Black v. Decker

• Docket Number: 20-3224,August Term, 2022,22-70
• Decision Date: 31 May 2024
• Citation: Black v. Decker, 103 F.4th 133 (2nd Cir. 2024)
• Parties: Carol Williams BLACK, Petitioner-Appellee, v. Director Thomas DECKER, in his official capacity as Director of New York Field Office of U.S. Immigration and Customs Enforcement, Alejandro Mayorkas, Secretary of U.S. Department of Homeland Security, Sheriff Paul Arteta, in his official capacity as Sheriff of Orange County, New York, Respondents-Appellants. Keisy G.M., Petitioner-Appellant, v. Thomas Decker, New York Field Office Director for U.S. Immigration and Customs Enforcement, Merrick B. Garland, United States Attorney General, Alejandro Mayorkas, Respondents-Appellees, David L. Neil, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

103 F.4th 133

Carol Williams BLACK, Petitioner-Appellee, v. Director Thomas DECKER, in his official capacity

as Director of New York Field Office of U.S. Immigration and

Customs Enforcement, Alejandro Mayorkas,

Secretary of U.S. Department of Homeland Security,

Sheriff Paul Arteta, in his official capacity as

Sheriff of Orange County, New York, Respondents-Appellants.

Keisy G.M., Petitioner-Appellant, v. Thomas Decker, New York Field OfficeDirector for U.S. Immigration andCustoms Enforcement, Merrick B. Garland,United StatesAttorney General, Alejandro Mayorkas, Respondents-Appellees,David L. Neil, Defendant-Appellee.

No. 20-3224

August Term, 2022

No. 22-70

United States Court of Appeals, Second Circuit

Argued: January 5, 2023

Decided: May 31, 2024

Appeal from the United States District Court, No. 20-3224(Schofield, J.), No. 22-70(Cronan, J.)

In No. 20-3224:

Adedayo Idowu, Law Offices of Adedayo O. Idowu, New York, NY, for Carol Williams Black, Petitioner-Appellee.

Amy Belsher(Guadalupe Aguirre, Terry Ding, Christopher Dunn, on the brief), New York Civil Liberties Union Foundation, New York, NY, as Amicus Curiae for Carol Williams Black, Petitioner-Appellee.

Mary Ellen Brennan(Christopher Connolly, on the brief), Assistant U.S. Attorneys, Of Counsel, for Damian Williams, U.S. Attorney for the Southern District of New York, for Respondents-Appellants.

In No. 22-70:

Julie Dona(Aadhithi Padmanabhan, Laura Kokotailo, on the brief), The Legal Aid Society, New York, NY; Estelle M. McKee, Fei Deng, Student Counsel, Jordyn Manly, Student Counsel, Emma Sprotbery, Student Counsel, on the brief, Asylum and Convention Against Torture Clinic, Cornell Law School, Ithaca, NY, for Keisy G.M., Petitioner-Appellant.

Mary Ellen Brennan(Jessica F. Rosenbaum, Benjamin H. Torrance, on the brief), Assistant U.S. Attorneys, Of Counsel, for Damian Williams, U.S. Attorney for the Southern District of New York, for Respondents-Appellees.

Before: Chin and Carney, Circuit Judges.^†

Carney, Circuit Judge:

These tandem appeals arise from habeas petitions brought under 28 U.S.C. § 2241 by Carol Williams Black(in No. 20-3224) and by Keisy G.M. (in No. 22-70).Black and G.M. (together, "Petitioners") are two legal permanent residents ("LPRs") who were detained by the government for many months without a bond hearing under the authority of 8 U.S.C. § 1226(c), pending conclusion of their separate removal proceedings.Section 1226(c) directs that the government "shall detain" noncitizens who are charged with removability based on a prior conviction on specified criminal grounds or on allegations of involvement with terrorism.It makes no explicit provision for an initial or other bond hearing during the period of detention and places no limit on the duration of detention under its authority.

Black and Williams each sought habeas relief, asserting that the prolonged detentions by the government—Black, for seven months, and G.M., for twenty-one months—without any bond hearing violated their Fifth Amendment rights to due process.The district court adjudicating Black's petition granted him relief.Black v. Decker, No. 20-cv-3055 (LGS), 2020 WL 4260994, at *9-10(S.D.N.Y.July 23, 2020).The district court adjudicating G.M.'s petition denied relief.Keisy G.M. v. Decker, No. 21-cv-4440 (JPC), 2021 WL 5567670, at *1-2, *13(S.D.N.Y.Nov. 29, 2021).¹The government appeals the district court's judgment granting Black's petition; G.M., for his part, appeals the district court's judgment denying his.

On de novo review, we conclude that a noncitizen's constitutional right to due process precludes his unreasonably prolonged detention under section 1226(c) without a bond hearing.We further decide that Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18(1976), supplies the proper framework for determining when and what additional procedural protections are due such a detainee.In Black's case, the district court properly required the government to show at such a bond hearing, by clear and convincing evidence, the necessity of his continued detention.It further correctly directed the immigration judge ("IJ"), in setting his bond and establishing appropriate terms for his potential release, to consider his ability to pay and alternative means of assuring appearance.As to Black, we therefore affirm the district court's judgment.As to G.M., we conclude that his detention had become unreasonably prolonged, and accordingly, we reverse.

