Content area
"12 This provision demands that the government detain certain criminal noncitizens who have committed removable offenses for the duration of their removal proceedings.13 This group is largely ineligible for release on bond and thus their detention often continues for months on end.14 Since codification, the mandatory detention provision has faced many legal challenges, culminating in two landmark decisions by the Supreme Court of the United States that changed the American immigration landscape.15 First, in Jennings v. Rodriguez, the Court held that criminal noncitizens detained under the mandatory detention provision were not statutorily entitled to periodic bond hearings every six months, enabling their indefinite detention without opportunity for release.16 Second, in Nielsen v. Preap, the Court held that the mandatory detention provision did not statutorily require the Department of Homeland Security ("DHS") to detain criminal noncitizens immediately upon completion of their criminal sentences, granting DHS the ability to wait years to detain a reformed noncitizen subject to mandatory detention.17 In sum, these two rulings established firm statutory teeth to a provision that already exercised vast executory power over a large population.18 However, in the past year, the Northern District of California has issued two illustrative decisions pushing back on Jennings and Preap, demonstrating model pathways for these detainees to obtain relief: Part I of this Note will address the history of the mandatory detention provision, examining its legal evolution and establishing background necessary to understand the decisions in Jennings and Preap.20 Part II will examine the decisions and rationale of both Jennings and Preap.21 Part III will discuss Romero-Romero and Perera and explain their rationale, describing their illustrative and innovative roadmaps to obtaining relief for noncitizens covered under the mandatory detention provision post-Jennings and Preap.22 Finally, Part IV will detail the repeatable legal strategies developed by Romero-Romero and Perera and discuss the importance of establishing constitutional limits to § 1226(c) in the face of the Court's flawed rationale in Jennings and Preap.23 I. BACKGROUND AND EVOLUTION OF THE MANDATORY DETENTION PROVISION OF THE INA A. Cracking Down and "The Rule of Law": Passage of the IIRIRA After a landslide congressional victory for Republicans in the 1994 midterm elections, America made clear where its societal and political concerns lay: severe distrust in political leaders to keep Americans physically and economically safe.24 This electoral shiftdemonstrated a belief that America was on a "moral and cultural decline," reflected in successful appeals to public concerns about rises in crime and illegal immigration, along with a failing and bloated welfare state.25 However, while these issues heavily favored Republican candidates26-delivering them full control of Congress for the first time in over forty years27-they had to contend with a Democratic White House desperate to rediscover political inroads with the American populace.28 It was against this political backdrop that the 1996 passage of the IIRIRA occurred.29 Republicans and conservative voters had rallied behind aggressive rhetoric against the "scourge" of illegal immigration, backing policies such as drastic increases to immigration enforcement and denial of public services to undocumented immigrants.30 Although the Clinton administration did not support the more radical, right-wing policies of the new Republican Congress, it was eager to appear tough against issues that concerned this new, angrier American electorate.31 Thus, when the Republican Congress proposed their version of the IIRIRA, Democrats largely accepted it at the behest of the White House.32 The final version of the bipartisan bill included new INA provisions restricting asylum and other pathways to legal status, criminalizing certain immigration offenses, significantly increasing interior border enforcement, and, importantly, providing for harsh enforcement against "criminal aliens. "33 In passing the omnibus bill including the IIRIRA, then-President Clinton took the opportunity to demonstrate his administration's newfound toughness on immigration, hailing it for "strengthen[ing] the rule of law by cracking down on illegal immigration at the border, in the workplace, and in the criminal justice system-without punishing those living in the United States legally. "39 Examined through this generalized lens, the provision met a key goal of the Clinton administration: building a strong record on immigration enforcement.40 The provision's adoption was in response to a perceived failure of the Immigration and Naturalization Service ("INS") to adequately respond to increasing rates of criminal activity by aliens.41 In fact, a 1995 Senate Report from the Committee on Governmental Affairs on the circumstances surrounding the inclusion of the mandatory detention provision in the IIRIRA outlined the most glaring of these perceived issues regarding criminal noncitizens: an inadequate detention scheme and too much opportunity to delay deportation.42 The report stated that the "current U.S. immigration laws . . . permit those who object to delay their deportations for years by taking advantage of an oftentimes irrational, lengthy and complex system of hearings and appeals.
