Case: 10-1113 Document: 003110132187 Page: 1 Date Filed: 05/05/2010
IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______
Docket No. 10-1113 ______
CHEIKH DIOP, a/k/a Ibou Ndiaya, a/k/a Ebou Njie Agency No. A 097-702-755
Petitioner-Appellant,
v.
UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT, et al.,
Respondents-Appellees. ______
BRIEF FOR AMICI CURIAE AMERICAN CIVIL LIBERTIES UNION FOUNDATION AND AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF PENNSYLVANIA ______
Judy Rabinovitz Witold Walczak Farrin R. Anello Mary Catherine Roper Tanaz Moghadam Valerie Burch American Civil Liberties Union American Civil Liberties Union Foundation Foundation of Pennsylvania 125 Broad Street, 18th Floor 313 Atwood Street New York, NY 10004 Pittsburgh, PA 14213 (212) 549-2660 (412) 681-7864
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TABLE OF CONTENTS
INTRODUCTION ...... 1
INTERESTS OF AMICI CURIAE...... 5
ARGUMENT...... 5
I. PROLONGED MANDATORY DETENTION RESULTS IN THE UNNECESSARY DETENTION OF HUNDREDS OF INDIVIDUALS IN THIS CIRCUIT...... 5
II. PROLONGED MANDATORY DETENTION PENDING COMPLETION OF REMOVAL PROCEEDINGS VIOLATES DUE PROCESS...... 8
III. 8 U.S.C. §1226 DOES NOT AUTHORIZE PROLONGED IMMIGRATION DETENTION WITHOUT A CONSTITUTIONALLY ADEQUATE HEARING...... 13
A. Section 1226(c) Does Not Authorize Prolonged Mandatory Detention ...... 14
B. 8 U.S.C. §1226(a) Requires that the Government Justify Prolonged Detention in a Constitutionally Adequate Bond Hearing...... 18
IV. THIS COURT SHOULD RECOGNIZE SIX MONTHS AS THE POINT AT WHICH DETENTION IS PRESUMPTIVELY PROLONGED AND A CONSTITUTIONALLY ADEQUATE BOND HEARING REQUIRED ...... 19
V. MR. DIOP’S TWO-YEAR MANDATORY DETENTION IS UNREASONABLY PROLONGED UNDER ANY STANDARD ...... 22
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VI. MR. DIOP IS NOT SUBJECT TO MANDATORY DETENTION UNDER 8 U.S.C. §1226(C) BECAUSE HE WAS NOT TAKEN INTO ICE CUSTODY “WHEN RELEASED” FROM CRIMINAL INCARCERATION FOR A DESIGNATED OFFENSE...... 25
CONCLUSION...... 29
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TABLE OF AUTHORITIES
CASES
Akinola v. Weber, No. 09-3515 (WJM), 2010 WL 376603 (D.N.J. Jan. 26, 2010) ...... 11
Adler v. DHS, No. 09-cv-4093-SAS, 2009 WL 3029328 (SDNY Sep. 22, 2009).... 12
Alli v. Decker, 644 F.Supp.2d 535 (M.D.Pa. Aug. 10, 2009) ...... passim
Alli v. Decker, No. 4:09-cv-698-JEJ, slip op. (M.D. Pa. Jan. 26, 2010) ...... 6
Burns v. Cicchi, No. 09 CV 2609 FLW, 2010 WL 891608 (D.N.J. Mar. 10, 2010).... 26
Casas-Castrillon v. Dep't of Homeland Security, 535 F.3d 942 (9th Cir. 2008)...... passim
Clark v. Martinez, 543 U.S. 371 (2005) ...... 15, 16
Cox v. Monica, No. 07-0534, 2007 WL 1804335 (M.D. Pa. June 20, 2007)...... 28
Crowell v. Benson, 285 U.S. 22 (1932) ...... 15
Demore v. Kim, 538 U.S. 510 (2003) ...... passim
Donaldson v. Donate, No. 3:CV-09-0208, 2009 WL 5179539 (M.D.Pa. Dec. 31, 2009)..... 10
Fuller v. Gonzales, No. 04-2039, 2005 WL 818614 (D. Conn. Apr. 08, 2005)...... 11
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Hussain v. Mukasey, 510 F.3d 739 (7th Cir. 2007)...... 12
Ibeagwa v. Crawford, No. CV-06-2646, 2007 WL 2702006 (D. Ariz. Sept. 14, 2007)...... 13
Joseph v. Avila, No. 07-cv-2392 (JLL), slip op. (D.N.J. June 7, 2007) ...... 6
Kansas v. Hendricks, 521 U.S. 346 (1997) ...... 9
Knapik v. Ashcroft, 384 F.3d 84, 89 (3d Cir. 2004)...... 27
Leocal v. Ashcroft, 543 U.S. 1 (2004) ...... 7
Lua Garcia v. Sabol, 2009 WL 1936954 (M.D. Pa. July 6, 2009)...... 6
Ly v. Hansen, 351 F.3d 263, 267 (6th Cir. 2003)...... 10, 14, 20, 23
Mainasara v. Sabol, No. 4:09-cv-02010-MM, slip op. (Mar. 17, 2010)...... 6
Madrane v. Hogan, 520 F. Supp. 2d 654 (M.D. Pa. 2007) ...... 17, 23
Nadarajah v. Gonzales, 443 F.3d 1069 (9th Cir. 2006)...... 17
Ngo v. INS, 192 F.3d 390 (3d Cir. 1999) ...... 3, 9
Ovchinnikov v. Clark, 543 F.Supp.2d 1265 (W.D. Wash 2008) ...... 13
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Oyediji v. Ashcroft, 332 F.Supp.2d 747, 754 (M.D. Pa. 2004) ...... 24
Patel v. Zemski, 275 F.3d 299 (3d Cir. 2001) ...... 8
Prince v. Mukasey, 593 F. Supp. 2d 727 (M.D. Pa. 2008) ...... 12
Rodriguez v.Hayes, 591 F.3d 1105 (9th Cir. 2010)...... 19-20
Saysana v. Gillen, 590 F.3d 7, 10 (1st Cir. 2009) ...... 26
Sengkeo v. Horgan, 670 F.Supp.2d 116 (D. Mass. 2009)...... 11, 15
Soberanes v. Comfort, 388 F.3d 1305 (10th Cir. 2004)...... 13
Tijani v. Willis, 430 F.3d 1241 (9th Cir. 2005)...... passim
Victor v. Mukasey, No. 3:CV-08-1914 , 2008 WL 5061810 (M.D. Pa. Nov. 25, 2008) ...... 20, 21
Wilks v. U.S. Dep’t of Homeland Security,, No. 1:07-CV-2171, 2008 WL 4820654 (M.D. Pa. Nov. 3. 2008) ...... 11, 15, 19
Zadvydas v. Davis, 533 U.S. 678 (2001) ...... passim
BIA DECISIONS
In re Binjaku, 2008 WL 486846 (B.I.A. Jan. 23, 2008)...... 28
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In re Braimllari, 2006 WL 729794 (B.I.A. Feb. 14, 2006) ...... 28
In re Guzman-Uribe, 2008 WL 1924610 (B.I.A. Apr. 7, 2008)...... 28
In re Joseph, 22 I. & N. Dec. 799 (B.I.A. 1999)...... 30
In re Saysana, 24 I. & N. Dec. 602 (B.I.A. 2008)...... 26, 27
In re Restrepo-Espinoso, 2006 Wl 2024201, A75-420-902 (BIA June 8, 2006) ...... 29
STATUTES
INA § 212(a)(2) ...... 25, 26
8 U.S.C. §1226...... 3, 14
8. U.S.C. §1226A(a)(2)...... 16
8 U.S.C. §1226(a) ...... 14, 18, 19
8 U.S.C. §1226(c) ...... passim
8 U.S.C. §1226(c)(1)...... 25
8 U.S.C. §1226(c)(1)(A)...... 29
8 U.S.C. § 1231...... 13
8 U.S.C. § 1231(a) ...... 13
8 U.S.C. §1231(a)(6)...... 15, 16, 17, 18
8 U.S.C. § 1537(b)(1) ...... 16
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N.Y. Penal Law §120.25...... 28
18 Pa. Cons. Stat. Ann. § 2705...... 27, 28
REGULATION
8 C.F.R. § 236.1(c)(10)...... 19
OTHER AUTHORITIES
Donald Kerwin and Serena Yi-Ying Lin, Migration Policy Institute, Immigration Detention: Can ICE Meet its Legal Imperatives and Case Management Responsibilities? (September 2009), available at http://www.migrationpolicy.org/pubs/detentionreportSept1009.pdf... 8
