Diop v. Ice/Homeland Sec.

• Decision Date: 01 September 2011
• Docket Number: No. 10–1113.,10–1113.
• Citation: 656 F.3d 221
• Parties: Cheikh DIOP, a/k/a Ibou Ndiaya, a/k/a Ebou NjieCheikh Diop, Appellantv.ICE/HOMELAND SECURITY; Warden Mary E. Sabol; Thomas R. Decker; John P. Torres; Secretary of the Department of Homeland Security; Attorney General of the United States.
• Court: U.S. Court of Appeals — Third Circuit

656 F.3d 221

Cheikh DIOP, a/k/a Ibou Ndiaya, a/k/a Ebou NjieCheikh Diop, Appellant

v.ICE/HOMELAND SECURITY; Warden Mary E. Sabol; Thomas R. Decker; John P. Torres; Secretary of the Department of Homeland Security; Attorney General of the United States.

No. 10–1113.

United States Court of Appeals, Third Circuit.

Argued Jan. 24, 2011.Opinion Filed: Sept. 1, 2011.

OPINION TEXT STARTS HEREWest CodenotesUnconstitutional as AppliedIllegal Immigration Reform and Immigrant Responsibility Act of 1996, §§ 303(a), 371(b), 8 U.S.C.A. § 1226(c) Cheikh Diop, Wilkes–Barre, PA, pro se.Tony West, Esq., David J. Kline, Esq., Gjon Juncaj, Esq., Nicole R. Prairie, Esq. (argued), United States Department of Justice, Civil Division, Office of Immigration Litigation, District Court Section, Washington, DC, Mark E. Morrison, Esq., Office of the United States Attorney, Harrisburg, PA, for Appellees.Judy Rabinovitz, Esq. (argued), Farrin R. Anello, Esq., Tanaz Moghadam, Esq., Michael K.T. Tan, Esq., American Civil Liberties Union Foundation, New York, NY, Witold Walczak, Esq., Mary Catherine Roper, Esq., Valerie Burch, Esq., American Civil Liberties Union Foundation of Pennsylvania, Pittsburgh, PA, for Amici Curiae American Civil Liberties, Union Foundation and American Civil Liberties Union, Foundation of Pennsylvania.Before: FUENTES and CHAGARES, Circuit Judges, POLLAK, District Judge.^*

OPINION OF THE COURT

FUENTES, Circuit Judge.

A 1996 law requires that the Executive Branch take into custody any person who is removable from this country because he has committed, among other things, a crime involving moral turpitude or a crime involving a controlled substance. See Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub.L. No. 104–208, § 303, 110 Stat. 3009–585–86 (1996) (codified at 8 U.S.C. § 1226(c)). Detention under this authority is mandatory, does not provide for the possibility of release on bond, and does not require that the Executive Branch at any time justify its conduct. Pursuant to this law, the petitioner in this case, Cheikh Diop, was detained for 1,072 days—two years, eleven months, and five days. The District Court concluded that such prolonged detention was lawful. We disagree. For the following reasons, we conclude that the statute authorizes only detention for a reasonable period of time. After that, the Due Process Clause of the Fifth Amendment to the Constitution requires that the Government establish that continued detention is necessary to further the purposes of the detention statute.

I.

Although the merits of the immigration case against Diop are not before us, we chronicle his journey through our complex immigration system in order to illustrate how individual actions by various actors in the immigration system, each of which takes only a reasonable amount of time to accomplish, can nevertheless result in the detention of a removable alien for an unreasonable, and ultimately unconstitutional, period of time.

Days 1–198. The story begins with Diop's receipt of a Notice to Appear from the Department of Homeland Security (“DHS”) on March 19, 2008, charging him as a removable alien who had entered the United States unlawfully and as an alien convicted of a crime involving moral turpitude, a 2005 conviction in Pennsylvania state court for the crime of recklessly endangering another person. See 8 U.S.C. § 1182(a)(2)(A)(i)(I), (a)(6)(A)(i); see also 18 Pa. Con. Stat. Ann. § 2705. That same day, Diop was detained by the Bureau of Immigration and Customs Enforcement (“ICE”).¹ Thirteen days later, on April 1, Diop had his first appearance before an immigration judge. His case was reset so that he could seek counsel. A subsequent hearing on April 29 had the same result.

And on May 27, Diop's case became even more complicated when the Government ² charged that he was also removable as an alien convicted of a crime relating to a controlled substance. See 8 U.S.C. § 1182(a)(2)(A)(i)(II). That conviction occurred in 1995, for the Pennsylvania crime of possessing a controlled substance with the intent to manufacture or deliver it. See 35 Pa. Stat. Ann. § 780–113(a). The immigration judge once again reset the proceedings so that Diop, who had failed to obtain the assistance of a lawyer, would have time to file an application for asylum and withholding of removal, which he did on August 12.

