Tijani v. Willis , 430 F.3d 1241 ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MONSURU O. TIJANI, 
Petitioner-Appellant,
v. No. 04-55285
D.C. No.
WAYNE K. WILLIS, INTERIM
DIRECTOR, INTERIOR IMMIGRATION  CV-03-01624-
ENFORCEMENT, UNITED STATES WQH/JFS
DEPARTMENT OF HOMELAND OPINION
SECURITY; CARYL THOMPSON, OIC,
Respondents-Appellees.

Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Argued and Submitted
January 10, 2005—San Francisco, California
Filed December 13, 2005
Before: John T. Noonan, A. Wallace Tashima, and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Noonan;
Concurrence by Judge Tashima;
Dissent by Judge Callahan
16263
TIJANI v. WILLIS 16265
COUNSEL
Steven A. Hirsch, San Francisco, California, Lucas Guttentag,
Oakland, California, and Judy Rabinovitz, New York, New
York, for the petitioner.
Tom Stahl, and Ernest Cordero, Jr., Assistant United States
Attorneys, San Diego, California, for the respondents.
OPINION
NOONAN, Circuit Judge:
[1] As of today’s date, Tijani has been deprived of his lib-
erty by the government for a period of over two years and
four months. This deprivation has been inflicted not as the
result of any adjudication of crime but as a bureaucratic appli-
cation of the authority conferred on the Attorney General by
8 U.S.C. § 1226(c). Despite the substantial powers that Con-
gress may exercise in regard to aliens, it is constitutionally
doubtful that Congress may authorize imprisonment of this
duration for lawfully admitted resident aliens who are subject
to removal. See Zadvydas v. Davis, 533 U.S. 678, 690 (2001).
The case is distinct from Demore v. Kim, 538 U.S. 510, 513-
514 (2003), where the alien conceded deportability.
[2] To avoid deciding the constitutional issue, we interpret
the authority conferred by § 1226(c) as applying to expedited
16266 TIJANI v. WILLIS
removal of criminal aliens. Two years and four months of
process is not expeditious; and the foreseeable process in this
court, where the government’s brief in Tijani’s appeal of the
removal has not yet been filed, is a year or more.
[3] We remand to the district court with directions to grant
the writ unless the government within 60 days of this order
provides a hearing to Tijani before an Immigration Judge with
the power to grant him bail unless the government establishes
that he is a flight risk or will be a danger to the community.
See Cooper v. Oklahoma, 517 U.S. 348, 363 (1996).
REVERSED and REMANDED.
TASHIMA, Circuit Judge, concurring:
I concur in Judge Noonan’s opinion reversing the denial of
habeas relief and requiring the Immigration Court to grant
Tijani a bail hearing. His opinion, however, barely alludes to
the standards that should govern the conduct of such a hear-
ing, or what facts must be established in order to warrant the
grant or denial of release, or who has the burden of proving
those facts, and by what standard of proof. I write separately
because I believe that we have a duty to give more guidance
to the agency and to the court below so that they can carry out
their respective mandates.
Monsuru Tijani has now been imprisoned by the federal
government for almost two and one-half years. His detention
is not the result of a criminal conviction; nor is it because he
faces imminent removal. The only reason that Tijani is being
detained is because the government may be able to prove he
is subject to removal. Tijani contends that his indefinite deten-
tion for such a reason is not constitutionally permissible.
Now, instead of deciding the issues squarely presented by this
appeal, the majority opinion grants habeas relief, but without
TIJANI v. WILLIS 16267
deciding the issues raised on the merits. I join Judge Noo-
nan’s majority opinion because, as I explain below, I do not
believe that Tijani’s indefinite detention is constitutionally
permissible; therefore, that he is entitled to release.
I.
A.
At the heart of this case lies the Board of Immigration
Appeals’ (“BIA’s”) decision in In re Joseph, 22 I. & N. Dec.
799 (BIA 1999), a decision that is both contrary to the Consti-
tution and shortsighted as a matter of policy. Joseph con-
cerned the proper scope of § 236(c) of the Immigration and
Nationality Act (“INA”), 8 U.S.C. § 1226(c), commonly
known as the INA’s “mandatory detention” provision. Section
236(c) directs the Attorney General to take into custody cer-
tain aliens who are facing deportation and prohibits their
release under all but the narrowest of circumstances.
As with most statutes, the relatively simple mandate of
§ 236(c) leaves many questions unanswered, the most impor-
tant of which is who, exactly, falls under the statute’s provi-
sions. The statute states only that mandatory detention applies
to an alien who “is deportable by reason of having commit-
ted” a number of specified criminal offenses, but does not
define those offenses with precision, nor does it define what
“is deportable” means. The implementing regulations also do
little to help; they provide an alien with the opportunity to
establish that he is “not properly included” in the statute’s
reach, but they say nothing about what, precisely, that alien
must show. See 8 C.F.R. § 1003.19 (2005).
