DocketNumber： 01-3016
Judges： Boggs, Ryan, Haynes
Filed Date： 3/30/2004
Status： Precedential
Modified Date： 10/19/2024
OPINION
Mark Hansen, district director of the Immigration and Naturalization Service (INS), appeals the grant of habeas corpus to Hoang Minh Ly, a deportable criminal alien. Ly, a citizen of Vietnam, challenged the constitutionality of § 236(c) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which requires the Attorney General to detain immigrants who have committed certain crimes, pending removal proceedings. 8 U.S.C. § 1226(c) (West 1999). Ly alleges that the section violates substantive and procedural due process under the Fifth Amendment because it does not allow criminal aliens individual bond hearings to determine their suitability for release pending removal proceedings. Because the Supreme Court, in Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001), determined that IIRIRA should be interpreted to avoid the constitutional questions raised by indefinite detention of aliens awaiting removal from the United States, we affirm the result below for reasons different than those relied on by the district court. Brown v. Tidwell, 169 F.3d 330, 332 (6th Cir.1999).
I
Hoang Minh Ly entered the United States as a refugee in 1986. In 1993, Ly was convicted of credit card fraud, and sentenced to four months in prison, with two years of supervised release. In 1998, Ly was involved in a cheek-kiting scheme, wherein he deposited counterfeit cashier’s checks into a bank account, knowing that someone else would withdraw the money and split the proceeds. He was convicted of bank fraud. Ly has fully served his criminal sentences on both convictions.
The INS issued Ly a Notice to Appear on May 10, 1999. The INS took Ly into custody, under the mandatory detention provisions of IIRIRA § 236(c), on May 11, 1999. Overall, Ly was kept in detention for 500 days, before his release at the order of the district court. The INS asserted that Ly was subject to removal
The INS, in accordance with the district court’s order, conducted a bond hearing. At that hearing, on November 21, 2000, the immigration judge determined that he did not have the statutory authority to release Ly from detention. Nevertheless, on November 24, 2000, the INS released Ly on his own recognizance and subject to specified conditions.
II
A. Substantive Due Process and Zadvy-das
1. Standard of Review and Jurisdiction
We review the grant of habeas corpus, and the constitutional questions inherent in such a grant, de novo. Staley v. Jones, 239 F.3d 769, 775 (6th Cir.2001). We have jurisdiction to consider both substantive and procedural due process challenges to § 236(c), despite the jurisdictional limitations set out in IIRIRA. IIRIRA states: “[N]o court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien.... ” 8 U.S.C. § 1252(g) (West 1999). In Pak v. Reno, 196 F.3d 666, 671-72 (6th Cir.1999), we held that this jurisdictional limitation did not extend to the habeas power of federal courts, in order to avoid the constitutional issue of whether or not such a limitation would violate the Suspension Clause of the Constitution, which states that the “privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” U.S. Const. Art. I § 9 cl. 2. The Supreme Court has also upheld the jurisdiction of courts to consider habeas claims arising out of immigration detention. See Zadvydas v. Davis, 533 U.S. 678, 688, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) (courts have jurisdiction to hear habeas claims arising out of IIRIRA’s post-removal detention provisions).
2. Zadvydas
The parties here ask whether Ly may be indefinitely incarcerated, under IIRIRA’s mandatory pre-removal detention statute, § 236(c), pending his removal to Vietnam, given that such removal is not currently foreseeable due to the lack of a repatriation treaty between the United States and Vietnam. Section 236 of IIRIRA requires the attorney general to detain, among others, aliens convicted of either an aggravated felony or two crimes involving moral turpitude (such as fraud), pending removal proceedings. 8 U.S.C. § 1226(c). The INS asserts that because aliens detained under § 236 are prima facie deportable, they have no liberty interest and may be detained indefinitely, without a bond hearing, until an order of removal is entered. Ly contends that the constitution requires
While the appeal in the case was pending, the Supreme Court held in Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001), that indefinite detention of a removable criminal alien after a removal proceeding would violate a due process right to liberty under the Fifth Amendment. Id. at 682, 121 S.Ct. 2491. Zadvydas therefore construed IIRIRA as not requiring indefinite incarceration, by imposing a reasonable time limit (six months), supervised by the federal courts in habeas proceedings, on the amount of time that a deportable criminal alien may be detained after a determination as to removability has been made, unless the government asserts a “strong special justification” for the detention. Id. at 690, 121 S.Ct. 2491.
