c),
and that any such relief must be adjudicated on an individual
basis, the district court nevertheless proceeded to issue
declaratory and injunctive relief specifying how district courts
and immigration officials should adjudicate requests for bond.
Reid, 390 F. Supp. 3d at 227–28. The district court sought to
"provide guidance in determining the reasonableness of prolonged
mandatory detention under § 1226(c)." Id. at 219. That "guidance"
took the form of a binding declaration, holding that
mandatory detention without a bond hearing
under 8 U.S.C. § 1226(c) violates due process
when the detention becomes unreasonably
prolonged in relation to its purpose in
ensuring the removal of deportable criminal
aliens. The most important factor in
determining the reasonableness of a criminal
alien's mandatory detention is the length of
the detention. Mandatory detention without a
bond hearing is likely to be unreasonable if
it lasts for more than one year, excluding any
delays due to the alien's dilatory tactics. A
criminal alien subject to mandatory detention
without a bond hearing under § 1226(c) must
bring a habeas petition in federal court to
challenge his detention as unreasonably
prolonged. If the court agrees, the alien is
entitled to a bond hearing before an
immigration judge.
Id. at 227.
The district court also issued a mandatory injunction
dictating the burdens of proof and the substantive factors that
would control in any future bond hearings in immigration court.
Specifically, it ordered that
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[f]or any bond hearing held for a class
member, . . . the immigration court [must]
require the [g]overnment to prove that the
alien is either dangerous by clear and
convincing evidence or a risk of flight by a
preponderance of the evidence. The
immigration court may not impose excessive
bail, must evaluate the alien's ability to pay
in setting bond, and must consider alternative
conditions of relief[,] such as GPS
monitoring[,] that reasonably assure the
safety of the community and the alien's future
appearances.
Id. at 228.
Both sides appeal from this declaratory and injunctive
relief. Petitioners complain about being ordered to bring their
requests for bond hearings before district courts rather than
immigration judges; they also assert that a detainee should be
presumptively entitled to a bond hearing well before the passage
of one year of detention. And they object to the ruling that they
can be denied bail if the government proves they are a flight risk
by a preponderance of the evidence, rather than by clear and
convincing evidence. The government marshals a more global assault
on the declaratory and injunctive relief. It argues, among other
things, that the district court's rulings are free-floating
advisory opinions untethered to any actual case or controversy
between any of the parties.
As the district court explained, the class was certified
as a Rule 23(b)(2) class, Reid, 297 F.R.D. at 194, on the basis of
a single common question that bound together its members: "whether
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the Constitution . . . requires an individualized hearing for
those detained under § 1226(c) beyond six months," Reid, 2018 WL
5269992, at *4. That question satisfied the requirements of
Rule 23(a)(2) because its adjudication would "resolve an issue
that is central to the validity of each one of the claims in one
stroke." Id. at *5 (quoting Wal-Mart Stores, Inc. v. Dukes, 564
U.S. 338, 350 (2011)). In plain terms, the question could be
answered for all class members with nary an eye toward their
individual circumstances; if the answer were "yes," each
individual would get a hearing automatically, while a "no" would
leave each person as before. The need for an answer to the question
was also pressing: Petitioners had all been detained without a
bond hearing for more than six months, and were therefore already
due more process than they had received if they were correct that
a bond hearing must be provided in all instances after no more
than six months of detention.
When the district court answered the class's common
question by holding that there exists no per se entitlement to a
bond hearing after six months of detention under section 1226(c),
Reid, 390 F.3d at 216, every class member had a final answer to
the common question central to the claim that they shared. Both
the Supreme Court, see Jennings, 138 S. Ct. at 851–52, and a prior
panel of this court, see Reid, 819 F.3d at 501–02, had hinted that
the resolution of that common question against the class would
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remove the justification for any further litigation on behalf of
a class in this action.
The district court disagreed, and issued the decrees
discussed above regarding issues that might or might not arise for
some but certainly not all class members and that had yet to be
considered by the tribunals in which the issues would arise if
they did arise. No class member is able to say with reasonable
assurance whether he or she will receive a hearing. Indeed, many
class members will likely not get a bond hearing. And without a
hearing, a class member has no legal interest in the procedures to
be followed in hearings held for others. We therefore cannot say
that the court's declaration and injunction, beyond rejecting the
per se six-month claim, resolves "an issue that is central to the
validity of each [person's] claims in one stroke." Wal-Mart, 564
U.S. at 350.
Although a class can be certified even if there are some
individual issues that can be efficiently and fairly adjudicated
individually, see In re Asacol Antitrust Litigation, 907 F.3d 42,
51—52(1st Cir. 2018), no precedent of which we are aware supports
using a properly certified class as a bootstrap to then adjudicate,
on a class-wide basis, claims that hinge on the individual
circumstances of each class member.