In Joseph, the BIA finally gave a meaningful answer to this
question. The BIA concluded that the initial determination by
the Bureau of Immigration and Customs Enforcement
(“BICE”)1 that an alien fell within the reach of § 236(c) was
1
When Joseph was decided the Immigration and Naturalization Service
(“INS”) was the primary agency in charge of regulating immigration. INS
16268 TIJANI v. WILLIS
entitled to a great deal of deference. Joseph, 22 I. & N. Dec.
at 800. Thus, the BIA held that an alien who wishes to avoid
the reach of § 236(c) was required to show that BICE was
“substantially unlikely to establish” the charges that rendered
the alien subject to mandatory detention. Id. at 806.
Tijani was convicted in California of offenses that have
never been found by a court or by the BIA to trigger manda-
tory detention. Nonetheless, BICE determined that his
offenses fell within the reach of § 236(c) and held him in
mandatory detention. Based upon the Joseph standard, both
the Immigration Judge (“IJ”) and the BIA affirmed BICE’s
determination. Today, nearly 30 months later, Tijani remains
in mandatory detention while courts continue to sort out
whether his offenses actually fall within the reach of the man-
datory detention statute.
B.
The BIA’s Joseph decision was, plainly put, wrong. There
can be no doubt that individual liberty is one of the most fun-
damental rights protected by the Constitution.2 See Zadvydas
v. Davis, 533 U.S. 678, 690 (2001) (“Freedom from imprison-
ment — from government custody, detention, or other forms
of physical restraint — lies at the heart of the liberty [the Due
Process] Clause protects.”). Joseph, which was decided prior
ceased to exist on March 1, 2003, and most of its functions were trans-
ferred to either the Bureau of Border Security or BICE, both units of the
Department of Homeland Security. See Homeland Security Act of 2002,
Pub. L. No. 107-296, 116 Stat. 2135. As is illustrated by this case,
although the Joseph decision refers to the INS, the BIA has continued to
apply it when reviewing detention by BICE.
2
There can also be no doubt that the Due Process Clause protects immi-
grants as well as citizens. See Mathews v. Diaz, 426 U.S. 67, 77 (1976)
(“The Fifth Amendment, as well as the Fourteenth Amendment, protects
every [alien] from deprivation of life, liberty or property without due pro-
cess of law.”).
TIJANI v. WILLIS 16269
to Zadvydas, gives that right little or no weight. Instead, it
establishes a system of “detention by default” by placing the
burden fully on the alien to prove that he should not be
detained. When such a fundamental right is at stake, however,
the Supreme Court has insisted on heightened procedural pro-
tections to guard against the erroneous deprivation of that
right. In particular, the Supreme Court has time and again
rejected laws that place on the individual the burden of pro-
tecting his or her fundamental rights.
The first of these decisions is Addington v. Texas, 441 U.S.
418 (1979), in which the Court vacated the Texas Supreme
Court’s ruling that a person could be civilly committed based
upon a finding of mental illness by a preponderance of the
evidence. Id. at 432-33. In reaching its conclusion, the Court
elaborated upon the “function of a standard of proof, as that
concept is embodied in the Due Process Clause.” Id. at 423.
According to the Court, its primary function was to allocate
the risk of an erroneous decision among litigants based upon
the competing rights and interests involved. Id. Thus, in a
civil case, because the interests involved are minor and
because “society has a minimal concern with the outcome,”
the litigants share the risk of error roughly equally under the
preponderance of the evidence standard. Id. In a criminal
case, on the other hand, “the interests of the defendant are of
such magnitude” that “our society imposes almost the entire
risk of error upon itself” by insisting on the beyond a reason-
able doubt standard. Id. at 423-24.
Based on these principles, the Court held that the Constitu-
tion required a showing of mental illness by at least clear and
convincing evidence before an individual’s liberty could be
constrained. Id. at 432-33. Noting that it “repeatedly has rec-
ognized that civil commitment for any purpose constitutes a
significant deprivation of liberty that requires due process
protection,” id. at 425, the Court found it improper to ask
“[t]he individual . . . to share equally with society the risk of
error when the possible injury to the individual is significantly
16270 TIJANI v. WILLIS
greater than any possible harm to the state,” id. at 427. Thus,
the Court concluded that “due process requires the state to
justify confinement by proof more substantial than a mere
preponderance of the evidence.” Id. at 427.
Since Addington, the Supreme Court has repeatedly reaf-
firmed the principle that “due process places a heightened
burden of proof on the State in civil proceedings in which the
‘individual interests at stake . . . are both particularly impor-
tant and more substantial than mere loss of money.’ ” Cooper
v. Oklahoma, 517 U.S. 348, 363 (1996) (quoting Santosky v.