Zadvydas addressed the prospect of indefinite incarceration of deportable aliens created by the IIRIRA post-removal detention statute. The question remaining before us is whether the holding of Zadvy-das extends to the mandatory pre-removal detention statute, § 236. Most aliens may be released on bond or paroled until their removal hearing. 8 U.S.C. § 1226(a) (West 1999). However, because certain types of criminal aliens pose extraordinarily high flight risks, Congress has ordered that aliens who have been convicted of an aggravated felony or two crimes involving moral turpitude (including fraud) must be detained pending removal proceedings, based on a prima facie determination of removability by the government. 8 U.S.C. § 1226(c). If an order of removal is not entered (or not entered promptly), the result is mandatory indefinite detention for criminal aliens, which is prohibited by Zadvydas.
3. Circuit Decisions
The question of indefinite detention under § 236 is one of first impression in this circuit. Our sister circuits have split on the issue. The Ninth and Tenth Circuits have adopted a bright-line approach, holding that § 236 is unconstitutional as applied to lawful permanent residents, no matter the length of actual detention. Hoang v. Comfort, 282 F.3d 1247 (10th Cir.2002), rev’d, — U.S. —, 123 S.Ct. 1963, 155 L.Ed.2d 846 (2003); Kim v. Ziglar, 276 F.3d 523 (9th Cir.2002), rev’d, 538 U.S. 510, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003). The Third Circuit has held that § 236 mandatory detention is unconstitutional if the detained alien seeks to avoid removal via administrative remedies. Patel v. Zemski, 275 F.3d 299 (3rd Cir.2001). The Fourth Circuit adopted a case-by-case approach, requiring an individualized determination of dangerousness, Welch v. Ashcroft, 293 F.3d 213 (4th Cir.2002), and the Seventh Circuit has held that indefinite detention under § 236 is entirely constitutional. Parra v. Perryman, 172 F.3d 954 (7th Cir.1999).
We adopt none of these approaches. Our logic is simple. Zadvydas prohibits only one thing: permanent civil detention without a showing of a “strong special justification” that consists of more than the government’s generalized interest in protecting the community from danger. Zadvydas, 533 U.S. at 690, 121 S.Ct. 2491. Zadvydas establishes a specific rule: “[A] habeas court must ask whether the detention in question exceeds a period reasonably necessary to secure removal.” Id. at 699, 121 S.Ct. 2491. Since permanent detention of Permanent Resident Aliens under § 236 would be unconstitutional, we construe the statute to avoid that result, as did the Court in Zadvydas. Zadvydas also made clear that limited civil detention, without bond, is constitutional as ap
4. Level of Scrutiny
The magistrate judge’s opinion recommending the grant of habeas relief, as adopted by the district court, found that deportable aliens have a fundamental liberty interest under the Fifth Amendment, the protection of which requires an individualized bond hearing. Instead of characterizing the issue as one of reasonable limitation on the period of incarceration, as did Zadvydas, the magistrate judge stated: “The issue thus presented is whether § 236 violates Petitioner’s Fifth Amendment right to due process by removing discretion on the part of the Attorney General to provide individualized bond hearings for those aliens against whom deportation proceedings are ongoing.”
The level of scrutiny to be applied in determining whether or not a restriction on a substantive due process right should be upheld varies with the nature of the right. The magistrate judge’s opinion noted that courts are to apply strict scrutiny (the law must be narrowly tailored to a compelling state interest) to governmental conduct that interferes with rights “implicit in the concept of ordered liberty.” United States v. Salerno, 481 U.S. 739, 746, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) (quoting Palko v. Conn., 302 U.S. 319, 325-26, 58 S.Ct. 149, 82 L.Ed. 288 (1937)). The INS argued there, as here, that immigration decisions should be subject to the more deferential rational basis test, since deportable aliens have no liberty interest in being at large in the United States.