INTRODUCTION
Pierre Michel arrived in the United States from Haiti at three years old as a Lawful Permanent Resident ("LPR").1 After developing substance abuse issues in his adolescence, Michel received several nonviolent criminal convictions and was detained in contemplation of his deportation.2 Nearly two years later, Michel was finally released after successfully petitioning for Cancellation of Removal. Michel had no opportunity to obtain his freedom sooner, despite his clear eligibility for relief.3 Like Michel, in 2003, student Sylvester Owino pled guilty to second-degree robbery without understanding the immigration consequences of his conviction.4 After serving over two years in prison, Owino spent nearly another decade in immigration detention fighting for asylum, ineligible for release on bond based on his criminal conviction.5
Michel's and Owino's stories are too common given the sheer numbers of detained migrants in the United States. At its pre- COVID peak in 2019, the United States detained over 55,000 migrants per day.6 This unprecedented number represents an eight-fold increase in daily detainees over the last twenty-five years, rising from a 1994 peak of under 6,800 per day.7 While around seventy percent of migrant detainees are released within a month of their detention,8 the rest are leftto languish for much longer periods.9 This incredible rise coincides with Congress' passage of the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA").10 The IIRIRA was a major piece of legislation that overhauled many existing provisions of the Immigration and Nationality Act ("INA"), the backbone of American immigration law.11
One of the most consequential changes to American immigration law stemming from the passage of the IIRIRA was the codification of 8 U.S.C. § 1226(c), otherwise known as the "mandatory detention provision."12 This provision demands that the government detain certain criminal noncitizens who have committed removable offenses for the duration of their removal proceedings.13 This group is largely ineligible for release on bond and thus their detention often continues for months on end.14 Since codification, the mandatory detention provision has faced many legal challenges, culminating in two landmark decisions by the Supreme Court of the United States that changed the American immigration landscape.15
First, in Jennings v. Rodriguez, the Court held that criminal noncitizens detained under the mandatory detention provision were not statutorily entitled to periodic bond hearings every six months, enabling their indefinite detention without opportunity for release.16 Second, in Nielsen v. Preap, the Court held that the mandatory detention provision did not statutorily require the Department of Homeland Security ("DHS") to detain criminal noncitizens immediately upon completion of their criminal sentences, granting DHS the ability to wait years to detain a reformed noncitizen subject to mandatory detention.17 In sum, these two rulings established firm statutory teeth to a provision that already exercised vast executory power over a large population.18
However, in the past year, the Northern District of California has issued two illustrative decisions pushing back on Jennings and Preap, demonstrating model pathways for these detainees to obtain relief: Romero-Romero v. Wolf and Perera v. Jennings.19 This Note will argue that these legal schemes are necessary to protect the due process rights of criminal noncitizens detained under a controversial statute bolstered by faulty statutory rationale and will propose a modern roadmap for detainees to assert those rights in the face of prolonged, mandatory detention.
Part I of this Note will address the history of the mandatory detention provision, examining its legal evolution and establishing background necessary to understand the decisions in Jennings and Preap.20 Part II will examine the decisions and rationale of both Jennings and Preap.21 Part III will discuss Romero-Romero and Perera and explain their rationale, describing their illustrative and innovative roadmaps to obtaining relief for noncitizens covered under the mandatory detention provision post-Jennings and Preap.22 Finally, Part IV will detail the repeatable legal strategies developed by Romero-Romero and Perera and discuss the importance of establishing constitutional limits to § 1226(c) in the face of the Court's flawed rationale in Jennings and Preap.23
I. BACKGROUND AND EVOLUTION OF THE MANDATORY DETENTION PROVISION OF THE INA
A. Cracking Down and "The Rule of Law": Passage of the IIRIRA
After a landslide congressional victory for Republicans in the 1994 midterm elections, America made clear where its societal and political concerns lay: severe distrust in political leaders to keep Americans physically and economically safe.24 This electoral shiftdemonstrated a belief that America was on a "moral and cultural decline," reflected in successful appeals to public concerns about rises in crime and illegal immigration, along with a failing and bloated welfare state.25 However, while these issues heavily favored Republican candidates26-delivering them full control of Congress for the first time in over forty years27-they had to contend with a Democratic White House desperate to rediscover political inroads with the American populace.28 It was against this political backdrop that the 1996 passage of the IIRIRA occurred.29
Republicans and conservative voters had rallied behind aggressive rhetoric against the "scourge" of illegal immigration, backing policies such as drastic increases to immigration enforcement and denial of public services to undocumented immigrants.30 Although the Clinton administration did not support the more radical, right-wing policies of the new Republican Congress, it was eager to appear tough against issues that concerned this new, angrier American electorate.31 Thus, when the Republican Congress proposed their version of the IIRIRA, Democrats largely accepted it at the behest of the White House.32 The final version of the bipartisan bill included new INA provisions restricting asylum and other pathways to legal status, criminalizing certain immigration offenses, significantly increasing interior border enforcement, and, importantly, providing for harsh enforcement against "criminal aliens."33 In passing the omnibus bill including the IIRIRA, then-President Clinton took the opportunity to demonstrate his administration's newfound toughness on immigration, hailing it for "strengthen[ing] the rule of law by cracking down on illegal immigration at the border, in the workplace, and in the criminal justice system-without punishing those living in the United States legally."34 This proved to be wishful thinking.