It does not matter that some class members'
circumstances suggested a more concrete and imminent need for a
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ruling on the applicable burdens of proof at a bond hearing. A
Rule 23(b)(2) class, such as this one, may only be maintained if
"the party opposing the class has acted or refused to act on
grounds that apply generally to the class, so that final injunctive
relief or corresponding declaratory relief is appropriate
respecting the class as a whole." Fed. R. Civ. P. 23(b)(2); see
also Wal-Mart, 564 U.S. at 360 ("The key to the (b)(2) class is
'the indivisible nature of the injunctive or declaratory remedy
warranted -- the notion that the conduct is such that it can be
enjoined or declared unlawful only as to all of the class members
or as to none of them.'" (quoting Richard A. Nagareda, Class
Certification in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97,
132 (2009))); 7AA Charles Alan Wright et al., Federal Practice &
Procedure § 1784.1 (3d ed. 2021) ("[T]he common-question and
superiority standards of Rule 23(b)(3) are in some ways much less
demanding than that of either Rule 23(b)(1) or
Rule 23(b)(2) . . . ."); 1 McLaughlin on Class Actions: Law &
Practice § 5:15 (17th ed. 2020) ("Indeed, a Rule 23(b)(2) class
must actually have more cohesiveness than a Rule 23(b)(3) class."
(collecting cases)). A class consisting of some members who might
be entitled to a bond hearing and others who are not lacks
sufficient cohesiveness to obtain relief regarding the conduct of
those hearings under Rule 23(b)(2).
- 21 -
With its resolution of the common class claim complete,
the district court was left with no plaintiff possessing any
current or imminent stake in the resolution of assorted issues
addressed in the court's declaratory and injunctive relief,
including the allocation of the burden of proof and bail terms.
Reid's claim was long ago mooted. And his class claim, as we have
explained, did not encompass the remaining issues addressed by the
court. Whether we call this a lack of standing, see, e.g. In re
Asacol Antitrust Litigation, 907 F.3d at 48 ("In a class action
suit with multiple claims, at least one named class representative
must have standing with respect to each claim." (quoting 1 William
B. Rubenstein, Newberg on Class Actions § 2:5 (5th ed. 2012))), or
the absence of a case or controversy, see U.S. Const. art. III,
§ 2, cl. 1; Carney v. Adams, 141 S. Ct. 493, 498 (2020) ("We have
long understood that constitutional phrase to require that a case
embody a genuine, live dispute between adverse parties, thereby
preventing the federal courts from issuing advisory opinions."),
the result is the same: The district court lacked the jurisdiction
necessary to turn its considered guidance into binding equitable
relief.
We recognize that having clear standards for determining
whether and when a section 1226(c) detainee need be released
pending the conclusion of the detainee's removal proceedings would
make life simpler for all involved. Such standards might arise in
- 22 -
the form of agency regulations. Or they might emerge like common
law rules of precedential force, through case-by-case
adjudication, as in our recent decision in Hernandez-Lara. We
simply hold that this particular Rule 23(b)(2) class action does
not provide a vehicle for preemptively announcing such rules.
V.
For the foregoing reasons, we affirm the judgment
against the class rejecting the claim that persons detained for
six months under section 1226(c) are automatically entitled to a
hearing before an IJ that might lead to their release on bond
pending the conclusion of removal proceedings. We otherwise vacate
the district court's declaratory and injunctive orders, and remand
for the entry of final judgment in accord with this opinion.
Nothing in this opinion precludes any class member from pursuing
a claim that he or she is entitled to a bond hearing or to release
based on his or her individual circumstances. Each party is to
bear its own costs.
- Dissenting Opinion Follows -
- 23 -
LIPEZ, Circuit Judge, dissenting. My colleagues rely on
a "message strongly implied by the Supreme Court" to conclude that
certain noncitizens detained by the government for six months have
no right to a bond hearing to determine the need for their
continued detention. I disagree that the Supreme Court has tipped
its hand on that issue and, perhaps more importantly, I disagree
that it is appropriate to engage in such predictive analysis.
Rather, we should address the novel constitutional question
presented to us and determine through the familiar due process
balancing test the procedural safeguards necessary to protect the
liberty interest of noncitizens detained pursuant to 8 U.S.C.
§ 1226(c). In my view, that balancing demonstrates that such
individuals are entitled to a bond hearing when they have been
detained for six months.8 I therefore dissent.9
8 Perhaps to offer an alternative as a compromise, petitioners
propose that a "reasonableness" hearing be held at the six-month
point of detention to determine detainees' entitlement to a bond
hearing. As I shall explain, detention without a bond hearing for
more than six months is a due process violation for all detainees.
Accordingly, there would be no separate "reasonableness" question
for the IJ to resolve.
9Because my view is that a six-month rule should apply equally
to all class members, I do not confront the class certification
issues that lead the majority to vacate the declaratory and
injunctive relief ordered by the district court. I limit my
dissent to the core constitutional issue -- entitlement to a
hearing after six months.
- 24 -
I.
The majority's rejection of a hearing requirement after
six months rests on its reading of Demore v. Kim, 538 U.S. 510(2003), where the Supreme Court addressed a facial challenge to
§ 1226(c). The Court considered the question of whether it is
constitutional to detain noncitizens with certain criminal
convictions without a bond hearing. The Court answered in the
affirmative. Significantly, however, its analysis did not address
any specific timeframe. Here, we are faced with an as-applied
challenge to § 1226(c) that requires us to determine whether it is
constitutional to detain noncitizens with certain criminal
convictions without a bond hearing for more than six months. The
Supreme Court's answer to the question in Demore does not dictate
the answer to the question before us.