Peter L. Markowitz, Barriers to Representation for Detained Immigrants Facing Deportation: Varick Street Detention Facility, A Case Study, 78 Ford. L. Rev. 551 (Nov. 2009), ...... 7
N.Y.U. School of Law Immigrant Rights Clinic, “Locked Up but not Forgotten” (Apr. 2010), available at http://law.nyu.edu/ecm_dlv3/groups/public/@nyu_law_website__new s__media/documents/documents/ecm_pro_065626.pdf ...... 6, 7
Amnesty International, Jailed Without Justice: Immigration Detention in the USA (Mar. 25, 2009) available at http://www.amnestyusa.org/uploads/JailedWithoutJustice.pdf...... 7
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INTRODUCTION
This appeal raises an issue of fundamental fairness: whether the government can subject individuals to prolonged immigration detention without the most basic element of due process, an individualized hearing to determine if their detention is justified. Petitioner-Appellant, Cheikh Diop, has been detained by U.S.
Immigration and Customs Enforcement (“ICE”) for more than two years while challenging its attempt to remove him to Senegal, a country he left nearly 20 years ago. Like hundreds of other immigration detainees in this circuit who are subject to prolonged detention while they fight their removal cases, he has never received an individualized hearing to determine whether his prolonged detention is justified.
The government defends such detention based on the mandatory detention statute, 8 U.S.C. §1226(c), INA §236(c), and the Supreme Court’s decision in
Demore v. Kim, 538 U.S. 510 (2003), contending that “detention during removal proceedings remains per se authorized under INA § 236(c) for the full duration of removal proceedings,” regardless of how long these proceedings may last.
Appellees’ Answering Br. 12 (hereinafter “Appellees’ Br.”); see also id. at 17-18.
Thus, the government insists that it may continue to detain Mr. Diop without a bond hearing even though his removal proceedings have already extended more than five times the average period contemplated by the Supreme Court in Demore, when it upheld the constitutionality of a “brief period” of mandatory detention, 538 1 Case: 10-1113 Document: 003110132187 Page: 10 Date Filed: 05/05/2010
U.S. at 513, and even though his proceedings, which were recently remanded to the immigration judge for a third round of hearings, are likely to extend at a minimum another six months and quite possibly years.
Recognizing that other courts have rejected such an extreme position, the government attempts to defend Mr. Diop’s detention on the ground that “no
‘unreasonable’ delay [was] caused by the Government” and that Mr. Diop
“contributed” to his own detention. Appellees’ Br. at 18-19. But Mr. Diop has done no more than pursue the relief to which he is entitled. Indeed, the prolonged length of his proceedings and detention is due in large part to the Government’s failure to submit evidence during the first two rounds of immigration court hearings, thereby requiring the current remand, and to an error by the Immigration
Judge (“IJ”), which necessitated Mr. Diop’s appeal and the first remand.
Moreover, the requirement of an individualized hearing stems not from
“unreasonable delay” on the part of the Government, but rather from the fact that detention has been prolonged beyond the “brief period” reasonably necessary to conclude removal proceedings contemplated in Demore.
The Government’s continued detention of Mr. Diop violates his rights under both the Immigration and Nationality Act (INA) and the Due Process Clause of the
Fifth Amendment. The Supreme Court has held that immigration detention violates due process unless it is reasonably related to its purpose. Zadvydas v.
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Davis, 533 U.S. 678 (2001). Due process requires a “special justification” to outweigh the deprivation of liberty, as well as “strong procedural protections” to ensure that an individual’s detention is actually serving those Governmental purposes. Id. at 690-91. Where detention is prolonged, an even greater justification is required to outweigh the greater deprivation of liberty, and even stronger procedural protections. See id. at 690-92; see also Ngo v. INS, 192 F.3d
390, 398 (3d Cir. 1999).
This Court, however, need not – and should not – decide the serious constitutional questions presented by Mr. Diop’s detention. Principles of statutory construction require that, where possible, courts construe statutes so as to avoid serious constitutional problems. The Supreme Court applied this canon in
Zadvydas, construing the post-final-order immigration detention statute as authorizing detention only for the period of time reasonably necessary to effectuate removal, and designating six months as the presumptively reasonable period, even though the statute itself placed no limit on the length of detention. 533 U.S. at 701.
Likewise here, the immigration statute is silent with respect to the length of mandatory detention authorized. In the absence of any evidence that Congress intended to authorize prolonged mandatory detention, this Court should construe
§1226 as not authorizing mandatory detention beyond the brief period of time reasonably necessary for removal proceedings, and as requiring a constitutionally
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adequate hearing at which the government bears the burden of justifying any further detention. Moreover, for ease of application, and consistent with both
Zadvydas and Demore, this Court should find that six months is the presumptively reasonable period for removal proceedings, after which time the government must justify further detention in a constitutionally adequate hearing. Under any
“reasonableness” standard, however, Mr. Diop is entitled to a hearing.
