RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Ly v. Hansen, et al. No. 01-3016 ELECTRONIC CITATION: 2003 FED App. 0418P (6th Cir.) File Name: 03a0418p.06 _________________ COUNSEL UNITED STATES COURT OF APPEALS ARGUED: Michelle E. Gorden, U.S. DEPARTMENT OF FOR THE SIXTH CIRCUIT JUSTICE, CIVIL DIVISION, Washington, D.C., for _________________ Appellants. Judy Rabinovitz, ACLU IMMIGRATION RIGHTS PROJECT, New York, New York, for Appellee. HOANG MINH LY , X ON BRIEF: Michelle E. Gorden, Emily A. Radford, U.S. Petitioner-Appellee, - DEPARTMENT OF JUSTICE, CIVIL DIVISION, - Washington, D.C., Lisa H. Johnson, ASSISTANT UNITED - No. 01-3016 STATES ATTORNEY, Cleveland, Ohio, for Appellants. v. - Richard T. Herman, RICHARD T. HERMAN & > ASSOCIATES, Cleveland, Ohio, for Appellee. , MARK B. HANSEN , JAMES - ZIGLAR, and JOHN ASHCROFT , - BOGGS, C. J., delivered the opinion of the court, in which RYAN, J., joined. HAYNES, D. J. (pp. 18-26), delivered a Respondents-Appellants. - separate opinion concurring in part and dissenting in part. - N _________________ Appeal from the United States District Court for the Northern District of Ohio at Cleveland. OPINION No. 99-01871—Solomon Oliver, Jr., District Judge. _________________
Argued: July 31, 2002 BOGGS, Chief Judge. Mark Hansen, district director of the Immigration and Naturalization Service (INS), appeals the Decided and Filed: November 26, 2003 grant of habeas corpus to Hoang Minh Ly, a deportable criminal alien. Ly, a citizen of Vietnam, challenged the Before: BOGGS, Chief Judge; RYAN, Circuit Judge; and constitutionality of § 236(c) of the Illegal Immigration HAYNES, District Judge.* Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which requires the Attorney General to detain immigrants who have committed certain crimes, pending removal proceedings. 8 U.S.C. § 1226(c) (West 1999). Ly alleges that the section violates substantive and procedural due process under the Fifth Amendment because it does not allow criminal aliens individual bond hearings to determine their suitability for release pending removal proceedings. Because the Supreme Court, in Zadvydas v. Davis, 533 U.S. 678 * The Honorable William J. Haynes, United States District Judge for (2001), determined that IIRIRA should be interpreted to avoid the Middle District of Tennessee, sitting by designation.
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the constitutional questions raised by indefinite detention of 1999 hearing, the immigration judge found that Ly was aliens awaiting removal from the United States, we affirm the removable. Ly then filed applications for relief from result below for reasons different than those relied on by the deportation on various grounds, including asylum, admission, district court. Brown v. Tidwell, 169 F.3d 330, 332 (6th Cir. withholding of removal, deferral of removal, and permanent 1999). resident status. On January 27, 2000, the INS issued a Notice of Decision denying Ly’s application for permanent resident I status. The immigration judge set a merits hearing for Ly’s other applications for relief for March 16, 2000, but the Hoang Minh Ly entered the United States as a refugee in hearing was continued to April 28, 2000. In September 2000, 1986. In 1993, Ly was convicted of credit card fraud, and the magistrate judge recommended that habeas relief be sentenced to four months in prison, with two years of granted. The district court adopted this recommendation, supervised release. In 1998, Ly was involved in a check- granting habeas relief unless a bond hearing was held. The kiting scheme, wherein he deposited counterfeit cashier’s INS timely appealed the district court’s decision. One month checks into a bank account, knowing that someone else would later, on October 19, 2000, the immigration judge entered a withdraw the money and split the proceeds. He was written decision, ordering Ly’s removal to Vietnam and convicted of bank fraud. Ly has fully served his criminal denying his remaining applications for relief. On April 30, sentences on both convictions. 2001, the Board of Immigration Appeals issued a final decision, and affirmed the immigration judge’s order. Based The INS issued Ly a Notice to Appear on May 10, 1999. on the final administrative removal order, the Government The INS took Ly into custody, under the mandatory detention filed a motion with us to remand the case to district court. provisions of IIRIRA § 236(c), on May 11, 1999. Overall, Ly was kept in detention for 500 days, before his release at the The INS, in accordance with the district court’s order, order of the district court. The INS asserted that Ly was conducted a bond hearing. At that hearing, on November 21, subject to removal1 from the United States because he was an 2000, the immigration judge determined that he did not have alien convicted of two crimes involving moral turpitude, and the statutory authority to release Ly from detention. he was an alien convicted of an aggravated felony. On Nevertheless, on November 24, 2000, the INS released Ly on August 5, 1999, Ly filed a habeas corpus petition in federal his own recognizance and subject to specified conditions. district court, challenging his detention. The INS supplemented the charges against Ly on August 13, 1999, II with another charge that Ly was an alien convicted of an aggravated felony. At an August 19, 1999 hearing, Ly A. Substantive Due Process and Zadvydas requested a continuance to permit his counsel additional time to review the supplemental charges. The hearing was 1. Standard of Review and Jurisdiction rescheduled for September 21, 1999. At the September 21, We review the grant of habeas corpus, and the constitutional questions inherent in such a grant, de novo. 1 Staley v. Jones, 239 F.3d 769, 775 (6th Cir. 2001). We have Actual removal of Ly from the United States was never a possibility during this process. Vietnam has not and does not accept deportees jurisdiction to consider both substantive and procedural due because there is no repatriation agreement between the United States and process challenges to § 236(c), despite the jurisdictional Vietnam. No. 01-3016 Ly v. Hansen, et al. 5 6 Ly v. Hansen, et al. No. 01-3016