Kramer, 455 U.S. 745, 756 (1982)) (internal quotation marks
omitted). In Santosky, for example, the Court considered a
New York law that allowed the state to terminate parental
rights upon proof of “permanent neglect” by a preponderance
of the evidence. 455 U.S. at 747. Because the statute directly
affected the “fundamental liberty interest of natural parents in
the care, custody, and management of their child,” id. at 753,
the Court held that it needed to include greater procedural
protection than the preponderance of the evidence standard.
Id. at 769-70.
Again, in Foucha v. Louisiana, 504 U.S. 71 (1992), the
Court found a statute unconstitutional that placed on civilly
committed individuals the burden of proving that they were
not a danger to the public before allowing their release. Id. at
73, 83. Noting that “[i]n our society liberty is the norm, and
detention prior to trial or without trial is the carefully limited
exception,” the court held that such a system failed adequately
to protect the individual’s liberty interest. Id. at 83 (quoting
United States v. Salerno, 481 U.S. 739, 755 (1987)). Once
again, because “[f]reedom from bodily restraint has always
been at the core of the liberty protected by the Due Process
Clause,” clear and convincing evidence was needed to civilly
commit the individual. Id. at 80.
Finally, in Cooper, the Court unanimously rejected a state-
law presumption that a defendant was competent to stand trial
TIJANI v. WILLIS 16271
unless that defendant established his incompetence by clear
and convincing evidence. 517 U.S. at 350, 355-56. Stating
that “we perceive no sound basis for allocating to the criminal
defendant the large share of the risk which accompanies a
clear and convincing evidence standard,” the Court held that
the Oklahoma law violated due process. Id. at 366.
As the above cases illustrate, the Supreme Court has con-
sistently adhered to the principle that the risk of erroneous
deprivation of a fundamental right may not be placed on the
individual. Rather, when a fundamental right, such as individ-
ual liberty, is at stake, the government must bear the lion’s
share of the burden. Indeed, those cases in which the Court
has found detention schemes to be permissible have empha-
sized the procedures available to protect the individual’s
rights. For example, in Salerno, the Supreme Court upheld the
Bail Reform Act, which allowed the government to detain an
arrestee pending trial upon a showing by the government that
“no release conditions ‘will reasonably assure . . . the safety
of any other person and the community.” 481 U.S. at 741
(quoting Bail Reform Act of 1984, 18 U.S.C. § 3142). In
upholding the Act, the Court emphasized how narrowly
crafted it was, citing the “stringent time limitations” placed on
pretrial detention, id. at 747, its applicability only to the “most
serious of crimes,” id., its requirement of proof of dangerous-
ness by clear and convincing evidence, id. at 750, and its judi-
cial safeguards, id. at 751-52.
Both the blanket application of the Joseph standard and the
breadth of its reach stand in stark contrast to the narrowly tai-
lored design of the Bail Reform Act. Cf. Foucha, 504 U.S. at
81 (“Unlike the sharply focused scheme at issue in Salerno,
the Louisiana scheme of confinement is not carefully limit-
ed.”); Zadvydas, 533 U.S. at 692 (expressing scepticism about
detention where the “sole procedural protections available to
the alien are found in administrative proceedings, where the
alien bears the burden of proving he is not dangerous”).
16272 TIJANI v. WILLIS
In light of the above cases, the Joseph standard is not just
unconstitutional, it is egregiously so. The standard not only
places the burden on the defendant to prove that he should not
be physically detained, it makes that burden all but insur-
mountable. Unlike Addington and it’s progeny, the Joseph
standard places little to no risk on the broad shoulders of the
government.3
One need look no further than Tijani’s parallel petition for
review to find a perfect illustration of the Joseph standard’s
unconstitutional allocation of the burden of proof.4 Tijani now
has a petition for review of the merits of the IJ’s removal
order pending before this court. The questions his case raises
are by no means easy; the IJ took almost seven months to
issue his decision; the BIA took just short of an additional 13
months; and, in his petition for review before this court, the
government has not contested his motion for a stay of removal
3
The Joseph standard’s allocation of risk also creates an entirely sepa-
rate problem. By subjecting immigrants who, like Tijani, raise difficult
questions of law in their removal proceedings to detention while those
proceedings are being conducted, the Joseph standard forces those immi-
grants to endure precisely what Tijani has endured: detention that lasts for
a prolonged period of months or years. Indeed, the vast majority of
Tijani’s detention — over 22 of the nearly 30 months that have so far
elapsed — has occurred while the BIA and this court have considered his
appeals. As I explain below, such detention violates the Constitution of its
own right. Narrowing the Joseph standard so that mandatory detention is
applied only to those who are more certain to fall under its provisions
would be a sensible means of guarding against such collateral constitu-
tional violations.