The magistrate judge applied neither the strict scrutiny or rational basis tests in pure form; rather, he likened the pre-removal detention of criminal aliens to the pre-trial detention of criminals, and adopted the “excessive to its purpose” test of Salerno for regulatory legislation not designed for punishment. In weighing the competing interests, courts consider “the length of detention to which the petitioner has already been subjected, the likelihood of deportation, the potential length of the detention into the future, the likelihood that release will frustrate the petitioner’s actual deportation, and the danger to the community posed by the petitioner if released.” Hermanowski v. Farquharson, 39 F.Supp.2d 148, 159 (D.R.I.1999). On balancing these factors, the magistrate judge determined that Ly’s extended incarceration was not justified in light of the minimal danger he posed to the public.
Zadvydas used a different analytical approach. Although the opinion quoted Salerno with approval, Zadvydas noted that removal proceedings were civil, not criminal, and held that if the government wished to indefinitely detain a removable alien, it must show a “strong special justification” for such detention. Zadvydas, 533 U.S. at 690, 121 S.Ct. 2491. A general goal of preventing danger to the community is insufficient to support indefinite civil detention: “[W]e have upheld preventive detention based on dangerousness only when limited to specially dangerous individuals and subject to strong procedural protections.” Id. at 690-91, 121 S.Ct. 2491. “In cases in which preventive detention is of potentially indefinite duration, we have also demanded that the dangerousness rationale be accompanied by some other special circumstance, such as mental
The INS argues that because Ly is prima facie removable, he has no liberty interest at all, and cannot therefore complain that he is not at liberty within the United States. While it is true that a removable alien has no right to be in the country, it does not mean that he has no right to be at liberty. Zadvydas established that deportable aliens, even those who had already been ordered removed, possess a substantive Fifth Amendment liberty interest, and that the interest was violated by indefinite detention. The INS relies on the Seventh Circuit’s decision in Parra v. Perryman, 172 F.3d 954 (7th Cir.1999). In that case, the Seventh Circuit found that § 236 violated neither procedural or substantive due process, on the logic the INS asserts here: “A criminal alien who insists on postponing the inevitable has no constitutional right to remain at large during the ensuing delay, and the United States has a powerful interest in maintaining the detention in order to ensure that removal actually occurs.” Parra, 172 F.3d at 958. To the extent that Parra holds that a criminal alien does not possess a Fifth Amendment liberty interest impacted by indefinite civil detention, it has been overruled by Zadvydas, 533 U.S. at 690, 121 S.Ct. 2491.
The INS’s final argument is that Congress exercises plenary control over immigration, and that we should therefore not question the judgment of Congress by ourselves placing limits on mandatory detention. One point of difference between this case and Zadvydas is that the post-removal statute is permissive, whereas the pre-removal statute, as applied to specified criminal aliens, is mandatory. Compare 8 U.S.C. § 1226(c)(1) (The Attorney General shall take into custody ...) with 8 U.S.C. § 1231(a)(6) (An alien ordered removed ... may be detained beyond the removal period) (emphasis added). The INS argues that the mandatory nature of pre-removal detention reveals a clear congressional intent to keep criminal aliens detained for as long as it takes to deport them, even if such detention is effectively perpetual.
There are two reasons to reject this argument. First, although criminal aliens may be incarcerated pending removal, the time of incarceration is limited by constitutional considerations, and must bear a reasonable relation to removal. As the Zadvydas court stated: “detention pending a determination of removability ... has [an] obvious termination point.” Zadvydas, 533 U.S. at 697, 121 S.Ct. 2491. The mandatory nature of the detention does not alter the constitutional limitations to which it is subject. Congress’s plenary control must still be exercised within the bounds of the Constitution. INS v. Chadha, 462 U.S. 919, 941, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983). Second, while Congress did express a desire to have certain criminal aliens incarcerated during removal proceedings, it also made clear that such proceedings were to proceed quickly. 8 U.S.C. § 1229(d)(1) (West 1999) (“In the case of an alien who is convicted of an offense which makes the alien deportable, the Attorney General shall begin any removal proceeding as expeditiously as possible after the date of the conviction.”). In
We must also assess the constitutional impact of the presence or absence of hearings. In Zadvydas, the Court found it significant that the detainees were afforded administrative, rather than judicial, proceedings, at which the alien bore the burden of proof. Zadvydas, 533 U.S. at 692, 121 S.Ct. 2491. Such process, the Court determined, would be insufficient to permit indefinite detention. Similarly, in this case, the magistrate judge noted: “[i]t is highly significant that the statutory scheme affords petitioner no opportunity to convince an Immigration Judge that he is not a danger to the community, but, rather, is irrebutably presumed to be so.” In both cases, procedural protections (rights to a hearing at which the alien could argue that he did not pose a danger to the community) were too limited to justify an indefinite detention. However, Zadvydas did not mandate extra procedural protection in order to constitutionalize the imposition of indefinite civil detention; rather, it held that indefinite deprivation of liberty would require extensive procedural protection and therefore construed the post-removal detention statute to avoid the specter of permanent detention. Zadvydas, 533 U.S. at 689, 121 S.Ct. 2491.
