Tijani v. Willis, 04-55285.

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: Noonan
• Citation: 430 F.3d 1241
• Parties: Monsuru O. TIJANI, Petitioner-Appellant, v. Wayne K. WILLIS, Interim Director, Interior Immigration Enforcement, United States Department of Homeland Security; Caryl Thompson, OIC, Respondents-Appellees.
• Docket Number: No. 04-55285.,04-55285.
• Decision Date: 13 December 2005

430 F.3d 1241 Monsuru O. TIJANI, Petitioner-Appellant,
v.
Wayne K. WILLIS, Interim Director, Interior Immigration Enforcement, United States Department of Homeland Security; Caryl Thompson, OIC, Respondents-Appellees. No. 04-55285. United States Court of Appeals, Ninth Circuit. Argued and Submitted January 10, 2005. Filed December 13, 2005.

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Steven A. Hirsch, Keker & Van Nest, LLP, San Francisco, CA, Lucas Guttentag, ACLU Immigrants' Rights Project, Oakland, CA, and Judy Rabinovitz, ACLU Immigrants' Rights Project, New York, NY, for the petitioner.

Tom Stahl, and Ernest Cordero, Jr., Assistant United States Attorneys, San Diego, CA, for the respondents.

Appeal from the United States District Court for the Southern District of California; William Q. Hayes, District Judge, Presiding. D.C. No. CV-03-01624-WQH/JFS.

Before: NOONAN, TASHIMA, and CALLAHAN, Circuit Judges.

NOONAN, Circuit Judge:

As of today's date, Tijani has been deprived of his liberty by the government for a period of over two years and eight months. This deprivation has been inflicted not as the result of any adjudication of crime but as a bureaucratic application of the authority conferred on the Attorney General by 8 U.S.C. § 1226(c). Despite the substantial powers that Congress may exercise in regard to aliens, it is constitutionally doubtful that Congress may authorize imprisonment of this duration for lawfully admitted resident aliens who are subject to removal. See Zadvydas v. Davis, 533 U.S. 678, 690, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). The case is distinct from Demore v. Kim, 538 U.S. 510, 513-514, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003), where the alien conceded deportability.

To avoid deciding the constitutional issue, we interpret the authority conferred by § 1226(c) as applying to expedited removal of criminal aliens. Two years and eight months of process is not expeditious; and the foreseeable process in this court, where the government's brief in Tijani's appeal of the removal was only filed last month after two extensions of time, is a year or more.

We remand to the district court with directions to grant the writ unless the government within 60 days of this order provides a hearing to Tijani before an Immigration Judge with the power to grant him bail unless the government establishes that he is a flight risk or will be a danger to the community. See Cooper v. Oklahoma, 517 U.S. 348, 363, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996).

REVERSED and REMANDED.

TASHIMA, Circuit Judge, concurring:

I concur in Judge Noonan's opinion reversing the denial of habeas relief and

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requiring the Immigration Court to grant Tijani a bail hearing. His opinion, however, barely alludes to the standards that should govern the conduct of such a hearing, or what facts must be established in order to warrant the grant or denial of release, or who has the burden of proving those facts, and by what standard of proof. I write separately because I believe that we have a duty to give more guidance to the agency and to the court below so that they can carry out their respective mandates.

Monsuru Tijani has now been imprisoned by the federal government for almost two and one-half years. His detention is not the result of a criminal conviction; nor is it because he faces imminent removal. The only reason that Tijani is being detained is because the government may be able to prove he is subject to removal. Tijani contends that his indefinite detention for such a reason is not constitutionally permissible. Now, instead of deciding the issues squarely presented by this appeal, the majority opinion grants habeas relief, but without deciding the issues raised on the merits. I join Judge Noonan's majority opinion because, as I explain below, I do not believe that Tijani's indefinite detention is constitutionally permissible; therefore, that he is entitled to release.

I. A.

At the heart of this case lies the Board of Immigration Appeals' ("BIA's") decision in In re Joseph, 22 I. & N. Dec. 799 (BIA 1999), a decision that is both contrary to the Constitution and shortsighted as a matter of policy. Joseph concerned the proper scope of § 236(c) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1226(c), commonly known as the INA's "mandatory detention" provision. Section 236(c) directs the Attorney General to take into custody certain aliens who are facing deportation and prohibits their release under all but the narrowest of circumstances.

