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In the United States Court of Appeals for the Third Circuit ______

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In the United States Court of Appeals for the Third Circuit ______ 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 Case: 10-1113 Document: 003110132187 Page: 2 Date Filed: 05/05/2010 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 Case: 10-1113 Document: 003110132187 Page: 3 Date Filed: 05/05/2010 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 Case: 10-1113 Document: 003110132187 Page: 4 Date Filed: 05/05/2010 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 i Case: 10-1113 Document: 003110132187 Page: 5 Date Filed: 05/05/2010 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 ii Case: 10-1113 Document: 003110132187 Page: 6 Date Filed: 05/05/2010 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 iii Case: 10-1113 Document: 003110132187 Page: 7 Date Filed: 05/05/2010 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 iv Case: 10-1113 Document: 003110132187 Page: 8 Date Filed: 05/05/2010 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
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