Reid v. Donelan

• Decision Date: 26 October 2021
• Docket Number: 19-1900,Nos. 19-1787,s. 19-1787
• Parties: Mark Anthony REID; Robert Williams, on behalf of himself and others similarly situated; Leo Felix Charles, on behalf of himself and others similarly situated, Petitioners, Appellants/Cross-Appellees, v. Christopher J. DONELAN, Sheriff, Franklin County, Massachusetts; Lori Streeter, Superintendent, Franklin County Jail & House of Correction; Thomas M. Hodgson, Sheriff, Bristol County, Massachusetts; Joseph D. McDonald, Jr., Sheriff, Plymouth County, Massachusetts; Steven W. Tompkins, Sheriff, Suffolk County, Massachusetts; Alejandro Mayorkas, Secretary of the Department of Homeland Security ; Denis C. Riordan, Director, Immigration and Customs Enforcement Boston Field Office; Merrick B. Garland, Attorney General; Jean King, Acting Director of the Executive Office for Immigration Review; Executive Office for Immigration Review; David Dubois, Sheriff, Strafford County, New Hampshire; Christopher Brackett, Superintendent, Strafford County House of Corrections ; Tae D. Johnson, Acting Director, Immigration and Customs Enforcement, Respondents, Appellees/Cross-Appellants.
• Court: U.S. Court of Appeals — First Circuit

17 F.4th 1

Mark Anthony REID; Robert Williams, on behalf of himself and others similarly situated; Leo Felix Charles, on behalf of himself and others similarly situated, Petitioners, Appellants/Cross-Appellees,

v.Christopher J. DONELAN, Sheriff, Franklin County, Massachusetts; Lori Streeter, Superintendent, Franklin County Jail & House of Correction; Thomas M. Hodgson, Sheriff, Bristol County, Massachusetts; Joseph D. McDonald, Jr., Sheriff, Plymouth County, Massachusetts; Steven W. Tompkins, Sheriff, Suffolk County, Massachusetts; Alejandro Mayorkas^* , Secretary of the Department of Homeland Security ; Denis C. Riordan, Director, Immigration and Customs Enforcement Boston Field Office; Merrick B. Garland, Attorney General; Jean King, Acting Director of the Executive Office for Immigration Review; Executive Office for Immigration Review; David Dubois, Sheriff, Strafford County, New Hampshire; Christopher Brackett, Superintendent, Strafford County House of Corrections ; Tae D. Johnson, Acting Director, Immigration and Customs Enforcement, Respondents, Appellees/Cross-Appellants.

Nos. 19-1787

19-1900

United States Court of Appeals, First Circuit.

October 26, 2021

Anant K. Saraswat and Michael Tayag, with whom Michelle Nyein, Wolf, Greenfield & Sacks, P.C., Grace Choi, Kayla Crowell, Aseem Mehta, Alden Pinkham, Bianca Rey, Marisol Orihuela, Michael Wishnie, Jerome N. Frank Legal Services Organization, Michael K.T. Tan, and ACLU Immigrants' Rights Project were on brief, for appellants/cross-appellees.

William Tong, Attorney General of the State of Connecticut, Clare Kindall, Solicitor General of the State of Connecticut, Joshua Perry, Special Counsel for Civil Rights, Kathleen Jennings, Attorney General of the State of Delaware, Keith Ellison, Attorney General of the State of Minnesota, Aaron D. Ford, Attorney General of the State of Nevada, Hector H. Balderas, Attorney General of the State of New Mexico, Letitia James, Attorney General of the State of New York, Ellen F. Rosenblum, Attorney General of the State of Oregon, Thomas J. Donovan, Jr., Attorney General of the State of Vermont, Maura Healey, Attorney General of the Commonwealth of Massachusetts, Mark R. Herring, Attorney General of the Commonwealth of Virginia, and Karl A. Racine, Attorney General of the District of Columbia, on brief for the States of Connecticut, Delaware, Minnesota, Nevada, New Mexico, New York, Oregon, and Vermont, the Commonwealths of Massachusetts and Virginia, and the District of Columbia, amici curiae.

Alina Das, Rebecca Suldan, and Washington Square Legal Services, Immigrant Rights Clinic, on brief for Boston College Immigration Clinic, Boston University School of Law, Immigrants' Rights and Human Trafficking Program, Detention Watch Network, Families for Freedom, Greater Boston Legal Services, Harvard Law School Crimmigration Clinic, Immigrant Defense Project, Immigrant Legal Resource Center, Lawyers for Civil Rights, National Immigration Project of the National Lawyers Guild, and Suffolk University Law School Immigration Clinic, amici curiae.

Kevin P. Martin, Madelaine M. Cleghorn, and Goodwin Procter LLP, on brief for The American Immigration Lawyers Association, amicus curiae.

Sarah H. Paoletti and Transnational Legal Clinic, University of Pennsylvania Law School , on brief for International Law Professors and Human Rights Clinicians, amici curiae.

James J. Beha II and Morrison & Foerster LLP, on brief for Retired Immigration Judges and Board of Immigration Appeals Members, amici curiae.

Nina Rabin and Immigrant Family Legal Clinic, UCLA School of Law, on brief for 35 Scholars and Researchers in Sociology, Criminology, Anthropology, Psychology, Geography, Public Health, Medicine, Latin American Studies, and Law, Whose Work Relates to Incarceration, Detention, and the Effect of U.S. Immigration Detention and Removal Policies on Migrant Populations, amici curiae.