Days 199–261. On October 3, an immigration judge heard Diop describe his arrest, detention, and severe beating at the hands of Senegalese government officials. Diop told the immigration court that he fears persecution in Senegal because the government of that country believes, based on the alleged affiliation of members of his family, that he is a member of a separatist group called the Movement of Democratic Forces of the Casamance. The immigration judge found Diop to be a credible witness and presumed that his testimony was completely accurate, but nevertheless denied his application for withholding of removal because his 1995 conviction was “probably” for a “particularly serious crime,” which would make him ineligible for that kind of relief, and because, even if he was persecuted in the past, changed country conditions mean that there is no presumption that he would be persecuted in the future. 8 U.S.C. § 1231(b)(3)(B)(ii); Denis v. Attorney Gen., 633 F.3d 201, 213 (3d Cir.2011) (explaining that withholding of removal is unavailable to an alien who has committed a “particularly serious crime”).

Days 262–390. Diop, still representing himself while detained, filed a notice of appeal. On December 5, 2008, he filed a hand-written appellate brief with the Board of Immigration Appeals (“BIA”). In a March 17, 2009 order, the BIA concluded that the immigration judge should actually determine whether his 1995 conviction was a “particularly serious crime,” instead of leaving it open as a mere probability, disagreed with the judge's determination that conditions changed in Senegal, and remanded Diop's case to the immigration judge for further proceedings.

Days 391–589. More master calendar hearings followed: one on April 13, 2009, where the case was reset and another on May 4 in which Diop explained that he was trying to obtain representation from a law school clinic. On May 17, Diop filed another handwritten brief with the court. Thirty-eight days later, on June 24, Diop received a second ruling from the immigration judge concerning his application. This time, the immigration judge concluded that Diop's asylum application was untimely, but granted his application for withholding of removal. The immigration judge reasoned that Diop's crime was not particularly serious because Diop testified that his 1995 conviction for drug possession involved marijuana. Furthermore, he ruled that the Government had not overcome the presumption that Diop would face the threat of future persecution if he was sent to Senegal. On July 21, the Government appealed the immigration judge's ruling concerning withholding of removal, providing, for the first time, evidence that Diop's 1995 conviction involved the distribution of cocaine, not marijuana. Diop initially appealed the ruling concerning asylum, but withdrew that appeal on August 4. That same day, Diop filed a pro se Petition for Writ of Habeas Corpus in the United States District Court for the Middle District of Pennsylvania. He argued that it is unconstitutional for the government to detain him, pursuant to 8 U.S.C. § 1226(c), for a prolonged period of time without a hearing to determine whether his detention is justified.

Days 590–754. Approximately three months later, on October 29, 2009 the District Court denied Diop's habeas petition for two reasons. First, it concluded that Diop's petition was premature. Citing 8 U.S.C. § 1231(a), the District Court observed that, after an order of removal has been entered, the Attorney General has 90 days to remove an alien, during which time the alien must be detained. In Diop's case, removal proceedings were ongoing, so the 90–day period had yet to begin and Diop's petition was filed too soon. ³ Second, on the basis of the Supreme Court's holding in Demore v. Kim, 538 U.S. 510, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003), the District Court concluded that it was constitutional to hold Diop while his proceedings are pending, with no regard to how long the proceedings actually take. Diop then filed a timely pro se appeal to this Court.

Days 755–776. The appeal in Diop's immigration case—the appeal from the June 24, 2010 decision of the immigration judge—was resolved by the BIA in an order issued on April 12, 2010. However, as in the previous appeal, the BIA once again concluded that the immigration judge's lack of clarity required a remand. Specifically, the BIA explained that a remand was required because the immigration judge's application of the standard for determining what constitutes a particularly serious crime was unclear. Diop, now with help from the appellate litigation clinic at Georgetown University Law Center, filed a motion for reconsideration.

Days 777–959. Clarifying himself on remand, the immigration judge decided, on May 4, 2010 that Diop's drug crime was particularly serious and that Diop was ineligible for withholding of removal. On October 26, the BIA affirmed the immigration judge's decision to deny Diop's application for withholding of removal and denied the motion for reconsideration. But, once again, it remanded for further proceedings, this time so that the immigration judge could consider whether Diop might be eligible for deferral of removal pursuant to the Convention Against Torture.

Days 960–987. Up to this point, a combination of continuances to find a lawyer and prepare Diop's pro se filings, along with several incomplete decisions from the immigration judge, had resulted in a 959 day period of incarceration, with still no indication of when or whether Diop might be able to stay in the United States. During that...