B. 8 U.S.C. § 1226(c): The Mandatory Detention Provision of the INA
Despite some Democratic efforts to soften the IIRIRA, the omnibus bill's criminal alien enforcement provisions remained popular with the American public.35 Thus, they remained unchanged throughout negotiations with Republican lawmakers.36 One of the most consequential of these provisions was the mandatory detention provision, amending INA § 236 to require detention of certain criminal noncitizens following their release from imprisonment.37 The new § 236(c) provided that the Attorney General must detain these noncitizens who were either inadmissible or "removable on specified criminal or terrorismrelated grounds."38 Congress intended this detention mandate to apply "whenever such an alien [was] released from imprisonment, regardless of the circumstances of the release."39 Examined through this generalized lens, the provision met a key goal of the Clinton administration: building a strong record on immigration enforcement.40
The provision's adoption was in response to a perceived failure of the Immigration and Naturalization Service ("INS") to adequately respond to increasing rates of criminal activity by aliens.41 In fact, a 1995 Senate Report from the Committee on Governmental Affairs on the circumstances surrounding the inclusion of the mandatory detention provision in the IIRIRA outlined the most glaring of these perceived issues regarding criminal noncitizens: an inadequate detention scheme and too much opportunity to delay deportation.42 The report stated that the "current U.S. immigration laws . . . permit those who object to delay their deportations for years by taking advantage of an oftentimes irrational, lengthy and complex system of hearings and appeals."43 Further, the report noted that due to INS's overwhelming release of detained criminal noncitizens on bond, "[o]ver 20 percent of non-detained criminal aliens fail[ed] to appear for deportation proceedings."44 In response, the report suggested a wholesale simplification of the detention scheme for noncitizens subject to removal on criminal grounds,45 preceding the provision's passage as one of its primary policy concerns.46
The mandatory detention provision, codified under 8 U.S.C. § 1226(c), provides that "[t]he Attorney General shall take into custody any alien who" has committed any of a number of removable offenses "when the alien is released," generally after the completion of their criminal sentences.47 The detention mandate's triggering offenses include aggravated felonies, violations relating to any controlled substance, firearms offenses, terrorist activities, and in certain circumstances, crimes involving moral turpitude ("CIMTs").48 This inclusion of CIMTs significantly widens the net cast by § 1226(c), as they cover any "crime involving fraud or conduct that (1) is vile, base, or depraved and (2) violates accepted moral standards."49 As such, § 1226(c)(1) accomplished Congress' goal of overhauling the pre-IIRIRA detention scheme, mandating that every noncitizen covered under this incredibly wide umbrella "shall [be] take[n] into custody . . . ."50
The vast mandate of § 1226(c)(1) is supplemented by § 1226(c)(2).51 This paragraph accomplishes the next goal of the passage of the mandatory detention provision: preventing release through the lengthy delay of deportation proceedings by an appeals process.52 It provides that once someone is detained pursuant to § 1226(c)(1), they can only be released from detention under narrow, witness protection circumstances.53 This effectively bars anyone detained under the mandatory detention provision from an opportunity for release on parole or bond and requires their detention for the pendency of their removal proceedings, however long they may last.54
Taken as a whole, § 1226(c) strips both DHS and immigration judges of their discretionary power in determining the appropriateness of detention and assessing whether a detainee poses a danger or flight risk that would preclude release.55 This disincentivizes detainees from pursuing their procedural right to appeal in their removal proceedings, as any extension of their case prolongs their detention.56 Thus, while the passage of § 1226(c) furthered Congress' political goals in 1996,57 it significantly altered the landscape of American immigration enforcement and attracted many constitutional challenges.58
C. Zadvydas and Demore: Setting the Constitutional Stage for § 1226(c)
The enactment of the IIRIRA and § 1226(c) was based on Congress' well-established constitutional grant of plenary power to regulate immigration.59 For decades, the seminal "Chinese Exclusion" cases established that noncitizens were not afforded the same constitutional due process rights as citizens, a premise upheld many times over the course of the twentieth century.60 However, with the IIRIRA's vast expansion of immigration detention came myriad constitutional challenges to its new provisions, causing the Court to determine what constitutional due process rights noncitizens possessed.61
Zadvydas v. Davis concerned the ongoing civil immigration detention of two noncitizens-Kestutis Zadvydas and Kim Ho Ma-who were ordered removed and were detained for years because of INS's inability to find a country that would accept them upon their deportation.62 The INS reserved the discretion to release the noncitizens after they had been detained for the statutorily mandated ninety-day period following a removal order, but it opted not to because of Zadvydas's and Ma's violent and lengthy criminal histories.63 Because this essentially leftthem detained indefinitely, both Zadvydas and Ma filed writs of habeas corpus for their release, arguing that their continued detention violated their constitutional rights.64
