Sengkeo v. Horgan, Civil Action No. 09cv11032-NG.

CourtUnited States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
Writing for the CourtGertner
Citation670 F.Supp.2d 116
PartiesVongsa SENGKEO, Petitioner, v. Gerard HORGAN, Respondent.
Docket NumberCivil Action No. 09cv11032-NG.
Decision Date24 November 2009
670 F.Supp.2d 116
Vongsa SENGKEO, Petitioner,
Gerard HORGAN, Respondent.
Civil Action No. 09cv11032-NG.
United States District Court, D. Massachusetts.
November 24, 2009.

Page 117

Michael P. Boudett, Rachel M. Brown, Foley Hoag LLP, Boston, MA, for Petitioner.

Mark J. Grady, Christine J. Wichers, United States Attorney's Office, Boston, MA, for Respondent.


GERTNER, District Judge:

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Petitioner Sengkeo Vongsa,1 ("Vongsa") a lawful permanent resident of the United States, challenges her continued detention pending the removal proceedings against her. She has been held in custody pursuant to 8 U.S.C. § 1226(c) for almost twenty months, though the sentences for the convictions that spawned these removal proceedings lasted only 60 days. She petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. She argues that her continued detention violates an implicit "reasonableness" limitation on the government's statutory authority to detain her without a bond hearing and, in any event, violates due process.

The government, by contrast, contends that Vongsa's twenty-month detention represents merely the normal progression of immigration removal proceedings. In its view, § 1226(c) lacks any limitations on the length of detention. The government further states that in order to violate due process, Vongsa's detention must "shock the conscience," which, the government contends, it does not.

This case lies at the intersection of two Supreme Court guideposts defining the limitations on the government's power to detain removable aliens: Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001), and Demore v. Kim, 538 U.S. 510, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003). After a close review of those opinions, and the cases interpreting them, the Court concludes that the government may detain a person without a bond hearing pursuant to § 1226(c) but only for a reasonable period of time. Continued detention beyond that point requires strong justification and entitles the detainee to an individualized determination as to whether he or she poses a risk of flight or a danger to the community.

The Court finds that Vongsa has in fact been detained beyond a reasonable time and therefore orders the government to conduct a bond hearing on the merits within 30 days of this memorandum. Vongsa will be entitled to an immediate hearing before this Court if: (a) the government does not hold a bond hearing within the requisite time, or (b) does not hold a hearing on the merits of Vongsa's claims within the requisite time. In the event that the Immigration Judge denies her claim for bond on the merits, Vongsa will be entitled to a hearing on the question of whether her detention is "indefinite, perhaps permanent" within the meaning of Zadvydas, 533 U.S. at 692, 121 S.Ct. 2491, because she might not be deportable to Laos, Thailand, or any other country.2


Vongsa is a Laotian citizen born in a refugee camp in Thailand. She came to the United States as a refugee in 1980, when she was just a few weeks old. Three years later, she obtained her green card (entitling her to "lawful permanent resident status"). She has lived in the United States since, mostly in Massachusetts, and has never been back to Laos or Thailand.

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She also has friends and family, including her parents and her fiancé, who live in Massachusetts; she has no family or support structure in Laos or Thailand.

Over the last ten years or so, Vongsa has had a history of drug addiction, along with minor offenses. She has been arrested and charged with forgery, larceny, attempt to commit larceny by check, possession of a controlled substance, knowingly receiving stolen property, prostitution, and use of a motor vehicle without authority. These incidents, according to Vongsa, stemmed from her struggle with addiction (primarily narcotics). Some of them resulted in convictions and by 2001, a seven-month term of imprisonment for possession of cocaine. Though she was charged with being a removable alien, an Immigration Judge gave her a second chance and granted her application for cancellation of removal. In 2007, Vongsa was again convicted of possession of cocaine. She was sentenced to probation, which included mandatory drug testing. (The record does not reveal what ramifications, if any, this 2007 conviction had on her immigration status.)

A year later, in January 2008, Vongsa missed a mandatory drug test and also forged a check on a friend's account. She turned herself in, was convicted, and served sixty days in state custody, thirty for the probation violation and thirty for forging the check.