limitations set out in IIRIRA. IIRIRA states: “[N]o court While the appeal in the case was pending, the Supreme shall have jurisdiction to hear any cause or claim by or on Court held in Zadvydas v. Davis, 533 U.S. 678 (2001), that behalf of any alien arising from the decision or action by the indefinite detention of a removable criminal alien after a Attorney General to commence proceedings, adjudicate cases, removal proceeding would violate a due process right to or execute removal orders against any alien . . . .” 8 U.S.C. liberty under the Fifth Amendment. Id. at 682. Zadvydas § 1252(g) (West 1999). In Pak v. Reno, 196 F.3d 666, 671-72 therefore construed IIRIRA as not requiring indefinite (6th Cir. 1999), we held that this jurisdictional limitation did incarceration, by imposing a reasonable time limit (six not extend to the habeas power of federal courts, in order to months), supervised by the federal courts in habeas avoid the constitutional issue of whether or not such a proceedings, on the amount of time that a deportable criminal limitation would violate the Suspension Clause of the alien may be detained after a determination as to removability Constitution, which states that the “privilege of the writ of has been made, unless the government asserts a “strong habeas corpus shall not be suspended, unless when in cases of special justification” for the detention. Id. at 690. rebellion or invasion the public safety may require it.” U.S. Const. Art. I § 9 cl. 2. The Supreme Court has also upheld Zadvydas addressed the prospect of indefinite incarceration the jurisdiction of courts to consider habeas claims arising out of deportable aliens created by the IIRIRA post-removal of immigration detention. See Zadvydas v. Davis, 533 U.S. detention statute. The question remaining before us is 678, 688 (2001) (courts have jurisdiction to hear habeas whether the holding of Zadvydas extends to the mandatory claims arising out of IIRIRA’s post-removal detention pre-removal detention statute, § 236. Most aliens may be provisions). released on bond or paroled until their removal hearing. 8 U.S.C. § 1226(a) (West 1999). However, because certain 2. Zadvydas types of criminal aliens pose extraordinarily high flight risks, Congress has ordered that aliens who have been convicted of The parties here ask whether Ly may be indefinitely an aggravated felony or two crimes involving moral turpitude incarcerated, under IIRIRA’s mandatory pre-removal (including fraud) must be detained pending removal detention statute, § 236(c), pending his removal to Vietnam, proceedings, based on a prima facie determination of given that such removal is not currently foreseeable due to the removability by the government. 8 U.S.C. § 1226(c). If an lack of a repatriation treaty between the United States and order of removal is not entered (or not entered promptly), the Vietnam. Section 236 of IIRIRA requires the attorney result is mandatory indefinite detention for criminal aliens, general to detain, among others, aliens convicted of either an which is prohibited by Zadvydas. aggravated felony or two crimes involving moral turpitude (such as fraud), pending removal proceedings. 8 U.S.C. 3. Circuit Decisions § 1226(c). The INS asserts that because aliens detained under § 236 are prima facie deportable, they have no liberty interest The question of indefinite detention under § 236 is one of and may be detained indefinitely, without a bond hearing, first impression in this circuit. Our sister circuits have split until an order of removal is entered. Ly contends that the on the issue. The Ninth and Tenth Circuits have adopted a constitution requires an immediate bond hearing for all bright-line approach, holding that § 236 is unconstitutional as criminal aliens awaiting removal. applied to lawful permanent residents, no matter the length of actual detention. Hoang v. Comfort, 282 F.3d 1247 (10th Cir. 2002), rev’d, 123 S. Ct. 1963 (2003); Kim v. Ziglar, 276 F.3d No. 01-3016 Ly v. Hansen, et al. 7 8 Ly v. Hansen, et al. No. 01-3016
523, rev’d, 123 S. Ct. 1708 (2003) (9th Cir. 2002). The Third incarceration, as did Zadvydas, the magistrate judge stated: Circuit has held that § 236 mandatory detention is “The issue thus presented is whether § 236 violates unconstitutional if the detained alien seeks to avoid removal Petitioner’s Fifth Amendment right to due process by via administrative remedies. Patel v. Zemski, 275 F.3d 299 removing discretion on the part of the Attorney General to (3rd Cir. 2001). The Fourth Circuit adopted a case-by-case provide individualized bond hearings for those aliens against approach, requiring an individualized determination of whom deportation proceedings are ongoing.” dangerousness, Welch v. Ashcroft, 293 F.3d 213 (4th Cir. 2002), and the Seventh Circuit has held that indefinite The level of scrutiny to be applied in determining whether detention under § 236 is entirely constitutional. Parra v. or not a restriction on a substantive due process right should Perryman, 172 F.3d 954 (7th Cir. 1999). be upheld varies with the nature of the right. The magistrate judge’s opinion noted that courts are to apply strict scrutiny We adopt none of these approaches. Our logic is simple. (the law must be narrowly tailored to a compelling state Zadvydas prohibits only one thing: permanent civil detention interest) to governmental conduct that interferes with rights without a showing of a “strong special justification” that “implicit in the concept of ordered liberty.” United States v. consists of more than the government’s generalized interest Salerno, 481 U.S. 739, 746 (1987) (quoting Palko v. Conn., in protecting the community from danger. Zadvydas, 533 302 U.S. 319, 325-26 (1937)). The INS argued there, as here, U.S. at 690. Zadvydas establishes a specific