This Court should also recognize that Mr. Diop is not properly subject to mandatory detention because he was not taken into immigration custody “when released” for an offense that triggers the mandatory detention statute. Even the government recognizes the uncertainty as to whether Mr. Diop’s 2005 conviction for reckless endangerment will “ultimately [be] found to be a crime of moral turpitude. Appellees’ Br. at 16-17 n.8,. The mere fact that the conviction could constitute a crime of moral turpitude is insufficient to satisfy the statute’s requirement that mandatory detention applies to an individual who “is inadmissible” on this ground. 8 U.S.C. §1226(c)(1)(A).
Accordingly, this Court should reverse the decision of the court below and order Mr. Diop’s immediate release under reasonable conditions of supervision or, in the alternative, order the government to justify his continued detention in a constitutionally adequate hearing before an Immigration Judge or the district court.
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INTERESTS OF AMICI CURIAE
Amici, the American Civil Liberties Union Foundation (ACLU) and the American Civil Liberties Union Foundation of Pennsylvania (ACLU-PA), have a longstanding interest in enforcing constitutional and statutory constraints on the federal government’s power to subject noncitizens to immigration detention.
See Motion for Leave to File Brief of Amici Curiae ¶¶ 2-3 (listing significant cases litigated by amici). On April 27, 2010, the Court granted amici’s motion to file the present brief.
ARGUMENT
I. PROLONGED MANDATORY DETENTION RESULTS IN THE UNNECESSARY DETENTION OF HUNDREDS OF INDIVIDUALS IN THIS CIRCUIT
The government’s policy of prolonged mandatory detention imposes enormous costs on detainees, their families, and the general public. First, the policy results in hundreds of unnecessary detentions of individuals who pose no danger or flight risk and who have meritorious challenges to removal on which they often succeed. For example, Alexander Alli, a longtime lawful permanent resident (LPR) with a U.S. citizen wife and U.S.C. children, was recently detained for a year and a half without a bond hearing. Yet when the district court ordered a
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bond hearing, ICE released him on his own recognizance.1 See also Lua Garcia v.
Sabol, 2009 WL 1936954 (M.D. Pa. July 6, 2009) (petitioner awarded cancellation of removal after nearly sixteen months of mandatory detention); Mainasara v.
Sabol, No. 4:09-cv-02010-MM, slip op. (Mar. 17, 2010) (petitioner granted withholding of removal after nineteen months of mandatory detention);2 N.Y.U.
School of Law Immigrant Rights Clinic, “Locked Up but not Forgotten” (Apr.
2010) (hereinafter “Locked Up”) at 9-10 (discussing case of Warren Joseph, a longtime LPR and U.S. army veteran who was detained for three years without a bond hearing before being granted cancellation of removal – a decision ICE chose not to appeal), available at http://law.nyu.edu/ecm_dlv3/groups/public/@nyu_law_website__news__media/do cuments/documents/ecm_pro_065626.pdf.3
Prolonged immigration detention imposes both emotional and economic hardship on detainees’ families, who frequently lose businesses and homes and are
1 See Alli v. Decker, No. 4:09-cv-698-JEJ, slip op. at 14 (M.D. Pa. Jan. 26, 2010); Amici’s Supplemental Appx. 4 (hereinafter “SA-1”) (Order of Release on Recognizance (Jan. 28, 2010) (personal information redacted)).
2 In the Matter of Mainasara, Order of the IJ (York, PA EOIR Jan. 19, 2010) (personal information redacted), SA-1 at 7.
3 Joseph v. Avila, No. 07-cv-2392 (JLL), slip op. (D.N.J. June 7, 2007); SA-1 at 9 (Matter of Joseph, Decision of the IJ (York, Pa. EOIR June 4, 2007)); SA-1 at 11 (Notice of Custody Determination, Mar. 22, 2004). 6 Case: 10-1113 Document: 003110132187 Page: 15 Date Filed: 05/05/2010
even forced onto public assistance. See, e.g., “Locked Up” at 9-12; Amnesty
International, Jailed Without Justice: Immigration Detention in the USA (Mar. 25,
2009) (hereinafter “Jailed Without Justice”) at 5, 7, 15, 17-18, 20-22, 29, 34-35,
43, available at http://www.amnestyusa.org/uploads/JailedWithoutJustice.pdf.
Moreover, detention makes it far more difficult to challenge removal; Peter L.
Markowitz, Barriers to Representation for Detained Immigrants Facing
Deportation: Varick Street Detention Facility, A Case Study, 78 Fordham L. Rev.
541 (Nov. 2009). Especially because the removal process can take so long, see, e.g., Leocal v. Ashcroft, 543 U.S. 1 (2004) (holding, four years after initiation of removal proceedings, that petitioner was not deportable), detainees are often forced to choose between enduring prolonged deprivation of their liberty or forfeiting meritorious challenges.
Finally, unnecessary detention imposes costs on taxpayers as well.
Immigration detention has been estimated to cost approximately $141 per detainee per day.4 At this rate, Mr. Diop’s twenty-five months in detention has already cost well over $100,000. The government’s policy also places a burden on the district courts, which are seeing increasing numbers of habeas petitions. Amici are aware
4 See Donald Kerwin and Serena Yi-Ying Lin, Migration Policy Institute, Immigration Detention: Can ICE Meet its Legal Imperatives and Case Management Responsibilities? (September 2009), available at http://www.migrationpolicy.org/pubs/detentionreportSept1009.pdf. 7 Case: 10-1113 Document: 003110132187 Page: 16 Date Filed: 05/05/2010
of at least thirty habeas actions filed by immigration detainees in the Middle
District of Pennsylvania alone, challenging prolonged mandatory pre-final order detention, the vast majority of which were litigated by pro se petitioners. This figure does not include habeas petitions filed in the District of New Jersey, another
District in which many immigration detainees are held.
II. PROLONGED MANDATORY DETENTION PENDING COMPLETION OF REMOVAL PROCEEDINGS VIOLATES DUE PROCESS.
“Freedom from imprisonment—from Government custody, detention, or other forms of physical restraint—lies at the heart of the liberty that Clause protects.” Zadvydas v. Davis, 533 U.S. 678, 690 (2001). The Supreme Court has recognized that non-citizens—even those who, unlike Mr. Diop, have exhausted all their challenges to removal—have a liberty interest threatened by immigration detention. Id. at 690-91; see also Patel v. Zemski, 275 F.3d 299, 309 (3d Cir.
2001), overruled on other grounds, Demore v. Kim, 538 U.S. 510, 553 (2003)
(recognizing “the critical liberty interest implicated by immigration detention”).