Meanwhile, in mid-February 2008, Immigration and Customs Enforcement ("ICE") initiated removal proceedings against Vongsa.3 At the hearing, Vongsa, through counsel, conceded that she was ineligible for withholding of removal. Nevertheless, she applied for political asylum and for' relief under the Convention Against Torture ("CAT"). On March 21, 2008, after serving her second thirty-day state sentence, Vongsa was transferred to the custody of ICE, which detained her pursuant to 8 U.S.C. § 1226(c)(1)(B). She has been detained by ICE ever since.

Shortly after entering ICE's custody, Vongsa requested a bond hearing. See 8 C.F.R. § 236.1(c). But the IJ dismissed her request without considering the usual bail issues, namely, whether she posed a flight risk or a danger to the community. The IJ instead concluded that he lacked jurisdiction to conduct a bond hearing at all. Vongsa did not appeal.

On September 23, 2008, the IJ decided Vongsa's political asylum claim in her favor. Vongsa had testified to her fear that, without a support system in Laos, she would become a target for human trafficking and forced prostitution. The IJ found Vongsa's testimony credible and further, found that the country reports (released by the United States Department of State) echoed what Vongsa said. Women and girls in Laos and Thailand were at substantial risk of being sold into the sex trade. In light of this reality, the IJ found deportation to be "unconscionable." Though Vongsa's prior drug use weighed against her claim, the IJ granted Vongsa asylum.

ICE immediately appealed, and throughout, Vongsa remained in custody. Some eight-and-a-half months later, on June 9, 2009, the Board of Immigration Appeals ("BIA") reversed the IJ's asylum decision and remanded for further proceedings. In re Vongsa, File: A025 032 611—Boston, MA (BIA June 9, 2009). The BIA concluded that the IJ erred in "circularly" defining the social group to

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which Vongsa belonged. The IJ had defined Vongsa's social group as "young women deportees without a support system who will be targeted for human trafficking." The BIA held that individuals in a valid social group must share a narrowing characteristic other than the risk of persecution. For the BIA, the IJ's group definition, minus the persecution factors, was not enough. The BIA stated that the definition of "young women deportees without a support system" was too broad and not sufficiently "socially visible." Id. at 2. The BIA remanded for the IJ to consider Vongsa's CAT claim.4

A hearing on the CAT claim has yet to take place. There have been a series of delays, some due to the fact that Vongsa received new counsel who continues to push the case back. The IJ scheduled a "master hearing"5 for July 30, 2009, but Vongsa requested and was granted a continuance until August 27, when the IJ finally held the master hearing. The IJ then scheduled the "individual hearing" on Vongsa's CAT claim for October 6, but again Vongsa requested and was granted a continuance until October 29. Instead of rescheduling the individual hearing, though, the IJ held another master hearing on October 29, and then scheduled a calendar status hearing for January 7, 2010.

Through it all, Vongsa languishes at the Suffolk County House of Correction, the detention time now totaling nearly twenty months.


On June 15, 2009, Vongsa filed a pro se habeas petition pursuant to 28 U.S.C. § 2241, challenging her continued detention without a bond hearing. The government moved to dismiss the petition (document # 4). Vongsa, now represented by counsel, opposed that motion and later filed a motion to show cause why she should continue to be detained (document # 11).

Vongsa seeks release because of the unreasonable length of her detention. She has been in ICE custody pending her removal proceedings ten times longer than her original criminal sentences. She contends that, in light of Zadvydas, 533 U.S. 678, 121 S.Ct. 2491, and Demore, 538 U.S. 510, 123 S.Ct. 1708, her continued detention is no longer "reasonable."

The government counters with two responses. First, the government argues

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that the Court should dismiss Vongsa's petition because she has failed to exhaust her administrative remedies. Second, even if Vongsa clears the exhaustion hurdle, the government contends that her continued detention is lawful. The government rejects the notion of a "reasonableness" limitation on the government's power to detain, and submits that Vongsa's detention would be constitutionally problematic only if it "shocked the conscience," which, the government says, it does not. The Court addresses each of these arguments in turn.

A. Exhaustion of Administrative Remedies

The law is clear that the Court has jurisdiction to consider Vongsa's habeas petition challenging the length of her preremoval detention. See Demore v. Kim, 538 U.S. 510, 516-17, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003) (concluding that 8 U.S.C. § 1226(e) "does not bar respondent's constitutional challenge to the legislation authorizing his detention without bail"); Aguilar v. ICE, 510 F.3d 1, 11 (1st Cir.2007) ("[W]e have held that district courts...

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