Reid v. Donelan et al

Filing 80

Judge Michael A. Ponsor: MEMORANDUM AND ORDER entered. As follows: For the reasons outlined in the attached memo and order, Plaintiffs Petition for Habeas Corpus (Dkt. No. 4 ) is hereby ALLOWED, and Plaintiffs Motion for Order to Show Cause (Dkt. No . 5 ) is hereby DENIED as moot. Having allowed the Petition for Habeas Corpus, the court orders as follows: 1. Petitioner will receive a bond hearing by February 7, 2014, before an Immigration Judge, at which the judge will consider whether conditio ns may be placed upon Petitioners release that will reasonably ensure that he will pose no danger to the community and will not pose a risk of flight. If such conditions are found to exist, Petitioner will be released from custody. 2. Counsel for Res pondents will report to this court on or before February 14, 2014, regarding compliance with this order. This report will include notification as to the outcome of the bond hearing. 3. Failure of an Immigration Judge to conduct the bond hearing as ordered will entitle Petitioner to request a bond hearing before this court. It is So Ordered. See the attached memo and order for complete details. (Lindsay, Maurice)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
MARK ANTHONY REID, on
behalf of himself and others
similarly situated,
Plaintiff/Petitioner

v.
CHRISTOPHER DONELAN, Sheriff
of Franklin County, et. al.
Defendants/Respondents

)
)
)
)
)
)
) C.A. NO. 13-cv-30125-MAP
)
)
)
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MEMORANDUM AND ORDER REGARDING
PLAINTIFF’S PETITION FOR WRIT OF HABEAS CORPUS
AND PLAINTIFF’S MOTION FOR ORDER TO SHOW CAUSE
(Dkt. No. 4 & 5)
January 9, 2014
PONSOR, U.S.D.J.
I.

INTRODUCTION

Plaintiff, a lawful permanent resident, has been held
in immigration detention for fourteen months pursuant to 8
U.S.C. § 1226(c).

He has brought a Petition for Writ of

Habeas Corpus, 28 U.S.C. § 2241, seeking an individualized
bond hearing to challenge his detention.

(Dkt. No. 4.)

has also filed a Motion for Order to Show Cause.
5.)

He

(Dkt. No.

Defendants are: Christopher Donelan, Sheriff of

Franklin County; David Lanoie, Superintendent, Franklin

County Jail and House of Correction; Jeh Charles Johnson,
Secretary of the Department of Homeland Security; John
Morton, Director of Immigration and Customs Enforcement
(ICE); Dorothy Herrera-Niles, Director, ICE Boston Field
Office; Thomas Hodgson, Sheriff of Bristol County; Joseph
McDonald, Jr., Sheriff of Plymouth County; Steven Tompkins,
Sheriff of Suffolk County; Eric Holder, Attorney General of
the United States; Juan Osuna, Director of the Executive
Office for Immigration Review; and The Executive Office for
Immigration Review.
The decision in Bourguignon v. MacDonald, 667 F. Supp.
2d 175 (D. Mass. 2009), finding a “reasonableness”
requirement embedded in § 1226(c), controls this case.
Because detention pursuant to § 1226(c) for over six months
is presumptively unreasonable, the court will grant
Plaintiff’s Petition for Habeas Corpus and deny as moot
Plaintiff’s Motion for Order to Show Cause.

Furthermore,

even if detention after six months were not categorically
unreasonable, the facts of this case would still entitle
Plaintiff to an individualized bond hearing.

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II.

BACKGROUND1

Plaintiff, Mark Anthony Reid, left Jamaica for the
United States in 1978 and was admitted as a lawful permanent
resident.

Although Plaintiff faced a number of hardships

growing up, he earned a GED and served in the U.S. Army
Reserve for six years.
Between 1986 and 2010 Plaintiff amassed an extensive
criminal history.