In Zadvydas, the Supreme Court made clear that civil detention violates due process unless it is reasonably related to its purpose and accompanied by adequate procedural safeguards. 533 U.S. at 690-691. Moreover, where civil detention is prolonged, an even greater justification is required to outweigh the greater deprivation of liberty, and even stronger procedural protections. Id. at 690-692;
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cf. Kansas v. Hendricks, 521 U.S. 346, 368-69 (1997) (upholding involuntary civil commitment for periods of one year at a time, subject to “strict procedural safeguards” including right to jury trial before state court and imposition of burden of proof beyond a reasonable doubt on Government); see also Ngo v. INS, 192 F.3d
390, 392, 398 (3d Cir. 1999) (emphasizing that. “[w]hen detention is prolonged, special care must be exercised” and that due process requires “rigorous,”
“individualized” review over prolonged immigration detention even with respect to
“excludable” noncitizens who have traditionally been afforded less constitutional protection).
In Demore, 538 U.S. 510, the Supreme Court upheld mandatory, pre- removal order detention under 8 U.S.C. §1226(c), but only for the “brief period necessary for . . . removal proceedings.” 538 U.S. at 513 (emphasis added); see also id. at 532-33 (Kennedy, J., concurring) (noting that, at some point, prolonged mandatory detention is not reasonably related to removal and requires provision of a bond hearing). The Demore court stressed “[t]he very limited time of the detention at stake under §1226(c),” and relied heavily on the Government’s representations that such detention lasts “roughly a month and a half in the vast majority of cases in which it is invoked, and about four months in the minority of cases in which the alien chooses to appeal.” Id. at 530
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Since Demore, the two circuit courts to squarely address the issue have acknowledged the serious constitutional problems raised by prolonged mandatory detention pending conclusion of removal proceedings. See Tijani v. Willis, 430
F.3d 1241, 1242 (9th Cir. 2005) (construing mandatory detention statute to apply only where removal proceedings are “expeditious” so as to avoid the serious constitutional problems otherwise created and finding two years and eight months not “expeditious”); Ly v. Hansen, 351 F.3d 263, 267, 271-72 (6th Cir. 2003)
(construing §1226 to authorize mandatory detention only for “a time reasonably required to complete removal proceedings in a timely manner” in order to avoid an
“unconstitutional” result and finding that the petitioner’s 18-month detention exceeded this period); Casas-Castrillon v. Dep't of Homeland Sec., 535 F.3d 942,
950 (9th Cir. 2008) (concluding that prolonged detention in the absence of an
“individualized determination of the necessity of detention before a neutral decision maker” would raise serious constitutional problems).
Numerous district courts within this Circuit and elsewhere have similarly held that the Due Process Clause imposes limits on prolonged pre-final order detention. See, e.g., Donaldson v. Donate, No. 3:CV-09-0208, 2009 WL 5179539, at *3 (M.D.Pa. Dec. 31, 2009) (concurring with the “growing consensus within this district and, indeed it appears throughout the federal courts . . . that the prolonged detention of aliens under §1226(c) raises serious constitutional concerns”)
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(collecting cases); Alli v. Decker, 644 F. Supp. 2d 535, 539 (M.D.Pa. Aug. 10,
2009); Akinola v. Weber, No. 09-3415 (WJM), 2010 WL 376603, at *5 (D.N.J.
Jan. 26, 2010); see also Sengkeo v. Horgan, 670 F. Supp. 2d 116, 125 (D. Mass.
2009); Fuller v. Gonzales, No. 04-cv-2039-SRU, 2005 WL 818614, at *5 (D.
Conn. Apr. 08, 2005).
Moreover, a constitutionally adequate bond hearing, whether before an IJ or district court, requires that the government bear the burden of demonstrating a need for further detention. See, e.g., Zadvydas, 533 U.S. at 692 (emphasizing constitutional inadequacy of custody review procedure because “the alien bears the burden of proving he is not dangerous”); Tijani, 430 F.3d at 1244-45 (Tashima, J. concurring) (noting that when a fundamental right such as the right to individual liberty is at stake, Supreme Court precedent rejects laws that place on the individual the burden of protecting that right); see also Tijani, 430 F.3d at 1242
(where petitioner had been subjected to prolonged mandatory detention, ordering hearing where government bore the burden of establishing flight risk or danger);
Alli, 644 F. Supp. 2d at 541 (same); Wilks v. U.S. Dep’t of Homeland Security,
2008 WL 4820654, at *2 (M.D. Pa. Nov. 3, 2008) (same).
The government’s brief largely ignores this overwhelming authority.
Instead, like the court below, it relies solely on Demore in staking out an extreme position – namely that pre-final-order mandatory detention is per se constitutional
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as long as proceedings remain pending. Appellees’ Br. at 11,12. It cites no other cases that support this position, fails to address the reasoning of the many cases that have recognized constitutional limits on §1226(c) mandatory detention, and indeed appears to recognize the lack of authority supporting its “per se” argument.
See id. at 13 (“Generally, courts have conducted case-by-case reasonableness inquiries . . . .”).
For example, many of the cases that the government describes as “reject[ing] due process challenges notwithstanding the length of detention,” Appellees’ Br. at
14-15, actually support a finding that due process limits the length of detention without a bond hearing. See, e.g., Hussain v. Mukasey, 510 F.3d 739, 743 (7th Cir.
2007) (holding that habeas appeal was moot but noting that “[i]nordinate delay before [a removal] order was entered might well justify [habeas] relief”); Prince v.
Mukasey, 593 F. Supp. 2d 727 (M.D. Pa. 2008) (holding that prolonged mandatory detention “goes against all of the constitutional concepts, long part of the fabric of the law of this country and the legal concepts of democracy” and ordering bond hearing); Adler v. DHS, No. 09-cv-4093-SAS, 2009 WL 3029328 (S.D.N.Y. Sept.
22, 2009) (recognizing potential constitutional concerns in prolonged mandatory
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detention but holding that they did not arise in petitioner’s case); Ovchinnikov v.
Clark, 543 F.Supp.2d 1265, 1271 (same).5
III. 8 U.S.C. §1226 DOES NOT AUTHORIZE PROLONGED IMMIGRATION DETENTION WITHOUT A CONSTITUTIONALLY ADEQUATE HEARING.
As set forth above, Petitioner’s prolonged detention without a bond hearing violates due process. This Court, however, need not decide this constitutional issue because the canon of constitutional avoidance compels the conclusion that no detention statute permits Mr. Diop’s prolonged detention, at least in the absence of a constitutionally adequate bond hearing.
