1. CONSTITUTIONAL CHALLENGES TO PROLONGED NO-BOND DETENTION IN REMOVAL PROCEEDINGS USING HABEAS CORPUS 4.1.16 Ian Bratlie, Becky Cassler, and Katherine Evans UMN Law School Center for New Americans & ACLU of Minnesota

2. The problem  Detention for the duration of removal proceedings  Less access to attorneys/legal resources  Disincentive to fight good cases  Poor detention conditions; treated like prisoners  Destructive for people’s lives & families  Exacerbates mental & medical health problems, trauma  Often serves no purpose  Can last for many months or even years

3. Focus of This Presentation: Challenging Detention of Clients with Conviction(s)  Congress increasingly harsh toward noncitizens with crimes: blanket policy of automatic detention without individualized review  If client has requisite conviction(s):  During removal proceedings: mandatorily detained without bond under INA § 236(c)

4. The claim  But noncitizens in detention do have due process rights – what does this mean?  Balance noncitizens’ liberty interest against:  Federal government inherent authority to detain in the immigration context  ICE’s interest in detaining individuals who represent a danger or flight risk

5. What is habeas corpus?  Grounded in the Constitution  Suspension Clause, Art. 2, s. 9, cl. 2  28 U.S.C. § 2241(c)(3):  “The writ of habeas corpus shall not extend to a prisoner unless... [h]e is in custody in violation of the Constitution or laws or treaties of the United States...”  Immigration context:  Filed in district court  Process separate from immigration court & judicial review of removal orders

6. Key Precedent: Zadvydas and Demore  Zadvydas v. Davis, 533 U.S. 678 (2001)  Challenged potentially indefinite post-removal-order detention, INA § 241(a)(6)  Due Process applies: detention of noncitizens must be reasonably related to statutory purpose  Read implicit time limit into statute authorizing detention without review  Demore v. Kim, 538 U.S. 510 (2003)  Challenged no-bond detention during removal proceedings, INA § 236(c)  Statute’s facial constitutionality upheld, but  Detention at issue was brief (6 months)  Kennedy concurrence: if detention becomes unreasonable or unjustified, Due Process may require individualized review

7. Combining Zadvydas and Demore to Challenge Prolonged § 236(c) Detention  PART I: Once it becomes unreasonably prolonged, no-bond detention during removal proceedings violates either the § 236(c) or the Constitution  Circuits agree  PART II: At what point does detention become unreasonable, triggering requirement for additional process or release?  Circuits vary

8. Part I: Due Process Implicitly Limits Duration of No-Bond Detention  All circuits to decide the issue agree  Decided Circuits: CA2, CA3, CA6, CA9  Suggested in dicta: CA7  Cases currently pending: CA1, CA11  Countless district courts across the country  3 relevant (positive!) D. Minn. Cases:  Bah v. Cangemi, 489 F. Supp. 2d 905 (D. Minn. 2007) (Schiltz, J.)  Moallin v. Cangemi, 427 F. Supp. 2d 908 (D. Minn. 2006) (Nelson, Mag. Judge)  Cisneros v. Napolitano, No. 13-700 (JNE/JJK), 2013 WL 3353939, (D. Minn. July 3, 2013) (Ericksen, J.)

9. Part II: When Does No-Bond Detention Become Unreasonably Prolonged?  Bright-line six-month rule: CA9, CA2  After six months, entitled to automatic IJ bond hearing  Case-by-case, multi-factor test: CA3, CA6  Duration of detention so far  Probable extent of future proceedings  Likelihood of eventual removal  Dilatory conduct by either party  (Length of criminal sentence)  Never decided in any district court in CA8

10. Law on § 236(c) Detention Is Not Well- Developed in the Eighth Circuit SUGGESTED EIGHTH CIRCUIT ARGUMENTS:  (1) Due Process limits the duration of no-bond detention  (a) Statutory violation: canon of constitutional avoidance  (b) Constitutional violation  (2) My client’s detention has become unreasonably prolonged under either test used in other jurisdictions  Be sure to argue both given pending cert. petition  (3) If the court feels compelled to choose one test, the six-month test used in CA9 and CA2 is immeasurably better than the multi-factored test used in CA3 and CA6

11. Additional resources  CNA resource page  ACLU Immigrants’ Rights Project practice advisory: Challenging Detention Without a Bond Pending Removal Proceedings (Feb. 2015), https://www.aclu.org/files/assets/ACLU%20detention%20without%20bond%20hearing%2 0February%202015.pdf. https://www.aclu.org/files/assets/ACLU%20detention%20without%20bond%20hearing%2 0February%202015.pdf  Farrin Anello, Due Process and Temporal Limits on Mandatory Immigration Detention, 65 HASTINGS L.J. 363 (2014)  Key circuit ases:  Lora v. Shanahan, 804 F.3d 601 (2d Cir. 2015)  Rodriguez v. Robbins, 715 F.3d 1127 (9th Cir. 2013)  Diop v. ICE/Homeland Sec., 656 F.3d 221 (3d Cir. 2011)  Chavez-Alvarez v. Warden York Cty. Prison, 783 F.3d 469 (3d Cir. 2015)  Ly v. Hansen, 351 F.3d 263 (6th Cir. 2003)