His convictions included, inter alia,

possession of narcotics, larceny, assault, interfering with
an officer, driving with a suspended license, and selling
illegal drugs.

Relevant for the pending motions are his

convictions for selling an illegal drug, third degree
burglary, and failure to appear.

As a result of those

convictions in 2010, Plaintiff was sentenced in Connecticut
state court to twelve years in prison, to be suspended after
five.
After Plaintiff served two years in prison, he was
paroled on November 13, 2012.

On the same day, ICE took

1

The facts are drawn from Plaintiff’s Petition for Habeas
Corpus. (Dkt. No. 4.)
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Plaintiff into custody pursuant to 8 U.S.C. § 1226(c).2
immediately took action to remove Plaintiff.

ICE

Although

Plaintiff conceded the factual allegations underlying the
case, he sought relief on two grounds.

First, he argued

that the Convention Against Torture (CAT) applied.

Second,

he believed that removal was a disproportionate punishment
to the crimes committed.
A hearing on these claims was held before an
Immigration Judge (IJ) on February 13, 2013.

Two months

later, the IJ denied both of Plaintiff’s claims and ordered
him deported.

Plaintiff appealed to the Board of

Immigration Appeals (BIA).
While his immigration case was pending, Plaintiff filed
a motion with the IJ requesting a bond re-determination
hearing.

That motion was argued on June 17, 2013, at the

Hartford Immigration Court.

The IJ concluded that he lacked

2

Section 1226 of Title 8 governs the detention of noncitizens during immigration removal proceedings. Subsection (c) requires the government to detain certain
individuals who have committed a crime enumerated in the
statute. § 1226(c)(1). These individuals are not entitled
to an individualized bond hearing.
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authority under § 1226(c) to make a bond re-determination
and, therefore, denied Plaintiff’s motion.
On October 23, 2013, nearly half a year after the IJ
ruled on Plaintiff’s claims, the BIA reversed the IJ’s
decision and remanded the case for further proceedings
related to Plaintiff’s CAT claim.
was held on November 19, 2013.

An evidentiary hearing

On December 17, 2013, the IJ

again denied Plaintiff’s CAT claim.

(Dkt. No. 76.)

Plaintiff has indicated that he will appeal that decision to
the BIA.

(Id.)

On July 1, 2013, Plaintiff filed the present Petition
for Habeas Corpus and the Motion for Order to Show Cause to
challenge his prolonged immigration detention.3

Counsel

appeared for argument on December 12, 2013, and the court
took the matter under advisement.

3

Plaintiff also filed a Motion for Summary Judgment to
challenge ICE’s policy of shackling him during immigration
proceedings, absent an individualized determination that
such shackling was necessary, (Dkt. No. 1), and a Motion for
Class Certification. (Dkt. No. 33.) Defendants responded
with a Motion to Dismiss. (Dkt. No. 35.) The shackling
issue was postponed based upon the government’s request to
submit further briefing. The question of class
certification will be addressed in a separate memorandum and
order that will soon issue.
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III.

DISCUSSION

The answers to two questions dictate the result in this
case.

The first question is whether § 1226(c) includes a

“reasonableness” restriction on the length of time an
individual can be detained without a bond hearing.

For the

reasons set forth in Bourguignon and repeated below, the
court must conclude that such a reasonableness restriction
does exist.

The second question is how to define and apply

a “reasonableness standard.”4
A.

§ 1226(c) and a “Reasonableness” Limit
The threshold question is whether § 1226(c) imposes a

“reasonableness” limit on the length of time an individual
can be detained in immigration custody without an
individualized bond hearing.

This court has previously held

4

Defendants suggest that the claims against all parties
except Defendant Donelan should be dismissed. They
highlight Rumsfeld v. Padilla, 542 U.S. 426 (2004), to
contend the immediate custodian of a petitioner is the only
person who can be named as a defendant in a habeas action.
This argument is unavailing in this case. First, each
Sheriff-Defendant is properly named since Plaintiff seeks,
and the court has not yet decided the propriety of, class
resolution. Second, every other Defendant is potentially
required to effectuate the remedies requested. See Vasquez
v. Reno, 233 F.3d 688 (1st Cir. 2000).
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that such a limit does exist.

