Maldonado v. Macias et al

Filing 6

ORDER that Petitioners Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 is GRANTED in part and DENIED in part.. Signed by Judge Kathleen Cardone. (mn)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
EFRAIN CHAVEZ MALDONADO,
Petitioner,
v.
ADRIAN P. MACIAS, et al.,
Respondents.

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EP-15-cv-221-KC

ORDER
On this day, the Court considered Petitioner Efrain Chavez-Maldonado’s Petition for
Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (“Petition”), ECF No. 1. For the reasons
set forth herein, the Petition is hereby GRANTED in part.
I.

BACKGROUND

Petitioner is a citizen and national of Mexico, residing in Chihuahua, Mexico, from about
2007 until his request for asylum on October 12, 2013. Pet. 2. On October 11, 2013, Petitioner
witnessed the murder of his twin brother by the Chihuahua State Police, who then kidnapped and
beat Petitioner. Pet. 1. On the following day, October 12, 2013, Petitioner arrived from Mexico
at the Bridge of the Americas Port of Entry in El Paso, Texas, as an applicant for asylum. Resp.
1; Mem. 8. Upon arriving at the port of entry, Petitioner was deemed to be inadmissible because
he was not in possession of a valid entry document, and he was placed in the custody of the
United States Immigration and Customs Enforcement (“ICE”). Resp. 1; Pet. 3. On October 30,
2013, Petitioner received a positive credible fear determination by the United States Citizenship

1

and Immigration Services upon his expression of fear of death if he were to return to Mexico.
Pet. 4. Removal proceedings were initiated against him on November 1, 2013. Resp. 1.
Petitioner’s first hearing before the Immigration Judge was held on November 19, 2013;
he requested and was granted a continuance to seek an attorney. Resp. 1; Reply 10. At
Petitioner’s next hearing before the Immigration Judge, on November 27, 2013, Petitioner
requested and was granted a continuance to file an application for asylum, withholding of
removal, and relief under the Convention Against Torture (“CAT”). Resp. 1. On December 17,
2013, Petitioner requested and was granted a continuance to prepare his case. Resp. 2. At a
subsequent hearing on January 7, 2014, Petitioner requested and was granted a continuance to
file his asylum application. Resp. 2. On February 6, 2014, the Government requested and was
granted a continuance to respond to Petitioner’s Motion for Administrative Closure. Resp. 2.
On March 11, 2014, Petitioner filed his application for asylum, and the Immigration Judge
scheduled a hearing on the merits of his application for asylum, withholding of removal, and
relief under CAT on May 21, 2014. Resp. 2. This merits hearing was moved to June 11, 2014,
when Petitioner requested that his case be consolidated with the case of his nephew, who was
also a witness to the murder of Petitioner’s brother. Resp. 2; Pet. 2-3.
The Immigration Judge conducted Petitioner’s merits hearing in three parts—on June 11,
June 27, and July, 30, 2014—due to the busy court schedule. Mem. 9; Reply 9 n.6. On
September 4, 2014, the Immigration Judge denied Petitioner’s request for asylum and other
relief. Pet. 4. On September 25, 2014, Petitioner appealed the Immigration Judge’s decision to
the Board of Immigration Appeals (“BIA”). Pet. 4-5. The deadline for briefs was November 21,
2014. Resp. 2. Petitioner requested an extension of the briefing deadline, which was granted,
extending the deadline to December 12, 2014. Resp. 2. On February 10, 2015, the BIA
2

remanded the case to the immigration court, finding that “the Immigration Judge did not
adequately consider” certain facts and did not “address whether [Petitioner’s] persecutors (the
Chihuahua state police) are ‘a government’ or ‘government-sponsored.’” Resp. 2; BIA Opinion,
ECF No. 4-2 at 13.
On March 19 and April 15, 2015, the Immigration Judge held additional hearings, and the
parties filed briefs on the issues remanded by the BIA. Resp. 3. On June 2, 2015, the
Immigration Judge again denied Petitioner’s request for asylum and other relief. Pet. 5. On July
2, 2015, Petitioner appealed this decision to the BIA. Pet. 5. The deadline for the briefs for this
appeal was August 24, 2015. Resp. 3.
Since being placed in ICE custody on October 12, 2013, Petitioner has submitted written
requests for parole seeking his release from custody pending removal proceedings on three
separate occasions: November 15, 2013; June 16, 2015; and July, 22, 2015. Pet. 3-4. Each time,
Petitioner’s request for parole was denied. Pet. 4. During the time that Petitioner has been
detained, he has not received a bond hearing. Mem. 15.
On July 28, 2015, Petitioner filed the instant Petition, naming Adrian P. Macias, ICE
Field Director; Loretta E. Lynch, United States Attorney General; Jeh Johnson, Secretary of
United States Department of Homeland Security; Sarah Saldana, Director of United States
Immigration and Customs Enforcement; and Don Franklin, Warden of the West Texas Detention
Facility, as Respondents. See Petition, ECF No. 1. On July 31, 2015, he filed a Memorandum in
Support of his Petition for Writ of Habeas Corpus (“Memorandum”), ECF No. 3. On July 29,
2015, the Court ordered Respondents to show cause why the petition should not be granted. See
Order, ECF No. 2. On September 11, Respondents filed their Response to Petitioner’s Petition

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for Writ of Habeas Corpus (“Response”), ECF No. 4, and, on September 25, 2015, Petitioner
filed his Reply in Support of his Filed Writ of Habeas Corpus (“Reply”), ECF No. 5.
Petitioner has been held in immigration detention from October 12, 2013 until this day—
more than twenty-six months. See Pet. 2.
II.

DISCUSSION

In addressing the Petition, the Court first considers whether it has jurisdiction to decide
Petitioner’s claims. Next, the Court considers the Government’s argument that Adrian P.
Macias, ICE Field Director, is the only proper respondent. Finally, the Court considers
Petitioner’s claims regarding the legality of his continued detention.
A.

Jurisdiction

In his Petition and Memorandum, Petitioner seeks habeas relief in the form of immediate
release from ICE custody. Pet. 2, 18; Mem. 24. Petitioner claims that his continued detention
violates the Fifth and Fourteenth Amendments to the Constitution of the United States. Pet. 12.
Petitioner also claims that his detention violates the Immigration and Nationality Act. Pet. 14.
In its Response, the Government argues that Petitioner’s detention is authorized by statute and
that “[t]he constitutionality of detention during the pendency of removal proceedings has been
upheld by the Supreme Court.” Resp. 4, 7.
“‘Federal courts are courts of limited jurisdiction,’ possessing ‘only that power
authorized by Constitution and statute.’” Gunn v. Minton, --- U.S. ----, 133 S.Ct. 1059, 1064
(2013) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). Because
federal courts are “‘duty-bound to examine the basis of subject matter jurisdiction sua sponte,’”
this Court must determine if it has jurisdiction to hear Petitioner’s claims, even though the parties
have not raised the issue. See Lane v. Halliburton, 529 F.3d 548, 565 (5th Cir. 2008) (quoting
4