In response, the Court developed the rights of noncitizens residing within the United States in two significant ways.65 First, the Court plainly stated that the Fifth Amendment Due Process Clause applies to all persons within the United States, "whether their presence here is lawful, unlawful, temporary, or permanent."66 This established, for the first time, that noncitizens enjoyed the same procedural rights as citizens provided they were physically in the United States.67 The Court then held that, based on these newly established due process rights, a reasonableness requirement existed for the duration of immigration detention, after which time the noncitizen had the constitutional right to be afforded the opportunity for release.68 For post-removal detention, the Court capped this reasonableness requirement at six months, after which time the INS was required to grant detained noncitizens the opportunity to be heard for release.69 Armed with a new, time-limited reasonableness requirement on immigration detention, noncitizens detained under § 1226(c) began to challenge the constitutionality of their detentions, with many federal circuit courts holding the statute facially unconstitutional.70 This development on the constitutionality of § 1226(c) came to a head with the Supreme Court's 2003 decision in Demore v. Kim.71
In Demore, Hyung Joon Kim, a noncitizen with LPR status, was detained under § 1226(c) after a conviction for first-degree burglary and, a year later, for petty theft.72 Kim facially challenged the constitutionality of his detention, arguing that it violated due process as he was never assessed as a danger to society or a flight risk, as would determine the appropriateness of his mandated detention without opportunity for release.73 Just two years after its revolutionary holding in Zadvydas, the Court declined to extend its reasoning too far in Demore, holding that although Zadvydas established constitutional due process protections for noncitizens, those rights were not violated by detention under § 1226(c).74
First, the Court distinguished Zadvydas by highlighting that Zadvydas concerned indefinite detention, whereas detention under § 1226(c) had a "definite termination point": the end of removal proceedings.75 Using statistics from the Executive Office for Immigration Review ("EOIR"), the Court demonstrated that for noncitizens detained under § 1226(c), the duration of detention was relatively short, and even in those cases where appeals prolonged detention, removal proceedings typically ended sooner than the six-month time limit established in Zadvydas.76 Then, the Court explained that "[d]etention during removal proceedings is a constitutionally permissible part of that process"77 and that with a rational basis for the enactment of § 1226(c)-preventing criminal noncitizens' failure to appear for removal proceedings- the provision was constitutionally sound.78 In all, although noncitizens now retained constitutional due process protection under the Court's holding in Zadvydas, the outcome in Demore seemed to preclude further facial challenges to the constitutionality of the mandatory detention provision.79 The challenges did not cease, however, with more claims focused on issues of statutory interpretation.
II. JENNINGS AND PREAP: STRENGTHENING STATUTORY DEFENSES OF § 1226(C)
Thirteen years after Demore, it became clear that the statistics relied upon in the Supreme Court's consequential decision upholding the facial constitutionality of mandatory detention were dangerously erroneous.80 In a letter to the Supreme Court in 2016, the Department of Justice explained that the Demore statistics vastly underestimated the completion time of cases in which a noncitizen appealed their decision to the BIA, finding that "[t]he corrections EOIR has now made yield an average and median of 382 and 272 days, respectively, for the total completion time in cases where there was an appeal . . . ."81 Further, the detainees' continued challenges to the mandatory detention provision demonstrated the regularity with which noncitizens were detained longer than the presumptively reasonable ninety-day period and the six-month reasonableness standard both discussed in Zadvydas.82 While the Court's Demore decision referenced the brevity of detention under § 1226(c),83 the reality reflected otherwise. Thus, as subsequent challenges to the mandatory detention provision progressed, they highlighted this reality with hybrid statutory-constitutional arguments, culminating in two landmark decisions that substantially altered the legal landscape surrounding § 1226(c).84
A. Jennings v. Rodriguez: Avoiding Constitutional Avoidance
By the time Alejandro Rodriguez challenged his continued detainment in the Central District of California, he had already been confined for three years.85 A longtime LPR detained in 2004 pursuant to § 1226(c) based on convictions for simple possession of a controlled substance and joyriding, Rodriguez languished in detention appealing his removal until finally filing a habeas petition contesting his prolonged confinement in 2007.86 After consolidating his case with another, Rodriguez moved for class certification based on the class of all noncitizens in the Central District of California who (1) had been detained for longer than six months pursuant to one of the general immigration detention statutes pending completion of their removal proceedings; (2) were not detained pursuant to a national security detention statute; and (3) were not given the opportunity at a bond hearing to determine whether their continued detention was justified.87 Upon his motion for class certification, Rodriguez was unexpectedly released from detention after 1,189 days.88
The Ninth Circuit granted summary judgment to Rodriguez's certified class in 2015, holding that to avoid constitutional due process concerns surrounding prolonged detention without the possibility for an individualized determination on dangerousness or flight risk, "§ 1226(c)'s mandatory language must be construed 'to contain an implicit reasonable time limitation.' "89 Using the canon of constitutional avoidance,90 the Ninth Circuit inferred an implied six-month limit to detention under § 1226(c), after which a detainee must be given an individualized determination on whether their continued detention is justified.91 This decision- along with five other circuit courts invoking the canon of constitutional avoidance to read similar reasonableness limits into § 1226(c)92-prompted the Supreme Court to address the issue in 2016.93
In a wholesale rejection of constitutional avoidance, the Supreme Court refused to read periodic bond hearings into the mandatory detention provision, holding, based on statutory grounds, that § 1226(c) simply did not allow these opportunities for release.94 Opposing the use of the canon of constitutional avoidance employed by six circuit courts, Justice Alito reasoned that the "[t]he canon . . . 'comes into play only when, after the application or ordinary textual analysis, the statute is found to be susceptible of more than one construction.' "95 The Court then held that the Ninth Circuit's interpretation of § 1226(c) implying periodic bond hearings was implausible based on a general textual analysis of the statute.96