Bourguignon, 667 F. Supp. 2d

at 182.
Defendants believe Bourguignon was wrongly decided and
should be reconsidered.

Their argument is anchored on a

broad reading of Demore v. Kim, 538 U.S. 510 (2003), where
the Supreme Court upheld the constitutionality of § 1226(c).
Far from supporting reconsideration of Bourguignon’s
holding, Demore supports this court’s ruling.

Only a brief

discussion is required to make this clear.
As discussed in Bourguignon, the two Supreme Court
cases touching upon this issue, Zadvydas v. Davis, 533 U.S.
678 (2001), and Demore, suggest a “reasonableness” limit in
§ 1226(c).

In Zadvydas, the Supreme Court held that post-

removal detention without a bond hearing was permissible so
long as removal was “reasonably foreseeable.”
U.S. at 699.

Zadvydas, 533

In that context, detention for less than six

months was considered presumptively valid.

Id.

However,

after six-months, if an individual “provides good reason to
believe that there is no significant likelihood of removal,”
the detention is presumptively invalid and a bond hearing is
required.

Id. at 701.
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Two years later, the Supreme Court directly addressed
the constitutionality of § 1226(c) in Demore.

There, Chief

Justice Rehnquist distinguished Zadvydas and upheld the
constitutionality of § 1226(c) for the “brief period
necessary for [the detainee’s] removal proceedings.”
Demore, 538 U.S. at 513.
Picking up on that language, Justice Kennedy, in his
concurrence, explicitly identified a “reasonableness”
requirement that limited the scope of 1226(c).

He said,

“[A] lawful permanent resident . . . could be entitled to an
individualized determination as to his risk of flight and
dangerousness if the continued detention became unreasonable
or unjustified.”

Id. at 532 (Kennedy, J., concurring)

(citing Zadvydas, 533 U.S. at 684-86).
Taken together, these two cases support the conclusion
that a “reasonableness” requirement is included in the
statute.

Bourguignon, 667 F. Supp. 2d.

Such an

interpretation is necessary to avoid the Fifth Amendment due
process problem that prolonged detention, absent an

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individualized hearing, would present.5

No subsequent

controlling authority alters this analysis.
Indeed, strong authority supports this interpretation.
At least two other circuits have considered this issue and
have both found a “reasonableness” limitation in the
statute.

See Rodriguez v. Robbins, 715 F.3d 1127 (9th Cir.

2013); Diop v. ICE/Homeland Sec., 656 F.3d 221 (3d Cir.
2011).

Moreover, since Bourguignon, a majority of judges in

this district have reached the same conclusion.

See Ortega

v. Hodgson, No. 11-cv-10358-MBB, 2011 WL 4103138 (D. Mass.
Sept. 13, 2011)(Bowler, Mag. J.); Flores-Powell v.
Chadbourne, 677 F. Supp 2d 455 (D. Mass. 2010)(Wolf, J.);
Sengkeo v. Horgan, 670 F. Supp. 2d 116 (D. Mass. 2009)
(Gertner, J.); see also Zaoui v. Horgan, No. 13-11254-DPW,
2013 WL 5615913, at *4 (D. Mass. Aug. 23, 2013)(Woodlock,
J.)(finding against the petitioner, but recognizing the
“reasonableness” requirement in § 1226(c)).

5

Plaintiff also believes that the detention implicates the
Eighth Amendment. Given the strength of the due process
argument, analysis under the Eighth Amendment is
unnecessary.
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No sound reason justifies departure from Bourguignon’s
analysis.