Union Planters Bank Nat. Ass’n v. Salih, 369 F.3d 457, 460 (5th Cir. 2004)); see also Gonzalez
v. Thaler, --- U.S. ----, 132 S. Ct. 641, 648 (2012) (“When a requirement goes to subject-matter
jurisdiction, courts are obligated to consider sua sponte issues that the parties have disclaimed or
have not presented.” (citing United States v. Cotton, 535 U.S. 625, 630 (2002))). “If the court
determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the
action.” Fed. R. Civ. P. 12(h)(3); see also 28 U.S.C. § 1447(c) (“If at any time before final
judgment it appears that the district court lacks subject matter jurisdiction, the case shall be
remanded.”); Avitts v. Amoco Prod. Co., 53 F.3d 690, 693 (5th Cir. 1995) (explaining that a case
must be dismissed if jurisdiction is lacking, because jurisdiction “is mandatory for the
maintenance of an action in federal court”).
Title 28 U.S.C. § 2241 grants this Court jurisdiction to hear habeas corpus petitions from
aliens claiming they are held “in violation of the Constitution or laws or treaties of the United
States.” See 28 U.S.C. § 2241(c)(3); Zadvydas v. Davis, 533 U.S. 678, 687 (2001) (citing 28
U.S.C. § 2241(c)(3)). However, in 2005, Congress passed the Real ID Act, which divests district
courts of jurisdiction to hear petitions under § 2241 that attack final orders of removal. Rosales
v. Bureau of Immigration and Customs Enf’t, 426 F.3d 733, 735-36 (5th Cir. 2005). Under the
Real ID Act, district courts must transfer pending § 2241 cases to the appropriate court of
appeals, where they are converted to petitions for review of the removal order. Andrade v.
Gonzales, 459 F.3d 538, 542 (5th Cir. 2006) (citing Rosales, 426 F.3d at 736).
The Real ID Act “does not, however, preclude habeas review of challenges to detention
that are independent of challenges to removal orders.” Baez v. Bureau of Immigration and
Customs Enf’t, 150 F. App’x 311, 312 (5th Cir. 2005) (citing H.R. Rep. No. 109-72, at 300
(2005)); see also Geromino v. Mukasey, 535 F. Supp. 2d 808, 811-12 (W.D. Tex. 2008) (“The
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REAL ID Act, however, does not preclude a district court from exercising jurisdiction over
constitutional claims or questions of law which do not challenge a final order of removal.”).
Thus, even after the passage of the REAL ID Act, district courts retain the power to hear
statutory and constitutional challenges to civil immigration detention under § 2241 when those
claims do not challenge a final order of removal, but instead challenge the detention itself. Baez,
150 F. App’x at 312.
Even though this Court has jurisdiction to decide statutory and constitutional challenges
to civil immigration detention, this Court does not have jurisdiction to review the discretionary
decisions of the Attorney General. Zadvydas, 533 U.S. at 688 (citing 8 U.S.C.
§ 1252(a)(2)(B)(ii) (“[N]o court shall have jurisdiction to review . . . any other decision or action
of the Attorney General . . . the authority of which is specified under this subchapter to be in the
discretion of the Attorney General.”); see also Kambo v. Poppell, No. SA-07-CV-800-XR, 2007
WL 3051601, at *6, *8 (finding that parole and bond determinations are discretionary decisions
not subject to review).
Petitioner, who is currently held in ICE custody, first claims that his “continued detention
is a violation of his constitutionally protected due process rights,” as protected by the Fifth and
Fourteenth Amendments to the United States Constitution. Pet. 12. Thus, Petitioner is not
attacking the merits of a removal order, but is instead challenging the constitutionality of his
detention pending the resolution of his removal proceedings. Pet. 12, 14. Because the
constitutionality of Petitioner’s detention can be adjudicated without touching on the merits of
any final order of removal, jurisdiction of this claim is not precluded by the REAL ID Act. See
Baez, 150 F. App’x at 312; see also Reeves v. Johnson, No. CIV.A. 15-1962 SRC, 2015 WL
1383942, at *1 (D.N.J. Mar. 24, 2015) (“28 U.S.C. § 2241(c)(3) provides jurisdiction for district
6

courts to grant a writ of habeas corpus if the petitioner is in custody in violation of the
Constitution, or laws or treaties of the United States.”); Kambo, 2007 WL 3051601, at *9 (W.D.
Tex. Oct. 18, 2007) (explaining that the REAL ID act does not preclude habeas jurisdiction over
cases that do not involve review of an order of removal). Therefore, the Court finds that it has
subject matter jurisdiction over Petitioner’s first claim.
Secondly, Petitioner claims that his continued detention “violates the [Immigration and
Nationality Act] and its implementing regulations.” Pet. 14. Petitioner explains that the law and
regulations “impose a presumption in favor of parole if an arriving alien demonstrates that he or
she has a credible fear of persecution, that they are not a flight risk, and that they are not a danger
to the community.” Pet. 15, ¶ 52. Petitioner asserts that he meets the criteria for this
presumption and that he should, likewise, be granted parole. Pet. 15. However, the granting of
parole is clearly a discretionary decision under the statute. 8 U.S.C. § 1182(d)(5)(A) (“The
Attorney General may . . . in his discretion parole into the United States temporarily under such
conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or
significant public benefit any alien applying for admission to the United States . . . .”). Petitioner
seems to recognize as much when he states that the decision to continue to detain Petitioner is
“an abuse of discretion.” Mem. 23. Because Petitioner’s second claim involves a discretionary
decision by the Attorney General, this Court is divested of jurisdiction to resolve that challenge.
See Loa-Herrera v. Trominski, 231 F.3d 984, 990-91 (5th Cir. 2000) (“Congress, however, has
denied the district court jurisdiction to adjudicate deprivations of the plaintiffs’ statutory and
constitutional rights to parole.”); see also Medina v. Dep’t Homeland Sec., No. 13-CV-2989,
2014 WL 897804, at *2 (W.D. La. Mar. 6, 2014) (“[T]his Court has no jurisdiction to review the
Attorney General's discretionary judgment regarding his application of the release and bond
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provisions of § 1226(a) as to Petitioner.”); Kambo, 2007 WL 3051601, at *8 (explaining that
“the Attorney General’s discretionary judgment regarding the application of release and bond
provisions . . . is not subject to review”). Under § 1252(a)(2)(B)(ii), this Court has no
jurisdiction to review the Attorney General’s discretionary decision not to apply the presumption
and the resulting denial of parole. See Loa-Herrera, 231 F.3d at 990-91; Medina, 2014 WL
897804, at *2; Kambo, 2007 WL 3051601, at *6, *8. Thus, the Court finds that it does not have
jurisdiction over Petitioner’s second claim. Accordingly, the Court only considers only
Petitioner’s constitutional challenge to his ongoing detention.
B.

Proper Respondent

In its Response, the Government argues that Adrian P. Macias is the only proper
respondent because he is in charge of the detention facility where Petitioner is detained and
states that “[a]ll other named Respondents should be dismissed.” Resp. 4. However, the
Government does not argue that Petitioner has failed to name any proper respondent or that this
Court’s jurisdiction is in any way affected by Petitioner naming additional, allegedly improper
respondents. See generally Resp.
In his Reply, Petitioner argues that all the named Respondents are proper Respondents.
Reply 6. Petitioner explains that Macias was in charge of the detention facility where Petitioner
was previously held, but that on June 4, 2015, Petitioner was transferred to a privately-owned
facility. Reply 7. Petitioner explains that Warden Don Franklin is in charge of that privatelyowned facility. Reply 7.
The Supreme Court has stated that “the default rule” in habeas petitions “is that the
proper respondent is the warden of the facility where the prisoner is being held, not the Attorney
General or some other remote supervisory official.” Rumsfeld v. Padilla, 542 U.S. 426, 435
8

(2004). In this case, the facts presented by the parties do not clearly indicate whether Adrian P.
Macias or Warden Don Franklin is the warden of the facility where Petitioner is being held. See
Resp. 4; Reply 7. Therefore, either Adrian P. Macias or Warden Don Franklin—whoever
currently has custody of Petitioner—is the proper respondent. However, it is clear that Loretta E.
Lynch, United States Attorney General; Jeh Johnson, Secretary of United States Department of
Homeland Security; and Sarah Saldana, Director of United States Immigration and Customs
Enforcement are not proper respondents under the rule laid out by the Supreme Court in Padilla,
because they are “remote supervisory official[s].” 542 U.S. at 435 (explaining that the proper
respondent in a habeas petition is “not the Attorney General or some other remote supervisory
official”). Therefore, the Court GRANTS the Government’s request to dismiss as to
Respondents Loretta E. Lynch, United States Attorney General; Jeh Johnson, Secretary of United
States Department of Homeland Security; and Sarah Saldana, Director of United States
Immigration and Customs Enforcement. The Court DENIES the Government’s request to
dismiss as to Respondent Warden Don Franklin, Warden of the West Texas Detention Facility,
because either Adrian P. Macias or Warden Don Franklin is the proper respondent.
C.

Petitioner’s Challenge to Detention

Petitioner argues that his detention violates due process and “the [Immigration and
Nationality Act] and its implementing regulations.” Pet. 12, 14. Although Petitioner does not
clearly state whether he is arguing that his detention violates substantive due process or
procedural due process, it appears that he is alleging substantive due process violations because
his arguments focus on the length of his detention, not procedural protections that he was denied.
See Pet. ¶ 42 (“This detention vastly exceeds the six-month limitation.” (citing Zadvydas, 533
U.S. at 699-701)). Indeed, Petitioner only once mentions that the Government has failed to
9

provide him with a hearing to determine if custody is appropriate, and, in so mentioning,
indicates that “there is no justification for this failure in according substantive due process.” See
Mem. 15 (“Furthermore, Mr. Chavez has been denied the bare minimum of due process in that
he has never been granted an individualized bond hearing . . . .”). Thus, the Court proceeds to
analyze Petitioner’s claim as one involving substantive due process.
In response to Petitioner’s arguments that his detention violates substantive due process
and the Immigration and Nationality Act, the Government argues that the Attorney General has
statutory authority to detain Petitioner during the pendency of his removal proceedings. Resp. 4.
The Government asserts that the Attorney General properly exercised its discretion in deciding to
detain Petitioner, explaining that the Attorney General decided to continue to detain Petitioner,
even after his request for humanitarian parole, upon “due consideration of Petitioner’s
immigration file and the status of his removal proceedings.” Resp. 4-5.
“Substantive due process analysis must begin with a careful description of the asserted
right.” Reno v. Flores, 507 U.S. 292, 302 (1993) (internal quotation marks omitted). “Freedom
from imprisonment—from government custody, detention, or other forms of physical restraint—
lies at the heart of the liberty that Clause protects.” Zadvydas, 533 U.S. at 690 (citing Foucha v.
Lousiana, 504 U.S. 71, 80 (1992)). In order to determine Petitioner’s liberty interest, however,
the Court first determines Petitioner’s legal status in the United States as well as the statutory and
regulatory framework that authorizes Petitioner’s detention. The Court then considers the
current Supreme Court precedent regarding civil detention of aliens to determine whether the
detention of Petitioner for over twenty-six months is constitutional.

