Sopo v. U.S. Attorney Gen.
| Citation | 825 F.3d 1199 |
| Decision Date | 15 June 2016 |
| Docket Number | No. 14–11421,14–11421 |
| Parties | Maxi Dinga Sopo, Petitioner–Appellant, v. U.S. Attorney General, Secretary, U.S. Department of Homeland Security, Ice Field Office Director, Atlanta Region, Stewart DC Warden, Respondents–Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (11th Circuit) |
David Charles Frederick, Joshua D. Branson, Kellogg Huber Hansen Todd Evans & Figel, PLLC, Washington, DC, for Petitioner–Appellant.
Hans Harris Chen, Jeffrey S. Robins, J. Max Weintraub, U.S. Department of Justice, Washington, DC, Michael J. Moore, Sheetul S. Wall, U.S. Attorney's Office, Columbus, GA, for Respondent–Appellee U.S. Attorney General.
Jeffrey S. Robins, U.S. Department of Justice, Washington, DC, Michael J. Moore, Sheetul S. Wall, U.S. Attorney's Office, Columbus, GA, for Respondents–Appellees Secretary, U.S. Department of Homeland Security, Ice Field Office Director, Atlanta Region, Stewart DC Warden.
Michael K.T. Tan, Judy Rabinovitz, American Civil Liberties Union of New York State (NYCLU), New York, NY, for American Civil Liberties Union, Amicus Curiae.
Eunice Hyunhye Cho, Southern Poverty Law Center, Atlanta, GA, Rebecca Sharpless, University of Miami School of Law, Coral Gables, FL, for Alabama Coalition for Immigrant Justice, et al., Amici Curiae.
Rebecca Sharpless, University of Miami School of Law, Coral Gables, FL, for 31 Social Science Researchers and Professors, et al., Amici Curiae.
Before HULL and JILL PRYOR, Circuit Judges, and CONWAY,* District Judge.
, Circuit Judge:
From 2004 to 2010, Maxi Dinga Sopo resided lawfully in the United States as an asylee from Cameroon. In 2010, he pled guilty to bank fraud and became removable as an aggravated felon. After Sopo completed his criminal sentence, U.S. Immigration and Customs Enforcement (“ICE”) took custody of him. Since February 2, 2012, Sopo has been in ICE detention, pursuant to 8 U.S.C. § 1226(c)
, which mandates civil detention for certain criminal aliens during their removal proceedings. His removal proceedings continue before the Board of Immigration Appeals (“BIA”) today. During the past four years in ICE custody, Sopo has never had a bond hearing.
In 2013, Sopo filed a 28 U.S.C. § 2241
petition for a writ of habeas corpus, requesting a bond hearing. Sopo claimed his mandatory detention, without even a bond hearing during his protracted removal proceedings, raised serious concerns about the constitutionality of the § 1226(c) detention statute as applied to his case. The district court dismissed his petition on the basis that § 1226(c) provides that detention is mandatory for aggravated felons during the entirety of their removal proceedings.
In this appeal, we address an issue of first impression in this circuit. During their removal proceedings, are criminal aliens, like Sopo, detained under § 1226(c)
entitled at any point to a bond hearing under the Due Process Clause?
All other circuits reaching this issue have concluded that the mandatory civil detention of criminal aliens under § 1226(c)
is constitutional for a reasonable period of time to complete the removal proceedings, but as a matter of constitutional avoidance, at some point such detained aliens become entitled to an individualized bond hearing. The circuits are split, however, as to when this occurs.
Our analysis of this issue proceeds in nine parts. We recount Sopo's: (1) personal background; (2) protracted removal proceedings; and (3) federal habeas case. We then discuss (4) the federal statutory framework governing the civil detention of criminal aliens and (5) Supreme Court decisions analyzing the constitutionality of immigration detention statutes, which leads us to conclude, as a matter of constitutional avoidance, that § 1226(c)
contains an implicit temporal limitation against the unreasonably prolonged detention of criminal aliens without an individualized bond hearing. After reaching this holding, we (6) establish an approach for determining when the removal proceedings and the resulting § 1226(c)
mandatory detention of a criminal alien become unreasonably protracted, triggering the need for a bond hearing. We also (7) settle on a mechanism the government must follow to give that detained criminal alien a bond hearing. Finally, we (8) apply our holdings to Sopo's case and (9) conclude that he must receive an immediate bond hearing as habeas relief.
Sopo's immigration case is not before us and remains pending in separate proceedings now before the BIA. Sopo has been before the immigration judge (“IJ”) and BIA three times, and his case is once again before the BIA for a fourth round of review. In this part and the next, we describe Sopo's removal proceedings and criminal conviction, as they provide the backdrop for his mandatory detention that has lasted four years.