In other words, while Demore tells us that it is
constitutional to detain this category of noncitizens without a
bond hearing for some amount of time, Demore does not address the
constitutional status of detentions that are prolonged. To
illustrate the difference, I offer this example: Is it
constitutional to detain a citizen without an immediate judicial
determination of probable cause that she committed a crime? Yes.
See Cty. of Riverside v. McLaughlin, 500 U.S. 44, 58-59 (1991).
Is it constitutional to detain a citizen for more than 48 hours
without a judicial determination of probable cause? No. Id. Put
- 25 -
simply, the passage of time may make a difference when one's
liberty is in the balance. As the Third Circuit observed, the
benefit to the government of presuming that a class of noncitizens
should be detained to prevent flight or danger to the community
eventually will be outweighed by those individuals' loss of
liberty: "'At this tipping point' . . . due process requires the
[g]overnment to justify continued detention at a bond hearing."
Santos v. Warden Pike Cty. Corr. Facility, 965 F.3d 203, 209 (3rd
Cir. 2020) (quoting Chavez-Alvarez v. Warden York Cty. Prison, 783
F.3d 469, 475 (3d Cir. 2015)).
In reading rejection of a six-month rule into Demore, my
colleagues necessarily rely on the fact that the petitioner there,
Hyung Joon Kim, had been detained for more than six months by the
time the Supreme Court decided his case. But the six-month mark
was neither a factor in Kim's arguments to the Court nor a basis
for the Court's ruling. Rather, "the petitioner argued that his
detention was unconstitutional from the outset due to the
categorical nature of the mandatory detention regime." Reid v.
Donelan, 819 F.3d 486, 493 (1st Cir. 2016), withdrawn, Nos. 14-
1270, 14-1803, 14-1823, 2018 WL 4000993 (1st Cir. May 11, 2018).10
10 Our prior decision in this case, which concluded that
§ 1226(c) includes "an implicit reasonableness requirement," Reid,
819 F.3d at 502, was withdrawn following the Supreme Court's ruling
in Jennings v. Rodriguez, 138 S. Ct. 830 (2018). The Court in
Jennings held that the statute itself contains no time limit on
detention. See id. at 846-47.
- 26 -
The Court's silence on an issue that was not raised does
not create precedent. We are bound by the precedential holdings
and reasoning of the Supreme Court, not by "speculation about what
the Supreme Court might or might not do in the future." Columbia
Nat. Res., Inc. v. Tatum, 58 F.3d 1101, 1107 n.3 (6th Cir. 1995).
Moreover, to the extent reading tea leaves is appropriate, the
Court's decision in Demore appears to forecast different
considerations -- with the possibility of a different outcome --
for prolonged detentions. As our prior decision in this case
noted, "the brevity of the detention [was] central to" the Court's
holding in Demore that § 1226(c) permissibly "'require[s] that
persons such as respondent be detained for the brief period
necessary for their removal proceedings.'" Reid, 819 F.3d at 493-
94 (quoting Demore, 538 U.S. at 513). The Supreme Court made
repeated reference to the limited timeframe at issue. See Demore,
538 U.S. at 513 ("brief period"), 523 (same), 526 ("limited
period"), 529 n.12 ("[t]he very limited time of the detention");
531 ("limited period"). The Court also revealed what it meant by
the "brief period" it was contemplating: "[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
- 27 -
the minority of cases in which the alien chooses to appeal." Id.
at 530.11
We now know that the timing assumptions underlying the
Court's analysis in Demore were wrong. As my colleagues note, the
government informed the Court during the proceedings in another
case involving § 1226(c), Jennings v. Rodriguez, 138 S. Ct. 830(2018), that "[d]etention normally lasts twice as long as the
[g]overnment then said it did." Id. at 869 (Breyer, J.,
dissenting); see also id. at 860 (Breyer, J., dissenting) ("The
classes before us consist of people who were detained for at least
six months and on average one year."). And it is worth repeating
the data reported by petitioners in this case, which my colleagues
acknowledge in a footnote. The median time that class members
spent in detention, before the appeal, was 363 days -- i.e., a
year. Twenty-five percent of the class members were detained for
more than a year-and-a-half, and only 25% were detained for less
than eight-and-a-half months. These numbers are starkly different
from the Supreme Court's understanding in Demore that five months
was a long and uncommon period of detention under § 1226(c).
My colleagues also acknowledge that Demore seemingly
left "open the possibility that in most individual cases,
The Court noted that Kim's six-month detention was
11
"somewhat longer than the average," but pointed out that he had
requested a continuance of his removal hearing. Demore, 538 U.S.
at 530-31.
- 28 -
detentions of six months (or of even less time) might necessitate
some type of hearing to see if continued detention is reasonably
necessary to serve the statute's purposes." The government, too,
recognizes that mandatory detention without a bond hearing will
violate the Due Process Clause "when it becomes unreasonably
prolonged in relation to its purpose." See Reid v. Donelan, 390
F. Supp. 3d 201, 215 (D. Mass. 2019). Nonetheless, my colleagues
decline even to engage in a due process analysis to evaluate the
petitioners' contention that, at least after six months, every
noncitizen detained under § 1226(c) is entitled to a bond hearing
to determine if continued detention would be improper. See Demore,
538 U.S. at 532-33 (Kennedy, J., concurring) ("Were there to be an
unreasonable delay by the INS [Immigration and Naturalization
Service] in pursuing and completing deportation proceedings, it
could become necessary then to inquire whether the detention is
not to facilitate deportation, or to protect against risk of flight
or dangerousness, but to incarcerate for other reasons.").