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1.

Petitioner is being detained as an arriving alien pursuant to 8
U.S.C. § 1225(b)(2)(A)

Both parties agree that Petitioner is properly classified as an “arriving alien” under the
immigration statutes. Pet. 11; Resp. 4. “The term arriving alien means an applicant for
admission coming or attempting to come into the United States at a port-of-entry . . . .” 8 C.F.R.
§ 1001.1(q). Arriving aliens are inspected immediately upon arrival in the United States and,
unless “‘clearly and beyond a doubt entitled to be admitted,’” are placed in “removal
proceedings to determine admissibility.” Clark v. Martinez, 543 U.S. 371, 373 (2005) (quoting 8
U.S.C. § 1225(b)(2)(A)).
According to the statute, arriving aliens are subject to expedited removal and are not
entitled to a hearing or appeal on this decision. 8 C.F.R. § 1235.3(b)(1)(i), (b)(2)(ii). Generally,
aliens subject to expedited removal are to be removed immediately, but arriving aliens who
express an intention to apply for asylum or a fear of persecution are referred to an asylum officer
for a credible fear interview. 8 U.S.C. § 1225(b)(1)(A)(ii), (b)(1)(B)(i). If the alien is found to
have a “credible fear of persecution,” the alien remains detained, subject to the parole provisions
for arriving aliens mentioned above, pending consideration of the asylum application. 8 U.S.C. §
1225(b)(1)(B)(ii) (“If the [asylum] officer determines at the time of the interview that an alien
has a credible fear of persecution . . . , the alien shall be detained for further consideration of the
application for asylum.”); 8 U.S.C. § 1182(d)(5)(A) (explaining that the Attorney General may
grant parole “for urgent humanitarian reasons or significant public benefit”). Upon a positive
credible fear determination, an alien is placed in section 240 removal proceedings,1 rather than
1

“Section 240 removal proceedings” are removal proceedings conducted by an immigration judge. See 8 U.S.C
§ 1229(a)(1) (“An immigration judge shall conduct proceedings for deciding the inadmissibility or deportability of
an alien.”). “Section 240” refers to § 240 of the Immigration and Nationality Act, which is codified in 8 U.S.C. §
1229.

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the expedited removal proceedings described above, for a determination of the asylum claim.
See 8 C.F.R. § 1235.6(a)(1)(ii); see also 8 C.F.R. § 1208.30(g)(2)(iv)(B) (explaining that, when a
negative credible fear finding by an asylum officer is reversed by an immigration judge, the
Government, “may commence removal proceedings under section 240 of the Act, during which
time the alien may file an application for asylum and withholding of removal”); In Re X-K-, 23 I.
& N. Dec. 731, 734 (BIA 2005) (“The requirement that aliens who had initially been screened
for expedited removal be placed in full section 240 removal proceedings after a final positive
credible fear determination is clearly stated in the regulations.”).
Pursuant to 8 U.S.C. § 1225(b)(2)(A), arriving aliens—including those with a positive
credible fear determination—are to be detained unless one of the limited statutory exceptions
applies, allowing the Government to release the alien on parole. Rodriguez v. Robbins, 715 F.3d
1127, 1132 (9th Cir. 2013) (“Rodriguez I”) (“Although Section 1225(b) generally mandates the
detention of aliens seeking admission pending their removal proceedings, individuals detained
under the statute may be eligible for discretionary parole from ICE custody.”); see also 8 U.S.C.
§ 1225(b)(2)(A) (“[I]n the case of an alien who is an applicant for admission, if the examining
immigration officer determines that an alien seeking admission is not clearly and beyond a doubt
entitled to be admitted, the alien shall be detained for a proceeding under section 1229a of this
title.”); 8 C.F.R. § 1235.3(c) (“Except as otherwise provided in this chapter, any arriving alien
who appears to the inspecting officer to be inadmissible, and who is placed in removal
proceedings pursuant to section 240 of the Act shall be detained in accordance with section
235(b) of the Act.”); Clark, 543 U.S. at 373 (explaining that the detention of an “alien arriving in
the United States” is “subject to the Secretary’s discretionary authority to parole him into the
country”). The Attorney General can temporarily parole an alien who is applying for admission
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to the United States “for urgent humanitarian reasons or significant public benefit,” “to meet a
medical emergency[,] or . . . for a legitimate law enforcement objective.” 8 U.S.C.
§ 1182(d)(5)(A); 8 C.F.R. § 1235.3(b)(2)(iii). Whether the Government decides to parole an
arriving alien or keep him detained, the regulations state that an immigration judge does not have
authority to review the custody determination. 8 C.F.R. § 1003.19(h)(2)(i)(B) (“[A]n
immigration judge may not redetermine conditions of custody imposed by the Service with
respect to the following classes of aliens: . . . (B) Arriving aliens in removal proceedings,
including aliens paroled after arrival pursuant to section 212(d)(5) of the Act . . . .”); see also In
Re X-K-, 23 I. & N. Dec. at 732 (“There is no question that Immigration Judges lack [custody]
jurisdiction over arriving aliens who have been placed in section 240 removal proceedings,
because they are specifically listed at 8 C.F.R. § 1003.19(h)(2)(i)(B) as one of the excluded
categories.”). Thus, unless an arriving alien asylum applicant is granted parole, he will remain in
detention pending the grant or denial of his asylum application. See 8 U.S.C. § 1225(b)(2)(A).
As stated above, the parties agree that Petitioner is an arriving alien, and the Court finds
this to be accurate, as Petitioner applied for admission to the United States at a port-of-entry. See
8 C.F.R. § 1001.1(q). As such, Petitioner is currently detained pursuant to 8 U.S.C.
§ 1225(b)(2)(A). See Rodriguez I, 715 F.3d at 1132.
2.

Arriving aliens are entitled to some amount of due process

Having determined that Petitioner is an arriving alien detained pursuant to
§ 1225(b)(2)(A), the Court must decide the amount of due process, if any, to which arriving
aliens are entitled. Petitioner is an arriving alien whom the Government has determined is
inadmissible (“inadmissible alien”). Resp. 1; see also 8 U.S.C. § 1182(a)(7)(A)(i)(I) (explaining
that an immigrant not in possession of a valid entry document at the time of application for
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admission is inadmissible). The Supreme Court has stated that inadmissible aliens are not
afforded the same breadth of rights as citizens or as aliens who are already present in the United
States. See Zadvydas, 533 U.S. at 693. In Zadvydas, the Court explained:
The distinction between an alien who has effected an entry into the United States and one
who has never entered runs throughout immigration law. It is well established that
certain constitutional protections available to persons inside the United States are
unavailable to aliens outside of our geographic borders. But once an alien enters the
country, the legal circumstance changes, for the Due Process Clause applies to all
“persons” within the United States, including aliens, whether their presence here is
lawful, unlawful, temporary, or permanent.
Id. Cf. Demore v. Kim, 538 U.S. 510, 547 (2003) (Souter, J., dissenting) (“The statement that
‘[i]n the exercise of its broad power over naturalization and immigration, Congress regularly
makes rules that would be unacceptable if applied to citizens,’ cannot be read to leave limitations
on the liberty of aliens unreviewable.”).
However, inadmissible aliens seeking entry, such as Petitioner, are subject to the “entry fiction.”
See Zadvydas, 533 U.S. at 693. Under the “entry fiction” aliens who have been denied
admission to the United States yet are present within its borders are “treated, for constitutional
purposes, as if stopped at the border,” and are thus not entitled to the full range of constitutional
protections to which citizens and aliens who have been admitted are entitled. Id. (quotation
marks omitted).
Although inadmissible aliens are not entitled to the full protection of the Constitution, the
Supreme Court has also made clear that “the Fifth Amendment entitles aliens to due process of
law in deportation proceedings.” Demore, 538 U.S. at 523 (quotation marks omitted). However,
the Supreme Court has explained that this entitlement to due process is somewhat limited, stating
that “when the Government deals with deportable aliens, the Due Process Clause does not
require it to employ the least burdensome means to accomplish its goal.” Id. at 528.
Additionally, the Supreme Court has made clear that inadmissible aliens are entitled to less due
process than are resident aliens. Id. at 547 (O’Connor, J., concurring) (“[L]egal permanent
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residents (“LPRs”) are entitled to claim greater procedural protections under [the Due Process
Clause] than aliens seeking initial entry.”). So although Petitioner is entitled to some modicum
of due process as an inadmissible alien seeking entry, he may not be entitled to the same level of
due process as afforded to the resident aliens in Demore and Zadvydas.
In Zadvydas, the Court found that indefinite post-removal-period detention was
unconstitutional for “aliens who were admitted to the United States but subsequently ordered
removed,” explaining that “[a]liens who have not yet gained initial admission to this country
would present a very different question.” 533 U.S. at 682. In Clark, the Supreme Court
extended the application of Zadvydas to inadmissible aliens but did not address the constitutional
issue, instead deciding the case based on statutory interpretation. Clark, 543 U.S. at 378
(holding that the statute applies to both inadmissible and removable aliens and cannot be
interpreted to apply to differently to these different categories of aliens).
However, at least one circuit—the Sixth Circuit—has held that the indefinite detention of
inadmissible aliens raised the same constitutional concerns as did the indefinite detention of the
removable resident aliens in Zadvydas. Rosales-Garcia v. Holland, 322 F.3d 386, 412 (6th Cir.
2003) (en banc). In Rosales-Garcia, the Sixth Circuit explained that “the Zadvydas Court left
open the question whether the indefinite detention of excludable2 aliens raises the same
constitutional concerns . . . as the indefinite detention of aliens who have entered the United
States.” Id. The Sixth Circuit held that aliens, whether inadmissible or deportable, are entitled to
substantive due process:

2

“Before the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA),
aliens ineligible to enter the country were denominated ‘excludable’ and ordered ‘deported.’ Post–IIRIRA, such
aliens are said to be ‘inadmissible’ and held to be ‘removable.’” Clark v. Martinez, 543 U.S. 371, 376 n.2 (2005).

15

If excludable aliens were not protected by even the substantive component of
constitutional due process, as the government appears to argue, we do not see why the
United States government could not torture or summarily execute them. Because we do
not believe that our Constitution could permit persons living in the United States—
whether they can be admitted for permanent residence or not—to be subjected to any
government action without limit, we conclude that government treatment of excludable
aliens must implicate the Due Process Clause of the Fifth Amendment.
Id.
In looking at post-removal-period detention, specifically, the Sixth Circuit concluded that the
same constitutional concerns did arise in regard to inadmissible aliens and, consequently,
extended the holding of Zadvydas to inadmissible aliens. Id. 408-10 (explaining that, in addition
to relying on statutory construction to extend the holding of Zadvydas to inadmissible aliens,
“constitutional concerns would independently compel us to construe [the statute’s] post-removalperiod detention provision to contain a reasonableness limitation for excludable aliens”).
Thus, the question remains open as to what extent the constitutional dimensions of
Zadvydas apply to inadmissible aliens. Even so, it is clear that aliens—even inadmissible
aliens—are entitled to some constitutional protections, including some amount of due process.
See Zadvydas, 533 U.S. at 693; Demore, 538 U.S. at 523; see also Rosales-Garcia, 322 F.3d at
410 n.29 (“[N]o circuit has concluded that the Due Process Clauses of the Fifth and Fourteenth
Amendments do not apply to excludable aliens.”); Chi Thon Ngo v. I.N.S., 192 F.3d 390, 396 (3d
Cir. 1999), amended (Dec. 30, 1999) (“Even an excludable alien is a ‘person’ for purposes of the
Fifth Amendment and is thus entitled to substantive due process.”); see also Lynch v. Cannatella,
810 F.2d 1363, 1374 (5th Cir. 1987) (“[W]hatever due process rights excludable aliens may be
denied by virtue of their status, they are entitled under the due process clauses of the fifth and
fourteenth amendments to be free of gross physical abuse at the hands of state or federal
officials.”).
16

3.

Zadvydas prohibits indefinite detention of aliens

Having determined that Petitioner, even as an inadmissible alien, is entitled to some due
process, the Court turns to the merits of Petitioner’s constitutional claim. In support of his
constitutional claim, Petitioner argues that the Supreme Court in Zadvydas “imposed a six-month
limit on what may be considered a ‘reasonable’ period of detention to ensure that an alien is
available for pending immigration proceedings.” Mem. 12-13; Pet. 12 (citing Zadvydas in
arguing that his current detention “vastly exceeds the six-month limitation”). The Government
argues that Zadvydas only applies to detention after a final order of removal has been entered,
and therefore does not apply to Petitioner because he is still in removal proceedings. Resp. 5.
In Zadvydas, the Supreme Court of the United States considered substantive due process
limitations on the civil detention of aliens. See generally 533 U.S. 678. In Zadvydas, the
petitioners—two resident aliens who had been convicted of crimes—were detained under § 1231
after receiving final orders of removal. Id. at 684-86. Because the petitioners did not have
citizenship in any country, neither could be deported; instead, the Government continued to
detain them past the statutory ninety-day removal period. Id. The petitioners each filed a
petition for writ of habeas corpus under § 2241 claiming that their indefinite detention violated
due process. Id.
The Supreme Court noted that “[a] statute permitting indefinite detention of an alien
would raise a serious constitutional problem.” Id. at 690. Because the statute’s primary purpose
for detaining aliens was to ensure an alien’s presence for removal, the Zadvydas Court construed
§ 1231 to allow detention of post-removal aliens only for “a period reasonably necessary to bring
about [an] alien’s removal from the United States.” Id. at 689. The Supreme Court “construe[d]
the statute to contain an implicit ‘reasonable time’ limitation, the application of which is subject
17

to federal-court review” and held that six months was a presumptively reasonable detention
period. Id. at 682, 701. After this 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. Several years
later, the Supreme Court extended Zadvydas to find that inadmissible aliens held in post-removal
detention are also entitled to this type of individualized review once their detention exceeds six
months. See generally Clark, 543 U.S. 371.
Turning to the instant case, as the Government points out, Petitioner is detained during
the pendency of his removal proceedings, while the aliens in Zadvydas were detained after
receiving a final order of removal. See Resp. 5; see also Zadvydas 533 U.S. at 684-86. Thus,
Petitioner is detained pursuant to § 1225(b)(2)(A), while the aliens in Zadvydas were detained
pursuant to § 1231. See Rodriguez I, 715 F.3d at 1132; Zadvydas 533 U.S. at 684-86. As a
result, while the Zadvydas Court did impose a six-month presumptively reasonable time limit on
civil detention of aliens in that case, the Court did not indicate that this presumption would apply
outside the context of § 1231 detention. See Zadvydas, 533 U.S. at 701 (looking to
Congressional intent regarding § 1231 to determine that “Congress previously doubted the
constitutionality of detention for more than six months”). Thus, the six-month limit set out in
Zadvydas is not clearly applicable to all civil immigration detention, or to § 1225(b)(2)(A)
detention, as the Petitioner suggests.3 However, the Zadvydas Court did clearly state that, “[a]

3

Another difference between the aliens in Zadvydas and Petitioner is that the aliens in Zadvydas were not eligible
for any type of relief from removal; as stated earlier, the Zadvydas aliens were subject to final orders of removal.
See Zadvydas, 533 U.S. at 684-86. Petitioner, on the other hand, might still have a successful asylum claim, as his
case is pending before the BIA. See Pet. 5. As the Ninth Circuit has noted, aliens who still have a possibility of
relief from removal, such as asylum, are even more deserving of constitutional protection than the aliens in
Zadvydas who were definitely removable. See Rodriguez I, 715 F.3d at 1139 (arguing that “if anything it would
appear that the [resident aliens] who fall within § 1225(b)’s purview should enjoy greater constitutional protections

18

statute permitting indefinite detention of an alien would raise a serious constitutional problem,”
without limiting this statement to detention pursuant to § 1231. See 533 U.S. at 690.
4.

Demore condones only brief mandatory detention during
pending removal proceedings

Subsequent to Zadvydas, in Demore v. Kim, the Supreme Court considered the
constitutionality of mandatory detention pending the resolution of removal proceedings under §
1226(c), a statute that provides for mandatory detention of aliens who have been “convicted of
one of a specified set of crimes.” See Demore, 538 U.S. at 513. Like aliens detained pursuant to
§ 1225(b)(2)(A), aliens detained pursuant to § 1226(c) are not entitled to an individualized bond
hearing to determine if their detention is appropriate under their circumstances. See id. at 514.
In Demore, the respondent—a resident alien—was undergoing removal proceedings and
had not been issued a final order of removal. Id. at 513. Because the respondent had been
convicted of crimes, he was subject to mandatory pre-removal detention without an
individualized determination that “he posed either a danger to society or a flight risk.” Id. at
513-14. The Supreme Court found that “Congress, 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

than criminal aliens who have already failed to win relief in their removal proceedings”). Yet, despite the fact that
the aliens in Zadvydas were not eligible for any relief from removal, the Court found that they could not be held
indefinitely without some individualized determination that continued detention was appropriate. See Zadvydas, 533
U.S. at 692.
Further, is it noteworthy that an arriving alien who has no possible relief from removal could be released
from detention much more quickly than an arriving alien with a successful asylum claim. An arriving alien who was
clearly ineligible for any sort of relief from removal could undergo expedited removal and quickly enter the postremoval-order period of detention. Under Zadvydas, after the expiration of six months in the post-removal-order
period, this person would receive an individualized determination regarding the appropriateness of continued
detention and could, depending on the result of this determination, be released, despite that alien’s ineligibility for
any type of relief from removal. See id. at 701. Petitioner, on the other hand, has a potentially successful asylum
claim, yet has not received any individualized determination during his twenty-six month detention. Mem. 15.