The implausibility of the Ninth Circuit's interpretation of § 1226(c) was predicated on two main premises: (1) that § 1226(c) was not silent on the length of detention and (2) that no alternative opportunities for relief existed other than those expressly contained within the statutory text.97 Using Demore's reasoning to further limit the reach of Zadvydas, the Court explained that the statute determined the length of detention to be until the conclusion of removal proceedings, limiting Zadvydas's six-month reasonability standard to its specific circumstances of post-removal detention.98 Additionally, while the respondent class argued that the statute did not forbid other implied avenues for release, the Court held otherwise, detailing that the statute provided for release under § 1226(c) "only if" certain conditions were met surrounding witness protection purposes in criminal cases.99 Because this implied statutory construction was implausible according to the Court, the canon of constitutional avoidance was inapplicable, thus granting powerful statutory authority to the mandatory detention provision while allowing the Court to avoid addressing the facial constitutionality of the provision itself.100
In addition to their statutory defense of § 1226(c), the majority markedly expended great energy explaining why the dissent's alternative interpretation of the provision was "utterly implausible," but did nothing to address their constitutional arguments against the provision's current enforcement.101 Unaddressed by the majority, the dissent laid a roadmap to future challenges to the provision, focusing on the constitutional concerns about likely violations of the respondents' Fifth Amendment due process rights and Eighth Amendment protections against excessive bail.102 Importantly, the dissent clarified the holding in Demore that was relied upon heavily in defense of the mandatory detention provision in the fifteen years since its deliverance.103 Contrary to the complainant in Demore, the Jennings class argued against prolonged mandatory detention-much longer than Demore's challenged six-month detention and comparable misleading detention statistics-and thus, the relevance of the constitutional issue would not allow it to go unanswered forever.104 Notwithstanding these relevant constitutional concerns, however, statutory challenges to § 1226(c) persisted.
B. Nielsen v. Preap: The "Taste of Freedom" Argument
Mony Preap had been living free from detention for seven years after his release from criminal custody on two separate drug charges when he was detained pursuant to § 1226(c).105 Although detained following his arrest for a criminal offense not covered under the mandatory detention provision, Preap's new immigration detention was not based on this offense, but instead on the drug charges from seven years prior.106 As it turned out, this practice of mandatory immigration detention commenced well after the pendency of a noncitizen's criminal sentence was not uncommon.107 Indeed, when Preap filed a habeas petition to obtain his release, his case was consolidated with those of two other noncitizens who were detained following five and eleven years free from criminal custody, respectively.108 Their collective claims rested on a simple assertion: because they were not detained immediately upon their release from criminal custody, they were not subject to § 1226(c)'s bar on release, and instead were detained under § 1226(a)'s discretionary detention provision, allowing them the opportunity for a bond hearing.109 After the three respondents' claims were consolidated into a class action with those pursuing similar claims in the Western District of Washington, the Ninth Circuit ruled in their favor.110 Because this created a split with four other circuit courts, the Supreme Court granted certiorari in 2018.111
Defending the mandatory detention provision against a more complex statutory attack than that in Jennings, the Supreme Court reversed the Ninth Circuit's decision in a winding, unclear plurality opinion with wide-reaching consequences.112 The Court rested their first defense of § 1226(c) on the simple grammatical fact that an adverb cannot modify a noun; thus, when § 1226(c)(1) states that "[t]he Attorney General shall take into custody any alien who" is inadmissible or deportable based on a criminal conviction "when the alien is released,"113 "when released" modifies "shall take," rather than the noun "alien."114 Because "when released" is not a modifier of who shall be detained under § 1226(c), the Court said the government is not mandated to detain these noncitizens immediately following their release from criminal custody.115 Further, the Court maintained that the clause "when released" could not even describe the aliens subject to § 1226(c) detention because it did not provide them with any identifying features; in fact, the identifying features for those subject to mandatory detention were their committed offenses rendering them deportable or inadmissible.116 Finally, the Court held that §§ 1226(a) and 1226(c) did not work separately as posited by the Ninth Circuit but instead worked together as a full scheme.117 Thus, in the plurality's view, § 1226(c) simply limits the discretion afforded the Attorney General in § 1226(a) by describing those she must detain, meaning that § 1226(c)(2)'s bar on release is just a limitation imposed on 1226(a)'s release discretion.118
While the plurality's arguments regarding statutory construction held logical weight, their reasoning fell apart when addressing the respondents' alternative arguments. Firstly, the Court employed the "better late than never" doctrine illustrated in their Montalvo-Murillo case, where the absence of a statutory consequence for the government's noncompliance in timeliness standards for detention hearings did not mandate the detainee's release.119 Specifically, the Court said that even if the provision required immediate detention, "an official's crucial duties are better carried out late than never," simply excusing harmful conduct because the government eventually did its statutorily mandated job.120 In addition, the Court drew this analogy to Montalvo-Murillo because enforcing a time limit for commencing detention under § 1226(c) would completely strip the government of the authority to detain noncitizens without the possibility of a bond hearing.121 This argument is both false, as the government would retain this authority if it detained these noncitizens immediately following their release from criminal custody, and ignores the respondents' apt constitutional concerns.122
