Santos v. Warden Pike Cnty. Corr. Facility

• Decision Date: 07 July 2020
• Docket Number: No. 19-2663,19-2663
• Citation: 965 F.3d 203
• Parties: Jose Miguel GERMAN SANTOS, Appellant v. WARDEN PIKE COUNTY CORRECTIONAL FACILITY
• Court: U.S. Court of Appeals — Third Circuit

965 F.3d 203

Jose Miguel GERMAN SANTOS, Appellant

v.WARDEN PIKE COUNTY CORRECTIONAL FACILITY

No. 19-2663

United States Court of Appeals, Third Circuit.

Argued: May 21, 2020

Filed: July 7, 2020

Jonah B. Eaton, Rebecca Hufstader [ARGUED], Nationalities Service Center, 1216 Arch Street, 4th Floor, Philadelphia, PA 19107, Counsel for Appellant

Sarah S. Wilson [ARGUED], United States Department of Justice, Office of Immigration Litigation, 1801 4th Avenue North, Birmingham, AL 35203, Allison Frayer, Catherine Reno, United States Department of Justice, Office of Immigration Litigation, P.O. Box 868, Ben Franklin Station, Washington, DC 20044, Counsel for Appellee

Celso J. Perez [ARGUED], Michael K.T. Tan, American Civil Liberties Union, Immigrants’ Rights Project, 125 Broad Street, 18th Floor, New York, NY 10004, Vanessa Stine, American Civil Liberties Union of Pennsylvania, P.O. Box 60173, Philadelphia, PA 19102, Counsel for Amici American Civil Liberties Union Foundation, American Civil Liberties Union of New Jersey, and American Civil Liberties Union of Pennsylvania

Christopher R. Healy, Anthony C. Vale, Pepper Hamilton, 3000 Two Logan Square, 18th and Arch Streets, Philadelphia, PA 19103, Counsel for Amici American Immigration Lawyers Association, Federal Litigation and Appeals Clinic at Drexel University Thomas Kline School of Law, Immigration Defense Project, Rapid Defense Network, and American Friends Service

Sarah H. Paoletti, University of Pennsylvania School of Law, Transnational Legal Clinic, 3501 Sansom Street, Philadelphia, PA 19104, Counsel for Amicus International Law Professors and Human Rights Clinicians

Before: McKEE, BIBAS, and NYGAARD, Circuit Judges

OPINION OF THE COURT

BIBAS, Circuit Judge.

Under 8 U.S.C. § 1226(c), the Government must detain certain criminal aliens pending their removal proceedings, even if they were lawfully present in the United States. Jose German Santos, a lawful permanent resident, was detained under that statute and has now been imprisoned for more than two-and-a-half years. Because his detention has become unreasonable, he has a due process right to a bond hearing, at which the Government must justify his continued detention by clear and convincing evidence. We will thus reverse and remand.

I. BACKGROUND

A. German Santos's arrest and detention

German Santos, a native of the Dominican Republic, became a lawful permanent resident of the United States in 2006. In late 2017, he pleaded guilty in Pennsylvania state court to possessing marijuana with intent to deliver it. If that crime is an "aggravated felony" under immigration law, then he is removable. 8 U.S.C. § 1227(a)(2)(A)(iii). And immigration law defines "illicit trafficking in a controlled substance" as such a crime. Id. § 1101(a)(43)(B).

So in December 2017, immigration officials arrested German Santos. They took him to the Pike County Correctional Facility to await a decision in his removal proceedings.

They did so under 8 U.S.C. § 1226(c), which requires the Government to detain aliens convicted of certain crimes while they await decisions in their removal proceedings. And though another statutory provision lets aliens be released on bond while awaiting a removal decision, § 1226(c) does not. Compare id. § 1226(a)(2) (allowing bond and conditional parole), with id. § 1226(c)(2) (allowing release of detained aliens only in limited circumstances).

B. Removal proceedings

In June 2018, an immigration judge ordered German Santos removed. The immigration judge found that his conviction was an aggravated felony and denied his requests for relief from removal.

German Santos timely appealed. Because he did not pay the filing fee at first, the Board of Immigration Appeals rejected his appeal. Nine days later, he refiled. The Board considered the merits and affirmed, finding that German Santos had committed an aggravated felony and thus was ineligible for cancellation of removal. See 8 U.S.C. § 1229b(a)(3).

When German Santos petitioned this Court for review, the Government moved to remand. The Government asked us to let the Board reconsider its application of the modified categorical approach in finding that his conviction was an aggravated felony. We did so.

C. Habeas petition

While awaiting the Board's decision on remand, German Santos filed this federal habeas petition under 28 U.S.C. § 2241. By then, he had been detained at the prison for eight months. He invoked two of our precedents, in which we had held that the Fifth Amendment's Due Process Clause guarantees a bond hearing to an alien detained under § 1226(c) once his detention becomes "unreasonable." Chavez-Alvarez v. Warden York Cty. Prison , 783 F.3d 469, 474–75 (3d Cir. 2015) ; Diop v. ICE/Homeland Sec. , 656 F.3d 221, 233 (3d Cir. 2011). Under those decisions, he argued, he was entitled to a bond hearing.