4
Mandatory detention lasts for a relatively brief period in the vast
majority of cases in which it is applied. Demore v. Kim, 538 U.S. 510, 529
(2003) (“[I]n 85% of the cases in which aliens are detained pursuant to
[§ 236(c)], removal proceedings are completed in an average time of 47
days and a median of 30 days.”). But Tijani’s situation is by no means
unique; other federal courts have also considered habeas challenges
brought by immigrants who have been detained under § 236(c) for lengthy
periods of time. See, e.g., Ly v. Hansen, 351 F.3d 263, 265 (6th Cir. 2003)
(500 days of detention before release); Fuller v. Gonzalez, 2005 WL
818614 at *1 (D. Conn. 2005) (two years of detention before release).
TIJANI v. WILLIS 16273
pending review. Yet, based on the blanket application of the
all-but-insurmountable Joseph standard, Tijani has remained
in detention the entire time his case has been pending. Under
these circumstances, his detention for nearly 30 months is
simply inconsistent with due process of law.
C.
1.
In light of the due process concerns described above, this
court should reject the Joseph standard. Instead, it should
interpret § 236(c) to apply mandatory detention in a more nar-
row fashion. Only those immigrants who could not raise a
“substantial” argument against their removability should be
subject to mandatory detention. See Demore, 538 U.S. at 578-
79 (Breyer, J., dissenting). This interpretation is not only
more respectful of the Constitution, it is also more consistent
with Congress’ chosen language. Id. at 578 (“Title 8 U.S.C.
§ 1226(c) tells the Attorney General to ‘take into custody any
alien who . . . is deportable’ (emphasis added), not one who
may, or may not, fall into that category.”).
The “substantial argument” standard strikes the best bal-
ance between an alien’s liberty interest and the government’s
interest in regulating immigration.5 See Demore, 538 U.S. at
5
Clearly the government’s interest here is substantial. Congress has
“broad power over naturalization and immigration” that allows it to
“make[ ] rules that would be unacceptable if applied to citizens.” Demore,
538 U.S. at 521 (quoting Diaz, 426 U.S. at 79-80). Pursuant to this power,
Congress created mandatory detention to address its concern that too many
immigrants were fleeing from their immigration proceedings. See gener-
ally id. at 518-21. While it is clear that immigrants may be detained under
this provision during a relatively brief period for processing and removal,
I do not believe that Congress intended, or that it has the power, to impose
prolonged detention on an alien simply because the alien may be ulti-
mately deportable. Cf. Zadvydas, 533 U.S. at 701 (“We do have reason to
believe, however, that Congress previously doubted the constitutionality
of detention for more than six months.”).
16274 TIJANI v. WILLIS
578 (Breyer, J., dissenting) (the “substantial question of law
or fact” standard “gives considerable weight to any special
governmental interest in detention,” is “more protective of a
detained alien’s liberty interest than those currently adminis-
tered in the INS’ Joseph hearings,” and has “proved workable
in practice in the criminal justice system”). It gives the alien’s
liberty rights adequate respect and ensures that the alien’s
detention will be relatively brief. At the same time, it provides
the government leeway to detain those aliens who lack any
incentive to press their legal claims, and are therefore the
most likely to abandon those claims and flee.6
2.
I believe that Tijani easily meets the substantial argument
standard, despite the BIA’s intervening decision finding him
removable.7 Tijani almost certainly has a winning argument
that he is not removable for having committed an aggravated
felony.8 The only evidence the IJ relied upon for reaching a
6
The majority opinion does not reject such a substantial argument stan-
dard. Rather, it simply does not reach the question other than tersely to
state Tijani should be granted bail “unless the government establishes that
he is a flight risk or will be a danger to the community.” Slip op. at 16266
(citing Cooper, 517 U.S. at 363).
7
The BIA’s December 29, 2004, decision finding Tijani removable did
not change Tijani’s position in this appeal. Tijani continues to remain in
BICE custody, detained without the possibility of release under § 236(c)
of the INA. Specifically, he has not yet entered his 90-day removal period
under 8 U.S.C. § 1231(a) because this court has stayed his removal pend-
ing its review of the BIA’s decision. See 8 U.S.C. § 1231(a)(1)(B) (“The
removal period begins on the latest of the following: . . . (ii) If the removal
order is judicially reviewed and if a court orders a stay of the removal of
the alien, the date of the court’s final order”).
8
This circuit applies the test announced in Taylor v. United States, 495
U.S. 575 (1990), to determine whether a conviction constitutes a predicate
offense for removal under the INA. See Tokatly v. Ashcroft, 371 F.3d 613,
620 (9th Cir. 2004). Under Taylor, a court first applies a “categorical”
analysis, looking to only the fact of conviction and the statutory definition
of the offense to determine if the offense amounts to a predicate offense.