19

period necessary for their removal proceeding.” Id. at 513. In distinguishing the case from
Zadvydas, the Court noted that the mandatory detention at issue occurred prior to the issuance of
a final order of removal. Id. at 527-28. Therefore, unlike the detention in Zadvydas, the
detention in Demore was still closely related to the purpose of ensuring the alien’s availability
for removal. Id. at 528.
Additionally, the Court distinguished the case from Zadvydas explaining that the
detention was “of a much shorter duration” than the indefinite and potentially permanent
detention in Zadvydas. Id. Indeed, the Demore Court repeatedly referenced the limited period of
time most aliens were detained pending removal proceedings. Id. at 513, 523, 526, 528, 529
n.12. The Court explicitly found that detention 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 an alien chooses to appeal.” Id. at 530. Thus, the Court found that mandatory
detention of aliens under § 1226(c) did not violate the Constitution. Id. at 531.
In his concurrence, Justice Kennedy also commented that longer terms of detention might
become an issue, explaining that:
Were there to be an unreasonable delay by the INS in pursuing and completing
deportation proceedings, it could become necessary then to inquire whether the detention
is not to facilitate deportation, or to protect against risk of flight or dangerousness, but to
incarcerate for other reasons.
Id. at 532-33 (Kennedy, J., concurring).
Justice Kennedy’s concurrence echoes the majority’s concern that while brief detention of aliens
under § 1226(c) was constitutional, longer detention might not be. Id. at 530, 532-33. Thus,
while brief detention is acceptable under Demore, 538 U.S. at 513, the constitutionality of much
longer mandatory detention may well present a problem. See Diop v. ICE/Homeland Sec., 656
F.3d 221, 232 (3d Cir. 2011) (explaining that § 1226(c) requires mandatory detention without a
20

bond hearing and stating that “the constitutionality of this practice is a function of the length of
the detention”); Tijani v. Willis, 430 F.3d 1241, 1242 (9th Cir. 2005) (finding that the detention
of an alien under § 1226(c) for two years and eight months was “constitutionally doubtful”);
Shokeh v. Thompson, 369 F.3d 865, 872 (5th Cir.) (“Shokeh I”) (explaining that “[t]he Zadvydas
Court was troubled by the “potentially permanent” nature of the detention,” and that the Demore
Court upheld the civil detention, “in part, because of the ‘very limited time of the detention at
stake’” (citing Zadvydas, 533 U.S. at 690; Demore, 538 U.S. at 510)), vacated, 375 F.3d 351 (5th
Cir. 2004) (“Shokeh II”); Ly v. Hansen, 351 F.3d 263, 267-68 (6th Cir. 2003) (explaining that
Zadvydas “made clear that limited civil detention, without bond, is constitutional as applied to
deportable aliens” but that longer civil detention required a “strong special justification”).
Indeed, the Demore Court relied heavily on the brevity of the alien’s detention even when
defining the alien’s claim, repeatedly framing the issue as one involving the alien’s detention for
the “limited” or “brief” period of his removal proceedings. Demore, 538 U.S. at 510, 513, 523,
526, 531 (“The INS detention of respondent, a criminal alien who has conceded that he is
deportable, for the limited period of his removal proceedings, is governed by these cases.”
(emphasis added)). As noted earlier, the Demore Court also relied on brevity in distinguishing
the case from Zadvydas. Id. at 528 (“While the period of detention at issue in Zadvydas was
‘indefinite’ and ‘potentially permanent,’ the detention here is of a much shorter duration.”
(citations omitted)). Ultimately, the Demore Court tied its holding to this brevity: “We hold that
Congress . . . may require that persons such as respondent be detained for the brief period
necessary for their removal proceedings.” Id. at 513 (emphasis added).
Because the Demore Court focused on the brevity of the mandatory detention in finding
that such detention was constitutional, id. at 513, 531, a number of courts have subsequently held
21

that mandatory detention pursuant to § 1226(c) is subject to a reasonable time limitation. See,
e.g., Diop, 656 F.3d at 235 (reading a reasonableness limitation into § 1226(c) and finding that a
nearly three-year detention under § 1226(c) was unreasonable, and therefore, unconstitutional);
Ly, 351 F.3d at 273 (reading a reasonableness limitation into § 1226(c) and finding that detention
for one and half years under § 1226(c) was unreasonable); Uritsky v. Ridge, 286 F. Supp. 2d 842,
846-47 (E.D. Mich. 2003) (reading a reasonableness limitation into § 1226(c) and finding that
eleven to twelve month detention under § 1226(c) was unreasonable); Reid v. Donelan, 991 F.
Supp. 2d 275, 277 (D. Mass. 2014) (reading a reasonableness limitation into § 1226(c) and
finding that detention over six months is presumptively unreasonable).
By reading a reasonableness limitation into mandatory detention pursuant to § 1226(c),
several courts have found that when detention pursuant to § 1226(c) is not brief, the alien should
be granted habeas relief in the form of a bond hearing or release from detention. See Diop, 656
F.3d at 231 (applying the canon of constitutional avoidance to hold that § 1226(c) does not
authorize prolonged detention without a bond hearing, but that it only “authorizes detention for a
reasonable amount of time, after which the authorities must make an individualized inquiry into
whether detention is still necessary”); Ly, 351 F.3d at 268 (“Therefore, we hold that the INS may
detain prima facie removable aliens for a time reasonably required to complete removal
proceedings in a timely manner. If the process takes an unreasonably long time, the detainee may
seek relief in habeas proceedings.”); Tijani, 430 F.3d at 1242 (applying the canon of
constitutional avoidance to hold that § 1226(c) only applies to expedited removal of criminal
aliens and granting the petitioner release or a bond hearing upon finding that “[t]wo years and
eight months of process is not expeditious”); Rodriguez I, 715 F.3d at 1138 (“Despite the
Supreme Court’s holding that mandatory detention under § 1226(c) without an individualized
22

determination of dangerousness or flight risk is constitutional under some circumstances, our
subsequent decisions applying Demore make clear that Demore’s reach is limited to relatively
brief periods of detention.”); Reid, 991 F. Supp. 2d at 276 (“Because detention pursuant to §
1226(c) for over six months is presumptively unreasonable, the court will grant Plaintiff's
Petition for Habeas Corpus . . . .”); Ramirez v. Watkins, No. CIV.A. B:10-126, 2010 WL
6269226, at *1 (S.D. Tex. Nov. 3, 2010) (finding an “implicit statutory reasonableness
requirement contained in § 1226(c)” and holding that a detention of almost nineteen months
violated that requirement); Bourguignon v. MacDonald, 667 F. Supp. 2d 175, 182 (D. Mass.
2009) (“In sum, the clear import of the Demore decision is not that an alien can be detained
indefinitely under § 1226(c) while deportation proceedings are pending, without the right to a
bond hearing, but merely that an alien can be detained without a hearing so long as the detention
is reasonable, by which the Court meant (among other things perhaps) of limited duration.”).
In addition, at least one panel of judges of the Fifth Circuit viewed Zadvydas and Demore
as allowing brief mandatory detention while, at the same time, doubting the constitutionality of
longer detention. Shokeh I, 369 F.3d at 872. In Shokeh I, an alien remained in detention
pursuant to § 1231 solely because he was unable to afford bond. Id. The Fifth Circuit remanded
the case to the District Court to determine if the amount of bond was reasonable, explaining that
the Zadvydas Court’s concern over indefinite detention “is not ameliorated by release conditional
on bond that the immigrant is unable to pay.” Id. at 872-73. The Fifth Circuit stated that the
duration of the detention was essential to the Court’s holdings in Demore and Zadvydas,
explaining:
The Zadvydas Court was troubled by the “potentially permanent” nature of the detention
. . . . The Supreme Court again emphasized the importance of the duration of detention in
Demore v. Kim. In Kim the Court upheld mandatory detention during removal
23

proceedings of immigrants previously convicted of certain criminal offences, in part,
because of the ‘very limited time of the detention at stake under [the challenged statute].’
Id. at 872.
Although Shokeh I was later vacated, it was vacated because the Government had released the
alien without bond before the Fifth Circuit’s opinion was filed, rendering the case moot. Shokeh
II, 375 F.3d at 351. Thus, the reasoning of Shokeh I is still persuasive, even if the case is no
longer precedential. In Shokeh I, although the Fifth Circuit did not clearly state that mandatory
immigration detention is subject to a reasonableness limit, it expressed doubts as to the
constitutionality of prolonged mandatory immigration detention. Shokeh I, 369 F.3d at 872.
5.

