Reid v. Donelan, et al

Filing

OPINION issued by Jeffrey R. Howard, Chief Appellate Judge; Bruce M. Selya, Appellate Judge and Norman H. Stahl, Appellate Judge. Published. [14-1270, 14-1803, 14-1823]

Case: 14-1270

Document: 00116985357

Page: 1

Date Filed: 04/13/2016

Entry ID: 5991777

United States Court of Appeals
For the First Circuit

Nos. 14-1270, 14-1803,
14-1823

MARK ANTHONY REID,
Petitioner, Appellee/Cross-Appellant,
v.
CHRISTOPHER DONELAN, Sheriff, Franklin County, Massachusetts;
DAVID A. LANOIE, Superintendent, Franklin County Jail and House
of Correction; THOMAS M. HODGSON, Sheriff, Bristol County,
Massachusetts; JOSEPH D. MCDONALD, JR., Sheriff, Plymouth
County, Massachusetts; STEVEN W. TOMPKINS, Sheriff, Suffolk
County, Massachusetts; JEH CHARLES JOHNSON, United States
Secretary of Homeland Security; DOROTHY HERRERA-NILES, Director,
Immigration and Customs Enforcement, Boston Field Office;
JOHN T. MORTON, Director of Immigration and Customs Enforcement;
ERIC H. HOLDER, JR., Attorney General; JUAN OSUNA, Director of
the Executive Office for Immigration Review;
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW,
Respondents, Appellants/Cross-Appellees.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge]

Before
Howard, Chief Judge,
Selya and Stahl, Circuit Judges.

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Entry ID: 5991777

Elianis N. Perez, Senior Litigation Counsel, with whom
Joyce Branda, Acting Assistant Attorney General, Civil Division,
William C. Peachey, Director, Office of Immigration Litigation,
District Court Section, Colin A. Kisor, Deputy Director, and
Regan
Hildebrand,
Senior
Litigation
Counsel,
Officer
of
Immigration Litigation, District Court Section, were on brief,
for appellant.
Anant K. Saraswat and Swapna C. Reddy, Law Student Intern,
with whom Mark C. Fleming, Wilmer Cutler Pickering Hale and Dorr
LLP, Ahilan T. Arulanantham, Michael Tan, ACLU Immigrants'
Rights Project, Nicole Hallett, Supervising Attorney, Michael
Wishnie, Supervising Attorney, Conchita Cruz, Law Student
Intern, Grace Kao, Law Student Intern, Lunar Mai, Law Student
Intern, My Khanh Ngo, Law Student Intern, Ruth Swift, Law
Student Intern, and Jerome N. Frank Legal Services, were on
brief, for appellee.

April 13, 2016

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STAHL,

Circuit

Page: 3

Date Filed: 04/13/2016

Judge.

Under

8

U.S.C.

Entry ID: 5991777

§

1226(c),

aliens who have committed certain criminal offenses are subject
to mandatory detention after serving their criminal sentence and
pending

their

removal

permanent

resident,

sentence,

and

then

proceedings.

committed
was

held

such
under

Petitioner,

a

lawful

offenses,

served

§

without

1226(c)

his
an

individualized showing that he posed a flight risk or danger to
society and without an opportunity to seek release on bond.
After

eight

months,

Petitioner

challenged

his

continuing

detention and filed a class action on behalf of himself and
similarly situated noncitizens held for over six months.
The

district

court

held

that

detention

pursuant

to

§ 1226(c) for over six months was presumptively unreasonable and
granted summary judgment to the class, thereby entitling each
class member to a bond hearing.

With respect to Petitioner, the

court also held, in the alternative, that the individualized
circumstances of his case rendered his detention unreasonable.
Finally,

the

court

declined

to

mandate

certain

protections for the class members' bond hearings.

procedural

We affirm the

judgment with respect to Petitioner, vacate the judgment with
respect to the class members, and remand the class action for
reconsideration of the district court's class certification.
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I.
The

U.S.

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Facts & Background

Department

of

Homeland

Security

("DHS")

generally has the discretionary authority to detain an alien
during removal proceedings.
U.S.

Immigration

detain

under

and

§

8 U.S.C. § 1226(a).

Customs

1226(a)

may

Enforcement
seek

a

An alien that

("ICE")

bond

decides

to

before

an

hearing

immigration judge ("IJ") to show that he or she is not a flight
risk or a danger.
committed

certain

8 C.F.R. § 236.1(c)(8).
criminal

or

For aliens who have

terrorist

offenses,

however,

Congress made detention during removal proceedings mandatory,
except for witness protection purposes.

8 U.S.C. § 1226(c).

Mark Anthony Reid ("Reid" or "Petitioner") came to the
United States in 1978 as a lawful permanent resident.
1978

and

1986,

Reid

served

in

the

U.S.

Army,

Between

pursued

post-

secondary education, was employed as a loan originator, worked
in

construction,

Following

a

and

owned

conviction

for

and

rented

narcotics

several
possession

properties.
in

1986,

however, Reid amassed an extensive criminal record, including
larceny, assault, drug and weapon possession, failure to appear,
interfering with an officer, driving on a suspended license,
selling drugs, violation of probation, and burglary.

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After being released from criminal custody on November
13, 2012, Reid was detained by ICE under § 1226(c) without bond
pending

immigration

removal

factual

allegations

underlying

sought

relief

from

proceedings.

removal

his
on

Reid

conceded

the

removability

charges,

but

(1) that

the

two

grounds:

Convention Against Torture ("CAT") applied, and (2) that removal
was a disproportionate punishment for his crimes.
At several IJ hearings held between February 13, 2013
and March 11, 2013, Reid presented evidence in support of his
application for relief from removal.