To comply with the constitution’s due process

requirement, § 1226(c) must be read to include a
“reasonableness” limit on the length of time an individual
can be detained without an individualized bond hearing.
B.

Defining “Reasonableness”
The thornier aspect of this case lies in the definition

of “reasonableness.”

Two approaches have emerged.

One

view, adopted by the Third and Sixth Circuits, requires a
“fact-dependent inquiry requiring an assessment of all of
the circumstances of any given case,” to determine whether
detention without an individualized hearing is unreasonable.
Diop, 656 F.3d at 234 (3d Cir. 2011); see also Ly v. Hansen,
351 F.3d 263, 272 (6th Cir. 2003).

This approach requires

each detainee to file a habeas petition challenging his or
her detention.

If a federal court believes the detention

crosses the reasonableness threshold, then the individual is
subsequently entitled to a bond hearing.
The other approach, one employed by the Ninth Circuit,
applies a bright-line rule.

Under that view, the

government’s “statutory mandatory detention authority under
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Section 1226(c) . . . [is] limited to a six-month period,
subject to a finding of flight risk or dangerousness.”
Rodriguez, 715 F.3d at 1133 (9th Cir. 2013).

The Ninth

Circuit justified its view by applying one of its prior
cases, Diouf v. Napolitano, 634 F.3d 1081 (9th Cir. 2011),
to § 1226(c).

In Diouf, the court analyzed the due process

considerations arising from an immigration detention lasting
over six-months.

Consistent with Zadvydas, it concluded

that such detention, absent an individual hearing, violated
the constitution.
The First Circuit has not yet weighed in on this
question, but the simpler approach adopted by the Ninth
Circuit strikes this court as fairest to both sides.

This

rule follows in line with Supreme Court precedent, satisfies
due process, and avoids the unnecessary administrative
burden of holding two, repetitive hearings -- a habeas
proceeding to determine if a bond hearing is required and
then the bond hearing itself.

This is the approach this

court will take unless and until it is instructed otherwise.
Significantly, however, the court would grant the petition
here even using the more complex rule adopted by the Third
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and Sixth Circuits.
1.

Six-Month Rule

This rule is optimal for a number of reasons.

First,

this bright-line rule is consistent with Supreme Court
precedent.

In Zadvydas, after determining that indefinite,

post-removal detention was impermissible, the Court said,
“[W]e think it practically necessary to recognize some
presumptively reasonable period of detention.”
533 U.S. at 700-01.
Supreme Court cases.

Zadvydas,

Such pragmatism was justified by prior
Id. at 701, citing Cnty. of Riverside

v. McLaughlin, 500 U.S. 44, 56-58 (1991)(applying a 48-hour
rule to probable cause determinations); Cheff v.
Schanckenberg, 384 U.S. 373, 379-80 (1966)(plurality
opinion)(adopting a rule that the right to a jury trial
extends to all cases in which a sentence greater than six
months is imposed).

Although the six-month line did not

guarantee the detainee’s release in Zadvydas, of course, it
did entitle the detained individual to a bond hearing.
closely analogous situation is present in this case.
The Seventh Circuit’s dicta in a comparable case is
noteworthy.

As Judge Posner said, “[I]t would be a
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A

considerable paradox to confer a constitutional or quasiconstitutional right to release on an alien ordered removed
(Zadvydas) but not on one who might have a good defense to
removal.”
2007).

Hussain v. Mukasey, 510 F.3d 739, 743 (7th Cir.

The Ninth Circuit’s conclusion in Rodriguez applies

that logic to § 1226(c).

Indeed, no persuasive argument

justifies discarding this pragmatic approach when dealing
with individuals detained under § 1226(c).
The fact that Demore did not adopt a six-month rule
does not undermine this logic.

Defendants argue that the

Demore Court could have utilized this approach.

In failing

to do so, they contend, the Court made a deliberate choice.
However, the Demore Court had no reason to invoke this
rule.