As I have explained, the rationale for this
sidestepping -- a supposed message from the Supreme Court in Demore
-- simply does not withstand scrutiny. My colleagues' avoidance
of the constitutional question posed here is thus unsupportable
because the inference they draw from Demore lacks both legal and
factual foundation and because reading tea leaves is not our proper
role. See Sopo v. U.S. Att'y Gen., 825 F.3d 1199, 1212 (11th Cir.
- 29 -
2016), vacated, 890 F.3d 952 (11th Cir. 2018) ("Outside of Justice
Kennedy's Demore concurrence, the Supreme Court has never
addressed how long under § 1226(c) the government can detain a
criminal alien[.]"); Rodriguez v. Robbins, 715 F.3d 1127, 1137
(9th Cir. 2013) ("[W]e have consistently held that Demore's holding
is limited to detentions of brief duration.").12
I thus turn to the petitioners' contention that all
noncitizens held pursuant to § 1226(c) are entitled to a bond
hearing after six months of detention.
II.
The analysis in our recent decision in Hernandez-Lara v.
Lyons, 10 F.4th 19 (1st Cir. 2021), exemplifies the proper
doctrinal approach for determining what due process protections
must be afforded to immigration detainees. There, we evaluated
the proper allocation of the burden of proof at an immigration
bond hearing by means of the three-part balancing test articulated
in Mathews v. Eldridge, 424 U.S. 20 319, 335 (1976). As we
explained,
The Mathews factors [to be balanced] are: (1)
"the private interest that will be affected by
12Several of the cases I cite in this dissent were vacated
or otherwise diminished as authority as a result of the Supreme
Court's decision in Jennings holding, as a matter of statutory
construction, that § 1226(c) does not provide for release on bond
-- with limited exceptions -- while removal proceedings are
ongoing. See 138 S. Ct. at 846-47. I rely on these cases solely
for observations and principles unaffected by the holding in
Jennings.
- 30 -
the official action"; (2) "the risk of an
erroneous deprivation of such interest through
the procedures used, and the probable value,
if any, of additional or substitute procedural
safeguards"; and (3) "the [g]overnment's
interest, including the function involved and
the fiscal and administrative burdens that the
additional or substitute procedural
requirement would entail."
Hernandez-Lara, 10 F.4th at 28 (quoting Mathews, 424 U.S. at 335).
The majority dismisses Mathews as having little
relevance to this case. They do so, however, as part of their
deference to the message they draw from Demore and, hence, neglect
to give due consideration to the appropriate analysis for the
distinct constitutional question raised in this case. Indeed, the
long-established Mathews framework is well suited to the
constitutional due process question here, just as it served as an
appropriate guide for our assessment of the due process claim in
Hernandez-Lara.13 See, e.g., Hamdi v. Rumsfeld, 542 U.S. 507, 528–
29 (2004) ("The ordinary mechanism that we use for balancing such
serious competing interests, and for determining the procedures
that are necessary to ensure that a citizen is not 'deprived of
life, liberty, or property, without due process of law,' . . . is
13In Hernandez-Lara, we held that the Due Process Clause of
the Fifth Amendment requires that the government bear the burden
of proving at a bond hearing that a noncitizen detained pursuant
to 8 U.S.C. § 1226(a) is a danger or flight risk and thus not
entitled to release. See 10 F.4th at 23-24. Although this case
involves a different statutory provision, the due process
principles we applied in Hernandez-Lara are equally applicable
here.
- 31 -
the test that we articulated in Mathews[.]"); Velasco Lopez v.
Decker, 978 F.3d 842, 851 (2d Cir. 2020) (applying the Mathews
test to determine the procedural protections required for
immigration detention pursuant to § 1226(a)); Diouf v. Napolitano,
634 F.3d 1081, 1090 (9th Cir. 2011) (applying the Mathews test to
determine the procedural protections required for immigration
detention pursuant to § 1231(a)(6)).
The analysis here should proceed in the same fashion as
in Hernandez-Lara, with consideration of the three factors as they
pertain to prolonged detention under § 1226(c). I therefore
proceed with that analysis.
A. Liberty Interest
In Hernandez-Lara, we summarized the first Mathews
factor, the private interest at stake, as follows:
"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, 695 (2001)
(citing Foucha v. Louisiana, 504 U.S. 71, 80
(1992)). The Supreme Court has repeatedly
affirmed that "[i]n our society liberty is the
norm, and detention prior to trial or without
trial is the carefully limited exception."
United States v. Salerno, 481 U.S. 739, 755
(1987); see also Foucha, 504 U.S. at 80 ("We
have always been careful not to minimize the
importance and fundamental nature of the
individual's right to liberty."). For this
reason, "civil commitment for any purpose
constitutes a significant deprivation of
liberty that requires due process
- 32 -
protections." Addington [v. Texas, 441 U.S.