On April 5, 2013, the IJ

denied Reid's application and ordered him removed to Jamaica.
Reid

filed

a

notice

of

appeal

to

Appeals ("BIA") on May 5, 2013.

the

Board

of

Immigration

On October 23, 2013, nearly

half a year after the IJ's decision and nearly a full year after
Reid's detention began, the BIA reversed and remanded the case
for

further

proceedings

related

to

Reid's

CAT

claim.

December 17, 2013, the IJ again denied Reid's CAT claim.

On
Reid

appealed again and, on December 29, 2014, the BIA found error
and remanded the case once more.
Between his first appeal and the BIA's first remand,
Reid

filed

the

present

habeas

corpus

petition

along

with

a

class-action complaint in the United States District Court for
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the District of Massachusetts.

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Reid contends that he and other

similarly situated noncitizens cannot be held under § 1226(c) in
prolonged detention without an individualized bond hearing to
ascertain individual flight or safety risk.

Reid argues that

§ 1226(c) contains an implicit "reasonableness" requirement and
should be read to authorize mandatory detention only up to six
months,

at

hearing.

which

time

the

government

must

provide

a

bond

At the bond hearing, Reid argues, the government must

bear the burden of presenting clear and convincing evidence that
detention remains necessary.

What is more, Reid contends that

the government must employ the least restrictive means available
to prevent the alien's flight or danger to the community.
On January 9, 2014, the district court granted Reid's
habeas

petition

and

held

that

§

1226(c)

only

authorizes

mandatory detention for a reasonable period of time.

Reid v.

Donelan (Reid I), 991 F. Supp. 2d 275, 278-79 (D. Mass. 2014).
The

court

further

held

that

detention

over

six

months

was

presumptively unreasonable absent individualized justification.
Id. at 279-81.

The court also noted that even if no such

presumption applied, the individualized circumstances of Reid's
case rendered his continued detention unreasonable.
82.

Id. at 281-

The court ordered the government to set a hearing and to
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determine whether conditions could be placed upon Reid's release
to reasonably account for any flight or safety risks.

Id. at

282.

On February 25, 2014, Reid posted bond and was released

after

400

days

of

civil

detention,

subject

to

electronic

monitoring, monthly reporting, and other conditions.
On May 27, 2014, the district court granted summary
judgment in the related class action and ordered bond hearings
for all class members.

Reid v. Donelan (Reid II), 22 F. Supp.

3d 84, 93-94 (D. Mass. 2014).

The court reiterated its holding

that § 1226(c) only justifies mandatory detention for a period
of six months, at which time the detention becomes presumptively
unreasonable absent an individualized showing at a bond hearing.
Id. at 88.

However, the court declined to adopt any specific

procedural protections for the bond hearings themselves.
92-93.
bore

Id. at

The court observed that aliens detained under § 1226(a)
the

burden

of

proof

at

their

bond

hearings,

and

"individuals who committed a § 1226(c) predicate offense should
not receive more protections than § 1226(a) detainees."

Id. at

92.
The government appeals the lower court's determination
that § 1226(c) contains an implicit reasonableness requirement,
that any detention under § 1226(c) is presumptively unreasonable
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after six months, and that Reid's specific detention had become
unreasonable.

Reid

cross-appeals

the

lower

court's

class

determination that bond hearings for aliens held pursuant to
§ 1226(c) do not require specific procedural protections.
II.

Analysis

Until the late 1980s, the Attorney General had broad
authority

to

take

aliens

into

custody

during

their

removal

proceedings and to release those aliens in his discretion.
Demore

v.

Kim,

538

§ 1252(a) (1982)).

U.S.

510,

519

(2003)

(citing

8

See

U.S.C.

Over time, Congress became concerned that

criminal aliens too often obtained release and were thereby able
to evade removal and continue committing crimes.
518-21.

See id. at

In response, "Congress limited the Attorney General's

discretion

over

custody

determinations

with

respect

to

deportable aliens who had been convicted of aggravated felonies"
and then expanded the definition of "aggravated felonies" in
subsequent
mandatory

legislation
detention.

to
Id.

subject
at

more

520-21.

criminal
"At

the

aliens
same

to

time,

however, Congress . . . authorize[d] the Attorney General to
release

permanent

resident

aliens

during

their

deportation

proceedings where such aliens were found not to constitute a
flight risk or threat to the community."
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Id. at 521.

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The current take on this mandatory detention theme can
be found in 8 U.S.C. § 1226(c), which requires the Attorney
General1 to take criminal aliens into custody "when released"2
from

criminal

custody

and

only

permits

the

release

aliens for limited witness protection purposes.
§ 1226(c).

of

such

See 8 U.S.C.

Whatever the merits of this approach may be as a

matter of policy, we must ensure that the statute falls within
constitutional limits.
The
scheme

embodied

Demore.
the

constitutionality
§

1226(c)

was

the
first

categorical
put

to

the

detention
test

in

In Demore, the petitioner launched a broad attack on

statute,

violated

in

of

due

arguing
process

"that

his

because

the

detention

under

[government]

had

§ 1226(c)
made

no

determination that he posed either a danger to society or a

1

Although the relevant statutory sections refer to the
Attorney General, the Homeland Security Act of 2002, Pub. L. No.
107-296, 116 Stat. 2135 (2002), transferred all immigration
enforcement and administration functions vested in the Attorney
General, with few exceptions, to the Secretary of Homeland
Security.
2

The instant case asks what § 1226(c) requires after a
criminal alien has been brought into custody.
This case does
not touch upon what the statute requires at the commencement of
such detention. This circuit recently considered the meaning of
the statute’s "when . . . released" provision in Castañeda v.
Souza, 810 F.3d 15 (1st Cir. 2015) (en banc).