TIJANI v. WILLIS 16275
contrary conclusion was the abstract of judgment from
Tijani’s 1999 conviction, showing that Tijani was ordered to
pay restitution of almost $28,000. The abstract of judgment
does not show, however, that a jury found that Tijani caused
this amount of loss, as this circuit’s case law requires. See
Taylor, 495 U.S. at 602; Tokatly v. Ashcroft, 371 F.3d at 620.
Further, there appears to be no California law requiring that
a jury determine the amount of restitution. Cf. Cal. Penal
Code § 1202.4(f) (“In every case in which a victim has suf-
fered economic loss as a result of the defendant’s conduct, the
court shall require that the defendant make restitution to the
victim . . . .”) (emphasis added). This easily constitutes a sub-
stantial argument that Tijani’s conviction under Cal. Penal
Code § 532a(1) does not amount to an aggravated felony.
As to the argument that a violation of Cal. Penal Code
§ 532a(1) constitutes a crime of moral turpitude, Tijani has
also raised a substantial argument. For Tijani’s conviction to
involve moral turpitude, it must involve fraud. See Carty v.
Ashcroft, 395 F.3d 1081, 1083 (9th Cir. 2005) (“Crimes of
moral turpitude are of basically two types, those involving
fraud and those involving grave acts of baseness or depravi-
ty.”); Rodriguez-Herrera v. INS, 52 F.3d 238, 240 (9th Cir.
1995); Goldeshtein v. INS, 8 F.3d 645, 647 (9th Cir. 1993).
Yet nothing in Cal. Penal Code § 532a(1) requires intent to
defraud. Rather, it is perfectly plausible that a person could be
convicted under § 532a(1) without any intent to defraud what-
soever. Indeed, the BIA’s only precedent on point, which
involved a Connecticut statute identical in all material
respects to the California statute at issue, reached this conclu-
sion. See Matter of Kinney, 10 I. & N. Dec. 548, 549 (BIA
Taylor, 495 U.S. at 602. If the statutory definition is broader than the pred-
icate offense, a court employs a “modified categorical approach,” asking
whether the documentation or judicially noticeable facts that the jury was
“actually required to find” show that the defendant was convicted of all
the elements of the predicate offense. Id.; Tokatly, 371 F.3d at 620.
16276 TIJANI v. WILLIS
1964) (“The intent that the false statement be relied upon is
not necessarily an intent to do evil or work fraud because . . .
one who intends that there be reliance upon his false state-
ment may nevertheless also intend to pay for the goods his is
attempting to obtain.”).
This case stands in stark contrast to our recent case of
Carty, in which we found that willful failure to file California
state income taxes was a crime involving moral turpitude. 395
F.3d at 1082, 1085. Unlike Cal. Penal Code § 532a(1), the
statute in Carty explicitly required a finding of “intent to
evade,” which the court found to be synonymous with “intent
to defraud.” Id. at 1083, 1085; see also id. at 1085 (“[I]ntent
to evade has generally been held to require proof of fraud.”).
In contrast, Cal. Penal Code § 532a(1) contains no such
requirement.
Without further briefing, it is difficult to determine conclu-
sively whether a violation of Cal. Penal Code § 532a(1) con-
stitutes a crime of moral turpitude. Indeed, Tijani’s arguments
may ultimately not be convincing. Nonetheless, a closer look
is surely required. Tijani’s moral turpitude argument, there-
fore, easily rises to the level of “substantial.”
D.
Tijani has been detained for the last 30 months in spite of
the fact that he can raise substantial arguments against his
removal that necessitate a hard look. Such detention without
the possibility of release, based on nothing more than the fact
that he may someday be removable, is clearly a violation of
his due process rights.
II.
There is also another reason why we should reach the mer-
its of Tijani’s contentions. As the Supreme Court has recently
held on two occasions, detention incidental to removal must
TIJANI v. WILLIS 16277
bear a reasonable relation to its purpose. See Demore, 538
U.S. at 527; Zadvydas, 533 U.S. at 690. In Zadvydas, the
Court held that detention raised serious constitutional ques-
tions when its goal — preventing flight — was “no longer
practically attainable” due to the unlikelihood of the aliens’
ultimate removal. Zadvydas, 533 U.S. at 690.9 In Demore, on
the other hand, the detention was “reasonably related” to the
goal of preventing flight both because the alien was unques-
tionably removable, and thus presented a high flight risk, and
the time period was limited, lasting on average for a mere 47
days. Demore, 538 U.S. at 527-29.