Detention under § 1225(b) is subject to a reasonable time
limitation

In addition to reasonableness limitations on § 1226(c) detention, courts have also read
reasonableness limitations into other immigration detention statutes, including mandatory
detention of aliens pursuant to § 1225(b)(2)(A), to which Petitioner is subject. See Rodriguez v.
Robbins, 804 F.3d 1060, 1078-85 (9th Cir. 2015) (“Rodriguez II”) (reading a reasonableness
limitation into detention pursuant to §§ 1225(b)(2)(A), 1226(a), and 1226(c) and requiring bond
hearings after six months of detention under these statutes). See also Rosales-Garcia, 322 F.3d
at 415 (reading a reasonableness limitation into § 1231 detention as it applies to inadmissible
aliens); Kasneci v. Dir., Bureau of Immigration & Customs Enf’t, No. 12-12349, 2012 WL
3639112, at *5 (E.D. Mich. Aug. 23, 2012) (reading a reasonableness limitation into
§ 1225(b)(2)(A) detention); Bautista v. Sabol, 862 F. Supp. 2d 375, 377 (M.D. Pa. 2012)
(reading a reasonableness limitation into § 1225(b)(2)(A) detention); Lakhani v. O’Leary, No.
1:08 CV 2355, 2010 WL 3239013, at *9 (N.D. Ohio Aug. 16, 2010) (reading a reasonableness
limitation into § 1226(a) detention), vacated, No. 1:08 CV 2355, 2010 WL 3730157 (N.D. Ohio
24

Sept. 17, 2010) (vacating the previous order because the alien was no longer being held pursuant
to § 1226(a)).
The Ninth Circuit explained its decision to read reasonableness into several immigration
detention statutes by comparing civil immigration detention with civil detention due to
incompetency, stating that “the state may detain a criminal defendant found incapable of
standing trial, but only for ‘the reasonable period of time necessary to determine whether there is
a substantial probability that he will attain [the] capacity [to stand trial] in the foreseeable
future.’” Rodriguez II, 804 F.3d at 1075 (quoting Jackson v. Indiana, 406 U.S. 715, 738 (1972)).
This Court agrees with the circuit and district courts that have found that civil detention
of aliens is subject to a reasonable time limitation. See, e.g., Diop, 656 F.3d at 235 (“We do not
believe that Congress intended to authorize prolonged, unreasonable, detention without a bond
hearing.”); Rosales-Garcia, 322 F.3d at 415 (explaining that “constitutional concerns . . . compel
us to construe IIRIRA’s post-removal-period detention provision to contain a reasonableness
limitation”); Ly, 351 F.3d at 270 (avoiding a constitutional problem by reading a reasonableness
limitation into the period of mandatory detention allowed pursuant to § 1226(c)); Uritsky, 286 F.
Supp. 2d at 846-47 (reading a reasonableness limit into § 1226(c)); Reid, 991 F. Supp. 2d at 277
(reading a reasonableness limitation into § 1226(c)); Kasneci, 2012 WL 3639112, at *5 (reading
a reasonableness limitation into § 1225(b)(2)(A)); Lakhani, 2010 WL 3239013, at *9 (reading a
reasonableness limitation into § 1226(a) and finding that the nearly two-year detention of an
arriving alien during the pendency of his removal proceedings was unreasonable). See also
Shokeh I, 369 F.3d at 872 (stating that the Demore Court “upheld mandatory detention during
removal proceedings of immigrants previously convicted of certain criminal offences, in part,
because of the ‘very limited time of the detention at stake under [the challenged statute].’” (citing
25

Demore, 538 U.S. at 510)). Specifically, this Court finds, as does the Ninth Circuit, that the
detention of aliens pursuant to § 1225(b)(2)(A) is subject to a reasonable time limitation. See
Rodriguez II, 804 F.3d at 1082.
A reasonable time limitation serves to alleviate the Supreme Court’s concern in Zadvydas
of overbreadth of detention. The Zadvydas Court found that preventing danger to the community
was not an adequate justification for indefinite detention of aliens under § 1231 where “the
provision authorizing detention does not apply narrowly to a small segment of particularly
dangerous criminals, say, suspected terrorists, but broadly to aliens ordered removed for many
and various reasons, including tourist visa violations.” Zadvydas, 533 U.S. at 691. This same
reasoning applies to § 1225(b)(2)(A): under § 1225(b)(2)(A), the Government detains all arriving
aliens pending removal proceedings, without regard to their danger to society or lack thereof or
to the manner in which aliens were seeking to enter the United States—whether legal or illegal.4
See Rodriguez I, 715 F.3d at 1132 (explaining that “Section 1225(b) generally mandates the
detention of aliens seeking admission pending their removal proceedings”). Further, the
reasoning of courts that have read Zadvydas and Demore together to apply reasonable time

4

Pursuant to § 1225(b)(2)(A), aliens with no criminal history are placed in the same mandatory detention category,
simply due to their arrival at a port of entry, as aliens who are detained due to their criminal acts; for example,
certain resident aliens are considered arriving aliens due to illegal activity that they committed abroad and are
detained pursuant to § 1225(b)(2)(A). See Rodriguez I, 715 F.3d at 1142 (explaining that “an LPR who left the
United States briefly to undertake illegal activity abroad, such as alien smuggling, would clearly be included in the
1225(b) subclass”). In addition, § 1225(b)(2)(A) serves to detain arriving aliens who have attempted to enter
illegally, possibly fraudulently, as well as those who, like Petitioner, may have committed no immigration violations
at all but have come to a port of entry seeking asylum—that is, admission into the United States by legal means. See
8 C.F.R. § 1.2 (defining “arriving alien”); see also, e.g., Nadarajah v. Gonzales, 443 F.3d 1069, 1073 (9th Cir.
2006) (explaining that an arriving alien who “obtained a passport and exit documents through a smuggler” was
being detained under § 1225(b)); Zubeda v. Elwood, 265 F. Supp. 2d 509, 510 (E.D. Pa. 2003) (finding that an alien
“who attempted to enter the United States with a false passport” was being detained pursuant to § 1225(b)(2)(A)).
Thus Petitioner, who is detained merely because he presented himself at the port of entry seeking legal admission to
the United States is placed in the same category as aliens who attempted to enter illegally, overstayed visas, and
committed crimes abroad. See Rodriguez I, 715 F.3d at 1142; 8 C.F.R. § 1.2.

26

limitations to § 1226(c) detention applies even more clearly to § 1225(b)(2)(A) detention,
because—unlike § 1226(c) detention which applies only to criminal aliens—detention pursuant
to § 1225(b)(2)(A) applies to both criminal and non-criminal aliens. See Demore, 538 U.S. at
513; Rodriguez I, 715 F.3d at 1132.
One of the issues with placing Petitioner in the same category as aliens who have
committed crimes abroad and aliens who have entered illegally or violated the terms of their
visas, is that Petitioner—like all aliens detained under § 1225(b)(2)(A)—has no way of obtaining
an individualized review of his custody determination. See 8 U.S.C. § 1225(b)(2)(A); 8 C.F.R.
§ 1003.19(h)(2)(i)(B). Both the Zadvydas Court and the Demore Court explained that there are
two justifications for immigration detention—(1) ensuring the appearance of aliens at future
immigration proceedings, and (2) preventing danger to the community. Zadvydas, 533 U.S. at
692; Demore, 538 U.S. at 513, 519. Yet Petitioner has never had a hearing to determine if these
two justifications do, in fact, apply to his detention. Mem. 15.
In finding that indefinite detention without review would invoke constitutional concerns,
the Zadvydas Court took into account not only the justifications for immigration detention, but
also looked to the lack of procedural protections for the aliens’ right to be free from physical
restraint. See 533 U.S. at 692. In deciding to read a reasonableness limitation into the statute to
avoid a constitutional problem, the Zadvydas Court noted that administrative proceedings were
not sufficient to protect the aliens from the indefinite deprivation of liberty:
[T]he sole procedural protections available to the alien are found in administrative
proceedings, where the alien bears the burden of proving he is not dangerous, without (in
the Government’s view) significant later judicial review. This Court has suggested,
however, that the Constitution may well preclude granting an administrative body the
unreviewable authority to make determinations implicating fundamental rights. The
Constitution demands greater procedural protection even for property. The serious
constitutional problem arising out of a statute that, in these circumstances, permits an
27

indefinite, perhaps permanent, deprivation of human liberty without any such protection
is obvious.
Id. (internal citations and quotation marks omitted).
In addition, the Zadvydas Court discussed the importance of procedural protections when
explaining that civil detention based solely on dangerousness—“preventive detention”—had
been upheld by the Court “only when limited to specially dangerous individuals and subject to
strong procedural protections.” Id. at 690-91.
The Zadvydas Court certainly saw this lack of individualized determination regarding the
appropriateness of detention to be an issue, because the Supreme Court decided such a
determination was necessary under § 1231. Id. at 701 (explaining that after the presumptively
reasonable six-month period of post-removal-order detention, “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”). Likewise,
although aliens detained pursuant to § 1226(c) do not have a mechanism for individualized
review of the appropriateness of their detention, they are entitled to a hearing to determine if they
are appropriately placed in the category of aliens subject to mandatory detention under
§ 1226(c). See Demore, 538 U.S. at 547 n.3 (explaining that a “‘Joseph hearing’ is immediately
provided to a detainee who claims that he is not covered by § 1226(c)”). Further, detention
authorized under Demore is necessarily “brief,” as explained above, making an individualized
review less important. See Demore, 538 U.S. at 513, 523, 526, 528, 529 n.12.
Yet, aliens detained under § 1225(b)(2)(A), such a Petitioner, have no such review
process available to them. In fact, Petitioner does not currently have the benefit of any type of
proceedings, much less the type of proceedings now required for those detained over six months
under § 1231 or for those detained pursuant to § 1226(c). See Zadvydas, 533 U.S. at 692;
28