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flight risk."

Page: 10

538 U.S. at 514.

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Entry ID: 5991777

In other words, the petitioner

argued that his detention was unconstitutional from the outset
due to the categorical nature of the mandatory detention regime.
The Supreme Court rejected the challenge and upheld
the statute in a narrowly framed ruling.
the

constitutional

established

that

the

pressures
Fifth

at

The Court recognized

play,

Amendment

calling

entitles

it

aliens

"well
to

due

process of law in deportation proceedings."

Id. at 523 (quoting

Reno v. Flores, 507 U.S. 292, 306 (1993)).

Yet, the Court also

noted

a

that

deportation

"[d]etention
procedure,"

is

id.

necessarily
at

524

part

(alteration

in

of

[the]

original)

(quoting Carlson v. Landon, 342 U.S. 524, 538 (1952)), and that
Congress may employ "reasonable presumptions and generic rules"
when legislating with respect to aliens, id. at 526 (quoting
Flores, 507 U.S. at 313).

Accordingly, the Court left a limited

degree of constitutional space to Congress' categorical judgment
that, "even with individualized screening, releasing deportable
criminal aliens on bond would lead to an unacceptable rate of
flight."

Id. at 520.
The

"limited"

scope

however, was plainly evident.
detention

central

to

its

of

this

categorical

sanction,

The Court made the brevity of the

holding:
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"We

hold

that

Congress,

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justifiably concerned that deportable criminal aliens who are
not detained continue to engage in crime and fail to appear for
their

removal

hearings

in

large

numbers,

may

require

that

persons such as respondent be detained for the brief period
necessary for their removal proceedings."
added).

This was no passing remark.

Id. at 513 (emphasis

See id. at 526 ("[T]he

Government may constitutionally detain deportable aliens during
the

limited

period

(emphasis added)).

necessary

for

their

removal

proceedings."

Indeed, the Court took pains to point out

the specific durations that it envisioned were encompassed by
its holding:

"[T]he detention at stake under § 1226(c) lasts

roughly a month and a half in the vast majority of cases in
which it is invoked, and about five months in the minority of
cases in which the alien chooses to appeal."
In

a

concurring

opinion,

Id. at 530.

Justice

Kennedy

drove

the

point of temporal limitations home, noting that an alien "could
be entitled to an individualized determination as to his risk of
flight

and

unreasonable
concurring).

dangerousness
or

if

the

unjustified."

continued
Id.

at

detention

532

became

(Kennedy,

J.,

"Were there to be an unreasonable delay by the

[government] in pursuing and completing deportation proceedings,
it could become necessary then to inquire whether the detention
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is not to facilitate deportation, or to protect against risk of
flight or dangerousness, but to incarcerate for other reasons."
Id. at 532-33.
The case before us tests the assumption upon which
Demore

was

based,

and

asks

whether

Congress

may

employ

categorical, mandatory detention for "the period necessary for
removal proceedings" when that period turns out not to be so
"brief" after all.
The

concept

of

a

categorical,

mandatory,

and

indeterminate detention raises severe constitutional concerns.
"Freedom from imprisonment--from government custody, detention,
or other forms of physical restraint--lies at the heart of the
liberty that [the Due Process] Clause protects."
Davis, 533 U.S. 678, 690 (2001).

Zadvydas v.

Because of the limited nature

of the holding in Demore, every federal court of appeals to
examine § 1226(c) has recognized that the Due Process Clause
imposes

some

form

of

"reasonableness"

limitation

upon

the

duration of detention that can be considered justifiable under
that statute.

See Lora v. Shanahan, 804 F.3d 601, 606 (2d Cir.

2015); Rodriguez v. Robbins (Rodriguez I), 715 F.3d 1127, 1138
(9th Cir. 2013); Diop v. ICE/Homeland Sec., 656 F.3d 221, 232-33
(3d Cir. 2011); Ly v. Hansen, 351 F.3d 263, 269-70 (6th Cir.
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2003).

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And, each circuit has found it necessary to read an

implicit
generally

reasonableness
based

on

the

requirement
doctrine

into

of

the

statute

constitutional

itself,

avoidance.

See Lora, 804 F.3d at 614; Rodriguez I, 715 F.3d at 1138; Diop,
656 F.3d at 235; Ly, 351 F.3d at 270.
This is not, as the government contends, contrary to
congressional

intent.

presumption

that

"[C]ourts

Congress

unconstitutional laws."

interpret

does

not

statutes
intend

Diop, 656 F.3d at 231.

with
to

the
pass

In this case,

"while Congress did express a desire to have certain criminal
aliens

incarcerated

during

removal

proceedings,

it

also

clear that such proceedings were to proceed quickly."

made

Ly, 351

F.3d at 269; see also Diop, 656 F.3d at 235 ("We do not believe
that Congress intended to authorize prolonged, unreasonable[]
detention without a bond hearing.").
accords

with

Demore's

authorization

This reading similarly
of

only

a

"brief"

or

"limited" detention, 538 U.S. at 513, 526, and Justice Kennedy's
stipulation that an individualized determination would become
necessary

"if

the

continued

detention

became

unreasonable

or

unjustified," id. at 532 (Kennedy, J., concurring).
Yet, the courts of appeals have split on the method
for enforcing this statutory reasonableness requirement.
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Third and Sixth Circuits have held that individualized review is
necessary in order to determine whether the detention has become
unreasonable.
inquiry

See

into

Diop,

whether

656

detention

F.3d
has

at

233

become

(noting

that

unreasonable

the

"will

necessarily be a fact-dependent inquiry that will vary depending
on

individual

circumstances"

and

"declin[ing]

to

establish

a

universal point at which detention will always be considered
unreasonable");