[418,] 425 [(1979)] (emphasis added).
10 F.4th at 28. We stated that there was "no question" that
immigration detention constituted a "substantial deprivation of
liberty," and emphasized that a lack of citizenship does not
preclude an interest in freedom from detention. Id. ("[T]he fact
that some detention is permissible does not change the fact that
a detainee suffers significant liberty deprivations."). We thus
concluded that the first Mathews factor "weigh[ed] heavily in
Hernandez's favor." Id. at 30.
Here, importantly, we have the additional factor that
each of the Reid class members was detained under § 1226(c) without
a hearing for at least six months.14 Hence, we must take into
account the costs that accrue with prolonged detention.15 While
detention of any length implicates a liberty interest, prolonged
detention inevitably has greater consequences for the individual
14As noted above, in many cases, the detention was far longer.
Petitioners report that, among the 113 Reid class members, the
average length of detention was nearly a full year. The class
includes individuals who were detained for 1,541 days
(approximately 4.2 years), 1,291 days (3.5 years), 1,101 days (3
years), and 1,048 days (2.8 years).
15 In Hernandez-Lara, we expressly chose not to address the
petitioner's prolonged detention argument and instead considered
the "potential length of detention" as a factor in the liberty
interest analysis. See 10 F.4th at 25 n.2, 30 n.4. This case
differs in that we address the claims of individuals who have
already been detained for six months, and the length of their
detention is central to their due process claim.
- 33 -
than short-term detention. See Zadvydas, 533 U.S. at 701 (stating
that, "as the period of . . . confinement grows," the government
must provide stronger justifications for detention); Gerstein v.
Pugh, 420 U.S. 103, 114 (1975) ("The consequences of prolonged
detention may be more serious than the interference occasioned by
arrest. Pretrial confinement may imperil the suspect's job,
interrupt his source of income, and impair his family
relationships."); Hernandez-Lara, 10 F.4th at 29 (noting that
"prolonged detention" may create a weightier liberty interest);
Diop v. ICE/Homeland Sec., 656 F.3d 221, 234 (3d Cir. 2011) ("[T]he
constitutional case for continued detention without inquiry into
its necessity becomes more and more suspect as detention
continues[.]"); Diouf, 634 F.3d at 1091–92 ("When detention
crosses the six-month threshold and release or removal is not
imminent, the private interests at stake are profound."). Extended
detention can cause unique harms "that differ in degree and kind
from those suffered by short-term detainees." Br. of Amici Curiae
35 Scholars, at 4-22 (describing harms specific to prolonged
detention, including physical harm caused by insufficient medical
care, psychological harm to detainees and their families, and
economic harms stemming from loss of employment).
Giving significance to detentions that reach six months'
duration is not a novel idea. In Zadvydas, the Supreme Court
recognized the six-month mark as a constitutional tipping point.
- 34 -
See 533 U.S. at 701. When detention reaches that length, the due
process calculus shifts. See id. Six months has also been
identified as consequential outside the immigration context. In
multiple cases, the Supreme Court has endorsed a jury-trial
requirement for crimes punishable with incarceration of more than
six months. See Muniz v. Hoffman, 422 U.S. 454, 477 (1975);
Baldwin v. New York, 399 U.S. 66, 73-74 (1970); Duncan v. State of
La., 391 U.S. 145, 161 (1968); Cheff v. Schnackenberg, 384 U.S.
373, 379–380 (1966) (plurality opinion). As the Supreme Court has
put it, "It is not difficult to grasp the proposition that six
months in jail is a serious matter for any individual." Muniz,
422 U.S. at 477. And, as we recognized in Hernandez-Lara,
immigration "detention" can be indistinguishable from
"imprisonment"; the petitioner there "was incarcerated alongside
criminal inmates . . . for over ten months." 10 F.4th at 28.
Accordingly, we should be readily concluding that
detention in excess of six months creates a heightened liberty
interest and should be afforded more weight in the Mathews
balancing formula than the liberty interest in freedom from any
detention -- a distinction whose importance is reflected in the
Supreme Court's focus in Demore on the brevity of the detention it
considered there. See 538 U.S. at 513, 523, 526, 529 n.12, 531.
Thus, the first Mathews factor weighs strongly in favor of
petitioners -- even more so than in our Hernandez-Lara analysis.
- 35 -
B. Risk of Erroneous Deprivation and Probable Value of Safeguards
In Hernandez-Lara, we concluded that the misallocation
of the burden of proof at a bond hearing -- requiring the detainee
to prove that she is not a flight risk or a danger to the community,
rather than requiring the government to prove that she is --
created a high risk of erroneous deprivation of liberty. 10 F.4th
at 30-32. Section 1226(c) makes no provision for a bond hearing
at all. In that respect, the risk of erroneously detaining a
person who is not a danger or flight risk looms larger than in
Hernandez-Lara.
However, mandatory detention under § 1226(c) is premised
on Congress's findings that so-called "criminal aliens"
categorically present a higher risk of flight and danger to the
community. See Demore, 538 U.S. at 518-20. In Demore, the Supreme
Court recognized that this presumption has a solid evidentiary
foundation. See id. at 528 ("The evidence Congress had before it
certainly supports the approach it selected[.]"). Thus, the risk
of error is offset to some degree by the fact that § 1226(c)
detainees, as a class, may be more likely to present a flight risk
or a danger to the community than other noncitizen detainees.