Demore, 538 U.S. at 547 n.3 (discussing “Joseph hearings”). Instead, Petitioner can now only
request discretionary parole from the Attorney General. See 8 U.S.C. § 1182(d)(5)(A); 8 C.F.R.
§ 1003.19(h)(2)(i)(B). An Immigration Judge has no jurisdiction to review this decision, and
there is no review process in the statute or regulations for denials of parole. See 8 U.S.C.
§ 1182(d)(5)(A); 8 C.F.R. § 1003.19(h)(2)(i)(B). Indeed, the Ninth Circuit has found this
reliance on parole to protect the liberty interests of those detained under § 1225(b)(2)(A) to be
insufficient:
Because parole decisions under § 1182 are purely discretionary, they cannot be appealed
to [Immigration Judges] or courts. This lack of review has proven especially problematic
when immigration officers have denied parole based on blatant errors: In two separate
cases identified by the petitioners, for example, officers apparently denied parole because
they had confused Ethiopia with Somalia. And in a third case, an officer denied parole
because he had mixed up two detainees’ files.
Rodriguez II, 804 F.3d at 1081.
As a result, the Ninth Circuit held that “the mandatory provisions of § 1225(b) simply expire at
six months, at which point the government’s authority to detain the alien shifts to § 1226(a),
which is discretionary and which we have already held requires a bond hearing.” Id. at 1082
(internal quotation marks omitted).
The lack of an adequate process for reviewing decisions to detain aliens has also been
central to other courts’ decisions to grant habeas relief to aliens pending the determination of
their removal proceedings. See, e.g., Diop, 656 F.3d at 235 (“We do not believe that Congress
intended to authorize prolonged, unreasonable, detention without a bond hearing.”); Diouf v.
Napolitano, 634 F.3d 1081, 1092 (9th Cir. 2011) (“We hold that an alien facing prolonged
detention under § 1231(a)(6) is entitled to a bond hearing before an immigration judge and is
entitled to be released from detention unless the government establishes that the alien poses a
risk of flight or a danger to the community.”); Lakhani, 2010 WL 3239013, at *9 (“Even if
29

Petitioner were still being detained under § 1226(c), his detention without a bond hearing would
not comply with procedural due process.”); Cuello v. Adduci, No. 10-13641, 2010 WL 4226688,
at *5 (E.D. Mich. Oct. 21, 2010) (granting habeas relief to an alien detained under § 1226(a)
because he was never granted a bond hearing and finding that his “continued detention and lack
of meaningful custody review does not comport with due process”).
Likewise, some courts have relied on the availability of a bond hearing in denying habeas
relief. See, e.g., Contant v. Holder, 352 F. App’x 692, 695 (3d Cir. 2009) (“To the extent [the
alien] relies on [Demore] to contrast his lengthy detention with the average detention period for
persons detained pursuant to § 1226(c), that comparison is inapposite. Unlike the mandatory
detention statute at issue in Kim, § 1226(a) provides for individualized detention
determinations.”); Prieto-Romero v. Clark, 534 F.3d 1053, 1068 (9th Cir. 2008) (“Prieto–
Romero has not been denied procedural due process while in custody. He received a bond
hearing that afforded him an individualized determination of the government’s interest in his
continued detention by a neutral decisionmaker.”); Nepomuceno v. Holder, No. CIV. 11-6825
WJM, 2012 WL 715266, at *4 (D.N.J. Mar. 5, 2012) (denying habeas petition “because
Petitioner is not mandatorily detained pursuant to the exception set forth in § 1226(c), and
because the Immigration Judge conducted two bond hearings in accordance with § 1226(a)”).
Because aliens detained under § 1225(b)(2)(A) have no access to an individualized determination
regarding whether they are properly placed in the § 1225(b)(2)(A) category or properly detained
because they present a flight risk and a danger to the community, the Court finds that detention
pursuant to § 1225(b)(2)(A) is subject to a reasonable time limitation.

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6.

Petitioner’s detention is unreasonable

Now that the Court has determined that § 1225(b)(2)(A) detention is subject to a
reasonable time limitation, the Court must consider whether Petitioner’s detention of more than
twenty-six months is unreasonable. Petitioner asserts that his detention is unreasonable because
it has lasted longer than the six-month presumptive limit for immigration detention established
by Zadvydas. Pet. 41. In response, the Government argues that Zadvydas does not apply to
Petitioner’s situation and that the Attorney General has the authority to detain Petitioner. Resp.
4-5.
In addition, the Government argues that, “like the alien in Demore, the Petitioner
significantly delayed his own removal proceedings by requesting numerous continuances and
requesting an extension of the briefing schedule after appealing the Immigration Judge’s
decision.” Resp. 6. Petitioner responds, arguing that the delay was caused by the Government’s
denial of his requests for parole. Reply 10. Petitioner further argues that his requested
continuances, at most, only caused “minimal delay,” and that the continuances “were based on
just cause as determined by the presiding immigration judge.” Reply 11.
The Third Circuit, in finding that the nearly three year detention of an alien was
unreasonable, explained that “individual actions by various actors in the immigration system,
each of which takes only a reasonable amount of time to accomplish, can nevertheless result in
the detention of a removable alien for an unreasonable, and ultimately unconstitutional, period of
time.” Diop, 656 F.3d at 223. This Court agrees that what may be reasonable actions during the
course of removal proceedings can combine to create what is ultimately an unreasonable length
of detention. In this case, Petitioner did request and was granted continuances on several
occasions to seek legal counsel and to prepare his application for asylum. Resp. 1-2; Reply 10.
31

The Government, however, presented no evidence that Petitioner sought these continuances
simply to delay his case; indeed, any resulting delay only served to keep Petitioner in detention
longer. Rather, as the Government explained, Petitioner sought these continuances in order to
better prepare his case, which is a reasonable action for an alien seeking relief from removal.
Resp. 1-2. And, at most, this sort of delay has only amounted to approximately six months—a
small fraction of the length of Petitioner’s current detention.
In determining whether the twenty-six month detention of Petitioner is reasonable, the
Court looks to see how courts of appeal have made determinations regarding reasonableness of
the length of detention. The Ninth Circuit applied the six-month presumptive limit on civil
detention in Zadvydas to detention under § 1225(b), § 1226(a), and § 1226(c). Rodriguez II, 804
F.3d at 1078 (“Following Zadvydas, we have defined detention as ‘prolonged’ when ‘it has
lasted six months and is expected to continue more than minimally beyond six months.” (quoting
Diouf, 634 F.3d at 1092)). The Ninth Circuit states that all aliens, no matter which statute they
are being detained under, must receive a bond hearing after six months. See Rodriguez II, 804
F.3d at 1078-1085 (requiring bond hearings after six months of detention under §§
1225(b)(2)(A), 1226(a), and 1226(c))). While the Ninth Circuit has established a bright-line rule
for a reasonable length of detention, id., other circuits look at reasonableness on a case-by-case
basis. See Ly, 351 F.3d at 271 (6th Cir.) (“A bright-line time limitation, as imposed in Zadvydas,
would not be appropriate for the pre-removal period.”); Diop, 656 F.3d at 233 (3d Cir.) (“We
decline to establish a universal point at which detention will always be considered
unreasonable.”).
This Court need not decide, and indeed is in no position to decide, whether to apply a
bright line reasonableness limit of six months or whether reasonableness should be evaluated on
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a case-by-case basis, because the Court finds that Petitioner’s detention of more than twenty-six
months is unreasonable under either standard. Petitioner committed no immigration violation
when he arrived at the port of entry, only one day after the events that serve as the basis for his
asylum claim—the murder of his brother and his own subsequent kidnapping and beating. Pet.
2-3. As soon as Petitioner presented himself at the border, he sought entry to the United States
by lawful means as an asylee. Resp. 1. He made no attempt at illegal entry nor did he overstay a
visa; he has committed no wrong under the immigration statutes.5 In addition, Petitioner
received a positive credible fear evaluation from the United States Citizenship and Immigration
Services. Pet. 4. As a result, Petitioner is no longer subject to expedited removal proceedings,
but instead, is subject to Section 240, non-expedited, removal proceedings. See In Re X-K-, 23 I.
& N. Dec. 731, 734 (BIA 2005) (explaining “that aliens who had initially been screened for
expedited removal [are] placed in full section 240 removal proceedings after a final positive
credible fear determination”). Thus, under this regulatory scheme, arriving alien asylum
applicants may be detained for years with no opportunity for an individualized review to
determine the appropriateness such prolonged detention. The holdings of Zadvydas and Demore
5