Ly,

351

F.3d

at

271

("A

bright-line

time

limitation . . . would not be appropriate . . . . [C]ourts must
examine the facts of each case[] to determine whether there has
been unreasonable delay in concluding removal proceedings.").
"Under this approach, every detainee must file a habeas petition
challenging

detention,

and

the

district

courts

must

then

adjudicate the petition to determine whether the individual's
detention

has

crossed

the

'reasonableness'

entitling him to a bail hearing."

threshold,

thus

Lora, 804 F.3d at 614; see

also Ly, 351 F.3d at 272.
The Second and Ninth Circuits, on the other hand, have
"appl[ied] a bright-line rule to cases of mandatory detention"
and

have

held

that

"the

government's

'statutory

mandatory

detention authority under Section 1226(c) . . . [is] limited to
a

six-month

period,

subject

to

a

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finding

of

flight

risk

or

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dangerousness.'"

Lora,

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804

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F.3d

at

614

Entry ID: 5991777

(alterations

original) (quoting Rodriguez I, 715 F.3d at 1133).

in

Under this

interpretation, every alien held pursuant to § 1226(c) must be
provided a bond hearing once his or her detention reaches the
six-month mark, because any categorical and mandatory detention
beyond that timeframe is presumptively unreasonable.
616.

Id. at

The detainee may continue to be held if an IJ determines

that the individual does, in fact, pose a flight risk or danger
to society, but the categorical nature of the detention expires.
Id.
In
legal

this

circuit

justifications

and

split,

we

practical

sense

a

tension

considerations.

between
From

a

strictly legal perspective, we think that the Third and Sixth
Circuits have the better of the argument.

This view is informed

by our analysis regarding the source of the six-month rule, the
nature

of

the

reasonableness

inquiry

itself,

and

the

circumstances surrounding the Supreme Court's Demore decision.
To

justify

employing

a

six-month

presumption,

the

Second and Ninth Circuits point to the Supreme Court's decision
in Zadvydas.
thorny problem.

There, the Court was faced with a particularly
Aliens who had been deemed unlawfully present,

had completed removal proceedings, and had a final removal order
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entered against them were subject to detention during a 90-day
statutory "removal period" while the government secured their
physical removal from the country.

533 U.S. at 682.

If the

government failed to remove the alien from the country during
this time period, the government could continue to detain them
for successive periods so long as they posed a risk to the
community or were unlikely to comply with the order of removal
when such physical removal became possible.
arose

when,

country

for

one

willing

to

reason

or

accept

another,

the

alien

Id.

there
and

The trouble

was

simply

no

no

reasonably

foreseeable point at which the detained individual would ever be
released from this theoretically interim detention.
86.

Id. at 684-

The question thus became "whether [the] post-removal-period

statute authorize[d] the Attorney General to detain a removable
alien

indefinitely

beyond

the

removal

period

or

only

for

period reasonably necessary to secure the alien's removal."

a

Id.

at 682.
There, as here, the solution was to read an implicit
reasonableness

limitation

constitutional conflict.
removal

is

not

into

the

Id. at 689.

reasonably

statute

to

avoid

The Court held that "if

foreseeable,"

then

"continued

detention . . . [is] no longer authorized by [the] statute."
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Id.

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at

699-700.

The

Page: 17

Court

Date Filed: 04/13/2016

then

adopted a six-month presumption:

went

one

step

Entry ID: 5991777

further

and

"After [a] [six]–month period,

once the alien provides good reason to believe that there is no
significant likelihood of removal in the reasonably foreseeable
future, the Government must respond with evidence sufficient to
rebut that showing."

Id. at 701.

Although it is tempting to transplant this presumption
into

§ 1226(c)

based

on

the

superficial

similarities

problems posed, such a presumption has no place here.

of

the

Unlike

the "post-removal-period detention" at issue in Zadvydas, which
had

"no

obvious

termination

point,"

a

"detention

pending

a

determination of removability" under § 1226(c) has "a definite
termination point."
533

U.S.

at

697).

Demore, 538 U.S. at 529 (quoting Zadvydas,
Just

because

the

conclusion

of

removal

proceedings may not be imminent does not mean the conclusion is
not reasonably foreseeable.

Why does this distinction matter?

Because the six-month presumption developed in Zadvydas would
never be triggered under the circumstances found here.
In adopting a bright-line six-month rule, the Second
and

Ninth

Circuits

have

looked

past

the

primary

Zadvydas and fixated on a secondary, backup rule.

lesson

of

In Zadvydas,

the Court read an implicit reasonableness limitation into the
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statute and then noted that judges evaluating such cases "should
measure reasonableness primarily in terms of the statute's basic
purpose."

533 U.S. at 699.

reasonably

foreseeable

When faced with a detention with no

end,

the

statute's

purpose--"namely,

assuring the alien's presence at the moment of removal"--was
drawn into doubt, making continued detention "unreasonable and
no longer authorized by [the] statute."
This

primary

holding

was

Id. at 699-700.
then

secondary bright-line six-month rule.

buttressed

by

a

The Court pointed out

that not every alien to be removed would be released after six
months.
until

"To the contrary, an alien may be held in confinement

it

likelihood
Id.

at

has
of

been

removal

701.

demonstrated

determined

If
"no

six

in

the

months

significant

that

there

reasonably
had

passed

likelihood

is

no

significant

foreseeable
and
of

the

future."

alien

removal

in

had
the

reasonably foreseeable future," then the government was required
to "respond with evidence sufficient to rebut that showing."
Id.

