Sajous v. Decker
| Decision Date | 23 May 2018 |
| Docket Number | 18-cv-2447 (AJN) |
| Parties | Augustin Sajous, Petitioner, v. Thomas Decker et al., Respondents. |
| Court | U.S. District Court — Southern District of New York |
The present case, initiated by the filing of a petition for habeas corpus under 28 U.S.C. § 2241, concerns the question recently left open by the Supreme Court in Jennings v. Rodriguez, 138 S. Ct. 830 (2018): whether prolonged mandatory detention of an alien under 8 U.S.C. § 1226(c), without access to a bond hearing, violates the Due Process Clause of the Fifth Amendment. Currently before this Court is the Petitioner's motion for preliminary injunction seeking an order that the Petitioner, who has been detained for over eight months, be given an individualized bond hearing. For the reasons that follow, the Court will grant the Petitioner's motion and order that he receive an individualized bond hearing, thus resolving this case with respect to the individual Petitioner.
Under federal immigration law, the Department of Homeland Security is authorized to arrest and initially detain an alien who has entered the United States but is believed to be removable. 8 U.S.C. § 1226(a); Lora v. Shanahan, 804 F.3d 601, 608-09 (2d Cir. 2015), vacated 138 S. Ct. 1260 (2018). The alien may be detained "pending a decision on whether the alien is to be removed," or federal officials may choose to release the alien on bond or conditional parole. 8 U.S.C § 1226(a)(1)-(2). Even if officials decide to detain the alien, "an [immigration judge] can ordinarily conduct a bail hearing to decide whether the alien should be released or imprisoned while proceedings are pending." Lora, 804 F.3d at 608. Under § 1226(c), however, certain classes of aliens are subject to mandatory detention and may not, under the statute, be released on bond. Jennings v. Rodriguez, 138 S. Ct. 830, 837-38 (2018). Broadly speaking, aliens subject to mandatory detention include those who have committed certain "crimes involving moral turpitude" as defined by statute, controlled substance offenses, aggravated felonies, firearm offenses, or terrorist activities. See 8 U.S.C. § 1226(c)(1)(A)-(D). An alien who is detained pursuant to § 1226(c) may seek discretionary release from the Head of the Department of Homeland Security if he is a witness, a potential witness, a cooperator, or an immediate family member or close associate of someone who is acting as a witness, potential witness, or cooperator in an investigation into major criminal activity. Id. § 1226(c)(2). No other category of discretionary release exists under the statute.
In 2015, the Second Circuit decided Lora v. Shanahan, 804 F.3d 601 (2d Cir. 2015), which held that "in order to avoid the constitutional concerns raised by indefinite detention, an immigrant detained pursuant to section 1226(c) must be afforded a bail hearing before an immigration judge within six months of his or her detention." Id. at 616. In deciding the case, the Second Circuit relied primarily on two Supreme Court cases related to the detention of aliens. The first, Zadvydas v. Davis, 533 U.S. 678 (2001), applied the canon of constitutional avoidanceand held that aliens who had been ordered removed, but for whom "removal is no longer reasonably foreseeable" could not be detained. Id. at 699. The Second Circuit in Lora interpreted Zadvydas as "the Supreme Court signal[ing] its concerns about the constitutionality of a statutory scheme that ostensibly authorized indefinite detention of non-citizens." 804 F.3d at 613. The second case Lora relied on, Demore v. Kim, 538 U.S. 510 (2003), upheld the constitutionality of § 1226(c)'s mandatory detention, concluding that Congress "may require that [removable aliens detained under § 1226(c)] be detained for the brief period necessary for their removal proceedings." Id. at 513. The Lora decision described the Supreme Court's decision in Demore as "emphasiz[ing] that, for detention under the statute to be reasonable, it must be for a brief period of time." 804 F.3d at 614. The Second Circuit found further support for its conclusion in Justice Kennedy's concurrence in Demore, in which he reasoned that "[w]ere there to be an unreasonable delay by the INS in pursuing and completing deportation proceedings, it could become necessary then to inquire whether the detention is not to facilitate deportation, or protect against risk of flight or dangerousness, but to incarcerate for other reasons." Id. (alteration in original) (quoting Demore, 538 U.S. at 532-33 (Kennedy, J., concurring)). The Second Circuit concluded that Zadvydas and Demore, taken together, "clearly establish that mandatory detention under section 1226(c) is permissible, but that there must be some procedural safeguard in place for immigrants detained for months without a hearing." Id. As a result, the Second Circuit employed the canon of constitutional avoidance to read "an implicit temporal limitation" in the statute. Id.