Demore explicitly noted that detention under §

1226(c) is inherently “of a much shorter duration,” lasting
“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.”
U.S. at 529-31.

Demore, 538

Since the Court was facing a direct

constitutional challenge to § 1226(c) and was operating
under those temporal assumptions, it simply avoided
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answering an unripe question.6 Justice Kennedy’s
concurrence, which was the fifth vote to comprise the
majority, clearly implies as much.

In utilizing Zadyvdas to

opine on a reasonableness requirement in § 1226(c), Justice
Kennedy seems to suggest that the temporal discussion in
that case is still the most applicable law on this issue.
Id. at 532 (Kennedy, J., concurring)(citing Zadvydas
affirmatively).
Due process considerations also favor the six-month
approach.

As the Ninth Circuit said in Diouf,

When detention crosses the six-month threshold and
release or removal is not imminent, the private
interests at stake are profound. Furthermore, the
risk of an erroneous deprivation of liberty in the
absence of a hearing before a neutral
decisionmaker is substantial. The burden imposed
on the government by requiring hearings before an
immigration judge at this stage of the proceedings
is therefore a reasonable one.
Diouf, 634 F.3d at 1091-92.
These considerations, as the Ninth Circuit later found
in Rodriguez, are equally applicable to the § 1226(c)

6

Although the plaintiff’s detention in that case was for
roughly six-months, the court noted that the length was
largely due to plaintiff’s own tactics. It thus anchored
its broad decision on the average length of detainment.
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analysis.

After six months, a detainee’s private interest

in freedom from unreasonable restraint is high.

The risk of

unnecessary detention, unless it is found to be justified by
safety concerns or flight risk, is also substantial.
Significantly, the burden on the government to hold
such a bond hearing is minimal.

Indeed, adopting a six-

month approach actually eases the burden on the government.
This approach only requires the executive to hold one
hearing, rather than defend against an individual habeas
petition first.
Broader due process concerns also militate against the
individualized approach adopted by the Third and Sixth
Circuits.

Although that approach may work for those

individuals with access to the federal courts, only a
minority of detainees have this capacity.

The

individualized approach presumes that detainees have
knowledge about the American court system and have finances
to obtain an attorney (or are fortunate enough to receive
pro bono assistance) and that they have the language skills
required to navigate the legal thicket.

Simply put,

“litigation is unlikely to be a viable solution for most
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immigrants in prolonged detention . . . [because] it is
logistically difficult to bring a habeas petition.”
Geoffrey Heeren, Pulling Teeth: The State of Mandatory
Immigration Detention, 45 Harv. C.R.-C.L. L. Rev. 601, 603
(2010).

The six-month approach protects the due process

rights of all detainees whose confinement has become
“presumptively unreasonable.”7
Finally, administrative concerns favor this rule.
Defendants suggest that factual differences between cases
justify the Third and Sixth Circuit’s approach.

However,

this argument conflates the right to a bond hearing with the
outcome of said hearing -- the possible right to release.
In a bond hearing, an IJ is necessarily going to consider
the reasonableness of the alien’s continued detention.

For

example, an IJ may properly decline to grant bail to a
detainee whose stalling tactics were the sole cause of the
length of confinement.

It makes more sense to have one

7

This factor is particularly persuasive since the
government has continued to employ its interpretation of §
1226(c) as new cases arise, despite consistent court orders
to do otherwise. Absent an approach that deals with this
issue globally, Defendants will likely continue to apply
their incorrect interpretation of the statute in violation
of the Fifth Amendment.
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hearing in front of an IJ, rather than require each detainee
to file a habeas petition first so that the detainee can
obtain a hearing on whether he or she is entitled to a
hearing.

This six-month rule effectively protects both a

detainee’s due process rights and Defendants’ resources.
Under the six-month approach, the analysis in this case
is simple: Plaintiff has been held in custody for fourteen
months, and thus his continued detention without a bond
hearing is presumptively unreasonable.
2.