The plurality saved their most contradictory defense of § 1226(c) from Preap for last in addressing the respondents' proposed canons of construction. The respondents first contended that the words "when released" were reduced to surplusage given the plurality's arguments, and thus, their reading of the statute was required to avoid this result.123 The Court rebutted this by contending that the words were not surplusage as they "exhort[ ] the Secretary to act quickly" in detaining criminal noncitizens, a contradictory argument seeing as each respondent's situation demonstrates the government's blatant disregard of this important direction to "act quickly."124 Finally, in response to the respondents' invocation of the canon of constitutional avoidance, the Court simply recycled their Jennings argument, holding the canon did not apply because there was only one plausible reading of § 1226(c).125 However, this is again contradictory when viewed against the Ninth Circuit's reading of § 1226's scheme separating its detention provisions; a plausible interpretation that avoids the constitutional concerns raised by the respondents' situations and is only disposed of through a winding, grammatical discourse.126
While Justice Breyer's Preap dissent once again highlighted the grave constitutional concerns present in the Court's interpretation of § 1226(c) reflected by the respondents' arguments,127 the end of the plurality opinion did offer some hope to immigration advocates. The Court advised that their decision "on the meaning of [§ 1226(c) did] not foreclose as-applied challenges . . . ."128 This call for further challenges, however, still remained incredibly narrow in the face of Preap's broad conferral of power to § 1226(c), especially when viewed against Justice Kavanaugh's concurrence ascribing to the "undisputed" facial constitutionality of the mandatory detention provision.129 Overall, Jennings and Preap, although resting on complex and shaky interpretations of the mandatory detention provision, seemingly closed the door to all future statutory challenges and facial constitutional challenges to prolonged, mandatory detention under § 1226(c).130 But recent developments at the district court level have attempted to address the need to set limits on this evermore powerful provision.
III. ROMERO-ROMERO AND PERERA: CONSTRUCTING A CEILING ON JENNINGS AND PREAP
Although the decisions in Jennings and Preap precluded many valid challenges to the harsh enforcement of § 1226(c), challenges persist. In fact, since 2019, the Northern District of California has been particularly active in pushing back against legal issues with the current enforcement of mandatory immigration detention in the United States.131 Illustrative of this innovative approach are Romero-Romero v. Wolf and Perera v. Jennings, where the district court adeptly used rationale from both Jennings and Preap to push back against the statutory growth of mandatory detention, providing a roadmap to successfully challenge detention under § 1226(c).132
A. Romero-Romero v. Wolf: Modernizing Demore to Combat Prolonged Detention
Nectali Romero-Romero, a Salvadoran national and longtime LPR, was detained under § 1226(c) in December 2019 after being released from nearly five years of incarceration following a criminal conviction for lewd or lascivious acts with a minor.133 Upon his detention and placement in removal proceedings, Romero-Romero began to frantically search for immigration relief to remain in the only home he had known for nearly forty years, applying for renewed LPR status through his adult son and relief under the Convention Against Torture.134 Upon the denial of both applications, his ordered removal by the Immigration Judge, and the denial of his motion to reconsider, Romero-Romero appealed the decision to the BIA.135 Because of his pursuit of legal options for relief, Romero-Romero had been detained for over a year upon filing his BIA appeal.136 Consequently, he filed a habeas petition with the Northern District of California seeking a bond hearing to determine his eligibility for release.137
In granting Romero-Romero his requested relief, the Northern District of California continued a post-Jennings jurisprudence that eschewed reliance on Demore and adherence to strict statutory interpretation, holding that the continued detention of Romero-Romero would raise serious due process concerns.138 While the court acknowledged Jennings's recent treatment of § 1226(c), it noted that the overall rationale was statutory and avoided addressing any of the constitutional concerns put forth by the respondents in that case.139 Thus, although Jennings barred any statutory right to bond hearings under § 1226(c), it did not prevent the court from addressing "whether prolonged detention of an alien without individualized review by a neutral decisionmaker violates due process."140
Using this backdrop, the court pulled apart Jennings in furtherance of their constitutionally based argument. First, the court pivoted around Jennings's denial of the use of constitutional avoidance, relying on Ninth Circuit precedent that employed the canon by emphasizing the true nature of their rationale.141 The precedents used-Casas-Castrillon v. Department of Homeland Security and Diouf v. Napolitano ("Diouf II")-established a sixmonth bright-line limit where detention becomes "prolonged" and triggers due process concerns that mandate the allowance of a bond hearing.142 With this constitutional limit on prolonged detention in mind, the court continually addressed the Demore rationale relied on so heavily in Jennings, pulling it into a modern context by acknowledging its reliance on dated conceptions of immigration detention.143 Through constant references to the brevity of detention as characterized by Demore, the court refused to let its facial upholding of § 1226(c) continue to constitutionally allow detention of noncitizens for much longer durations than contemplated by the Demore Court.144