Still, Congress's categorical presumption of
dangerousness and flight risk for "criminal aliens" inevitably
will affect many individuals to whom the presumption should not
apply. Section 1226(c) sweeps broadly, encompassing not only those
- 36 -
who have committed violent felonies, but also those who have
committed nonviolent crimes and simple drug offenses. The
difference between a § 1226(a) discretionary detainee and a
§ 1226(c) mandatorily detained "criminal alien" may be a
conviction or two for shoplifting or marijuana possession.16 While
Congress's presumption of flight risk and dangerousness for
§ 1226(c) detainees is important in the due process analysis, the
only method for identifying those who are not properly detained
based on that presumption is through individualized assessments.
See Lora v. Shanahan, 804 F.3d 601, 605 (2d Cir. 2015), cert.
granted, judgment vacated, 138 S. Ct. 1260 (2018) ("[T]his group
includes non-citizens who, for a variety of individualized
reasons, are not dangerous, have strong family and community ties,
are not flight risks and may have meritorious defenses to
deportation at such time as they are able to present them.").
The detainees in this case are illustrative. The record
indicates that 50 of the 104 Reid class members who eventually
received bond hearings were released from immigration detention
16See, e.g., Vallejo v. Decker, No. 18-CV-5649 (JMF), 2018
WL 3738947, at *2 (S.D.N.Y. Aug. 7, 2018) (noncitizen subject to
§ 1226(c) because of one shoplifting conviction and one receipt of
stolen property conviction); Vazquez v. Green, Civil Action No.
16-3451 (JMV), 2016 WL 6542833, at *4 (D.N.J. Nov. 3, 2016)
(noncitizen subject to § 1226(c) because of two marijuana
possession convictions).
- 37 -
because they were found not to pose a danger or a flight risk.17
In other words, the data shows that nearly half of the individuals
in this class were detained erroneously. Whether or not that
percentage is typical, it is some indication that a significant
number of individuals may be unnecessarily -- and, hence,
improperly -- detained for extended periods of time. Hence, the
risk of the erroneous deprivation of liberty inherent in mandatory
detention is substantial, and the probable value of the procedural
safeguard of a bond hearing is high.
The majority does leave open an avenue for a noncitizen
detained under § 1226(c) to receive a bond hearing by seeking a
writ of habeas corpus in federal court on the ground that, in her
individual circumstances, detention is unreasonable. For multiple
reasons, however, a federal habeas claim is an inadequate
substitute for an automatic bond hearing at six months. Most
importantly, habeas litigation is simply not a viable option for
most detainees. As we observed in Hernandez-Lara, detainees "very
often cannot obtain counsel," "will likely experience difficulty
in gathering evidence on their own behalf," and "often lack full
proficiency in English." 10 F.4th at 30. In addition, as we have
17Bond hearings were held for some class members pursuant to
the district court's decision in this case. See Reid v. Donelan,
22 F. Supp. 3d 84, 93 (D. Mass. 2014). The district court's
judgment with respect to the hearing requirement was subsequently
vacated by this court. See Reid, 819 F.3d at 502-03.
- 38 -
previously recognized, habeas litigation is particularly
"complicated and time-consuming, especially for aliens who may not
be represented by counsel." Reid, 819 F.3d at 498. Hence, for
most detainees, the possibility of habeas relief -- a procedure
outside the normal course of immigration proceedings -- is simply
illusory. See Doe v. Gallinot, 657 F.2d 1017, 1023 (9th Cir. 1981)
(stating that "[t]he bare existence of optional habeas corpus
review does not, of itself, alleviate due process concerns"
regarding involuntary civil commitment).
Moreover, for those detainees who have the wherewithal
to file a habeas petition, the process will likely be so slow that
their detentions will become significantly more prolonged as they
await resolution in federal court. Even when a detainee is
successful in the habeas process, the timeframe between filing a
petition and receiving a bond hearing is likely to be at least
several months.18 See Lora, 804 F.3d at 615 (noting "the random
outcomes resulting from individual habeas litigation in which some
detainees are represented by counsel and some are not, and some
18See Br. of Amici Curiae Boston College Immigration Clinic,
et al., at 26 (citing a 2016 study of successful First Circuit
habeas challenges to mandatory detention, which found that the
litigation took over seven months on average); Br. of Amicus
Curiae American Immigration Lawyers Association, at 16 (collecting
cases of successful habeas challenges to § 1226(c) detention and
noting that it took between four and eleven months for each case
to resolve).
- 39 -
habeas petitions are adjudicated in months and others are not
adjudicated for years").
In short, there is currently no effective way for most
individuals detained under § 1226(c) to challenge their
unnecessary -- and therefore improper -- prolonged detentions.
C. Government Interest
The third Mathews factor considers "the [g]overnment's
interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute
procedural requirement would entail." Mathews, 424 U.S. at 335.