We do the same: by construing the pre-removal detention statute to include an implicit requirement that removal proceedings be concluded within a reasonable time, we avoid the need to mandate the procedural protections that would be required to detain deportable aliens indefinitely. Although we affirm the grant of habeas corpus and the district court’s finding that incarceration for 18 months pending removal proceedings is unreasonable, we do not require the United States to hold bond hearings for every criminal alien detained under § 236. Ly’s case is not the norm, in that he is not actually removable. In the majority of cases, where an order of removal is promptly entered and removal is effected within the time allotted under Zadvydas, bond hearings are not required. As Zadvydas made clear, the liberty interest of deportable criminal aliens is adequately served by the reasonableness limitation on the period of incarceration.
5. Intervening Decisions
Our consideration of the question of Ly’s liberty interest is complicated by two decisions that have come down since this case was briefed and argued. In Demore v. Kim, 538 U.S. 510, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003) the Supreme Court held that § 1226(c) was not unconstitutional in requiring the detention of deportable aliens pending their deportation. It specifically indicated that such detentions were usually relatively brief, see id. at 1720-21, but it did not specifically hold that any particular length of time in a specific case would be unreasonable or unconstitutional. The case is distinguishable to the extent that Kim was a deportable alien for whom deportation, to South Korea, was a real possibility, and he could avail himself of such liberty at any time. That is not the case with Ly.
Because of the differences between Ly’s case and these opinions, we hold that neither of them affirmatively compels a different decision here.
Finally, we note that the government has not offered a strong and special justification, exceeding a mere desire to protect the community, that would justify indefinite detention. If, as is not the case here, the government were to attempt to justify indefinite detention by means of a showing of a “strong and special justification” under Zadvydas, then due process would require a hearing on that issue.
6. Reasonable Time Limitation
We must next define a reasonable time limitation for pre-removal detention, and finally determine whether or not the INS acted reasonably in this case. A bright-line time limitation, as imposed in Zadvy-das, would not be appropriate for the pre-removal period; hearing schedules and other proceedings must have leeway for expansion or contraction as the necessities of the case and the immigration judge’s caseload warrant. In the absence of a set period of time, courts must examine the facts of each case, to determine whether there has been unreasonable delay in concluding removal proceedings.
In this case, the district court determined that incarceration for one and one-half years as part of a civil, nonpunitive proceeding when there was no chance of actual, final removal, was unreasonable. We agree. As of the September 21, 2000 opinion and recommendation of the magistrate judge, Ly had been imprisoned for a year and a half with no final decision as to removability in the case. That decision as to removability was not made until nearly a month later, after the magistrate judge recommended granting the writ of habeas corpus. Ly served criminal sentences for his two convictions of a total of 12 months; he spent considerably more time than that in INS custody awaiting a determination on removal.
Further, any detention under IIRIRA must be reasonably related to the goal of the statute. Zadvydas, 533 U.S. at 699-700, 121 S.Ct. 2491. The goal of pre-removal incarceration must be to ensure the ability of the government to make a final deportation. The danger is that a criminal alien, upon receiving notice of deportation proceedings, will flee. The actual removability of a criminal alien therefore has bearing on the reasonableness of his detention prior to removal proceedings. Zadvydas, 533 U.S. at 690, 121 S.Ct. 2491. Because Ly was not removable, a year-
The INS incorrectly asserts that it has an interest in “ensuring that a final removal order is actually entered against an individual who is prima facie removable because of multiple criminal convictions.” The INS does not need the alien to be physically present in order to enter a final removal order. IIRIRA penalizes aliens who fail to appear at a removal proceeding with both an automatic entry of an order of removal in absentia, 8 U.S.C. § 1229a(b)(5), and prevents such aliens from applying for cancellation of removal or adjustment of status, remedies normally available to an alien who has been ordered removed. 8 U.S.C. § 1229a(b)(7) (West 1999).