Next, the court powerfully refuted the government's commonly used defenses of § 1226(c) detention post-Jennings using common-sense legal arguments.145 The court denied the government's argument that Romero-Romero's prolonged detention was the result of a lengthy appeals process, and thus, his fault allowed for the continued denial of a bond hearing.146 The court instead recognized that a noncitizen should not be forced to "forfeit his due process rights because he is choosing . . . to pursue rights provided to him by our laws."147 The government further asserted that immigration judges should not be in the business of trying to predict whether a noncitizen detained under § 1226(c) is a flight risk or a danger to the community, as this determination was made when Congress codified the statute.148 The court responded simply by asking, "If immigration judges should not be in the business of providing due process to individuals detained pursuant to 1226(c), who should?"149 Citing heavily to Zadvydas, the court continually asserted that the Due Process Clause applies to all persons within the United States, and those rights cannot be stripped away by statute.150
Using this rationale, the Northern District of California held that Romero-Romero's "prolonged and ongoing detention without a custody hearing [was] not compatible with due process" and entitled him to a bond hearing.151 Initially, the government appealed this decision, but upon the appointment and confirmation of Attorney General Merrick Garland in 2021, it dropped its appeal and consented to the decision.152 Tellingly, Romero-Romero was not the first post-Jennings case in the Ninth Circuit to employ material elements of this rationale successfully, nor has it been the most recent, highlighting its strengths and foreshadowing the necessity of a full, facial constitutional challenge to prolonged, mandatory detention without the opportunity to be heard for release.153 However, while Romero- Romero illustrates the strength of this rationale and the growing trend in due process arguments attacking prolonged detention under § 1226(c), the Northern District of California issued another innovative decision in 2022 with its sight aimed at Preap.154
B. Perera v. Jennings: Identifying Interests to Mandate Due Process
In a situation all too predictable after the Supreme Court's decision in Preap, Imesh Perera was detained by Immigration and Customs Enforcement ("ICE") on his way to work, nearly six full years after his release from criminal custody.155 He immigrated to the United States from Sri Lanka as a child and fell in with the wrong crowd in his adolescence, eventually getting arrested for drug trafficking in 2010-a detainable offense under § 1226(c).156 In 2015, Perera accepted a plea deal and began a term of supervised release based on his time already served.157 It was then that Perera turned his life around: he successfully completed his supervised release program, found faith and became an active member of his church, began studying for a degree at Sierra College, was promoted five times to store director at his job where he managed over 130 employees, and became engaged to his fiancée with a son on the way.158 Despite Perera's visible life turnaround and ICE's ongoing knowledge of his deportability since his 2010 arrest, ICE waited until April 2021 to detain Perera and place him in removal proceedings.159
Perera immediately fought his detention using all available legal resources: he submitted a parole request with ICE, filed a habeas petition with the Northern District of California, and motioned for a temporary restraining order ("TRO") to obtain a bond hearing.160 Although his parole request was swiftly denied, the district court granted his TRO based on his likelihood of success on the merits of his habeas petition, briefly detailing the balance of enumerated factors from the Supreme Court case Mathews v. Eldridge that favored Perera's as-applied constitutional challenge to the enforcement of § 1226(c).161 After the TRO, Perera received a bond hearing where an Immigration Judge released him on a bond of $30,000 pending a hearing on the merits of his habeas petition with the district court.162
In granting Perera declaratory relief enjoining the government from detaining him without a bond hearing, the court laid out a constitutional roadmap for obtaining relief from mandatory detention post-Preap.163 Firstly, the court conducted an inquiry into the existence of a liberty interest at stake necessitating due process protection.164 In establishing the availability of this inquiry, the court emphasized Preap's clear explanation that as-applied constitutional challenges based on the government's failure to immediately detain were still legitimate, rejecting the government's argument that no liberty interest could exist due to the facial constitutionality of § 1226(c).165 Secondly, the court pivoted to Perera's specific facts, determining that there was a liberty interest at stake because (1) the government knew of Perera's whereabouts and deportability at the time of his release, and (2) Perera had rebuilt his life with an intense reliance on his freedom.166 In fact, ICE's own assertion that it had the authority to re-detain Perera at any time only further demonstrated his continuing liberty interest, requiring due process protection and a balancing of the Mathews factors to determine the extent of the process due.167