rule: “[A] habeas that immigration decisions should be subject to the more court must ask whether the detention in question exceeds a deferential rational basis test, since deportable aliens have no period reasonably necessary to secure removal.” Id. at 699. liberty interest in being at large in the United States. Since permanent detention of Permanent Resident Aliens under § 236 would be unconstitutional, we construe the The magistrate judge applied neither the strict scrutiny or statute to avoid that result, as did the Court in Zadvydas. rational basis tests in pure form; rather, he likened the pre- Zadvydas also made clear that limited civil detention, without removal detention of criminal aliens to the pre-trial detention bond, is constitutional as applied to deportable aliens. Id. at of criminals, and adopted the “excessive to its purpose” test 701. Therefore, we hold that the INS may detain prima facie of Salerno for regulatory legislation not designed for removable aliens for a time reasonably required to complete punishment. In weighing the competing interests, courts removal proceedings in a timely manner. If the process takes consider “the length of detention to which the petitioner has an unreasonably long time, the detainee may seek relief in already been subjected, the likelihood of deportation, the habeas proceedings. With this standard in mind, we turn to potential length of the detention into the future, the likelihood the decisions of the magistrate judge and the district court. that release will frustrate the petitioner’s actual deportation, and the danger to the community posed by the petitioner if 4. Level of Scrutiny released.” Hermanowski v. Farquharson, 39 F. Supp. 2d 148, 159 (D.R.I. 1999). On balancing these factors, the magistrate The magistrate judge’s opinion recommending the grant of judge determined that Ly’s extended incarceration was not habeas relief, as adopted by the district court, found that justified in light of the minimal danger he posed to the public. deportable aliens have a fundamental liberty interest under the Fifth Amendment, the protection of which requires an Zadvydas used a different analytical approach. Although individualized bond hearing. Instead of characterizing the the opinion quoted Salerno with approval, Zadvydas noted issue as one of reasonable limitation on the period of that removal proceedings were civil, not criminal, and held No. 01-3016 Ly v. Hansen, et al. 9 10 Ly v. Hansen, et al. No. 01-3016
that if the government wished to indefinitely detain a indefinite civil detention, it has been overruled by Zadvydas. removable alien, it must show a “strong special justification” 533 U.S. at 690. for such detention. Zadvydas, 533 U.S. at 690. A general goal of preventing danger to the community is insufficient to The INS’s final argument is that Congress exercises plenary support indefinite civil detention: “[W]e have upheld control over immigration, and that we should therefore not preventive detention based on dangerousness only when question the judgment of Congress by ourselves placing limited to specially dangerous individuals and subject to limits on mandatory detention. One point of difference strong procedural protections.” Id. at 690-91. “In cases in between this case and Zadvydas is that the post-removal which preventive detention is of potentially indefinite statute is permissive, whereas the pre-removal statute, as duration, we have also demanded that the dangerousness applied to specified criminal aliens, is mandatory. Compare rationale be accompanied by some other special circumstance, 8 U.S.C. §1226(c)(1) (The Attorney General shall take into such as mental illness, that helps to create the danger.” Id. at custody . . . ) with 8 U.S.C. § 1231(a)(6) (An alien ordered 691, citing Kansas v. Hendricks, 521 U.S. 346, 368 (1997) removed . . . may be detained beyond the removal period) (emphasis in original). Furthermore, Zadvydas noted that (emphasis added). The INS argues that the mandatory nature “where detention’s goal is no longer practically attainable, of pre-removal detention reveals a clear congressional intent detention no longer ‘bear[s] [a] reasonable relation to the to keep criminal aliens detained for as long as it takes to purpose for which the individual [was] committed.’” deport them, even if such detention is effectively perpetual. Zadvydas, 533 U.S. at 690, quoting Jackson v. Indiana, 406 U.S. 715, 738 (1972). There are two reasons to reject this argument. First, although criminal aliens may be incarcerated pending The INS argues that because Ly is prima facie removable, removal, the time of incarceration is limited by constitutional he has no liberty interest at all, and cannot therefore complain considerations, and must bear a reasonable relation to that he is not at liberty within the United States. While it is removal. As the Zadvydas court stated: “detention pending a true that a removable alien has no right to be in the country, determination of removability . . . has [an] obvious it does not mean that he has no right to be at liberty. termination point.” Zadvydas, 533 U.S. at 697. The Zadvydas established that deportable aliens, even those who mandatory nature of the detention does not alter the had already been ordered removed, possess a substantive Fifth constitutional limitations to which it is subject. Congress’s Amendment liberty interest, and that the interest was violated plenary control must still be exercised within the bounds of by indefinite detention. The INS relies on the Seventh the Constitution. INS v. Chadha, 462 U.S. 919, 941 (1983). Circuit’s decision in Parra v. Perryman, 172 F.3d 954 (7th Second, while Congress did express a desire to have certain Cir. 1999). In that case, the Seventh Circuit found that § 236 criminal aliens incarcerated during removal proceedings, it violated neither procedural or substantive due process, on the also made clear that such proceedings were to proceed logic the INS asserts here: “A criminal alien who insists on quickly. 8 U.S.C. § 1229(d)(1) (West 1999) (“In the case of postponing the inevitable has no constitutional right to remain an alien who is convicted of an offense which makes the alien at large during the ensuing delay, and the United States has a deportable, the Attorney General shall begin any removal powerful interest in maintaining the detention in order to proceeding as expeditiously as possible after the date of the ensure that removal actually occurs.” Parra, 172 F.3d at 958. conviction.”). In short, imposing a reasonable time limitation To the extent that Parra holds that a criminal alien does not on the pre-detention period both saves the statute from possess a Fifth Amendment liberty interest impacted by No. 01-3016 Ly v. Hansen, et al. 11 12 Ly v. Hansen, et al. No. 01-3016