As a preliminary matter, the government concedes that the court below erred in holding that 8 U.S.C. §1231 governs Mr. Diop’s detention. That statute governs only the detention of individuals who have final orders of removal. In contrast,
§1226 governs detention “pending a decision on whether the alien is to be removed.” Thus Mr. Diop’s detention can only be governed by §1226(c), which
5 One such case, Ibeagwa v. Crawford, No. CV-06-2646, 2007 WL 2702006, at *2 (D. Ariz. Sept. 14, 2007) is no longer good law, having been superseded by the Ninth Circuit’s subsequent decision in Casas-Castrillon, which held that an individual in Ibeagwa’s position is entitled to a bond hearing. Casas-Castrillon, 535 F.3d at 950-51. As for The Tenth Circuit’s decision in Soberanes v. Comfort, this case involved a request for release from detention pursuant to the post-final- order detention statute, §1231(a), and did not even address the due process right to a bond hearing. 388 F.3d 1305, 1311 (10th Cir. 2004).
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authorizes mandatory detention in certain circumstances, or §1226(a), which authorizes discretionary detention “[e]xcept as provided in subsection (c).”
As set forth below, this Court should join the two circuits and numerous district courts which, applying the canon of constitutional avoidance, have held that §1226(c) does not authorize prolonged mandatory detention. Rather, the best reading of the statutory scheme is that, once mandatory detention exceeds the
“brief period necessary for . . . removal proceedings,” Demore, 538 U.S. at 513, detention reverts to the discretionary provision, §1226(a), which must be construed as requiring a constitutionally adequate bond hearing to justify prolonged detention.
A. Section 1226(c) Does Not Authorize Prolonged Mandatory Detention.
As two circuits and numerous district courts have held, §1226(c) does not authorize prolonged mandatory detention. See, e.g., Ly, 351 F.3d at 267-68
(§1226(c) only authorizes detention for period reasonably necessary to conclude removal proceedings); Tijani, 430 F.3d at 1242 (§1226(c) applies only to
“expeditious” removal proceedings); Casas-Castrillon, 535 F.3d at 950 (finding
“no evidence that Congress intended to authorize the long-term detention of aliens
[whose removal proceedings remain pending] without providing them access to a bond hearing before an immigration judge”); Alli, 644 F. Supp. 2d at 540
(§1226(c) authorizes mandatory detention only “for the period of time reasonably
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necessary to promptly initiate and conclude removal proceedings”) (collecting cases); Wilks, 2008 WL 4820654, at *2 (§1226(c) does not authorize detention beyond “the period typically required for removal proceedings”); Sengkeo v.
Horgan, 670 F.Supp.2d 116, 126 (D. Mass. 2009).
This conclusion follows from the canon of constitutional avoidance, which dictates reading a statute as not authorizing unconstitutional action unless no other construction is “fairly possible.” Zadvydas, 533 U.S. at 689; see also Crowell v.
Benson, 285 U.S. 22, 62 (1932); Clark v. Martinez, 543 U.S. 371, 381 (2005)
(canon “is a tool for choosing between competing plausible interpretations of a statutory text, resting on the reasonable presumption that Congress did not intend the alternative which raises serious constitutional doubts.”). In Zadvydas, the
Supreme Court applied this canon to the INA section governing post-final order detention, 8 U.S.C. §1231(a)(6), holding that the statutory language was insufficiently clear to authorize prolonged and indefinite detention in light of the serious constitutional problems the statute would otherwise present. Zadvydas,
533 U.S. at 697 (“[I]f Congress had meant to authorize long-term detention of unremovable aliens, it certainly could have spoken in clearer terms.”); see also id. at 689, 699. Likewise, §1226(c) is insufficiently clear to authorize prolonged mandatory detention in light of the serious constitutional problems that such detention would pose.
15 Case: 10-1113 Document: 003110132187 Page: 24 Date Filed: 05/05/2010
The plain language of §1226(c) does not address, much less authorize, prolonged mandatory detention. The statute merely states that the Attorney General
“shall take into custody” certain categories of noncitizens. Like the statute construed in Zadvydas – and unlike the few INA provisions that authorize prolonged detention -- §1226(c) does not state how long an individual may be detained. Compare 8 U.S.C. §§1226(c), 1231(a)(6) with id. § 1537(b)(1)
(providing for detention in concert with Alien Terrorist Removal proceedings
“until the completion of any appeal”); id. §1226A(a)(2) (detention of individuals deemed a threat to national security shall last “until the alien is removed from the
United States”).6
In addition, there is no evidence that Congress intended § 1226(c) to authorize prolonged mandatory detention. To the contrary, in upholding the constitutionality of §1226(c), the Supreme Court specifically described the statute as authorizing mandatory detention only “during the brief period necessary for their removal proceedings,” Demore, 538 U.S. at 513 – a period that typically
“lasts roughly a month and a half in the vast majority of cases . . . and about five months in the minority of cases in which the alien chooses to appeal [to the BIA].”
6 In Zadvydas and Clark, the Supreme Court specifically referenced these two provisions in concluding that statutes that do not expressly authorize prolonged and indefinite detention should not be read to do so. See Zadvydas, 533 U.S. at 697; Clark, 543 U.S. at 379 n.4, 386. 16 Case: 10-1113 Document: 003110132187 Page: 25 Date Filed: 05/05/2010
Id. at 530; see, e.g., Alli, 644 F. Supp. 2d 539-40 (recognizing Demore’s emphasis on limited duration of detention anticipated under §1226); Madrane, 520 F. Supp.
2d at 664) (same); cf. Nadarajah v. Gonzales, 443 F.3d 1069, 1079 (9th Cir. 2006)
(holding that where Congress intended to authorize prolonged detention, it did so clearly and that “general detention statutes” authorize detention only for “brief and reasonable” time periods). Thus, consistent with Zadvydas, Demore, the principle of constitutional avoidance, and the overwhelming majority of courts to address the issue, §1226(c) should be read as authorizing mandatory detention only for the period of time reasonably necessary to conclude removal proceedings.
The district court below ignored the entire body of caselaw interpreting Demore, even though Mr. Diop cited this caselaw in his habeas petition Amici’s Supplemental Appx. 23-28, 30 (hereinafter “SA-1”).7 While the government acknowledges some of these decisions, it offers no meaningful response to their statutory analysis. Appellees’ Br. at 13-14. Instead, the government insists that because §1226(c) includes no express time limitation, there can be no limit on the detention it authorizes. Id. at 11. But this flatly contradicts the Supreme Court’s decision in Zadvydas, which construed §1231(a)(6) as not authorizing detention beyond the time reasonably necessary to effectuate removal
7 (Pet’n for Habeas Corpus (Doc. No. 1, 09-cv-1489 (M.D. Pa.) at 11-16, 18). 17 Case: 10-1113 Document: 003110132187 Page: 26 Date Filed: 05/05/2010
(presumptively six months), even though the statute itself placed no express limit on the length of detention.