Case-by-Case Determination

Even if the individualized approach were more
appropriate, Plaintiff’s prolonged detention without a bond
hearing is unreasonable.

Relevant factors in this

determination include: 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.

Zaoui, 2013 WL 5615913, at *4 citing

Flores-Powell, 677 F. Supp. 2d at 471.
The length of Plaintiff’s criminal sentence compared to
his detention is the only factor that cuts against his
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claim.

That element, however, is substantially outweighed

by the length of Plaintiff’s confinement and the uncertainty
underlying his immigration case.
First, Plaintiff has been detained for fourteen months.
This is well beyond the brief detainment contemplated in
Demore.

Demore, 538 U.S. at 529.

In Demore, the Court

assumed that detention would last an average of thirty days
up to a maximum of five months.
Moreover, this court has already ruled that a sevenmonth detainment, half the length of the confinement here,
would be unreasonable.

Bourguignon, 667 F. Supp. 2d at 183.

In dealing with the defendants’ arguments in that case, this
court said, “[E]ven if the court made its calculations
conservatively. . . the more than seven-month detention
period still exceeds the brief time frame contemplated by
Chief Justice Rehnquist in Demore.”

Id.

It is significant, as well, that Plaintiff’s removal is
not foreseeable.

In Bourguignon, there was no end in sight

for the petitioner’s case before the BIA, since it was
unclear when the BIA would rule and subsequently, whether
the petitioner would appeal.

Id.
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Here, Plaintiff is even

further away from a final outcome.

Nearly half a year after

the IJ’s initial decision, the BIA reversed and remanded
Plaintiff’s case.

Then, on December 17, 2013, the IJ again

ruled against Plaintiff.
case back to the BIA.

Plaintiff now intends to bring his

At best, he will receive another

favorable decision and obtain the remedy he seeks.

At

worst, the BIA, at some indeterminate point in the future,
will rule against Plaintiff.

In that latter scenario, he

will have the right to appeal his case to the Second Circuit
Court of Appeals.

It is impossible to determine exactly

when that litigation will conclude, but the date is
certainly far enough out to implicate due process concerns.
The other relevant factors do not weigh one way or the
other.

Although the government has not dragged its feet,

Plaintiff has also not engaged in dilatory tactics.

Like

the petitioner in Bourguignon, Plaintiff has raised a
colorable claim against deportation and is vigorously
contesting removal.

Defendants’ contentions

notwithstanding, Plaintiff should not be penalized simply
because he is invoking his rights.
Ultimately, § 1226(c) includes a “reasonableness”
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threshold.

Regardless of how that limit is defined,

Plaintiff’s detention has crossed the line.

While Plaintiff

may not obtain the relief he seeks, he is at least entitled
to take a shot at persuading the IJ to release him.
IV. CONCLUSION
For the foregoing reasons, Plaintiff’s Petition for
Habeas Corpus (Dkt. No. 4) is hereby ALLOWED, and
Plaintiff’s Motion for Order to Show Cause (Dkt. No. 5) is
hereby DENIED as moot.
Having allowed the Petition for Habeas Corpus, the
court orders as follows:
1.

Petitioner will receive a bond hearing by February

7, 2014, before an Immigration Judge, at which the judge
will consider whether conditions may be placed upon
Petitioner’s release that will reasonably ensure that he
will pose no danger to the community and will not pose a
risk of flight.

If such conditions are found to exist,

Petitioner will be released from custody.
2.

Counsel for Respondents will report to this court

on or before February 14, 2014, regarding compliance with

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this order.

This report will include notification as to the

outcome of the bond hearing.
3.

Failure of an Immigration Judge to conduct the

bond hearing as ordered will entitle Petitioner to request a
bond hearing before this court.
It is So Ordered.

/s/ Michael A. Ponsor
MICHAEL A. PONSOR
U. S. District Judge

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