constitutional challenge, and is consistent with Congress’s deportable criminal aliens is adequately served by the directions as to how the statute should be applied. reasonableness limitation on the period of incarceration.2 We must also assess the constitutional impact of the 5. Intervening Decisions presence or absence of hearings. In Zadvydas, the Court found it significant that the detainees were afforded Our consideration of the question of Ly’s liberty interest is administrative, rather than judicial, proceedings, at which the complicated by two decisions that have come down since this alien bore the burden of proof. Zadvydas, 533 U.S. at 692. case was briefed and argued. In Demore v. Kim, 123 S. Ct. Such process, the Court determined, would be insufficient to 1708 (2003) the Supreme Court held that §1226(c) was not permit indefinite detention. Similarly, in this case, the unconstitutional in requiring the detention of deportable magistrate judge noted: “[i]t is highly significant that the aliens pending their deportation. It specifically indicated that statutory scheme affords petitioner no opportunity to such detentions were usually relatively brief, see id. at 1720- convince an Immigration Judge that he is not a danger to the 21, but it did not specifically hold that any particular length community, but, rather, is irrebutably presumed to be so.” In of time in a specific case would be unreasonable or both cases, procedural protections (rights to a hearing at unconstitutional. The case is distinguishable to the extent that which the alien could argue that he did not pose a danger to Kim was a deportable alien for whom deportation, to South the community) were too limited to justify an indefinite Korea, was a real possibility, and he could avail himself of detention. However, Zadvydas did not mandate extra such liberty at any time. That is not the case with Ly. procedural protection in order to constitutionalize the imposition of indefinite civil detention; rather, it held that In Rosales-Garcia v. Holland, 322 F.3d 386 (6th Cir. indefinite deprivation of liberty would require extensive 2003)(en banc), decided shortly before Kim, our circuit held procedural protection – and therefore construed the post- that even an excludable alien (presumptively a person with removal detention statute to avoid the specter of permanent less rights than Ly) could not be held beyond six months detention. Zadvydas, 533 U.S. at 689. without an individual hearing, by extension of the holding in Zadvydas, in the case of an excludable alien who could not be We do the same: by construing the pre-removal detention removed to Cuba. The cross currents of the two decisions are statute to include an implicit requirement that removal somewhat complex. If Rosales-Garcia stands for the proceedings be concluded within a reasonable time, we avoid proposition that any alien facing the process of deportation is the need to mandate the procedural protections that would be entitled to a specific hearing within six months absent special required to detain deportable aliens indefinitely. Although justification, the decision is inconsistent with Kim, which we affirm the grant of habeas corpus and the district court’s specifically authorized such detention in the circumstances finding that incarceration for 18 months pending removal there. To the extent that Kim would appear to authorize proceedings is unreasonable, we do not require the United States to hold bond hearings for every criminal alien detained under § 236. Ly’s case is not the norm, in that he is not 2 Zadvydas does suggest that in extraordinarily limited circumstances, actually removable. In the majority of cases, where an order e.g., dangero us mental illness, civil detention for an indefinite period or of removal is promptly entered and removal is effected within without possibility of removal might be warranted. H owever, those the time allotted under Zadvydas, bond hearings are not circumstances are sufficiently rare that requiring individualized bond hearings is unnecessary. Rather, the INS can argue such extreme required. As Zadvydas made clear, the liberty interest of circum stances in opposition to a detainee’s pe tition for ha beas relief. No. 01-3016 Ly v. Hansen, et al. 13 14 Ly v. Hansen, et al. No. 01-3016