As noted by Justice Kennedy in concurrence, however,
there exists a point at which the length of detention becomes
so egregious that it can no longer be said to be “reasonably
related” to an alien’s removal. Id. at 532 (Kennedy, J., con-
curring) (“[S]ince the Due Process Clause prohibits arbitrary
deprivations of liberty, a lawful permanent resident alien such
as respondent could be entitled to an individualized determi-
nation as to his risk of flight and dangerousness if the contin-
ued detention became unreasonable or unjustified.”). The
Sixth Circuit has since agreed with this position in Ly v. Han-
sen, 351 F.3d 263 (6th Cir. 2004).
Given the record, this court is in a position to address
Tijani’s argument that the sheer length of his detention vio-
lates the Constitution now. The nearly 30 months that Tijani
has so far been detained have reached the point of unreason-
ableness. In absolute terms the length of time is unreasonable
9
The government in Zadvydas offered another justification for the con-
tinued detention — “protecting the community.” Zadvydas, 533 U.S. at
691. The Court squarely rejected this as a justification for continued deten-
tion, finding that “preventative detention based on dangerousness” is only
permissible “when limited to specially dangerous individuals and subject
to strong procedural protections.” Id. at 691-92. If the justification of “pro-
tecting the community” was offered in Demore, the Court did not discuss
it. The detention in that case was justified solely on the basis of preventing
flight.
16278 TIJANI v. WILLIS
— it is more than eighteen times the average length of deten-
tion (five times the average when the alien chooses to appeal),
and is five times as long as the six months the Supreme Court
suggested would be unreasonable in Zadvydas. See Zadvydas,
533 U.S. at 701.
Even considering the individual factors of Tijani’s case, the
amount of time he has been detained remains unreasonable.
While it is true that Tijani requested continuances, those
occurred early in the process, and have not contributed at all
to the year-long delay since the BIA heard his appeal. See Ly,
351 F.3d at 272 (delay attributable to immigrant can help jus-
tify continued detention); cf. Demore, 538 U.S. at 530-31
(immigrant’s request for a continuance helped justify the
“somewhat longer than average” length of his detention). In
addition, the government had every opportunity to avoid
Tijani’s additional detention by beginning his removal pro-
ceedings while he was incarcerated in California. See Dem-
ore, 538 U.S. at 529-30 & n.13. Thus, there no longer can be
any question that Tijani’s continued detention is no longer
reasonably related to his deportation.
III.
For the foregoing reasons, it is clear that Tijani is entitled
to be released forthwith pending the completion of his
removal proceedings.
CALLAHAN, Circuit Judge, dissenting:
As I find that the district court properly denied Monsuro
Tijani’s habeas petition, I dissent from the remand of this case
to the district court. I further disagree with the opinion’s sug-
gestion that the result of a hearing must be Tijani’s release on
bail, and with the concurring opinion’s argument that Tijani’s
extended detention is necessarily unconstitutional.
TIJANI v. WILLIS 16279
A. Background
An appreciation of this case requires a brief review of how
Tijani got himself into his present predicament. A native and
citizen of Nigeria, Tijani arrived in the United States in 1980
and adjusted his status to legal permanent resident in 1985.
Shortly thereafter, Tijani started having trouble with the law.
Most recently on June 9, 1999, Tijani was convicted on
twelve counts of providing false information on financial doc-
uments in violation of California Penal Code § 532a(1).
On April 9, 2003, when Tijani was scheduled to be paroled
from state prison, he was charged with being deportable,
served with a notice to appear before an Immigration Judge
(“IJ”), and transferred into the custody of the U.S. Bureau of
Immigration and Customs Enforcement (“BICE”). He was
specifically charged with being removable under 8 U.S.C.
§ 1227(a)(2)(A)(ii), based on his status as an alien convicted
of two crimes involving moral turpitude, and under 8 U.S.C.
§ 1227(a)(2)(A)(iii), based on his status as an alien convicted
of an aggravated felony.
The BICE determined that Tijani was subject to mandatory
detention pursuant to 8 U.S.C. § 1226(c), and should be held
without bond during the removal proceedings. Tijani con-
tested the detention and requested a bond-determination hear-
ing. A hearing was held before an IJ, in accordance with the
Board of Immigration Appeals’ (“BIA”) decision of In re
Joseph (“Joseph”), 22 I. & N. Dec. 799 (BIA 1999) (en banc).
The IJ affirmed the BICE’s determination, finding both that
Tijani was “subject to mandatory custody” and that he
“pose[d] a danger to the property of others due to his lengthy
criminal record.” On June 26, 2003, the BIA affirmed the IJ’s
decision that Tijani was subject to mandatory detention.