As the Supreme Court has recognized, "[t]here is always a public
interest in prompt execution of removal orders." Nken v. Holder,
556 U.S. 418, 436 (2009). Undoubtedly, keeping noncitizens
detained during their removal proceedings guarantees the
government will be able to find them and promptly effectuate
removal when it is ordered. The need to detain the class of
individuals subject to § 1226(c) is supported by Congress's
finding that individuals with criminal histories pose a heightened
risk of flight or danger to the community. See Demore, 538 U.S.
at 518-22. Thus, mandatory detention pending deportation, without
considering its duration, serves the government's interest. See
id. at 528 ("[D]etention necessarily serves the purpose of
preventing deportable criminal aliens from fleeing prior to or
- 40 -
during their removal proceedings, thus increasing the chance that,
if ordered removed, the aliens will be successfully removed.").
However, as we pointed out in Hernandez-Lara, framing
the government interest in this way is somewhat misleading. The
question is not whether the government has the power to detain
noncitizens who may cause harm or flee while they await removal,
but whether the Due Process Clause conditions the exercise of that
power. In Hernandez-Lara, the issue was "who should bear the
burden of proving noncitizens pose a danger or a flight risk." 10
F.4th at 32. Here, the issue is whether "criminal aliens" in
prolonged detention under § 1226(c) should receive a bond hearing
after six months to determine whether the ongoing restraint on
their liberty in fact serves the asserted government interest.
See Rodriguez v. Robbins, 804 F.3d 1060, 1077 (9th Cir. 2015)
("Bond hearings do not restrict the government's legitimate
authority to detain inadmissible or deportable non-citizens;
rather, they merely require the government to 'justify denial of
bond[.]'" (quoting Singh v. Holder, 638 F.3d 1196, 1203 (9th Cir.
2011))), rev'd sub nom. Jennings, 138 S. Ct. at 836.19 The only
individuals released should be those who are not a danger or a
19As indicated above, see supra note 5, the Supreme Court's
reversal of Rodriguez v. Robbins on statutory interpretation
grounds does not undermine this observation within its analysis.
- 41 -
flight risk -- that is, individuals the government has no reason
to detain.
Further, as we discussed in Hernandez-Lara, unnecessary
immigration detention in fact harms the public interest. We
described the "substantial societal costs" as follows:
[N]oncitizens subject to immigration
detention include spouses, children, and
parents of U.S. citizens, caretakers of
children and elderly relatives, and leaders in
religious, cultural, and social groups. The
needless detention of those individuals thus
"separates families and removes from the
community breadwinners, caregivers, parents,
siblings and employees." Those ruptures in
the fabric of communal life impact society in
intangible ways that are difficult to
calculate in dollars and cents. Even so, as
twenty states report in an amicus brief to
this court, the financial costs imposed by
such widespread communal disruption are
severe: "[States'] revenues drop because of
reduced economic contributions and tax
payments by detained immigrants, and their
expenses rise because of increased social
welfare payments in response to the harms
caused by unnecessary detention."
10 F.4th at 33 (citation omitted).20 We also considered the direct
fiscal cost of detention. Holding a person in immigration
detention costs the government about $134 per person per day. Id.
20The label "criminal alien" may obscure the fact that many
noncitizens subject to § 1226(c) are valued community members.
See Saysana v. Gillen, 590 F.3d 7, 17 (1st Cir. 2009)
(acknowledging that some noncitizens detained pursuant to
§ 1226(c) may have "longstanding community ties"). They may be
parents, spouses, caregivers, or community leaders, and may also
work, contribute to the economy, and pay taxes. And, as noted
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These same countervailing government interests apply
with even more force in the context of prolonged detention. Based
on the $134 figure, at six months, the government will have spent
about $24,120 on a noncitizen's detention. See also Hernandez v.
Sessions, 872 F.3d 976, 996 (9th Cir. 2017) (describing the cost
of immigration detention as "staggering" and considering these
costs as part of "the general public's interest in the efficient
allocation of the government's fiscal resources"). Both research
and commonsense suggest that families and communities suffer
greater harms from prolonged detention than from short-term
detention.21 Bond hearings after six months would thus serve the
public interest by providing a mechanism for the release of
individuals who do not need to be detained, while continuing the
detention of those who do pose a flight risk or danger to the
community.
above, a person may be subject to § 1226(c) for relatively minor
offenses. Certainly, there is a strong public interest in
prolonged detention of noncitizens who have committed violent
felonies. But individuals with violent histories will surely not
be granted bond by IJs.
21For example, "[c]hildren of prolonged detainees are more
likely to exhibit adverse changes in sleeping habits and behavior,
including increased anger and withdrawal, as compared with
children who are reunited with parents within a month of
apprehension." Br. of Amici Curiae 35 Scholars, at 20-21. The
prolonged absence of a caregiver also may lead to children being
placed in foster care, or families turning to public benefits
programs, at the expense of the state. See id. at 21.
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Providing a bond hearing for every noncitizen detained
for six months or longer would of course impose an administrative
burden on the government. Immigration courts already are
challenged by heavy caseloads resulting from the asylum process
and other immigration matters, and increased availability of bond
hearings would add to their burden. On the other hand, because
bond hearings are routine in immigration courts, mandating bond
hearings after six months for § 1226(c) detainees would not require
new procedures and, thus, should not unduly increase the burden of
administration. Moreover, the alternative suggested by my
colleagues -- habeas proceedings in federal court -- also comes
with a cost to the government.