Interestingly, had Petitioner illegally entered the United States prior to applying for asylum, he would not be
classified as an arriving alien subject to § 1225(b)(2)(A) detention because he would not be “coming or attempting
to come into the United States at a port-of-entry.” 8 C.F.R. § 1001.1(q); see also In Re X-K-, 23 I. & N. Dec. 731,
732-33, 36 (BIA 2005) (holding that “certain other aliens”—those “who are encountered by an immigration officer
within 100 air miles of any U.S. international land border, and who have not established to the satisfaction of an
immigration officer that they have been physically present in the U.S. continuously for the 14-day period
immediately prior to the date of encounter”—can have a bond hearing before an immigration judge). Instead, had
Petitioner illegally entered or overstayed a visa prior to seeking asylum, he would be detained pursuant to § 1226(a),
and he would be entitled to a bond hearing before an immigration judge. See 8 U.S.C. § 1226(a) (explaining that the
Attorney General may release on bond or parole aliens held under this provision); see also, e.g., Nepomuceno v.
Holder, No. CIV. 11-6825 WJM, 2012 WL 715266, at *1, *3, *4 (D.N.J. Mar. 5, 2012) (explaining that an alien
who was detained pursuant to § 1226(a) because he had entered the United States “without being admitted by an
immigration officer” received a bond hearing and re-hearing); Kambo v. Poppell, No. SA-07-CV-800-XR, 2007 WL
3051601, at *1 (W.D. Tex. Oct. 18, 2007) (explaining that an asylum applicant who was detained pursuant to
§ 1226(a) “due to his having remained in the United States longer than permitted, in violation of law” received a
bond redetermination hearing).

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cannot be read to condone such a result. Indeed, the holding of Demore condoned mandatory
detention only for aliens in expedited removal. See Rodriguez v. Hayes, 591 F.3d 1105, 1116
(9th Cir. 2010) (“Section 1226(c) provides for mandatory detention of criminal aliens for
expedited removal.”); see also Casas-Castrillon v. Dep't of Homeland Sec., 535 F.3d 942, 948
(9th Cir. 2008) (concluding that “the mandatory, bureaucratic detention of aliens under § 1226(c)
was intended to apply for only a limited time”); Tijani, 430 F.3d at 1242 (holding that the
authority to detain pursuant to § 1226(c) only applies “to expedited removal of criminal aliens”
and finding that “[t]wo years and eight months of process is not expeditious”); Shokeh I, 369
F.3d at 869-70 (explaining that the Demore Court’s decision to uphold mandatory § 1226(c)
detention was partly based on the brevity of the detention at issue in the case).
The “brief” period of detention of concern in Demore lasted “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.” Demore, 538 U.S. at 530. In that case, the alien’s
detention was “somewhat longer than the average—spending six months in INS custody.” Id. at
531. Although Petitioner’s detention is not indefinite or even potentially permanent, as his
removal proceedings will one day end, his detention to date is far from brief.
Sitting in immigration detention for more than two years, having committed no crime in
his attempt to seek asylum in this country, and without any opportunity for an individualized
review of his detention by an immigration judge, the Court finds Petitioner’s detention to be
prolonged. See Chen v. Aitken, 917 F. Supp. 2d 1013, 1018 (N.D. Cal. 2013) (granting habeas
relief upon finding that “petitioner Chen's detention has lasted well beyond the typical period
described in Demore, and has become ‘prolonged’ because neither release nor removal are
imminent”); see also Bautista, 862 F. Supp. 2d at 381-82 (stating that “[d]ue process has been
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long overdue to Bautista” when Bautista was detained, pursuant to § 1225(b)(2)(A), for twentysix months). Under these circumstances—even without a bright-line rule regarding a reasonable
length of mandatory detention—it is clear that Petitioner’s twenty-six month mandatory
detention is unreasonable.
7.

The appropriate remedy is a bond hearing

Now that this Court has determined that Petitioner’s twenty-six month mandatory
detention pursuant to § 1225(b)(2)(A) is unreasonable, the Court must determine what remedy is
appropriate. Petitioner asks this Court to direct the Government to release him from custody and
to “[g]rant any additional relief that the Court deems appropriate.” Pet. 18.
However, many courts have found that bond hearings—in which the Immigration Judge
determines whether the alien will “pose a danger to the community or a flight risk—are
appropriate habeas relief when an alien’s detention is prolonged. See Casas-Castrillon, 535 F.3d
at 944. For example, several circuit and district courts have granted bond hearings where
detention pursuant to § 1226(c) was held to be unreasonable. See, e.g., Tijani, 430 F.3d at 1242
(“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.”); Casas-Castrillon, 535 F.3d at 944 (remanding to the district court with
instructions to grant the habeas petition, unless the Government provides petitioner with a bond
hearing or provides evidence that petitioner has already received a bond hearing); Reid, 991 F.
Supp. 2d at 277 (holding that “§ 1226(c) includes a ‘reasonableness’ restriction on the length of
time an individual can be detained without a bond hearing”); see also Diop, 656 F.3d at 235
(“Should the length of his detention become unreasonable, the Government must justify its
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continued authority to detain him at a hearing at which it bears the burden of proof.”). Likewise,
the Ninth Circuit and several district courts have granted bond hearings for aliens whose
detention pursuant to § 1225(b)(2)(A) was found to be unreasonable. See, e.g., Rodriguez II, 804
F.3d at 1070-71 (explaining that “class members detained under § 1226(c) and § 1225(b) are
entitled to bond hearings after six months of detention”); Chen, 917 F. Supp. 2d at 1018 (finding
that the detention of an alien detained pursuant to § 1225(b) and “who intends to appeal the nowissued removal order to the Board of Immigration Appeals, which would further extend his
detention—does raise a due process concern sufficient to make an individualized bond hearing
appropriate”); Bautista, 862 F. Supp. 2d at 382 (granting habeas relief in the form of a bond
hearing where alien was detained for twenty-six months pursuant to § 1225(b)(2)(A)); CentenoOrtiz v. Culley, No. 11-CV-1970-IEG POR, 2012 WL 170123, at *9 (S.D. Cal. Jan. 19, 2012)
(ordering that an alien who was detained pursuant to § 1225(b)(2)(A), but who was later paroled,
should be provided with an individualized bond hearing before an immigration judge if his
parole is revoked, explaining that “once the presumptively reasonable detention period expires,
the government must justify any further detention by meeting its burden before a neutral
decisionmaker”).
Petitioner does not specifically request a bond hearing, but instead requests release from
detention. Pet. 17-18. However, this Court finds that a bond hearing before an Immigration
Judge is more appropriate than release in this case “to provide a minimal procedural safeguard”
because an immigration judge is in a better position to conduct the sort of individualized review
that is necessary to determine if Petitioner should be released during the pendency of his asylum
case. See Rodriguez II, 804 F.3d at 1090. The Zadvydas Court stated that civil detention should

36

be subject to “strong procedural protections,” and granting a bond hearing will ensure that
Petitioner receives these procedural protections. See Zadvydas, 533 U.S. at 690-91.
Petitioner has been detained for over twenty-six months without a bond hearing or any
type of process to determine if the justifications for civil immigration detention—ensuring the
appearance of aliens at future immigration proceedings and preventing danger to the
community—properly apply to him such that continued detention is appropriate. This Court
finds that a bond hearing is the appropriate remedy in Petitioner’s case.
III.

CONCLUSION

For the reasons set forth above, Petitioner’s Petition for Writ of Habeas Corpus Pursuant
to 28 U.S.C. § 2241 is GRANTED in part as follows:
1. Within twenty-one days of the date of this order, the Government shall provide
Petitioner with a bond hearing before an immigration judge to consider the appropriateness of his
release during the pendency of his immigration proceedings.
2. If a hearing is not held within twenty-one days, the Government shall release Petitioner
from detention under reasonable supervision conditions.
IT IS FURTHER ORDERED that the Government’s request to dismiss as to
Respondents Loretta E. Lynch, United States Attorney General; Jeh Johnson, Secretary of United
States Department of Homeland Security; and Sarah Saldana, Director of United States
Immigration and Customs Enforcement is GRANTED. The Government’s request to dismiss as
to Respondent Warden Don Franklin, Warden of the West Texas Detention Facility, is DENIED.

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SO ORDERED.
SIGNED this 15th day of December, 2015.

KATHLEEN CARDONE
UNITED STATES DISTRICT JUDGE

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