The District Court disagreed. It explained that the Supreme Court's 2018 decision in Jennings v. Rodriguez had abrogated Diop and Chavez-Alvarez . German Santos v. Lowe , No. 1:18-cv-01553, 2019 WL 1468313, at *3 (M.D. Pa. Apr. 3, 2019) (analyzing Jennings v. Rodriguez , ––– U.S. ––––, 138 S. Ct. 830, 200 L.Ed.2d 122 (2018) ). Jennings rejected the argument that the text of § 1226(c) limited detention. See 138 S. Ct. at 846–47. Thus, the District Court reasoned, our precedents did not entitle German Santos to a bond hearing. 2019 WL 1468313, at *3.

Still, the court recognized that Jennings had not reached the merits of the constitutional challenge to prolonged detention without a bond hearing under § 1226(c). Id. ; Jennings , 138 S. Ct. at 838–39. So it construed German Santos's claim as an as-applied challenge to § 1226(c) and looked to Diop ’s and Chavez-Alvarez ’s constitutional analyses for guidance. 2019 WL 1468313, at *3–4.

Under those cases, the court explained, German Santos's detention without a bond hearing (then fifteen months long) was constitutional. 2019 WL 1468313, at *4. It found no evidence that the Government had "improperly or unreasonably delayed the regular course of proceedings, or that [it] ha[d] detained him for any purpose other than the resolution of his removal proceedings." Id. (internal quotation marks omitted). It thus denied his habeas petition. German Santos timely appealed.

Shortly before we heard oral argument, the Board issued its decision on remand. Changing course, it held that German Santos's conviction was not an aggravated felony. It then remanded to the immigration judge for a hearing on his application for cancellation of removal. Eventually, the immigration judge denied that application, leaving German Santos in prison. As of today, he has been detained for two years and seven months without a bond hearing.

D. This appeal

On appeal of the denial of his habeas petition, German Santos first argues that Jennings did not abrogate Diop ’s and Chavez-Alvarez ’s constitutional analyses. Under those cases, he argues, his detention has grown unreasonable for three reasons: (1) it has spanned more than two years, (2) his removal proceedings are likely to continue for many more months, and (3) the Board and immigration judge's repeated legal errors delayed the proceedings by prompting an appeal and a petition for review. To remedy this alleged due-process violation, he asks for a bond hearing at which the Government must justify his continued detention under § 1226(c) by clear and convincing evidence.

The Government disagrees. It says that the District Court correctly held that Jennings abrogated Diop and Chavez-Alvarez . But like the District Court, it recognizes that in some cases, an alien detained under § 1226(c) can bring an as-applied challenge to his detention. Still, it argues, German Santos's as-applied challenge fails because: (1) he delayed the proceedings by appealing and pursuing relief from removal, (2) he has no right to discretionary cancellation of removal, and (3) his detention, even if prolonged, still serves a legitimate purpose.

The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 2241, and we do under § 1291. Because the District Court did not conduct an evidentiary hearing, we review its denial of the habeas petition de novo. Bruce v. Warden Lewisburg USP , 868 F.3d 170, 183 (3d Cir. 2017).

II. ALIENS CAN BRING AS-APPLIED CHALLENGES TO THEIR DETENTION UNDER 8 U.S.C. § 1226(c)

Before addressing German Santos's challenge, we must clarify some confusion about the limits on detention under § 1226(c) and where those limits come from. Faced with as-applied challenges under that provision, we have held that the Due Process Clause limits detention without a bond hearing to a "reasonable" period. Chavez-Alvarez , 783 F.3d at 474–75 ; Diop , 656 F.3d at 233. But in those cases, we also invoked the constitutional-avoidance canon to construe the statute as limiting detention without a bond hearing. Chavez-Alvarez , 783 F.3d at 475 ; Diop , 656 F.3d at 231. So after the Supreme Court held in Jennings that § 1226(c) does not limit the length of detention, district courts in this Circuit have disagreed about whether aliens can still bring as-applied challenges to their detention under that statute. See 138 S. Ct. at 846.

We hold that they can. Though Jennings abrogated our construction of the statute as implicitly limiting detention without a bond hearing, it left our framework for as-applied constitutional challenges intact.

A. The Due Process Clause limits detention under 8 U.S.C. § 1226(c)

To understand our case law on § 1226(c), we must start with the decision driving those cases: Demore v. Kim , 538 U.S. 510, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003). There, the Supreme Court rejected a facial challenge to the statute's requirement of detention without a bond hearing. Id. at 531, 123 S.Ct. 1708. The Court did so because it understood that the detention would last only for a "very limited time."

Id. at 529 n.12, 123 S.Ct. 1708. Relying on the Government's representations, the Court explained that detention "under § 1226(c) lasts...