If

the

government

could

demonstrate

a

reasonably

foreseeable termination point, the detention continued.
Thus, the secondary six-month rule was predicated on
there being no foreseeable hope of removal.
case,

the

confinement

at

issue

in

- 17 -

Zadvydas

Unlike in this
was

"potentially

Case: 14-1270

Document: 00116985357

permanent."

Page: 19

Id. at 691.

Date Filed: 04/13/2016

Entry ID: 5991777

Because the detention in such cases

had to stop at some point, and there were simply no metrics by
which to judge just how much longer towards eternity could be
considered "reasonable," a bright-line rule was warranted.
is

why

we

think

it

inappropriate

to

import

the

That

six-month

presumption from Zadvydas into a statute where individualized
reasonableness review remains feasible.
This

brings

us

to

"reasonableness" inquiry itself.
"[r]easonableness,

by

its

the

character

of

the

As the Diop court pointed out,

very

nature,

is

a

fact-dependent

inquiry requiring an assessment of all of the circumstances of
any

given

case."

656

F.3d

at

234.

The

reasonableness

of

continued detention under § 1226(c) must be measured "primarily
in terms of the statute's basic purpose."
699.

Although

the

statute's

purpose

at

Zadvydas, 533 U.S. at
first

glance

is

to

protect public safety and ensure that aliens appear for their
removal proceedings, we think the purpose is a bit more nuanced
than that.

If an individualized determination of flight and

safety risk were sufficient, for example, there would be little
reason to pass § 1226(c) at all.
Instead, the statute was passed "against a backdrop of
wholesale failure by the INS to deal with increasing rates of
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Entry ID: 5991777

criminal activity by aliens" and "near-total inability to remove
deportable
detain

criminal

[such]

aliens"

aliens

due

during

Demore, 538 U.S. at 518-19.
§ 1226(c)

is

its

to

their

"the

agency's

deportation

failure

to

proceedings."

Thus, the animating force behind

categorical

and

certain class of criminal aliens.

mandatory

treatment

of

a

Measuring reasonableness by

this basic purpose requires a different inquiry than the flightand-safety-risk evaluation conducted in an individualized bond
hearing.
of

an

Therefore, arguing that aliens receive the equivalent
individualized

hearings

entails

a

"reasonableness"
certain

judicial

Rodriguez I, 715 F.3d at 1139.

review

at

their

sleight-of-hand.

bond
See

It is a supposed finding of

"unreasonableness" under the implicit statutory limitation that
entitles the alien to a bond hearing in the first place.

In

other words, while the Second and Ninth Circuits claim to have
read an implicit "reasonableness limitation" into § 1226(c), we
think it more accurate to say that they have simply read an
implicit "six-month expiration" into § 1226(c).
Finally, we view Demore as implicitly foreclosing our
ability to adopt a firm six-month rule.
Court

declined

to

state

any

specific

In Demore, the Supreme
time

limit

in

a

case

involving a detainee who had already been held for approximately
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six months.

Page: 21

Date Filed: 04/13/2016

Entry ID: 5991777

See 538 U.S. at 530-31 (noting that most removal

proceedings usually require one to five months, and that the
respondent

had

average

spending

–

been

"detained
six

months

for
in

somewhat
INS

longer

custody

than

prior

to

the
the

. . . habeas relief"); Ly, 351 F.3d at 271 (noting that Demore
"specifically
there").

authorized

such

detention

in

the

circumstances

The Demore Court also briefly discussed facts specific

to the detainee, such as his request for a continuance of his
removal hearing.
Zadvydas,

538 U.S. at 531 & n.15.

Demore,

and

the

inherent

Taken together,
nature

of

the

"reasonableness" inquiry weigh heavily against adopting a sixmonth presumption of unreasonableness.
From

a

more

practical

standpoint,

however,

the

approach employed by the Third and Sixth Circuits has little to
recommend

it.

Reid

and

his

problems raised by the method.

amici

point

to

a

plethora

of

First, the approach has resulted

in wildly inconsistent determinations.

See Lora, 804 F.3d at

615

that

(collecting

cases

and

noting

"the

pervasive

inconsistency and confusion exhibited by district courts . . .
when asked to apply a reasonableness test on a case-by-case
basis weighs, in our view, in favor of adopting an approach that
affords more certainty and predictability").
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Entry ID: 5991777

Second, the failure to adopt a bright-line rule may
have the perverse effect of increasing detention times for those
least likely to actually be removed at the conclusion of their
proceedings.

See Rodriguez v. Robbins (Rodriguez II), 804 F.3d

1060, 1072 (9th Cir. 2015) ("Non-citizens who vigorously pursue
claims

for

detention

relief
periods

from
than

removal
those

face

who

substantially

concede

longer

removability.").

Moreover, federal habeas litigation itself is both complicated
and

time-consuming,

especially

represented by counsel.

for

aliens

who

may

not

be

See Lora, 804 F.3d at 615 ("[A six-

month] rule avoids the random outcomes resulting from individual
habeas litigation in which some detainees are represented by
counsel

and

adjudicated

some
in

are

months

not,
and

and

some

others

habeas

are

not

petitions

are

adjudicated

for

years.").
Third,
individualized

even
habeas

courts
approach

that
have

have
questioned

adopted
the

the

federal

courts' "institutional competence" to adjudicate these issues
and the consequences of such an interpretation.

See Ly, 351

F.3d at 272 (noting that the habeas approach raises "a question
of institutional competence" since "federal courts are obviously
less well situated to know how much time is required to bring a
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Page: 23

Date Filed: 04/13/2016

removal proceeding to conclusion").

Entry ID: 5991777

As the Third Circuit has

lamented, federal courts are faced with a "moving target" in
such cases because petitioners presumably cannot challenge their
detention

until

petitioner

it

becomes

prematurely

unreasonable,

lodges

a

challenge,

but,
the

even

if

the

detention

may

become unreasonable during the pendency of the claim.