indefinite detention for persons in pre-removal proceedings, magistrate judge, Ly had been imprisoned for a year and a it could compel a conclusion contrary to Rosales-Garcia in half with no final decision as to removability in the case. this case. However, the Court’s discussion in Kim is That decision as to removability was not made until nearly a undergirded by reasoning relying on the fact that Kim, and month later, after the magistrate judge recommended granting persons like him, will normally have their proceedings the writ of habeas corpus. Ly served criminal sentences for completed within in a short period of time and will actually his two convictions of a total of 12 months; he spent be deported, or will be released. That is not the case here. considerably more time than that in INS custody awaiting a determination on removal. Because of the differences between Ly’s case and these opinions, we hold that neither of them affirmatively compels Further, any detention under IIRIRA must be reasonably a different decision here. related to the goal of the statute. Zadvydas, 533 U.S. at 699- 700. The goal of pre-removal incarceration must be to ensure Finally, we note that the government has not offered a the ability of the government to make a final deportation. The strong and special justification, exceeding a mere desire to danger is that a criminal alien, upon receiving notice of protect the community, that would justify indefinite detention. deportation proceedings, will flee. The actual removability of If, as is not the case here, the government were to attempt to a criminal alien therefore has bearing on the reasonableness justify indefinite detention by means of a showing of a of his detention prior to removal proceedings. Zadvydas, 533 “strong and special justification” under Zadvydas, then due U.S. at 690. Because Ly was not removable, a year-and-a- process would require a hearing on that issue. half imprisonment awaiting removal proceedings was especially unreasonable. 6. Reasonable Time Limitation The INS incorrectly asserts that it has an interest in We must next define a reasonable time limitation for pre- “ensuring that a final removal order is actually entered against removal detention, and finally determine whether or not the an individual who is prima facie removable because of INS acted reasonably in this case. A bright-line time multiple criminal convictions.” The INS does not need the limitation, as imposed in Zadvydas, would not be appropriate alien to be physically present in order to enter a final removal for the pre-removal period; hearing schedules and other order. IIRIRA penalizes aliens who fail to appear at a proceedings must have leeway for expansion or contraction as removal proceeding with both an automatic entry of an order the necessities of the case and the immigration judge’s of removal in absentia, 8 U.S.C. § 1229a(b)(5), and prevents caseload warrant. In the absence of a set period of time, such aliens from applying for cancellation of removal or courts must examine the facts of each case, to determine adjustment of status, remedies normally available to an alien whether there has been unreasonable delay in concluding who has been ordered removed. 8 U.S.C. § 1229a(b)(7) removal proceedings. (West 1999). In this case, the district court determined that incarceration As the INS points out, Ly is at least partially responsible for one and one-half years as part of a civil, nonpunitive for the length of the proceedings. Ly applied for cancellation proceeding when there was no chance of actual, final of removal and for change of status, and was responsible for removal, was unreasonable. We agree. As of the at least one rescheduled hearing, due to the late filing of briefs September 21, 2000 opinion and recommendation of the by Ly’s counsel with the immigration judge. We are not No. 01-3016 Ly v. Hansen, et al. 15 16 Ly v. Hansen, et al. No. 01-3016
unsympathetic to this argument; however, we conclude that Certainly the INS is best situated to know which criminal the INS must still act promptly in advancing its interests. In aliens should be released, and federal courts are obviously this case, the magistrate judge found that the time taken less well situated to know how much time is required to bring without a decision was exceptional; indeed, the immigration a removal proceeding to conclusion. However, three factors judge only rendered a decision after the magistrate judge tip the balance in favor of court supervision. First, Zadvydas acted, and an additional month had passed, even though the requires it. Second, those aliens not granted bond hearings hearing before the immigration judge had been months would still file habeas petitions; since habeas review of earlier. detention is not foreclosed by IIRIRA, federal courts will still be asked to review detention. Third, although an easily Under the rule we adopt today, courts must be sensitive to administrable bright-line rule cannot be based on time, given the possibility that dilatory tactics by the removable alien may the inevitable elasticity of the pre-removal period, courts are serve not only to put off the final day of deportation, but also familiar with and regularly assess reasonableness as a legal to compel a determination that the alien must be released standard. Our rule requires the INS to act reasonably: when because of the length of his incarceration. Without actual removal is not reasonably foreseeable, criminal aliens consideration of the role of the alien in the delay, we would may not be detained beyond a reasonable period required to encourage deportable criminal aliens to raise frivolous conclude removability proceedings without a government objections and string out the proceedings in the hopes that a showing of a “strong special justification,” constituting more federal court will find the delay “unreasonable” and order than a threat to the community, that overbalances the alien’s their release. liberty interest. Zadvydas, 533 U.S. at 690. Although it lacks a bright line, this rule is administrable by courts hearing However, appeals and petitions for relief are to be expected habeas petitions arising from mandatory detention under as a natural part of the process. An alien who would not § 236. normally be subject to indefinite detention cannot be so detained merely because he seeks to explore avenues of relief B. Procedural Due Process that the law makes available to him. Further, although an alien may be responsible for seeking relief, he is not Ly also asserts that he has received insufficient process to responsible for the amount of time that such determinations protect his Fifth Amendment liberty interest. Were we to may take. The mere fact that an alien has sought relief from construe the statute as permitting indefinite detention, deportation does not authorize the INS to drag its heels