Having concluded that some temporal limitation on mandatory detention was constitutionally necessary, the Second Circuit further held that the appropriate limitation to read into the statute was six months. Id. at 614-15. The Second Circuit found support for thisconclusion in Zadvydas and Demore, reasoning that those cases "suggest that the preferred approach for avoiding due process concerns in this area is to establish a presumptively reasonable six-month period of detention." Id. at 615. Specifically, in Zadvydas, "the Court held that six months was a 'presumptively reasonable period of detention' in a related context." Id. (quoting Zadvydas, 533 U.S. at 700-01). In Demore, "the Court held that section 1226(c) authorized mandatory detention only for the 'limited period of [the alien's] removal proceedings,'" which, at the time of the Supreme Court's decision, "'last[ed] roughly a month and a half in the vast majority of cases in which [section 1226(c) was] invoked, and about five months in the minority of cases in which the alien cho[se] to appeal.'" Id. (alterations in original) (quoting Demore, 538 U.S. at 529-31). In contrast, at the time of the Lora decision in 2015, "a non-citizen detained under section 1226(c) who contests his or her removal regularly spen[t] many months and sometimes years in detention due to the enormous backlog in immigration proceedings." Id. at 605 & n.9.
The Second Circuit further reasoned that a brightline rule was necessary because of "the pervasive inconsistency and confusion exhibited by district courts in this Circuit when asked to apply a reasonableness test on a case-by-case basis." Id. at 615. In addition, a six-month rule was appropriate, according to Lora, because "endless months of detention, often caused by nothing more than bureaucratic backlog, has real-life consequences for immigrants and their families." Id. at 616. As a result, the Second Circuit concluded that an alien detained pursuant to § 1226(c) was entitled to a bail hearing after six months of detention and that the detainee "must be admitted to bail unless the government establishes by clear and convincing evidence that the immigrant poses a risk of flight or a risk of danger to the community." Id.
From October 2015 through February 2018, Lora remained good law, and Immigration and Customs Enforcement ("ICE") officials routinely acquiesced to bail hearings before an immigration judge within six months of detention. Decl. of Andrea Saenz, Dkt. No. 14-6, ¶ 3. On February 27, 2018, the Supreme Court decided Jennings v. Rodriguez, 138 S. Ct. 830 (2018), in which it held that the Ninth Circuit had erred in applying the canon of constitutional avoidance to § 1226(c), as well as other related provisions of federal immigration law, because the express language of § 1226(c) can only mean "that aliens detained under its authority are not entitled to be released under any circumstances other than those expressly recognized by the statute." Id. at 846. In other words, the only reasonable interpretation of § 1226(c) "makes clear that detention of aliens within [§ 1226(c)'s] scope must continue 'pending a decision on whether the alien is to be removed from the United States.'" Id, (quoting 8 U.S.C. § 1225(a)). As a result, the Ninth Circuit erred when it interpreted § 1226(c) to contain an implicit six-month limitation on detention absent a bail hearing. The Supreme Court described this interpretation as "textual alchemy" and concluded that "[e]ven if courts were permitted to fashion 6-month time limits out of statutory silence, they certainly may not transmute existing statutory language into its polar opposite." Id.
In dissent, Justice Breyer, joined by Justices Ginsburg and Sotomayor, warned that interpreting the statute to foreclose any bond hearing while detained "at the very least would raise 'grave doubts' about the statute's constitutionality." Id. at 861 (Breyer, J., dissenting). Specifically, the dissent concluded that the Constitution's "language, its basic purposes, the relevant history, our tradition, and many of the relevant cases" all support the conclusion that a statute "that would deny bail proceedings where detention is prolonged would likely mean that the statute violates [the Fifth Amendment to] the Constitution." Id. at 869. In support of thisconclusion, the dissent demonstrated that reasonable bail, and the opportunity for a bail hearing, were considered necessary in a long line of Supreme Court precedent, the law of England before the Founding of the United States, and even in the structure of the U.S. Constitution. See id. at 862-69. The majority opinion in Jennings took no position on this constitutional analysis, instead simply remanding the case to the Ninth Circuit to address the constitutional issue in the first instance. Id. at 851 (majority opinion).
Because the Ninth Circuit's ...
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