See Diop,

656 F.3d at 227.
Moreover,

the

wastefully duplicative.

federal

courts'

involvement

is

Not only may "the underlying removal

proceedings justifying detention . . . be nearing resolution by
the time a federal court of appeals is prepared to consider
them,"

id.,

arguments

but

it

is

presented

in

also
a

likely

that

"reasonableness"

the

evidence

hearing

and

before

a

federal court are likely to overlap at the margins with the
evidence and arguments presented at a bond hearing before an
immigration court.

This inefficient use of time, effort, and

resources could be especially burdensome in jurisdictions with
large immigration dockets.

See Lora, 804 F.3d at 615-16.

Finally, Reid and his amici stress the harms suffered
by

detainees

prolonged
cognizance,

and

their

detention.
we

do

families
While

not

mean

when

perhaps
to

- 22 -

detainees
beyond

diminish

the

are
our

held

in

judicial

real,

human

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Date Filed: 04/13/2016

Entry ID: 5991777

consequences of being held for prolonged periods of time in
civil confinement away from family, friends, and loved ones.
Despite

the

practical

advantages

of

the

Second

and

Ninth Circuits' approach, however, we have surveyed the legal
landscape and consider ourselves duty-bound to follow the trail
set out by the Third and Sixth Circuits.
offer

significant

benefits,

but

A bright-line rule may
these

are

persuasive

justifications for legislative or administrative3 intervention,
not judicial decree.

In the end, we think the Third and Sixth

Circuits' individualized approach adheres more closely to legal
precedent

than

the

extraordinary

intervention

requested

by

Petitioner.
In

conducting

this

individualized

reasonableness

inquiry, the district court must evaluate whether the alien's
continued detention sufficiently serves the categorical purpose
of the statute.

This is not, as the government contends, simply

3

To be clear, it is quite possible that the government is
less captive to § 1226(c)'s categorical command than it
believes. Because we read an implicit reasonableness limitation
into the statute itself, the statute authorizes a bond hearing
as soon as continued, mandatory detention has reached the point
of being constitutionally unreasonable.
Whether (and how) the
government may rely upon this implicit component of the statute
to streamline its detention procedures for aliens who have been
detained under § 1226(c) for a prolonged period of time poses a
question for another day.

- 23 -

Case: 14-1270

a

Document: 00116985357

question

unjustifiable

of

asking

delays

in

Page: 25

"whether
the

Date Filed: 04/13/2016

there

proceedings

are

Entry ID: 5991777

significant,

ordered

at

the

government's request or other evidence demonstrating that the
government is not actively engaged in prosecution of the removal
case."
The government's view of reasonableness fails for two
reasons.

First,

while

the

Demore

Court

did

not

find

any

specific duration dispositive, the holding was premised on the
notion that proceedings would be resolved within a matter of
months, including any time taken for appeal by the detainee.
See 538 U.S. at 529.

The majority emphasized that "[t]he very

limited time of the detention at stake under § 1226(c) [was] not
missed by the dissent," which referred to proceedings taking
"several months."

Id. at 529 n.12.

The majority then employed

a "but see" citation with respect to the dissent's warning that
§ 1226(c) could result in a "potentially lengthy detention."
Id.
its

Thus, the Demore majority disclaimed any suggestion that
decision

somehow

sanctioned

categorical

custody

beyond

a

matter of months.
The

Third

Circuit's

Diop

decision

provides

example of why the government's reading must fail.

a

clear

In that

case, "[t]he Government doggedly pursued Diop's detention and
- 24 -

Case: 14-1270

Document: 00116985357

removal

for

three

Page: 26

years."

Date Filed: 04/13/2016

Diop,

656

F.3d

at

Entry ID: 5991777

228.

The

government did not "delay" proceedings, and yet the detention
still reached an unreasonable duration.

As that court noted,

"individual actions by various actors in the immigration system,
each

of

which

accomplish,

takes

can

only

a

nevertheless

reasonable
result

in

amount
the

of

time

detention

of

removable alien for an unreasonable . . . period of time."
at

223.

Total

duration

matters

to

a

person

held

to

in

a

Id.
civil

confinement, and due process demands a better answer than "we
haven't gotten around to it yet."
The

second

problem

with

the

government's

suggested

reading is its failure to focus on the categorical nature of the
detention.

While detention under § 1226(c) undoubtedly prevents

flight and protects the public, this argument involves the same
stratagem used by the Ninth Circuit in finding bond hearings
sufficient to satisfy the implicit reasonableness requirement.
The basic purpose of § 1226(c) is not merely flight and danger
prevention.

After all, an alien who, at a bond hearing, is

found likely to abscond or harm society could clearly remain in
detention.

The

specific

purpose

of

§ 1226(c)

is

to

categorically deny bond hearings to a class of aliens who may
pose

these

threats.

An

inquiry
- 25 -

into

the

reasonableness

of

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Entry ID: 5991777

categorical detention must, therefore, be measured by reference
to Congress' use of "reasonable presumptions and generic rules"
about danger and flight risk.

Demore, 538 U.S. at 526 (quoting

Flores, 507 U.S. at 313).
Categorical detention is only permitted for a short
time

as

process."

"a

constitutionally

valid

aspect

Id. at 523 (emphasis added).

of

the

deportation

As Justice Kennedy

noted in his Demore concurrence, the government's categorical
denial of bond hearings is premised upon the alien's presumed
deportability and the government's presumed ability to reach the
removal decision within a brief period of time.