additional process would be required. Zadvydas, 533 U.S. at indefinitely in making a decision. The entire process, not 692. If the INS were to assert a “strong special justification,” merely the original deportation hearing, is subject to the consisting of more than convenience in removal or general constitutional requirement of reasonability. community protection, to support indefinite detention, then a hearing would be required. Id. at 690. However, the INS Finally, there is a question of institutional competence. By makes no such showing here. Because we construe the statute not requiring individualized bond hearings, federal courts to include a reasonable time limitation in bringing a removal undertake to supervise the reasonability of detention only via proceeding to conclusion, additional process to protect that the habeas process. This is the approach recommended by liberty interest is not required. Zadvydas; of course, there the Court was able to establish a six-month rule that is easily administrable by courts. No. 01-3016 Ly v. Hansen, et al. 17 18 Ly v. Hansen, et al. No. 01-3016
III ______________________________________________ We hold that the INS may detain prima facie removable CONCURRING IN PART, DISSENTING IN PART criminal aliens, without bond, for a reasonable period of time ______________________________________________ required to initiate and conclude removal proceedings promptly. When actual removal is not reasonably HAYNES, District Judge, concurring in part and dissenting foreseeable, deportable aliens may not be indefinitely in part. I concur in the majority’s holding that Ly’s detained without a government showing of a “strong special incarceration for almost a year and a half was unreasonable justification,” constituting more than a threat to the and justifies issuance of the writ of habeas corpus. Yet, for community, that overbalances the alien’s liberty interest. The several reasons, I respectfully dissent from the majority’s reasonableness of the length of detention is subject to review reasonableness standard, due to its lack of any numerical time by federal courts in habeas proceedings, as stated by limitations for the detention of those lawful permanent Zadvydas. Because there is no strong special justification in resident aliens who object to their removal under 8 U.S.C. this case, because the period of time required to conclude the § 1226(c). In sum, Supreme Court and Sixth Circuit proceedings was unreasonable, and because actual removal precedents have set time limits on the detention of aliens who was not foreseeable, we AFFIRM the grant of the writ of have been ordered to be deported or aliens who have been habeas corpus. declared excludable. Time constraints, consistent with the Supreme Court and this Circuit’s decisions, should be set for the detention of lawful permanent resident aliens who are object to their removal proceedings. The majority’s substantial reliance upon Zadvydas v Davis, 533 U.S. 678 (2001) is misplaced because Demore v. Kim 123 S. Ct. 1708 (2003) is the controlling decision for the detention of lawful permanent resident aliens, such as Ly. Ly was born on April 16, 1968 in Saigon, Vietnam. His family members include soldiers in the South Vietnamese Army who fought with United States military forces during the Vietnam war. Refusing to serve in the communist army in Cambodia and avoiding persecution, Ly fled to Thailand where he remained in a refugee camp for approximately two years. The United States Attorney General granted Ly refugee status when he entered the United States. Ly became a permanent United States resident on December 21, 1987, and has since lived in the United States with other family members who are also permanent residents. On May 11, 1999, the Immigration and Naturalization Services (“INS”) initiated removal proceedings against Ly No. 01-3016 Ly v. Hansen, et al. 19 20 Ly v. Hansen, et al. No. 01-3016
based upon a 1993 conviction for use of a counterfeit credit As a result of his removal proceeding, Ly had been detained card to purchase in excess of $2,000 of goods and services. for over 500 days prior to the district court’s order granting Ly pled guilty and the district court sentenced him to four the writ. With the lack of a repatriation treaty with Vietnam, months incarceration and two years supervised release. The Ly’s removal is unlikely for the reasonably foreseeable future. district court also approved the prosecution’s recommendation to reduce Ly’s sentence for his minor role in In Kim, the Supreme Court held that mandatory detention the criminal transaction, his cooperation, and his immediate of lawful permanent aliens residents who are subject to confession. Ly successfully completed his supervised release removal under 236(c) the Illegal Immigration and Immigrant on April 27, 1995. Responsibility Act of 1996 (“IIRIRA”) is constitutionally permissible for the brief period of time necessary for their In 1999, Ly had another conviction for bank fraud because removal proceedings. The Supreme Court’s core conclusions he passed a fraudulent bank check in a check-kiting scheme. were two-fold. First, the Court held that “Congress, In the pretrial proceeding of his second conviction, the district justifiably concerned that deportable criminal aliens who are court determined that Ly was neither a serious flight risk nor not detained continue to engage in crime and fail to appear for a threat to the community and released Ly on a personal bond. their removal hearings in large numbers, may require that For this conviction, Ly was sentenced to eight months and persons such as [Kim] be detained for the brief period ordered to make restitution to the victim. Ly fully completed necessary for their removal proceedings” 123 S. Ct. at 1712. that criminal sentence. (Emphasis added). With this limitation, “[d]etention during removal proceedings is a constitutionally permissible part of These two convictions provide the basis for his removal for that process.” Id at 1721-22. Thus, “a criminal alien who crimes of moral turpitude under § 237(a)(2)(A)(ii) of IIRIRA. has conceded that he is deportable, for the limited period of Ly asserts that he would have been eligible for cancellation of his removal proceedings, is governed by these cases.” Id. at removal under the former 212(c) waiver because prior to 1722.