Unquestionably, the government has a strong interest in
detaining a subclass of deportable noncitizens it has found to
pose unique risks, and a categorical requirement for bond hearings
after six months would produce some unavoidable administrative
costs. However, the steep fiscal and societal costs of prolonged,
improper detention of the many individuals who pose no risk must
also be factored into our assessment of the government's interest.
See Hernandez-Lara, 10 F.4th at 32 n.5 (noting that the government
has not suggested that it "could detain a noncitizen who has shown
he is not a danger or flight risk" because, "fundamentally, any
detention must 'bear[] [a] reasonable relation to [its] purpose'"
(alterations in original) (quoting Zadvydas, 533 U.S. at 690)).
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Thus, given the competing considerations, the third Mathews factor
-- the government interest in detaining noncitizens under § 1226(c)
without an automatic bond hearing after six months -- does not
affect the balance one way or the other.
D. Balancing the Factors
Our assessment of the first factor in the Mathews
framework reveals that the hardship for detainees -- and,
consequently, the burden on their liberty interest -- dramatically
increases with the passage of time, while the government's interest
in categorical detention remains unchanged. Also apparent is the
substantial risk that many individuals will be erroneously
deprived of their liberty -- the second factor -- unless bond
hearings are held to test the government's presumption of
dangerousness or likelihood of flight. The first two factors thus
weigh heavily toward the detainees' right to a bond hearing. The
third factor -- the government's interest -- does not favor either
side. Hence, applying the Mathews framework unequivocally
demonstrates that noncitizens subject to § 1226(c) detention for
six months -- a duration long understood to elevate the need for
procedural protections -- are entitled to a bond hearing as a
matter of constitutional due process.
That conclusion does not minimize the government's
strong interest in the mandatory detention of certain noncitizens
with criminal convictions. The government's interest can be met,
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however, without placing an unjustified burden on the liberty of
noncitizens detained under § 1226(c) who present no risk of danger
or flight. In Demore, it mattered that the possibility of improper
detention was only for a "brief period." See, e.g., 538 U.S. at
513. As described above, the individuals detained and society as
a whole experience greater losses from prolonged detention, and we
therefore must assign greater weight to the need for procedural
protections than when detentions are brief.
To be sure, "Congress may make rules as to aliens that
would be unacceptable if applied to citizens." Id. at 522.
Nonetheless, the Supreme Court "has consistently held that due
process 'applies to all "persons" within the United States,
including aliens, whether their presence here is lawful, unlawful,
temporary, or permanent.'" Hernandez-Lara, 10 F.4th at 43 (quoting
Zadvydas, 533 U.S. at 693). Hence, despite Congress's substantial
authority to regulate noncitizens, we cannot defer to legislative
judgments that disregard the constitutional restraints on
government actions burdening individual rights -- with the right
to liberty arguably foremost among them. See id. ("[O]urs is a
system in which even the most sensitive and critical exercises of
power by the political branches can be constrained by the rights
of the individual. In few instances are those constraints more
necessary than when the government seeks to lock up individuals
behind bars."); id. at 42-43 (stating that it is the judiciary's
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duty to "'say what the law is,' even in immigration and detention
cases, and even where doing so requires setting aside Congressional
enactments, executive actions, or state statutes" (citation
omitted) (quoting Marbury v. Madison, 5 U.S. 137, 177 (1803)).
For the reasons I have identified, individualized
adjudication via the habeas process will not adequately remove the
impermissible burden on the right to liberty experienced by
§ 1226(c) detainees. That option is simply not available, as a
practical matter, to many -- if not most -- of those individuals.
By contrast, a clear and categorical rule will be effective in
protecting the right to liberty without undue burden on the
government, and the six-month trigger for a bond hearing is the
timeframe most consistent with precedent. See id. at 44-45 (noting
that the Supreme Court has often announced categorical due process
rules, and "[i]n none of these cases did the Court limit its
holding to the specific individual before it or indicate that the
requirements of due process would fluctuate based on the strength
of any particular individual's case on the merits").
I regret that my colleagues have avoided the important
issue in this case based on speculation about what the Supreme
Court will say about a question that it has not yet confronted.
Indeed, as I have explained, to the extent Demore conveys a message
about prolonged detentions, it is that the interests at stake
differ from those implicated by short-term detentions. See supra;
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see generally Salerno, 481 U.S. at 755 ("In our society liberty is
the norm, and detention prior to trial or without trial is the
carefully limited exception."); Addington, 441 U.S. at 425 ("This
Court repeatedly has recognized that civil commitment for any
purpose constitutes a significant deprivation of liberty that
requires due process protection.").
Maintaining the status quo leaves untold numbers of
noncitizens who pose no danger to the public or risk of flight to
languish for months -- or even years -- with no meaningful ability
to demonstrate their entitlement to release from detention. The
Constitution does not allow the government to subject any person
within our borders -- citizen or noncitizen -- to detention in
excess of six months without a bond hearing. The Supreme Court
has never said otherwise. We can and should take this opportunity
to hold that six months is the constitutional endpoint for
unexamined detention. Accordingly, I must dissent.
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