On March 7, 2011, the U.S. Court of Appeals for the Ninth Circuit ruled in Diouf v. Napolitano that an immigrant facing long-term detention pending resolution of their motions to reopen immigration proceedings is “entitled to release on bond unless the government establishes that he is a flight risk of a danger to the community.” In so holding, the appellate court reversed the district court’s denial of preliminary injunctive relief to the petitioner, a citizen of Senegal who was granted voluntary departure from the United States in 2003, after overstaying his student visa, but later sought to reopen proceedings and remain in the country as the spouse of an American citizen.
Diouf was represented by the ACLU, ACLU of Southern California, and Stanford Law School Immigrants’ Rights Clinic. History of the litigation is available here.
The petitioner, Mr. Amadou Lamine Diouf, did not leave the country within the timeframe for voluntary departure specified by the immigration judge because he intended to move to reopen proceedings. Before he moved to reopen or for an extension of the period for departure, he was detained by Immigration and Customs Enforcement in 2005. After being detained, Diouf moved the immigration judge to reopen proceedings. This motion was denied and the Board of Immigration Appeals affirmed. Diouf appealed to the Ninth Circuit, which granted a stay of removal pending consideration of his petition for review of the BIA decision.
Diouf’s detention, from March 2005 onward, was subject to review on two occasions, pursuant to federal regulation (8 C.F.R. Section 241.4). In these reviews, Immigration and Customs Enforcement determined that he was a possible flight risk and continued detention was justified.
Diouf then filed a petition for writ of habeas corpus (28 U.S.C. Section 2241) before the U.S. district court, requesting a preliminary injunction for his immediate release on the grounds that his continued detention violated 8 U.S.C. 1226(a)and the Due Process Clause of the Fifth Amendment to the U.S. Constitution – or in the alternative, ordering an immigration judge to hold a hearing requiring the government to justify his detention. In February 2007, the district court required a bond hearing before an immigration judge, who then determined that Diouf did not present a sufficient danger to the community or flight risk and ordered his release.
However, the Ninth Circuit vacated the preliminary injunction because both the district court had assumed that Diouf was held under 8 U.S.C. Section 1226(a) (decision on removal pending), when in fact he was being held under 8 U.S.C. 1231(a)(6) (inadmissible or criminal aliens). Additionally, the Circuit Court “held that Diouf’s detention was authorized by statute because, although it was prolonged, it was not indefinite”. Diouf v. Napolitano at 3158. The Circuit Court remanded for the district court to determine whether aliens held under Section 1231(a)(6) were also entitled to receive bond hearings and be released unless they were proven to be a danger to the community or a flight risk. The district court answered in the negative and, on appeal, the Circuit Court reversed.
Under Supreme Court jurisprudence, notably Zadvydas v. Davis, 533 U.S. 678 (2001), detention of immigrants pending removal may be extended beyond the 90-day limit following the order of removal for a reasonable period of time where removal is foreseeable (e.g., the immigrant’s home country is willing to take him and there is no other legal barrier to his return); such detention may not be indefinite.
This decision will mean that the legality of continued detention will be determined by an immigration judge, rather than by Immigration and Customs Enforcement officials, and the burden will be on the government to prove that the individual is a danger to the community or is likely to flee if released.
The government had argued that immigrants like Diouf who are collaterally attacking their orders of removal through motions to reopen should be treated differently than those challenging a removal order through the ordinary (direct) appeals process. The Ninth Circuit disagreed, finding that the liberty interest of the two groups is “comparable” and both channels serve to ensure that immigrants’ rights are not violated and to properly dispose of their claims.
The court also rejected the government’s contention that the regulations provide adequate safeguards of immigrants’ liberty interests, requiring judicial deference. The court found that deference to the regulations governing review of prolonged detention was not due because:
The DHS regulations governing the 180-day review, however, do raise serious constitutional concerns. When the 180-day review takes place, the alien has been detained for approximately six months and the review, if unfavorable to the alien, authorizes detention for an additional year. At this point, the alien’s continuing detention becomes prolonged. When the period of detention becomes prolonged, “the private interest that will be affected by the official action,” is more substantial; greater procedural safeguards are therefore required. […] Thus, at the 180-day juncture, the DHS regulations are appropriate but not alone sufficient to address the serious constitutional concerns raised by continued detention. The regulations do not afford adequate procedural safeguardsbecause they do not provide for an in-person hearing, they place the burden on the alien rather than the government and they do not provide for a decision by a neutral arbiter such as an immigration judge.
Id. at 3170-71 (internal citations omitted).
In concluding its reasoning, the court stated:
Diouf’s own case illustrates why a hearing before animmigration judge is a basic safeguard for aliens facing prolonged detention under § 1231(a)(6). The government detained Diouf in March 2005. DHS conducted custody reviews under § 241.4 in July 2005 and July 2006. In both instances, DHS determined that Diouf should remain in custody pending removal because his “criminal history and lackof family support” suggested he might flee if released. In February 2007, however, an immigration judge determined that Diouf was not a flight risk and released him on bond. If the district court had not ordered the bond hearing on due process grounds, Diouf might have remained in detention until thisday. To address these concerns, aliens who are denied release in their 180-day reviews must be afforded the opportunity to challenge their continued detention in a hearing before an immigration judge.
Id. at 3172. Diouf’s motion to reopen removal proceedings is still pending review.