(B)  Constitutionality.  In Demore v. Kim,[1] the Supreme Court found that mandatory detention of a lawful permanent resident did not violate due process where the LPR conceded deportability and did not request a hearing to determine whether he was subject to mandatory detention.  The Supreme Court thereby overturned a number of decisions to the contrary.[2]

 

The Demore decision was based on the fact, conceded by the noncitizen, that his convictions were valid and that he was “therefore subject to mandatory detention under § 1226(c) . . . .”[3]  Since the plurality of four justices was insufficient to hold the mandatory detention statute constitutional, Justice Kennedy’s fifth vote and concurring opinion defines the narrow holding of the case.  He held that “due process requires individualized procedures to ensure there is at least some merit to the Immigration and Naturalization Service’s (INS) charge [of removability] and, therefore, sufficient justification to detain a lawful permanent resident pending a more formal hearing. [Citation omitted.] If the Government cannot sustain this minimal, threshold burden, then the permissibility of continued detention pending deportation proceedings turns solely upon the alien’s ability to satisfy the normal bond procedures — namely, whether if released the alien would pose a risk of flight or a danger to the community.”[4]

 

                As both the plurality and concurring opinions note, the noncitizen was entitled to a Joseph hearing in which he could have “raised[d] any nonfrivolous argument available to demonstrate that he was not properly included in a mandatory detention category.”[5]  If he had prevailed at the hearing, the Immigration Judge would then have determined whether the noncitizen “could be considered . . . for release under the general bond provisions.”[6]  As the noncitizen in Demore did not seek relief under the procedures required by Matter of Joseph,[7] the court did not determine the validity of those procedures.  Justice Kennedy pointed out that a noncitizen would also have had a right to a bond hearing “if the continued detention became unreasonable or unjustified.”[8]  At least one case, following Demore v. Kim, has found that no due process claim exists where the noncitizen contests the finding of removal, but the court finds that the basis for contesting the claim has no merit.[9]  Another court has found a period of two years and eight months too long to detain a noncitizen pending expedited removal.[10]

[158] Demore v. Kim, 538 U.S. 510 (2003).

[159] See, e.g., Kim v. Ziglar, 276 F.3d 523 (9th Cir. 2002), cert. granted, 122 S.Ct. 2696 (June 28, 2002), overruled, Demore v. Kim, 538 U.S. 510 (2003); Patel v. Zemski, 275 F.3d 299 (3d Cir. 2001); Hoang v. Comfort, 282 F.3d 1247 (10th Cir. Mar. 5, 2002).

[160] Demore v. Kim, supra, 538 U.S. at 526, n.6.

[161] Id. at 532 (Kennedy, J., concurring).

[162] Demore v. Kim, supra, 538 U.S. 510, 514 (2003).

[163] Demore v. Kim, supra, 538 U.S. 510, 514, and n.3 (2003).

[164] Matter of Joseph, 22 I. & N. Dec. 799 (BIA 1999).

[165] Demore v. Kim, supra, 538 U.S. 510, 532 (2003) (Kennedy, J., concurring).

[166] Gonzalez v. O’Connell, 355 F.3d 1010 (7th Cir. Jan. 21, 2004) (mandatory detention constitutional when basis for contesting removal was based on claim contrary to binding case precedent).

[167] Tijani v. Willis, 430 F.3d 1241 (9th Cir. Dec. 13, 2005) (two years and four months detention pursuant to INA § 236(c), 8 U.S.C. § 1226(c) pending expedited removal proceedings is not expeditious).

BIA

DETENTION - BOND REQUEST - VISA WAIVER PROGRAM
Matter of Werner, 25 I. & N. Dec. 45, 48 (BIA 2009) (IJ lacks jurisdiction to consider a bond request from a person admitted through the Visa Waiver Program and who sought asylum and withholding of removal upon being detained by DHS).

NOTE: An earlier contrary decision, Matter of Gallardo, 21 I. & N. Dec. 210 (BIA 1996), was held to have been superseded by 8 C.F.R. 1208.2(c).

DETENTION VISA WAIVER PROGRAM
Matter of Werner, 25 I. & N. Dec. 45 (BIA 2009) (a person admitted to the United States pursuant to the Visa Waiver Program, and who has not been served with a Notice to Appear under to 8 C.F.R. part 1240, is not entitled to a custody hearing before an Immigration Judge under 8 C.F.R. 1236.1(d)); superseding Matter of Gallardo, 21 I. & N. Dec. 210 (BIA 1996). http://m1e.net/c?7073444-m0TfcDXgxyTMk%404388130-5xIxLoHJwYH3k

Seventh Circuit

DETENTION - MANDATORY DETENTION - PENDING JUDICIAL REVIEW
Hussain v. Mukasey, 510 F.3d 739 (7th Cir. Dec. 18, 2007) (8 U.S.C. 1252(a)(2)(B)(ii) bars the appellate court from ordering the release of a noncitizen pending judicial review of the order of removal), following Bolante v. Keisler, __ F.3d __, 2007 WL 3170144 (7th Cir. Oct.31, 2007).