Tijani then filed his habeas petition in the United States
District Court for the Southern District of California, arguing,
inter alia, that he did not pose a danger to the community and
16280 TIJANI v. WILLIS
that mandatory detention violated the Due Process Clause of
the Fifth Amendment. On January 21, 2004, the district court
denied Tijani’s petition. It found that mandatory detention
was constitutional, citing Demore v. Kim, 538 U.S. 510
(2003), and that Tijani was subject to mandatory detention
because his particular conviction under California Penal Code
§ 532a(1) constituted a crime of moral turpitude. Tijani filed
a timely notice of appeal to this court.1
B. The Standard for Mandatory Detention
I agree with the district court that, under Demore, manda-
tory detention pursuant to 8 U.S.C. § 1226(c) is not per se
unconstitutional. In Demore, the Supreme Court held:
Detention during removal proceedings is a constitu-
tionally permissible part of that process. See, e.g.,
Wong Wing [v. United States,] 163 U.S. [228, 235
(1896)] (“We think it clear that detention, or tempo-
rary confinement, as part of the means necessary to
give effect to the provisions for the exclusion or
expulsion of aliens would be valid”); Carlson v.
Landon, 342 U.S. 524, 72 S. Ct. 525, 96 L. Ed. 547
(1952); Reno v. Flores, 507 U.S. 292, 113 S. Ct.
1439, 123 L. Ed. 2d 1 (1993). The INS detention of
respondent, a criminal alien who has conceded that
he is deportable, for the limited period of his
removal proceedings, is governed by these cases.
538 U.S. at 531.
Tijani, of course, is concerned with the application of the
1
Meanwhile, Tijani’s removal proceedings continued. On November 5,
2003, an IJ ordered Tijani removed from the United States. Tijani
appealed to the BIA, which, on December 30, 2004, summarily affirmed
the IJ’s decision of removal. Tijani has filed a petition for review with this
court, which is not before this panel.
TIJANI v. WILLIS 16281
statute to him rather than its abstract constitutionality. In par-
ticular, Tijani raises constitutional challenges to the scope of
mandatory detention under § 236(a) as interpreted in Joseph.2
He argues that mandatory detention should not extend to law-
ful permanent residents held beyond a brief period of time
because there is little likelihood that they will flee or endanger
the community. He also contends that principles of procedural
due process prohibit the mandatory detention of lawful per-
manent residents who raise substantial arguments.
Even assuming that the scope of § 236(c) as interpreted by
Joseph is problematic,3 it is by no means certain that Tijani is
entitled to release. In addition to having been denied relief by
an IJ, the BIA, and the district court, Tijani has also been
found removable by both an IJ and the BIA. Moreover, con-
trary to the position taken by Judge Tashima in his concurring
opinion, I am not persuaded by Tijani’s contentions that he
2
In Joseph, the BIA held that “a lawful permanent resident will not be
considered ‘properly included’ in a mandatory detention category when an
Immigration Judge or the Board is convinced that the [government] is sub-
stantially unlikely to establish at the merits hearing, or on appeal, the
charge or charges that would otherwise subject the alien to mandatory
detention.” 22 I. & N. Dec. at 806.
3
The Supreme Court’s reference to Joseph in Demore suggests that the
BIA’s opinion is not clearly unconstitutional. The Court noted:
This “Joseph hearing” is immediately provided to a detainee who
claims that he is not covered by § 1226(c). Tr. of Oral Arg. 22.
At the hearing, the detainee may avoid mandatory detention by
demonstrating that he is not an alien, was not convicted of the
predicate crime, or that the INS is otherwise substantially
unlikely to establish that he is in fact subject to mandatory deten-
tion. See 8 CFR § 3.19(h)(2)(ii) (2002); Matter of Joseph, 22 I.
& N. Dec. 799, 1999 WL 339053 (BIA 1999). Because respon-
dent conceded that he was deportable because of a conviction that
triggers § 1226(c) and thus sought no Joseph hearing, we have no
occasion to review the adequacy of Joseph hearings generally in
screening out those who are improperly detained pursuant to
§ 1226(c).
Demore, 510 U.S. at 515 n.3.
16282 TIJANI v. WILLIS
did not commit an aggravated felony and that his conviction
was not for a crime involving moral turpitude. Thus, even
were Tijani to prevail on his claim that § 236(a) is unconstitu-
tional because it requires a showing that the government is
unlikely to prevail in the removal proceedings, it is by no
means clear that he would be entitled to release under any
alternate standard for bail.
C. Duration of Detention
Tijani further argues that the duration of his detention
under 8 U.S.C. § 1226(c) is unconstitutional. The constitu-
tional limit, if any, to the duration of an alien’s detention
under § 1226, however, was left open by the Supreme Court
in Demore. In discussing its prior opinion in Zadvydas v.