BACKGROUND²

I.Factual and Procedural History

A. Carol Williams Black

Black is a native and citizen of Jamaica who was admitted to the United States as an LPR in 1983 at the age of twenty-one.He has lived here for the past forty years.Before his detention in 2019, he lived in Mount Vernon, New York, with his wife of almost ten years and his stepdaughter.He owned and ran a boat repair business and was the sole income provider for his family.He was able, after working for ten years, to buy the home that he had been living in since 2007.

On December 4, 2019, ICE served Black with a Notice to Appear ("NTA") and took him into custody.The NTA charged him as removable under 8 U.S.C. § 1227(a)(2)(A)(iii)(aggravated felony conviction), and id.§ 1227(a)(2)(E)(i)(child abuse, neglect, or abandonment), based on New York state convictions dating from 2000, when a jury convicted Black of sexual abuse in the first degree, seeN.Y. Penal Law § 130.65(3), and endangering the welfare of a child, seeid.§ 260.10(1).Black was sentenced to and served concurrently five years' probation for each crime, completing his term in 2005.

ICE further determined that this criminal history made Black subject to detention under section 1226(c).³See8 U.S.C. § 1226(c)(1)(B).During Black's seven-month detention, before he won habeas relief and was released on August 4, 2020, he appeared at seven master calendar hearings.At his fourth master calendar hearing, on March 16, 2020, the IJ denied his request for a change in custody status, found him to be ineligible for cancellation of removal, and denied his request for bond(and for a bond hearing).⁴At his seventh master calendar hearing, on June 8, 2020, the IJ adjourned proceedings to allow his counsel time to obtain documents supporting his then-pending application for asylum and withholding of removal.On June 20, 2023, the IJ ordered removal; Black's appeal to the BIA is currently pending.

In June 2020, Black filed an amended petition for habeas relief under 28 U.S.C. § 2241, contending primarily that his detention without a bond hearing, which by then had reached the six-month mark, violated due process.Applying a fact-specific multifactor test, the district court granted relief.Black, 2020 WL 4260994, at *7-9.⁵The court determined that the Constitution"entitled [Black] to an individualized bond hearing before an IJ" at which the government would bear the burden of "justify[ing] by clear and convincing evidence that [Black] poses a risk of flight or a danger to the community."Id. at *8-9.It required the IJ to consider Black's "ability to pay and the availability of alternative means of assuring his appearance" when setting a bond amount.Id. at *9.On remand, the IJ conducted the required hearing and ordered Black's release on a $15,000 bond.

B. Keisy G.M.⁶

G.M. was born in the Dominican Republic in 1988.In 2011, he entered the United States as an LPR, and has mostly lived in the Bronx since then.In 2012, he was involved in a fight outside a restaurant in New York City; it led to state charges against him for robbery and possession of stolen property.He was released on bail during the criminal proceedings.In May 2015, he pleaded guilty to second-degree assault in connection with that incident and was sentenced to two years' imprisonment followed by three years of supervised release.In December 2016, after being released early on parole, G.M. began living with his mother to assist with her medical needs.

Four years later, on October 5, 2020, ICE arrested G.M. at his home and served him with an NTA charging him with removability under 8 U.S.C. § 1227(a)(2)(A)(iii) based on his 2015 guilty plea.Characterizing the crime as an aggravated felony, ICE determined that section 1226(c) required that G.M. be detained, and placed him in the Hudson County Correctional Facility("HCCF").Over the next several months, G.M. appeared at seven master calendar hearings after numerous adjournments, delays occasioned in part by the need for his newly retained counsel to prepare his application for deferral of removal under the Convention Against Torture ("CAT").COVID-19 restrictions then in place at HCCF hampered preparation.

In March 2021, the IJ denied G.M.'s application for CAT deferral, but in December 2021, on appeal, the BIA remanded for further analysis of G.M.'s claims that he would likely be tortured if he was returned to the Dominican Republic.In June 2022, the IJ again denied CAT relief, and G.M. again appealed.Since then, both G.M. and the government have submitted further briefing to the BIA, but no decision has issued.

G.M. sought habeas relief in May 2021, after about seven months of detention, alleging that his continued detention without a bond hearing violated his due process rights.Using the same multifactor test that Judge Schofield applied in Black's case, the district court reached a different conclusion and in November 2021 denied G.M.'s petition. G.M., 2021 WL 5567670, at *7-13.By that time, G.M. had been detained for thirteen months and twenty-four days.

In July 2022, G.M. was released under a nationwide injunction entered in Fraihat v. ICE, 445 F. Supp. 3d 709(C.D. Cal.2020), rev'd and remanded, 16 F.4th 613(9th Cir.2021).⁷He ultimately spent twenty-one months in detention, and never received a bond hearing.

II.The Government's Detention Authority Under 8 U.S.C. § 1226

Section 1226 of title 8 authorizes the government to detain a noncitizen "pending a decision on...