B. 8 U.S.C. §1226(a) Requires that the Government Justify Prolonged Detention in a Constitutionally Adequate Bond Hearing
Because §1226(c) cannot authorize prolonged mandatory detention, the best reading of the statutory scheme is that once mandatory detention exceeds the brief period of time contemplated by Demore, the authority for continuing such detention reverts to §1226(a). See 8 U.S.C. §1226(a) (providing for discretionary detention of arrested non-citizens “[e]xcept as provided in subsection (c) of this section”); Casas-Castrillon, 535 F.3d at 948-49 (holding that §1226(c) provides no authority for mandatory detention of individuals beyond the brief period contemplated in Demore and that §1226(a) therefore applies). But see Alli, 644 F.
Supp. 2d at 542 (finding that, although §1226(c) does not authorize prolonged mandatory detention, the authority for such detention does not revert to §1226(a); rather, habeas court must hold bond hearing whenever detention under §1226(c) becomes unreasonably prolonged).
Although detention under 1226(a) is discretionary, the statute itself is silent with regard to the procedural safeguards that must accompany detention. See
§1226(a) (stating only that “an alien may be arrested and detained pending a decision on whether the alien is to be removed”) (emphasis added). Because
18 Case: 10-1113 Document: 003110132187 Page: 27 Date Filed: 05/05/2010
prolonged detention would raise serious constitutional problems unless it is accompanied by adequate procedural safeguards --- and because there is no evidence that Congress intended 1226(a) to authorize such constitutionally problematic detention – this Court must read the statute as authorizing prolonged detention only when accompanied by a constitutionally adequate bond hearing where the government bears the burden of demonstrating that such detention is justified. See Casas-Castrillon, 535 F.3d at 950 (construing §1226(a) as requiring such a hearing); Wilks, 2008 WL 4820654 at *2 (same). See generally Part II, supra. Notably, the regulations promulgated to implement §1226(a) specifically provide for immigration judge hearings to review ICE’s custody determinations.
See 8 C.F.R. § 236.1(c)(10). However, a habeas court also retains authority to provide such a hearing. See, e.g., Alli v. Decker, 644 F. Supp. 2d at 542.
IV. THIS COURT SHOULD RECOGNIZE SIX MONTHS AS THE POINT AT WHICH DETENTION IS PRESUMPTIVELY PROLONGED AND A CONSTITUTIONALLY ADEQUATE BOND HEARING REQUIRED.
As the government notes, the precise point at which mandatory detention becomes so “prolonged” as to trigger the requirement of an individualized bond hearing remains unresolved. See Appellees’ Br. at 13. In part this is because, in the absence of a class action, courts necessarily decide the issue with respect to the particular facts in the case before them. See, e.g., Rodriguez v. Hayes, 591 F.3d 19 Case: 10-1113 Document: 003110132187 Page: 28 Date Filed: 05/05/2010
1105, 1112, 1126 (9th Cir. 2010) (reversing denial of certification for class consisting of noncitizens detained more than six months without a bond hearing, emphasizing that absent class certification the issue would never be reached).
In deciding the cases before them, courts have taken varying approaches. In
Ly, the Sixth Circuit held that the determination of whether mandatory detention had extended beyond the “time reasonably required to complete removal proceedings” was for habeas courts to determine on a case-by-case basis, considering factors such as length of detention, likelihood of removal, and government delays. 351 F.3d at 268, 271-72 . But see id. at 273 (Haynes, J., concurring) (arguing for a bright line rule that mandatory detention exceeding the average periods contemplated in Demore was not authorized). In Tijani, the Ninth
Circuit held that mandatory detention only applied to “expeditious” proceedings, finding that 28 months was not expeditious. 430 F.3d at 1242. See also Casas-
Castrillon, 535 F.3d at 948 (detention after a remand from the Court of Appeals not authorized under §1226(c), because removal proceedings involving more than one round are not “expeditious”).
Within this Circuit, district courts have also taken different approaches. For example, in Victor v. Mukasey, the district court found that the length of past and expected future detention, along with the government’s failure to prove flight risk or danger in the habeas proceeding, required outright release. No. 3:CV-08-1914,
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2008 WL 5061810, at *5 (M.D. Pa. Nov. 25, 2008). In Alli, in contrast, the district court set forth factors that courts should consider in determining whether detention has become unreasonably prolonged so as to require a bond hearing, albeit without providing guidance on how these factors should be weighed. 644 F.
Supp. 2d at 543-45.
To provide greater consistency in decisionmaking and to minimize the burden on district courts, Amici urge this Court to recognize six months as the presumptively reasonable period for completing removal proceedings, after which time the government must justify any further detention in a constitutionally adequate hearing. A six-month period is consistent with the Supreme Court’s holding in Zadvydas that post-final-order detention beyond six months is presumptively unreasonable. 533 U.S. at 701. A six-month period is also consistent with the Demore Court’s key finding that removal proceedings typically last between 45 days and five months, and expressly tying the constitutionality of mandatory detention to its brevity. 538 U.S. at 529. Moreover, the Supreme Court in Zadvydas itself cited practical considerations such as “sake of uniform administration” in establishing a six month rule in the post-final-order detention context. 533 U.S. at 701.
Notably, the six-month rule that Amici propose is less far reaching than the rule established in Zadvydas, since the Zadvydas rule established a presumption for
21 Case: 10-1113 Document: 003110132187 Page: 30 Date Filed: 05/05/2010
release, whereas the rule proposed here would only create a presumption for an individualized bond hearing. Moreover, just as the six-month rule in Zadvydas was not a hard and fast rule, see id. (noting that some people would remain detained beyond six months, as long as removal was reasonably foreseeable), the six-month rule proposed here would also operate only as a presumption – one that could be rebutted upon a showing by the government that the detainee engaged in dilatory conduct to prolong their proceedings, or that removal is imminent. Thus, while a hearing would be required on this threshold issue, a bond hearing would only be required if the government is unable to rebut the presumption that detention has become unreasonably prolonged. See Zadvydas, 533 U.S. at 700-01
(adopting similar burden-shifting framework).
V. MR. DIOP’S TWO-YEAR MANDATORY DETENTION IS UNREASONABLY PROLONGED UNDER ANY STANDARD
Regardless of whether this Court adopts the six-month rule proposed by amici, or a more case-specific analysis, Mr. Diop’s more than two-year mandatory detention has become unreasonably prolonged and the government should therefore bear the burden of justifying any continued detention at an individualized bond hearing.
First, and most importantly, Mr. Diop has already been detained more than five times the average period contemplated in Demore. 538 U.S. at 530. Cf. Alli, 22 Case: 10-1113 Document: 003110132187 Page: 31 Date Filed: 05/05/2010
644 F. Supp. 2d at 539 (citing detention beyond the time periods identified in
Demore as one of the key factors in determining whether an individualized bond hearing is warranted). Moreover, because his case was only recently remanded to the Immigration Court – for a third round of removal proceedings – Mr. Diop’s proceedings are unlikely to conclude for additional months and possibly years.