Davis, 533 U.S. 678 (2001), the Court noted first that in Zad-
vydas, the aliens challenging their detention following final
orders of deportation were ones for whom removal was “no
longer practically attainable” and therefore detention did not
serve the purported immigration purpose. Demore, 538 U.S.
at 526. The Court further stated:
Zadvydas is materially different from the present
case in a second respect as well. While the period of
detention at issue in Zadvydas was “indefinite” and
“potentially permanent,” 533 U.S., at 690-691, 121
S. Ct. 2491, the detention here is of a much shorter
duration. Zadvydas distinguished the statutory provi-
sion it was there considering from § 1226 on these
very grounds, noting that “post-removal-period
detention, unlike detention pending a determination
of removability . . . , has no obvious termination
point.” Id., at 697, 121 S. Ct. 2491 (emphasis added).
Under § 1226(c), not only does detention have a def-
inite termination point, in the majority of cases it
lasts for less than the 90 days we considered pre-
sumptively valid in Zadvydas.
TIJANI v. WILLIS 16283
Id. at 528-29. This statement may be read as implying a limit
to the duration of detention pending a determination of remov-
ability,4 or as holding that because the removal proceedings
are by definition finite, there is no constitutional limit to the
duration of detention under 1226(c).5
I agree with Judge Noonan that we need not and should not
resolve this issue at this time. I would simply hold that when
4
Justice Kennedy, in his concurring opinion, wrote:
since the Due Process Clause prohibits arbitrary deprivations of
liberty, a lawful permanent resident alien such as respondent
could be entitled to an individualized determination as to his risk
of flight and dangerousness if the continued detention became
unreasonable or unjustified. Zadvydas, 533 U.S., at 684-686, 121
S. Ct. 2491; id., at 721, 121 S. Ct. 2491 (KENNEDY, J., dissent-
ing) (“[A]liens are entitled to be free from detention that is arbi-
trary or capricious”). Were there to be an unreasonable delay by
the [government] in pursuing and completing deportation pro-
ceedings, 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.
538 U.S. at 532-33. It should be noted that there is little before us to sug-
gest that Tijani’s continued detention is not to protect against dangerous-
ness. I note that the IJ in his November 5, 2003 order of removal (affirmed
by the BIA on December 30, 2004) stressed that he found Tijani to be a
danger to the community.
5
The reasons for detaining criminal aliens pending removal do not
diminish over the duration of their detention. This is reflected in the fol-
lowing comments by the Supreme Court in Demore: “Congress also had
before it evidence that one of the major causes of the INS’ failure to
remove deportable criminal aliens was the agency’s failure to detain those
aliens during their deportation proceedings[;]” (538 U.S. at 519) “[t]he
Vera Institute study strongly supports Congress’ concern that, even with
individualized screening, releasing deportable criminal aliens on bond
would lead to an unacceptable rate of flight[;]” (id. at 520) and “[s]ome
studies presented to Congress suggested that detention of criminal aliens
during their removal proceedings might be the best way to ensure their
successful removal from this country. . . . It was following those Reports
that Congress enacted 8 U.S.C. § 1226, requiring the Attorney General to
detain a subset of deportable criminal aliens pending a determination of
their removability.” Id. at 521.
16284 TIJANI v. WILLIS
the district court on January 21, 2004, denied Tijani’s habeas
petition, he had not shown that the duration of his detention
under § 1226 was unconstitutional. Accordingly, I would not
remand this matter.
Rather, Tijani would be better advised to seek relief anew
before the agency or in the district court where the effects of
intervening events and the passage of time could be fully
presented and briefed. Among other potentially relevant con-
cerns that might be considered are (a) the impact of the inter-
vening decisions by the IJ and the BIA that Tijani is removable;6
(b) whether the passage of time or the above decisions give
rise to any alternate administrative remedies for Tijani; (c)
whether any delays were attributable to Tijani; and (d)
whether the delays give rise to an implication that detention
no longer serves the purported immigration purposes.
D. Conclusion
The troubling nature of this case is underscored by the fact
that each member of our panel has written separately. I agree
with the district court’s denial of Tijani’s habeas petition and,
accordingly, would not remand the case to the district court.
As the panel has remanded this matter, however, I have
explained that it is not clear (1) that the detention of an alien
pending removal proceedings is necessarily unconstitutional
regardless of how long those proceedings take,7 and (2) that
a new hearing pursuant to the panel’s decision must result in
Tijani’s release pending the completion of his removal pro-
ceedings.
6
For example, although Judge Tashima disagrees (see footnote 7 of his
concurrence), the government in its letter of January 5, 2005 suggested
that Tijani’s detention may now fall under 8 U.S.C. § 1231(a) in light of
the final order of removal.
7
Different considerations would come into play if there were any evi-
dence that the government was unreasonably prolonging the removal pro-
ceedings.