(citations omitted). In other parts of its opinion, the 1996, Ly’s conviction was not considered an “aggravated majority in Kim emphasized that the detention was under felony” under the Immigration and Naturalization Act Section 236(c) for a “limited period” id. at 1722 and “very (“INA”). At the time of his 1993 plea, an “aggravated limited time of ... detention,” Id at 1721 n.12. felony” was defined under § 101(a)(43)(M) of the INA, as a crime causing a $200,000 loss to the victim for a crime of Kim’s holding clearly was premised , in significant part, fraud or deceit. In 1996, three years after Ly’s plea, Congress upon its finding that the initial detention under Section 236(c) retroactively expanded the definition of “aggravated felony” was for “a brief period necessary for their removal under § 101(a)(43)(M) of the INA by requiring only a proceeding” Id. at 1712. The majority in Kim specifically $10,000 loss to the victim, thereby retroactively classifying cited the average length of time of a Section 236(c) detention Ly as an aggravated felon and thus, rendering him ineligible prior to a disposition of the removal issue : for cancellation of his removal. The immigration court found Ly removable as an aggravated felon under section In the majority of cases it lasts for less than the 90 days we 101(a)(48)(U) of the INA. considered presumptively valid in Zadvydas. The Executive Office for Immigration Review has calculated that, in 85% of Vietnam, Ly’s native country, does not have an repatriation the cases in which aliens are detained pursuant to Section treaty with the United States and Ly has not been removed. 1226(c), removal proceedings are completed in an average No. 01-3016 Ly v. Hansen, et al. 21 22 Ly v. Hansen, et al. No. 01-3016
time of 47 days and median of 30 days. Brief for Petitioners actual administrative experiences for conducting these 39-40. In the remaining 15% of cases, in which that alien removal hearings. If there were justifiable cause for appeals the decision of the Immigration Judge to average of detentions beyond these limits, then the agency must provide four months, with a median time that is slightly shorter. Id., the alien with a statement of reasons for the delay and the at 40. opportunity for a due process hearing. The alien could then assess whether he can successfully challenge the agency’s Kim, at 1720-21 (emphasis added). stated reasons for continued detention at the due process hearing before the agency or later in court. To be sure, Kim addressed only the constitutionality of Section 236(c) mandating detention of lawful permanent The Supreme Court set a presumptive standard of 90 days aliens where the alien did not contest his detention. Kim did and an outside limit of six months detention for aliens who not address any outside time limits on that detention. Here, have been ordered removed absent a showing of a “strong Ly contests his deportation to Vietnam that lacks a special justification” for detention. 533 U.S. At 690, 701. repatriation treaty with this country. The majority’s holding In Rosales-Garcia v. Holland, 322 F.3d 386, 415 (6th Cir. here sets a limitation of detention, but only by a 2003) (en banc) this Court imposed, as a matter of law, a six reasonableness standard, without any numerical time limits. months limitation for detention of excludable aliens. Surely, as a matter of law, the initial detention of aliens who are In my view, to set the constitutional standard for the length lawfully permanent residents and who challenge their of detention for those lawful resident aliens who contest their deportation, should be less than six months, the constitution deportation, we should borrow the time limits in Kim that the limitation for detained aliens who are unlawfully in this Supreme Court cited in upholding Section 236(c) for country. Lawful permanent resident aliens who contest their detention of lawful permanent resident aliens. These continued detention should have greater due process rights limitations would be presumptive time limits for detention of than aliens who have been found to be removable or lawful resident aliens who object to their deportation and such excludable. limits are supported by Supreme Court and Sixth Circuit decisions in other alien deportation decisions. In a word, any Consistent with Zadvydas and Rosales-Garcia, for those time periods that exceed the time limits cited in Kim would be aliens who do not contest their removal, “if removal is not presumptively unconstitutional. reasonably foreseeable, the court should hold continued detention” beyond six months “unreasonable”. Zadvydas Implicit in Kim is that a detention of a lawful permanent 533 U.S. at 699, 701. “After the 6 month period, once the resident subject to removal under Section 236 (c) for up to 47 alien proves good reason to believe that there is not days is permissible. Borrowing Kim’s time limits, we should significant likelihood of removal in the reasonably hold that any contested detention of a lawful permanent foreseeable future, the Government must respond to rebut that resident under Section 236(c) for more than forty seven (47) showing... This 6-month presumption of course does not days is presumptively unreasonable and therefore, mean that every alien not removed must be released after six unconstitutional, absent an individualized assessment of flight months. To the contrary, an alien may be held in confinement and dangerousness. If the lawful permanent alien appeals an until it has determined that there is no significant likelihood adverse decision, the presumptive time limit would be 120 of removal in the foreseeable future.” Id at 701. days. These time limitations that are cited in Kim, reflect No. 01-3016 Ly v. Hansen, et al. 23 24 Ly v. Hansen, et al. No. 01-3016