See, e.g., Tijani, 430 F.3d at 1242 (in considering the unreasonableness of petitioner’s mandatory detention, noting not only his past detention, but also that the proceedings he faced in the court of appeals were likely to last “a year or more”); Madrane, 520 F. Supp. 2d at 667 (expressing concern that “the administrative and appellate process that has yet to be exhausted may be considerably time-consuming”). Cf. Zadvydas, 533 U.S. at 701 (“[F]or detention to remain reasonable, as the period of prior postremoval confinement grows, what counts as the ‘reasonably foreseeable future’ conversely would have to shrink.”).
Thus, the sheer length of Mr. Diop’s detention exceeds the “period reasonably necessary to secure removal,” Ly, 351 F.3d at 267, and can hardly be considered
“expeditious,” especially now that he is facing a third round of removal proceedings. See, e.g., Casas-Castrillon, 535 F.3d at 948 (noting that proceedings on remand, “which often takes more than a year,” is not “expeditious”).
Nonetheless, the government attempts to defend the reasonableness of Mr.
Diop’s detention by stating that the government engaged in no “unreasonable
23 Case: 10-1113 Document: 003110132187 Page: 32 Date Filed: 05/05/2010
delay” and that Mr. Diop himself is responsible for delays in his proceedings “by seeking continuances and appeals.” See Appellees’ Br. 18-19. But Mr. Diop has done nothing more than pursue relief to which he is entitled. Even the government does not claim that he has engaged in frivolous or dilatory conduct. Non-frivolous attempts to challenge removal – including seeking reasonable continuances to obtain counsel – do not constitute “dilatory” conduct and do not justify unreasonably prolonged mandatory detention. See, e.g., Ly, 351 F.3d at 272
(“[A]ppeals and petitions for relief are to be expected as a natural part of the process. An alien who would not normally be subject to indefinite detention cannot be so detained merely because he seeks to explore avenues of relief that the law makes available to him.”); Alli, 644 F. Supp. 2d at 545 (same); Oyedeji v. Ashcroft,
332 F.Supp.2d 747 (M.D.Pa. 2004).
Indeed, Mr. Diop’s prolonged proceedings (and detention) are overwhelmingly attributable to actions by the IJ and ICE. The Immigration
Judge’s error in initially denying relief from removal, was not corrected until many months later, following Mr. Diop’s demonstrably meritorious appeal. See
Appellant’s Mot. for Judicial Notice 13 (3d Cir. No. 10-1113, filed Apr. 28, 2010).
Likewise, it was ICE’s failure to submit evidence during the first two rounds of immigration court hearings that necessitated the current remand for a third round of proceedings before the IJ. In contrast, the continuances that Mr. Diop requested
24 Case: 10-1113 Document: 003110132187 Page: 33 Date Filed: 05/05/2010
to obtain counsel do not appear to have delayed proceedings by more than a few months.
Finally, this Court need not find that the government engaged in unreasonable delay in order to find that Mr. Diop’s detention has become unreasonably prolonged and that he is entitled to a hearing. The requirement of an individualized hearing stems not from unreasonable delay on the part of the government, but rather from the fact that detention has been prolonged beyond the
“brief period reasonably necessary for their removal proceedings,” Demore, 538
U.S. at 513, as long as the prolonged length of detention is not due to dilatory conduct by the detainee.
VI. MR. DIOP IS NOT SUBJECT TO MANDATORY DETENTION UNDER 8 U.S.C. §1226(C) BECAUSE HE WAS NOT TAKEN INTO ICE CUSTODY “WHEN RELEASED” FROM CRIMINAL INCARCERATION FOR A DESIGNATED OFFENSE.
Even if Mr. Diop’s detention was not prolonged, he is entitled to a bond hearing because his history of convictions and incarceration do not bring him within the purview of the mandatory detention statute. Section 1226(c) provides, in relevant part, that the “Attorney General shall take into custody any alien who… is inadmissible by reason of having committed any offense covered in [INA] section 212(a)(2)… when the alien is released… for the same offense.” 8 U.S.C.
§1226(c)(1) (emphasis added). Because Mr. Diop was not taken into ICE custody 25 Case: 10-1113 Document: 003110132187 Page: 34 Date Filed: 05/05/2010
“when released” from criminal incarceration for an offense that renders him inadmissible under INA §212(a)(2), he is not subject to the mandatory detention statute.
In its brief, the government contends that Mr. Diop is subject to mandatory detention on the basis of two offenses: his 1995 drug-related conviction which renders him inadmissible under INA §212(a) as a controlled substance offense, and his 2005 conviction for reckless endangerment which the government contends renders him inadmissible under INA §212(a) as a “crime involving moral turpitude” (“CIMT”). Appellees’ Br. 16 n. 8. However, because Mr. Diop was not taken into ICE custody “when released” for the 1995 offense, it cannot provide a basis for his mandatory detention. See Saysana v. Gillen, 590 F.3d 7, 10 (1st Cir.
2009) (holding that §1226(c) only applies to individuals who are taken into ICE custody “when released” for an offense enumerated in the statute, and rejecting
BIA’s contrary interpretation in Matter of Saysana, 24 I.&N. Dec. 602 (B.I.A.
2008). See also Burns v. Cicchi, No. 09-CV-2609-FLW, 2010 WL 891608, at *4-
12 (D.N.J. Mar. 10, 2010) (noting “avalanche” of courts rejecting BIA’s reasoning in Saysana).
Notably, the government does not seek to defend its position that Mr. Diop’s
1995 conviction would subject him retroactively to mandatory detention. (Indeed, every court to consider the issue has held that there must be a nexus between the
26 Case: 10-1113 Document: 003110132187 Page: 35 Date Filed: 05/05/2010
release from criminal incarceration and the underlying offense, and DHS has recently asked the BIA to revisit its contrary decision in Matter of Saysana, see
SA-1 at 40 (Stipulation of Parties, Birbal v. Shanahan, No. 09-4042-pr (2d Cir.
Feb. 16, 2010)). Instead, the government seeks to sidestep the issue by arguing that Mr. Diop is nonetheless subject to mandatory detention on the basis of his
2005 reckless endangerment offense, which the government contends constitutes a
CIMT. Appellees’ Br. at 16-17 n.8. However, as Mr. Diop argued in his habeas petition, see SA-1 at 29 (Appellant’s Pet’n for Habeas Corpus), his conviction does not constitute a CIMT and thus does not trigger mandatory detention under
§1226(c).