Jonathan D. Selbin, Jason L. Lichtman, Katherine I. McBride, Elizabeth J. Cabraser, Andrew R. Kaufman, and Lieff Cabraser Heimann & Bernstein, LLP, on brief for Civil Law Professors, amici curiae.

Lauren E. Fascett, Senior Litigation Counsel, Civil Division, Office of Immigration Litigation, with whom Joseph H. Hunt, Assistant Attorney General, Civil Division, William C. Peachey, Director, District Court Section, Office of Immigration Litigation, Elianis N. Perez, Assistant Director, Sarah S. Wilson, Senior Litigation Counsel, Appellate Counsel Section, Office of Immigration Litigation, and Catherine M. Reno, Trial Attorney, Civil Division, Office of Immigration Litigation, were on brief for appellees/cross-appellants.

Before Lynch, Lipez, and Kayatta, Circuit Judges.

KAYATTA, Circuit Judge.

This class action, brought on behalf of noncitizen detainees held without possibility of release pending the completion of their removal proceedings, comes before this court for a second time. See Reid v. Donelan, 819 F.3d 486 (1st Cir. 2016), cert. denied, ––– U.S. ––––, 138 S. Ct. 1547, 200 L.Ed.2d 769 (2018), withdrawn, Nos. 14-1803, 14-1823, 2018 WL 4000993 (1st Cir. May 11, 2018). On this occasion, we affirm the district court's ruling that there is no per se constitutional entitlement to a bond hearing after six months of detention. We otherwise vacate the district court's declaratory and injunctive relief as advisory and remand for entry of judgment. Our reasoning follows.

I.

Petitioners represent a certified class of noncitizens who have been detained by the Department of Homeland Security's (DHS) Immigration and Customs Enforcement (ICE) division in Massachusetts and New Hampshire pursuant to 8 U.S.C. § 1226(c) for more than six months without a bond hearing.¹ Section 1226(c), often called the mandatory detention provision, "carves out a statutory category of aliens who may not be released" during removal proceedings, outside of certain limited circumstances. Jennings v. Rodriguez, ––– U.S. ––––, 138 S. Ct. 830, 837, 200 L.Ed.2d 122 (2018) (emphasis in original). Under section 1226(c), the government "shall take into custody" any noncitizen who is inadmissible or deportable based on, among other things, a conviction for certain crimes involving moral turpitude, controlled substance offenses, aggravated felonies, certain firearm offenses, or certain acts associated with terrorism. 8 U.S.C. § 1226(c)(1). The statute allows release of a noncitizen properly subject to mandatory detention under section 1226(c) "only for witness protection purposes and only [then] if the alien shows he is not a danger to the community or a risk of flight." Reid v. Donelan, 390 F. Supp. 3d 201, 214 (D. Mass. 2019) ; see also 8 U.S.C. § 1226(c)(2).

The district court judge to whom the case was first assigned observed that the absence of any provision for release on bond from a prolonged detention might call the statute's constitutionality into question. The district court therefore read into section 1226(c) a requirement that detainees receive an individualized bond hearing once further detention becomes "unreasonable." Reid v. Donelan, 991 F. Supp. 2d 275, 277—78 (D. Mass. 2014). The court then further considered whether "reasonableness" should be assessed for each detainee based on his or her individual circumstances or whether the statute should be read as requiring a "bright-line rule" limiting detention without a bond hearing to six months for all persons detained under section 1226(c). Id. at 279—80. The court concluded that the statute should be read as mandating an individualized bond hearing after no more than six months of detention. Id. at 279. In the alternative, the court found that even if no bright-line rule applied, Reid's own individual circumstances required an opportunity for a bond hearing, citing the length of his fourteen-month detention, the uncertainty of his removal, and the absence of any dilatory tactics by Reid himself. Id. at 282.

On appeal, this court reversed the holding that section 1226(c) included a bright-line rule that all persons detained must receive an individualized bond hearing after six months of detention. Reid, 819 F.3d at 491, 496. We agreed, though, that the statute included "an implicit reasonableness limitation," the length of which would turn on the individual circumstances presented by each detainee. Id. at 494, 496, 502. At the same time, we reviewed and affirmed the district court's alternative holding that section 1226(c) required an individualized bond hearing in Reid's own case. Id. at 501.

Importantly for our present purposes, we observed that "the bright-line rule was an essential predicate to class certification." Id. In vacating the class certification order, we left it for the district court in the first instance to decide on remand whether "it is feasible to redefine the class." Id. at 502.

The Supreme Court subsequently issued its decision in Jennings v. Rodriguez, rejecting the contention that section 1226(c) can be read as requiring bond hearings after six months of immigration detention. The Court found that section 1226(c) clearly precludes release on bond prior to the end of removal proceedings (except for witness protection purposes). 138 S. Ct. at 846-47. The Court reasoned that the canon of constitutional avoidance had no role to play when the statute itself spoke clearly on the matter at hand. Id. at 847. Whether the statute for that reason might be unconstitutional under some circumstances, the Court did not decide. See id. at 851.

Following Jennings, we withdrew our 2016 opinion and vacated the judgment. See Reid v. Donelan, Nos. 14-1803, 14-1823, 2018 WL 4000993, at *1 (1st Cir. May 11, 2018). In so doing, we affirmed the district court's judgment as to named plaintiff Mark Reid himself,² vacated the judgment as to the class members, and remanded the case to the district court for "reconsideration of the certification order." Id.

Following remand, a second district court judge took over the case. After briefing and argument, the...