As the circumstances of this appeal reveal, without a entitled to an individualized determination as to his risk judicial time limit, detention of lawful permanent residents of flight and dangerousness if the continued detention could exceed six months. Here, Ly was detained for 500 became unreasonable or unjustified. days. Despite Kim, the Appellant agency insists that “Ly’s detention pending the completion of his removal proceedings ([A]liens are entitled to be free form detention that is is statutorily authorized under 8 U.S.C. 1226(c)(1)(B) and arbitrary or capricious”). Were there to be an fully comports with due process under the Supreme Court’s unreasonable delay by the INS in pursuing and decision in Kim”. (Appellant’s motion to vacate at p.4). This completing deportation proceedings, it could become expression of the agency’s viewpoint of reasonableness necessary then to inquire whether the detention is not counsels the need for numerical time limitations. to facilitate deportation or to protect against risk of flight or dangerousness, but to incarcerate for other Second, in Kim, the Supreme Court made it clear that where reasons. removal “was not practically attainable,” “detention’s goal no longer bears a reasonable relation to the purpose for which the 123 S. Ct. at 1722 (Kennedy, J., concurring). (emphasis individual was committed.” Id 1719, 1720 citing Zadvydas. added). Although in an unpublished decision, the Second Thus, for the lawful permanent residents who object to Circuit described Justice Kennedy’s concurring opinion as removal to countries to which actual deportation or removal “explicating his understanding that the majority opinion may is impractical, as here, the detention hearing should be held allow a challenge to detention when, for example, there has promptly or as soon as practicable prior to the expiration of been unreasonable delay by the INS.” Zgombic v the 47 days of the initial detention. Farquharson, 68 Fed. Appx. 2, 2003WL212443248 * 1 (2nd Cir. 2003). Third, in Kim, the five justices required an individual determination to justify extended detention albeit in different Four other Justices in Kim, likewise would require an contexts. In his concurring opinion in Kim, Justice Kennedy individualized due process hearing even before the initial recognized the necessity of a due process hearing after an detention period. “Due process calls for an individual unreasonable period of detention, stating that: determination before someone is locked away.” 123 S. Ct at 1733 (Souter, Stevens and Ginsburg, JJ. concurring in part, “As a consequence, due process requires dissenting in part). “The statute would require the individualized procedures to ensure there is at least some Government to permit a detained alien to seek an merit to the Immigration and Naturalization Service’s individualized assessment of flight risk and dangerousness as (INS) charge and, therefore, sufficient justification to long as the alien’s claim that he is not reportable is (1) not detain a lawful permanent resident alien pending a more interposed solely for purposes of delay and (2) raises a formal hearing...” question of “law or fact” that is not insubstantial” 123 S. Ct. at 1747, (Breyer, J. concurring in part, dissenting in part). *** Here, Ly asserts an express claim that he was entitled to a For similar reasons, since the Due Process Clause due process hearing and an individual assessment of his risk prohibits arbitrary deprivations of liberty a lawful of flight and his perceived dangerousness to justify his permanent resident alien such as respondent could be continued detention. For a lawful permanent alien resident No. 01-3016 Ly v. Hansen, et al. 25 26 Ly v. Hansen, et al. No. 01-3016
who has been detained more than forty seven (47) days misplaced in that the majority overlooks Ly’s status and his without a determination of his or her removeability and who opposition to his removal. Kim is the controlling authority objects to his deportation, I would hold such an alien resident here for removal of lawful permanent residents who object to is entitled to a due process hearing and an individual their removal. Kim imposes a constitutional limitation that assessment of his risk of flight and /or dangerous to justify any detention must be “brief” and “limited” as well as his or her continued detention. reasonable. Fourth, the majority opinion places substantial reliance on For these reasons, I respectfully dissent. Zadvydas that involved aliens who had been ordered to be deported and whose detention was “potentially permanent.” Kim expressly distinguished Zadvydas as applicable to aliens who have been ordered to be deported and whose detention is a potentially permanent and indefinite. Zadvydas is materially different from the present case in two respects. First, the aliens there challenging their detention following final deportation orders were ones for who removal was “no longer practically attainable,” such that their detention did not serve its purported immigration purpose. In contrast, because the statutory provision at issue in this case governs detention of deportable criminal aliens pending their removal proceedings, the detention necessarily serves the purpose of preventing the aliens from fleeing prior to or during such proceedings. Second, while the period of detention at issue in Zadvydas was “indefinite” and “potentially permanent,” the record shows that 1226(c) detention not only has a definite termination point, but lasts, in the majority of cases, for less that the 90 days the Court considered presumptively valid in Zadvydas. 123 S. Ct. at 1719. In my view, Kim is the more relevant and controlling authority here because Ly is a lawful permanent resident alien who objects to his removal and his continued detention. Thus, the majority’s substantial reliance on Zadvydas is