Sopo is a native and citizen of Cameroon and a member of the Bali tribe. In May 2003, Sopo fled from his home country to the United States. After he arrived in the United States, Sopo applied for asylum based on his political affiliations. On August 23, 2004, the United States Citizenship and Immigration Services (“USCIS”) granted Sopo's application for asylum.
In his application and the asylum interview, Sopo explained that he had held leadership positions in the Bali Catholic Youth Association (“BCYA”) and the Southern Cameroons National Council (“SCNC”). In 2000, Sopo was arrested during an SCNC event. The police took his clothes and starved and beat him. At least twice a day, the police hung him upside-down from a metal pole, strapped electrical nodes to his feet, and shocked him with increasing voltage.
After about a week of imprisonment, Sopo “went into shock.” The police abandoned him at a hospital, where he stayed for two weeks. Later in 2000, the police arrested Sopo's mother, and starved, beat, and raped her in an attempt to get information about Sopo. She got out of prison by signing a pledge to give Sopo to the authorities.
In March 2002, Sopo was arrested during a BCYA meeting. The police beat him, caned him, made him drink his own urine, and told him he would never leave prison until he renounced his SCNC and BCYA activities. After about a week, Sopo became ill and was released to go to the hospital. In September 2002, the police raided Sopo's house, arrested him again, and kept him in prison for two months. He faced more beatings during that stay.
In January 2003, Sopo obtained an American visa under his real name, but police officers at the airport refused to let him leave Cameroon because there were outstanding warrants against him. He then obtained a visa under a false name and left Cameroon in May 2003. After obtaining asylum in 2004, Sopo settled in Seattle, Washington, with his wife, who left Cameroon with him, and their daughter, who was born in the United States shortly after their arrival.
In March 2008, Sopo began assisting people in obtaining loans to buy used cars. Sopo planned for the loan applicants to use the cars in connection with his business. In order to obtain the loans, Sopo instructed the applicants to include false information about their employment and salary. At least four people obtained car loans at Sopo's instruction.
While federal prosecutors were investigating the loans, Sopo traveled to Cancun, Mexico, purportedly for vacation. A warrant issued while he was there, and Mexican authorities arrested him. In April 2010, Sopo was extradited to the United States. The next month, he signed a plea agreement and pled guilty to four counts of bank fraud. In August 2010, the district court sentenced him to serve 33 months' imprisonment and pay $147,249.92 in restitution.
Sopo served some portion of his federal sentence at a prison in Georgia. On January 17, 2012, ICE served him with a notice to appear (“NTA”), alleging that his bank-fraud convictions were aggravated felonies that made him removable under 8 U.S.C. § 1227(a)(2)(A)(iii)
.
On February 2, 2012, ICE transferred Sopo to an immigration detention facility in Georgia. At a February 13, 2012 master calendar hearing, Sopo appeared pro se , and the IJ adjourned to give him more time to obtain legal counsel, as well as to allow the government to file an amended NTA.
At the February 27, 2012 master calendar hearing, Sopo informed the IJ that he did not receive the government's amended NTA in time to discuss the charges with an attorney. The IJ granted him a second continuance.
At the March 14, 2012 master calendar hearing, Sopo, pro se , conceded the charge of removability. Sopo announced his intent to apply for withholding of removal and relief under the United Nations Convention Against Torture (“CAT”).1 The IJ provided him with the necessary application forms.
During the April 16, 2012 hearing, Sopo stated that he instead wanted to resubmit his 2004 asylum application to serve as his request for withholding of removal and CAT relief. Sopo stated that he did not have a copy of the prior application because the government had not yet responded to his Freedom of Information Act (“FOIA”) request. The IJ set a deadline for Sopo to file a copy of the prior asylum application, and also ordered the parties to brief whether Sopo was eligible for a waiver under Immigration and Nationality Act (“INA”) § 209(c), 8 U.S.C. § 1159(c)
(a “§ 209(c) waiver”), and adjustment of status.
At the May 16, 2012 hearing, Sopo filed an application for a § 209(c) waiver and adjustment of status. During a May 31, 2012 hearing, the government filed its response. As Sopo was still waiting on his FOIA request, the IJ adjourned the hearing.
At a June 21, 2012 hearing, Sopo was still without his FOIA documents, and the government refused to file a copy of Sopo's previous asylum application to expedite the case. The IJ ordered Sopo to file a completed asylum application by June 28, 2012—regardless of whether he received the FOIA documents.
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