Ninth Circuit

DETENTION " MANDATORY DETENTION " DETENTION CAN BE NO LONGER THAN SIX MONTHS WITHOUT HEARING
Rodriguez v. Robbins, 715 F.3d 1127, 1133 (9th Cir. 2013) (mandatory immigration detention pursuant to INA 236(c) detention is limited to six months; anything longer without an individualized hearing is presumptively unreasonable); Diop v. ICE/Homeland Security, 656 F.3d 221, 234 (3d Cir. 2011) (individualized hearing required to determine what is reasonable in a given case); Ly v. Hansen, 351 F.3d 263, 272 (6th Cir. 2003); Bourguignon v. MacDonald, 667 F. Supp. 2d 175 (D. Mass. 2009). See also Geoffrey Heeren, Pulling Teeth: The State of Mandatory Immigration Detention, 45 Harvard Civil Rights-Civil Liberties Law Review 601, 603 (2010).

DETENTION " MANDATORY DETENTION " DETENTION CAN BE NO LONGER THAN SIX MONTHS WITHOUT HEARING
Rodriguez v. Robbins, 715 F.3d 1127, 1133 (9th Cir. 2013) (mandatory immigration detention pursuant to INA 236(c) detention is limited to six months; anything longer without an individualized hearing is presumptively unreasonable); Diop v. ICE/Homeland Security, 656 F.3d 221, 234 (3d Cir. 2011) (individualized hearing required to determine what is reasonable in a given case); Ly v. Hansen, 351 F.3d 263, 272 (6th Cir. 2003); Bourguignon v. MacDonald, 667 F. Supp. 2d 175 (D. Mass. 2009). See also Geoffrey Heeren, Pulling Teeth: The State of Mandatory Immigration Detention, 45 Harvard Civil Rights-Civil Liberties Law Review 601, 603 (2010).

DETENTION - PRE-1988 AGGRAVATED FELONIES
Ledezma-Garcia v. Holder, 599 F.3d 1055 (9th Cir. Mar. 22, 2010) (although the "aggravated felony" definition applies regardless of the date of conviction, an aggravated felony conviction occurring prior to November 18, 1988 does not trigger deportability under INA 237(a)(2)(A)(iii), 8 U.S.C. 1227(a)(2)(A)(iii)), overruling Matter of Lettman, 22 I. & N. Dec. 365 (BIA 1998) (en banc). An aggravated felony conviction does not trigger mandatory detention unless it renders the noncitizen "deportable" under INA 237(a)(2)(A)(iii), 8 U.S.C. 1227(a)(2)(A)(iii). Therefore, an aggravated felony conviction occurring prior to November 18, 1988, does not as such trigger mandatory detention.

DETENTION - 90 DAY CLOCK FOR REMOVAL STARTS ONLY AFTER NONCITIZEN DATE OF LAST DOCUMENTED OBSTRUCTION OF REMOVAL BY NONCITITZEN
Mukasey v. Diouf, 542 F.3d 1222 (9th Cir. Sept. 18, 2008) (90-day clock for Immigration Authorities to remove noncitizen starts only after the final date the DHS can show documented evidence of obstruction by the noncitizen of the removal process).

DETENTION - 90 DAY CLOCK FOR REMOVAL - FILING HABEAS CHALLENGING REMOVAL IS NOT OBSTRUCTION OF REMOVAL
Mukasey v. Diouf, 542 F.3d 1222 (9th Cir. Sept. 18, 2008) (the filing habeas corpus petitions challenging detention cannot be considered an attempt by a noncitizen to obstruct removal for the purposes of the 90-day clock).

BIA

DETENTION " IMMIGRATION DETENTION
Matter of Joseph, 22 I&N Dec. 799 (BIA 1999). The requisite "reason to believe" that allows the INS to claim a respondent is subject to the mandatory detention for purposes of the automatic stay is not sufficient for the merits of the bond appeal. Matter of Joseph, 22 I&N Dec. 660 (BIA 1999), clarified. For purposes of determining the custody conditions of a lawful permanent resident under section 236(c) of the Act, a lawful permanent resident will not be considered "properly included" in a mandatory detention category when an Immigration Judge or the BIA finds it is substantially unlikely that the INS will prevail on a charge of removability specified under section 236(c)(1) of Act.

Other

DETENTION - RELEASE DURING REMOVAL PROCEEDINGS - STAY OF REMOVAL IN PLACE
Some circuits hold that once granted by a circuit court, a stay of removal results in a 236 (pre-removal) not 241 (post-removal/Zadvydas) detention case. See, e.g., Tijani v. Willis, 430 F. 3d 1241 (9th Cir. 2005); Wang v. Ashcroft, 350 f.3d 130 (2nd Cir. 2003). The significance of this distinction is that 236 detainees are not subject to periodic Zadvydas review procedures.

BIBLIOGRAPHY " DETENTION " MANDATORY DETENTION
David Manuel Hernndez, Undue Process, in Constructing Borders/Crossing Boundaries 59-86 (Caroline B. Brettell ed. 2007).