As the INS points out, Ly is at least partially responsible for the length of the proceedings. Ly applied for cancellation of removal and for change of status, and was responsible for at least one rescheduled hearing, due to the late filing of briefs by Ly’s counsel with the immigration judge. We are not unsympathetic to this argument; however, we conclude that the INS must still act promptly in advancing its interests. In this case, the magistrate judge found that the time taken without a decision was exceptional; indeed, the immigration judge only rendered a decision after the magistrate judge acted, and an additional month had passed, even though the hearing before the immigration judge had been months earlier.
Under the rule we adopt today, courts must be sensitive to the possibility that dilatory tactics by the removable alien may serve not only to put off the final day of deportation, but also to compel a determination that the alien must be released because of the length of his incarceration. Without consideration of the role of the alien in the delay, we would encourage deportable criminal aliens to raise frivolous objections and string out the proceedings in the hopes that a federal court will find the delay “unreasonable” and order their release.
However, appeals and petitions for relief are to be expected as a natural part of the process. An alien who would not normally be subject to indefinite detention cannot be so detained merely because he seeks to explore avenues of relief that the law makes available to him. Further, although an alien may be responsible for seeking relief, he is not responsible for the amount of time that such determinations may take. The mere fact that an alien has sought relief from deportation does not authorize the INS to drag its heels indefinitely in making a decision. The entire process, not merely the original deportation hearing, is subject to the constitutional requirement of reasonability.
Finally, there is a question of institutional competence. By not requiring individualized bond hearings, federal courts undertake to supervise the reasonability of detention only via the habeas process. This is the approach recommended by Zadvy-das; of course, there the Court was able to establish a six-month rule that is easily administrable by courts. Certainly the INS is best situated to know which criminal aliens should be released, and federal courts are obviously less well situated to know how much time is required to bring a removal proceeding to conclusion. However, three factors tip the balance in favor of court supervision. First, Zadvydas requires it. Second, those aliens not granted bond hearings would still file habeas petitions; since habeas review of detention is not foreclosed by IIRIRA, federal courts will still be asked to review detention. Third, although an easily administrable bright-line rule cannot be based on time, given the inevitable elasticity of the
B. Procedural Due Process
Ly also asserts that he has received insufficient process to protect his Fifth Amendment liberty interest. Were we to construe the statute as permitting indefinite detention, additional process would be required. Zadvydas, 533 U.S. at 692, 121 S.Ct. 2491. If the INS were to assert a “strong special justification,” consisting of more than convenience in removal or general community protection, to support indefinite detention, then a hearing would be required. Id. at 690, 121 S.Ct. 2491. However, the INS makes no such showing here. Because we construe the statute to include a reasonable time limitation in bringing a removal proceeding to conclusion, additional process to protect that liberty interest is not required.
Ill
We hold that the INS may detain prima facie removable criminal aliens, without bond, for a reasonable period of time required to initiate and conclude removal proceedings promptly. When actual removal is not reasonably foreseeable, de-portable aliens may not be indefinitely detained without a government showing of a “strong special justification,” constituting more than a threat to the community, that overbalances the alien’s liberty interest. The reasonableness of the length of detention is subject to review by federal courts in habeas proceedings, as stated by Zadvy-das. Because there is no strong special justification in this case, because the period of time required to conclude the proceedings was unreasonable, and because actual removal was not foreseeable, we AFFIRM the grant of the writ of habeas corpus.
. Actual removal of Ly from the United States was never a possibility during this process. Vietnam has not and does not accept deportees because there is no repatriation agreement between the United States and Vietnam.
. Zadvydas does suggest that in extraordinarily limited circumstances, e.g., dangerous mental illness, civil detention for an indefinite period or without possibility of removal might be warranted. However, those circumstances are sufficiently rare that requiring individualized bond hearings is unnecessary. Rather, the INS can argue such extreme circumstances in opposition to a detainee's petition for habeas relief.