See id. at 531

(Kennedy, J., concurring) ("While the justification for 8 U.S.C.
§ 1226(c) is based upon the Government's concerns over the risks
of flight and danger to the community, the ultimate purpose
behind

the

detention

is

premised

upon

the

alien's

deportability." (citation omitted)); see also Ly, 351 F.3d at
271-72 ("The actual removability of a criminal alien . . . has
bearing on the reasonableness of his detention prior to removal
proceedings.").
the

In other words, there is a difference between

"foreseeability"

"foreseeability"

of

of

proceedings

proceedings

ending

- 26 -

ending
adversely.

and
As

the
the

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Entry ID: 5991777

likelihood of an imminent removal order diminishes, so too does
the government's interest in detention without a bond hearing.
Thus, a court looking to measure the reasonableness of
continued categorical detention must examine the presumptions
upon which that categorical treatment was based (such as brevity
and removability).

As the actualization of these presumptions

grows weaker or more attenuated, the categorical nature of the
detention will become increasingly unreasonable.
court

might

examine,

inter

alia,

the

total

For example, a
length

of

the

detention; the foreseeability of proceedings concluding in the
near future (or the likely duration of future detention); the
period of the detention compared to the criminal sentence; the
promptness

(or

delay)

of

the

immigration

authorities

or

the

detainee; and the likelihood that the proceedings will culminate
in a final removal order.4

4

These non-exhaustive factors are similar to those advanced
by the Ly court. See Flores-Powell v. Chadbourne, 677 F. Supp.
2d 455, 471 (D. Mass. 2010) (summarizing the factors from Ly,
351 F.3d at 271-72, that are suggestive of unreasonable delay:
"(1) the overall length of detention; (2) whether the civil
detention is for a longer period than the criminal sentence for
the crimes resulting in the deportable status; (3) whether
actual removal is reasonably foreseeable; (4) whether the
immigration authority acted promptly to advance its interests;
and (5) whether the petitioner engaged in dilatory tactics in
the Immigration Court").

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Entry ID: 5991777

Two clarifications are worth noting here. First, there is
a difference between "dilatory tactics" and the exercise of an
alien’s rights to appeal. As the Ly court noted:
[A]ppeals and petitions for relief are to be
expected as a natural part of the process.
An alien who would not normally be subject
to
indefinite
detention
cannot
be
so
detained merely because he seeks to explore
avenues of relief that the law makes
available to him.
Further, although an
alien may be responsible for seeking relief,
he is not responsible for the amount of time
that such determinations may take. The mere
fact that an alien has sought relief from
deportation does not authorize the INS to
drag its heels indefinitely in making a
decision.
The entire process, not merely
the original deportation hearing, is subject
to
the
constitutional
requirement
of
reasonability.
351 F.3d at 272.
In Demore, the Supreme Court held that
detention for a number of months remains appropriate "in the
minority of cases in which the alien chooses to appeal."
538
U.S. at 530 (emphasis added).
When an alien appeals, and the
appeal occurs within this limited timeframe, a presumption of
removability remains and a presumption of promptness remains.
Although there may come a time when promptness lapses, aliens
may be detained for "several months" before this point is
reached. Id. at 529 n.12. Of course, the same logic would not
apply if a detainee prevails before an IJ and the government
appeals.
In
such
cases,
the
presumption
of
ultimate
removability is weakened, rendering the alien’s continued
categorical detention far less reasonable.
(Of course, an IJ
might still find such an alien too risky to release at an
individualized bond hearing.)
Second, we think it worth noting that the Ninth Circuit, in
Rodriguez II, recently rejected a proposal that an IJ consider
"the likely duration of future detention and the likelihood of
eventual removal" at bond hearings because consideration of

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There

may

be

Page: 30

other

Date Filed: 04/13/2016

factors

that

bear

Entry ID: 5991777

on

the

reasonableness of categorical detention, but we need not strain
to develop an exhaustive taxonomy here.
only

to

help

guideposts

for

resolve
other

the

case

courts

We note these factors

before

conducting

us

such

and
a

to

provide

reasonableness

review.
Applying the rule we have adopted today to the case at
bar, we affirm the district court's individualized holding with
respect

to

Reid's

particular

habeas

petition.

In

its

alternative holding, the district court weighed "the length of
detention;

the

period

of

detention

compared

to

the

criminal

sentence; the foreseeability of removal; the prompt action of
immigration authorities; and whether the petitioner engaged in
any dilatory tactics."

Reid I, 991 F. Supp. 2d at 281.

court

Reid

also

noted

that

had

been

detained

for

The

fourteen

months, which was "well beyond the brief detainment contemplated
in

Demore."

Id.

These

factors

aptly

anticipated

those

those factors "would require legal and political analyses beyond
what would otherwise be considered at a bond hearing." 804 F.3d
at 1089. While we agree that these factors are not relevant at
a bond hearing, where the focus is on the alien’s flight and
safety risk, these factors are relevant when a federal court is
conducting a reasonableness inquiry and determining whether a
bond hearing needs to be held in the first place.

- 29 -

Case: 14-1270

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articulated
holding

above,

that

and

Reid's

Page: 31

we

Date Filed: 04/13/2016

agree

detention

with

had

the

become

district

Entry ID: 5991777

court's

unreasonable

under

§ 1226(c).
Moreover,

Reid's

case

had

already

been

through

one

round of appeals and was pending another round at the time of
the lower court's decision, making final resolution "certainly
far enough out to implicate due process concerns."
None of these appeals involved "dilatory tactics."

Id. at 282.
Id.

Rather,

Reid "raised a colorable claim against deportation and . . .
vigorously contest[ed] removal."

Id.