As with most statutes, the relatively simple mandate of § 236(c) leaves many questions unanswered, the most important of which is who, exactly, falls under the statute's provisions. The statute states only that mandatory detention applies to an alien who "is deportable by reason of having committed" a number of specified criminal offenses, but does not define those offenses with precision, nor does it define what "is deportable" means. The implementing regulations also do little to help; they provide an alien with the opportunity to establish that he is "not properly included" in the statute's reach, but they say nothing about what, precisely, that alien must show. See 8 C.F.R. § 1003.19 (2005).

In Joseph, the BIA finally gave a meaningful answer to this question. The BIA concluded that the initial determination by the Bureau of Immigration and Customs Enforcement ("BICE")¹ that an alien fell within the reach of § 236(c) was entitled to a great deal of deference. Joseph, 22 I. & N. Dec. at 800. Thus, the BIA held that an alien who wishes to avoid the reach of

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§ 236(c) was required to show that BICE was "substantially unlikely to establish" the charges that rendered the alien subject to mandatory detention. Id. at 806.

Tijani was convicted in California of offenses that have never been found by a court or by the BIA to trigger mandatory detention. Nonetheless, BICE determined that his offenses fell within the reach of § 236(c) and held him in mandatory detention. Based upon the Joseph standard, both the Immigration Judge ("IJ") and the BIA affirmed BICE's determination. Today, nearly 30 months later, Tijani remains in mandatory detention while courts continue to sort out whether his offenses actually fall within the reach of the mandatory detention statute.

B.

The BIA's Joseph decision was, plainly put, wrong. There can be no doubt that individual liberty is one of the most fundamental rights protected by the Constitution.² See Zadvydas v. Davis, 533 U.S. 678, 690, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) ("Freedom from imprisonment — from government custody, detention, or other forms of physical restraint — lies at the heart of the liberty [the Due Process] Clause protects."). Joseph, which was decided prior to Zadvydas, gives that right little or no weight. Instead, it establishes a system of "detention by default" by placing the burden fully on the alien to prove that he should not be detained. When such a fundamental right is at stake, however, the Supreme Court has insisted on heightened procedural protections to guard against the erroneous deprivation of that right. In particular, the Supreme Court has time and again rejected laws that place on the individual the burden of protecting his or her fundamental rights.

The first of these decisions is Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979), in which the Court vacated the Texas Supreme Court's ruling that a person could be civilly committed based upon a finding of mental illness by a preponderance of the evidence. Id. at 432-33, 99 S.Ct. 1804. In reaching its conclusion, the Court elaborated upon the "function of a standard of proof, as that concept is embodied in the Due Process Clause." Id. at 423-24, 99 S.Ct. 1804. According to the Court, its primary function was to allocate the risk of an erroneous decision among litigants based upon the competing rights and interests involved. Id. Thus, in a civil case, because the interests involved are minor and because "society has a minimal concern with the outcome," the litigants share the risk of error roughly equally under the preponderance of the evidence standard. Id. In a criminal case, on the other hand, "the interests of the defendant are of such magnitude" that "our society imposes almost the entire risk of error upon itself" by insisting on the beyond a reasonable doubt standard. Id. at 423-24, 99 S.Ct. 1804.

Based on these principles, the Court held that the Constitution required a showing of mental illness by at least clear and convincing evidence before an individual's liberty could be constrained. Id. at 432-33, 99 S.Ct. 1804. Noting that it "repeatedly has recognized that civil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection," id. at 425, 99 S.Ct. 1804, the Court found it improper to ask "[t]he individual... to share equally with

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society the risk of error when the possible injury to the individual is significantly greater than any possible harm to the state," id. at 427, 99 S.Ct. 1804. Thus, the Court concluded that "due process requires the state to justify confinement by proof more substantial than a mere preponderance of the evidence." Id. at 427, 99 S.Ct. 1804.

Since Addington, the Supreme Court has repeatedly reaffirmed the principle that "due process places a heightened burden of proof on the State in civil proceedings in which the `individual interests at stake ... are both particularly important and more substantial than mere loss of money.'" Cooper v. Oklahoma, 517 U.S. 348, 363, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996) (quoting Santosky v. Kramer, 455 U.S. 745, 756, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982)) (internal quotation marks omitted). In Santosky, for example, the Court considered a New York law that allowed the state to terminate parental rights upon proof of "permanent neglect" by a preponderance of the evidence. 455 U.S. at 747, 102 S.Ct. 1388...