The Pennsylvania law under which Mr. Diop was convicted – 18 Pa. Cons.
Stat. Ann. § 2705 – requires only a mens rea of recklessness. This Court has recognized that crimes involving recklessness must be accompanied by
“aggravating factors” in order to constitute a CIMT. See Knapik v. Ashcroft, 384
F.3d 84, 89, 90 (3d Cir. 2004) (observing that “evil intent” has long been a requisite element of a CIMT, but that a reckless offense could constitute a CIMT if coupled with statutory aggravating factors, such as “‘consciously disregard[ing] a substantial and unjustifiable risk, and [that] such disregard must constitute a gross deviation from [a reasonable] standard of care….’” Id. at 89-90 (quotation omitted)
27 Case: 10-1113 Document: 003110132187 Page: 36 Date Filed: 05/05/2010
(emphasis in original). Because the Pennsylvania statute at issue here lacks such aggravating factors, it is not a CIMT.
Although in several cursory, unpublished decisions the BIA reached a contrary conclusion, see In re Jose Guzman-Uribe, A57-142-109, 2008 WL
1924610 (B.I.A. Apr. 7, 2008); In re Redon Binjaku, A55-055-145, 2008 WL
486846 (B.I.A. Jan. 23, 2008); In re Arben Braimllari, A46-879-477, 2006 WL
729794 (B.I.A. Feb. 14, 2006), these non-precedential decisions conflict with
Knapik, where this Court found a materially distinguishable reckless endangerment statute to be a CIMT because the statutory text contained several aggravating factors that, “when considered together,” evinced the “inherently base, vile, or depraved” conduct that is the sina qua non of a CIMT.8 Indeed, the government itself concedes that the question of whether Mr. Diop’s conviction constitutes a
CIMT is an open one, arguing instead that “[r]egardless of whether the crime is ultimately found to be a crime of moral turpitude,” it provides a sufficient basis for
Mr. Diop’s mandatory detention. Appellees’ Br. n. 8. But §1226(c) applies only to
8 Specifically, the New York statute contained as aggravating factors an actus reus of “depraved indifference to human life” that actually “creates a grave risk of death.” N.Y. Penal Law §120.25 (emphasis added). See Knapik, 384 F.3d at 90 (emphasizing these factors in finding New York reckless endangerment offense a CIMT). By contrast, the least culpable conduct in the Pennsylvania statute is that a person “may place”—rather than actually place—another person at risk of “seriously bodily injury,” not just death, and does not call for “deprived indifference to human life.” 18 Pa. Cons. Stat. Ann. §2705 (emphasis added). 28 Case: 10-1113 Document: 003110132187 Page: 37 Date Filed: 05/05/2010
a noncitizen who “is inadmissible” under the designated ground, 8 U.S.C
§1226(c)(1)(A) (emphasis added), not to someone like Mr. Diop who has a strong challenge to inadmissibility on which he is highly likely to prevail.
To the extent that the statute is ambiguous, the canon of constitutional avoidance requires the Court to construe the statute to avoid the serious constitutional problem that would arise by applying mandatory detention to an individual with a colorable challenge to removability – an issue expressly left open in Demore since the petitioner there had conceded removability. See Demore, 538
U.S. at 578-79 (Breyer, J., dissenting) (urging adoption of such a standard); Tijani,
430 F.3d at 1247 (Tashima, J., concurring) (same). However, even under the
BIA’s “substantially unlikely” standard – see In re Joseph, 22 I. & N. Dec. 799,
806 (B.I.A. 1999) (holding that §1226(c) applies unless an individual can show that the government is “substantially unlikely to establish” the ground of removal charged) – Mr. Diop is not properly subject to mandatory detention since the government is “substantially unlikely to establish” that his crime of reckless endangerment is a CIMT.
CONCLUSION
For the foregoing reasons, this Court should reverse the decision of the district court, and order Petitioner’s immediate release under reasonable conditions
29 Case: 10-1113 Document: 003110132187 Page: 38 Date Filed: 05/05/2010
of supervision or, in the alternative, order that he immediately be provided a constitutionally adequate hearing where the Government bears the burden of demonstrating that his continued detention is justified.
/s Judy Rabinovitz Judy Rabinovitz Farrin R. Anello Tanaz Moghadam AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS' RIGHTS PROJECT 125 Broad Street, 18th Floor New York, NY 10004 Tel.: (212) 549-2618 Fax: (212) 549-2654
Witold Walczak Mary Catherine Roper Valerie Burch American Civil Liberties Union Foundation of Pennsylvania 313 Atwood Street Pittsburgh, PA 14213
DATED: May 5, 2010
30 Case: 10-1113 Document: 003110132187 Page: 39 Date Filed: 05/05/2010
CERTIFICATE OF COMPLIANCE
In accordance with Federal Rule of Appellate Procedure 32(a)(5)-(7),
I hereby certify that the text of the foregoing reply brief, excluding the Table
of Contents, the Table of Authorities, and the Certificate of Compliance and
Service, contains 6594 words of proportional spacing as determined by the
automated word count feature of Microsoft Office Word 2003 and is printed
in 14-point type.
Dated: May 5, 2010 ____/s Judy Rabinovitz____ Judy Rabinovitz
Case: 10-1113 Document: 003110132187 Page: 40 Date Filed: 05/05/2010
CERTIFICATE OF SERVICE
I, Ankit Rastogi, declare as follows:
I am employed in the City, County and State of New York, in the
office of one of amici curiae’s counsel at whose direction the following
service was made. I am over the age of eighteen years and am not a party to
the within action. My business address is the American Civil Liberties
Union Foundation, Immigrants’ Rights Project, 125 Broad Street, 18th Floor,
New York 10004.
On the 5th day of May, 2010, I sent a copy of the foregoing
Brief of Amici Curiae in Support of Petition for Habeas Corpus by United
States Postal Service, Priority Mail, addressed to the following:
Stephen R. Cerutti, II, Esq. Dennis C. Pfannenschmidt, Esq. Office of United States Attorney Office of United States Attorney 228 Walnut Street, P.O. Box 11754 228 Walnut Street, P.O. Box 11754 220 Federal Building and Courthouse 220 Federal Building and Courthouse Harrisburg, PA 17108-0000 Harrisburg, PA 17108-0000
Nicole Prairie, Esq. Cheikh Diop United States Department of Justice A97-702-755 Office of Immigration Litigation York County Prison P.O. Box 868 3400 Concord Road Ben Franklin Station York, PA 17402 Washington, DC 20001
On the same date, this brief was filed electronically through United States
Court of Appeals for the Third Circuit CM/ECF system. I declare under
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penalty of perjury under the laws of the State of New York that the above is
true and correct.
Dated: May 5, 2010
/s/ Ankit Rastogi Ankit Rastogi