Finally, it should be

noted that although the IJ's initial order was adverse to Reid,
the BIA's first decision, rendered almost a year after detention
began,

reversed

and

remanded

the

IJ's

determination,

drawing

into question Reid's presumed deportability.
With respect to the class claims, however, we must
vacate

the

district

district

court

court's

certified

summary
a

class

judgment

decision.

consisting

of

The
"[a]ll

individuals who are or will be detained within the Commonwealth
of Massachusetts pursuant to 8 U.S.C. § 1226(c) for over six
months

and

hearing."

have

not

been

afforded

an

individualized

bond

Reid v. Donelan, 297 F.R.D. 185, 194 (D. Mass. 2014).

The court subsequently granted summary judgment to this class on
- 30 -

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the

Document: 00116985357

basis

of

its

bright-line rule.

Page: 32

previous

Date Filed: 04/13/2016

decisions

adopting

Entry ID: 5991777

the

six-month

See Reid II, 22 F. Supp. 3d at 88-89.

It

then examined the appropriate relief, which included a request
by Reid that the court mandate certain procedural protections at
bond

hearings--protections

that

exceed

those

currently

contemplated by regulations implementing bond hearings under 8
U.S.C. § 1226(a).
procedural
require

The court declined to impose these additional

protections,

them.

See

concluding

id.

at

that

92-93.

due

Reid

process

did

cross-appeals

not
this

conclusion, offering a bevy of weighty constitutional arguments.
Yet,

Reid's

personal

situation

does

adjudication of these constitutional questions.

not

warrant

Reid received a

bond hearing pursuant to the district court's order and was
granted

bond.

attributable

He
to

has

the

thus

suffered

challenged

no

procedures,

cognizable
and

the

harm
claim

persists only with respect to the class that Reid represents.
The problem, however, is that the district court's adoption of
the

bright-line

certification.
approach,

rule

was

an

essential

predicate

to

class

Our ruling today, requiring an individualized

removes

that

predicate.

The

class

substantially overbroad in light of our disposition.

- 31 -

is

thus

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Entry ID: 5991777

When a class representative lacks a live claim, and
changes in the law--whether through legislative enactment, see
Kremens

v.

Bartley,

431

U.S.

119,

130

(1977),

or

judicial

decision, see Hartman v. Duffey, 19 F.3d 1459, 1470, 1474-75
(D.C. Cir. 1994)--cast substantial doubt on the composition of
the class, it is appropriate to remand for reconsideration of
the class certification.

This prudential procedure recognizes

that

about

serious

concerns

premature

adjudication

of

constitutional questions arise where the legitimacy of a class
is called into question by changes in the law.

See Kremens, 431

U.S. at 128, 136-37; Smook v. Minnehaha County, 457 F.3d 806,
815 (8th Cir. 2006). Those concerns are heightened where, as
here, we lack information about the status of the unnamed class
members,

including

whether

they

have

been

afforded

bond

hearings, whether any of them have been denied bond under the
challenged procedures, and the justification for those denials.
Remand

(rather

than

dismissal)

is

also

fairer

to

the

class

members, especially since the government has not appealed the
class certification order, and we have no briefing from the
parties about the impact our case-by-case rule has on the class
as a whole.

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Entry ID: 5991777

On remand, the district court may consider whether it
is feasible to redefine the class, excluding those class members
with

moot

claims

and

substituting

live claims as appropriate.

class

representatives

with

See Fed. R. Civ. P. 23; Kremens,

431 U.S. at 134-35; Hartman, 19 F.3d at 1474.

It may well be

that no suitable class can be formed, and that the due process
concerns presented by the bond procedures must be raised by an
individual

denied

bond

under

these

standards,

in

which

case

decertification of the present class is the appropriate course.
See Smook, 457 F.3d at 815.
In
decision

to

concluding,

read

an

we

implicit

wish

to

emphasize

our

requirement

reasonableness

that

into

§ 1226(c) cannot be read so broadly as to unwind § 1226(c)'s
mandatory

detention

requirement.

There

is

no

challenge like Demore's would still fail today.
mandatory

detention

constitutional,

for

a

any

challenge

and

brief,

reasonable
to

such

doubt

that

a

Categorical and
duration

detention

remains
at

the

outset or early stages of categorical custody must be dismissed
without hesitation.

As long as the statute remains in effect,

Demore so requires.
Yet, at a certain point the constitutional imperatives
of

the

Due

Process

Clause

begin

- 33 -

to

eclipse

the

claimed

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Document: 00116985357

justifications

for

such

Page: 35

bridling

Date Filed: 04/13/2016

custodial

power.

Entry ID: 5991777

When

the

duration of this categorical custody exceeds reasonable bounds,
the

implicit

terms

of

the

statute

disclaim

any

pretense

to

bolster the state's unconstitutional bidding.5
III.

Conclusion

For the foregoing reasons, the judgment is AFFIRMED as
to Reid and VACATED as to the class members.

Because we reject

the six-month presumption underlying the class certification and
judgment, the class action is REMANDED for reconsideration of
the

certification

order

in

a

manner

consistent

with

this

decision.

5

Because our affirmance in this case is limited to the
particular facts presented by Reid's petition, we have no
occasion to consider here whether another petitioner might be
able to challenge the individualized reasonableness of his
continued categorical detention before the immigration courts
rather than the federal courts.
The regulatory and statutory
regime does not explicitly address the propriety of such an
approach, and the parties before us have not fully briefed or
argued the issue. Given the shortcomings of case-by-case habeas
review identified above, however, it would be appropriate for
the executive (or the legislature, as the case may be) to
consider explicitly permitting detainees in the position of the
petitioner to seek a reasonableness review before a federal
court or before an IJ more familiar with the intricacies of the
case and the particulars of the underlying removal proceedings.

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