In balancing the Mathews factors, the court provided guidance on how to set constitutional limits on Preap's reach, concluding that the factors balanced in favor of Perera's right to a post- detention bond hearing.168 First, the court determined that Perera's private interest was high; while any time in custody implicates an interest in freedom from imprisonment, Perera's also derived from the government's awareness of his detention eligibility and their failure to apprehend him for over six years, resulting in his clean record of success and significant reliance on his freedom.169 Second, the record was "abound with evidence" that re-detaining Perera without a bond hearing would carry a high risk of deprivation of this private interest, strengthened by his prior positive bond determination by an Immigration Judge.170 Finally, the court determined that the government's interest was low, as demonstrated by their failure to detain Perera for nearly six years, along with the low cost of providing him a bond hearing considering the government's participation in bond determinations every day.171 Thus, based on the existence of a liberty interest and the balance of Mathews factors in his favor, the court ruled that Perera was constitutionally entitled to a bond hearing should he be re-detained by ICE to protect his due process rights, bringing life to Preap's allowance of as-applied constitutional challenges to the enforcement of § 1226(c).172
IV. A CEILING THAT STICKS: THE PATHWAY TO CONSTITUTIONAL LIMITS TO § 1226(C), AS DEMONSTRATED BY ROMERO-ROMERO AND PERERA
Romero-Romero and Perera illustrate a much-needed modern legal framework providing criminal noncitizens detained under § 1226(c) avenues to seek relief post-Jennings and Preap.173 The Supreme Court's flawed rationale both endorsed the vastly increased number of daily detainees in the United States since the promulgation of § 1226(c) and contributed to the diminishing legitimacy of the American judiciary.174 By providing roadmaps to establishing constitutional limits to § 1226(c) after its statutory expansions in Jennings and Preap, the Northern District of California offers a practicable legal pathway for the United States to address the modern issues of mandatory immigration detention and the Court's irresponsible statutory defense of § 1226(c).175 Practitioners should use these schemes to demonstrate the flaws in the Court's approach to Jennings and Preap and finally force the judiciary to grapple directly with the due process violations presented by prolonged immigration detention without the opportunity for release.176
A. Romero-Romero's Constitutional Avoidance Rework
Romero-Romero adeptly produces a strong strategy for legal practitioners to address prolonged detention with no opportunity for release in a post-Jennings world: modernize Demore through contextual analysis and rely on old, albeit still valid, constitutional arguments.177 First, Zadvydas's principle that noncitizens are entitled to due process is still good law, notwithstanding Jennings's attempt to narrow and distinguish it, and this principle continues to apply in situations of mandatory, prolonged detention.178 Second, while Jennings eschewed the use of constitutional avoidance to read an implied right to periodic bond hearings into the text of § 1226(c), it neglected to address the constitutional arguments behind the canon's usage.179 As such, Jennings only abrogated the use of constitutional avoidance in the statutory construction of § 1226(c), leaving intact the background constitutional arguments contained in precedential authority.180 These arguments are not unique to the Ninth Circuit-they have been employed in five other circuits pre-Jennings181-so, provided they are framed correctly, other constitutional avoidance precedents can be used similarly in their respective jurisdictions to acknowledge the doubtful constitutionality of prolonged detention without opportunity for release. Finally, as Romero- Romero demonstrates, it is past time to modernize Demore's reasoning and data reliance to move immigration detention jurisprudence forward.182 By continually acknowledging Demore's documented shortcomings, practitioners can delegitimize the government's broad reliance on its rationale, pressing the issue of § 1226(c)'s modern constitutionality in cases of prolonged detention.183
Additionally, in refuting the government's oft-used arguments against a constitutional cap to § 1226(c) detention, Romero- Romero provides practitioners ways to legally undermine those disingenuous assertions.184 Too often, only two options face detainees under § 1226(c): "fight [removal] and face indefinite detention, or give up all claims for relief . . . ."185 As in Romero- Romero, the simple assertion that this decision flies in the face of due process should be sufficient to rebut the claim that the challenged detention is only prolonged due to a lengthy appeals process.186 Further, noting the commonality of the procedural remedy-a bond hearing before an Immigration Judge- powerfully rejects any assertion of its overburdening the government.187 In sum, Romero-Romero gives a proven, logical, and precedential framework to attack the harmful, prolonged enforcement of § 1226(c).188
B. Perera's Repeatable Mathews Scheme
While Romero-Romero and like cases illustrate proven strategies for obtaining relief post-Jennings, so, too, does Perera provide an innovative solution to assert due process rights post- Preap.189 With a legal scheme endorsed by the Ninth Circuit's dismissal of the government's appeal,190 Perera's creative use of the Mathews factors to establish the basis for due process protections for noncitizens detained under § 1226(c) can be emulated in courts across the country, providing avenues to relief for those detained long after their release from criminal custody.191 First, establishing a liberty interest using the rationale put forth in Perera should be simple for those noncitizens most affected by Preap, much like the Preap respondents themselves, detained between five and eleven years after their completion of their criminal sentences.192 Because Preap expressly allowed for asapplied constitutional challenges to delayed detentions under § 1226(c), any noncitizen detained after significant elapsed time since their release from criminal custody has a similar claim of a threatened liberty interest like Perera himself, provided they have not engaged in further criminal conduct.193
Next, after properly establishing a liberty interest, Perera's easy-to-follow Mathews balancing scheme heavily favors petitioning noncitizens, as demonstrating their high private interest against a comparatively low government interest in their detention without bond should be near uniform.194 First, if a liberty interest exists, the petitioning noncitizen's private interest in having an opportunity for release must also exist, as evidenced by Perera's quick inquiry determining a significant private interest in "freedom from imprisonment-from government custody, detention, or other forms of physical restraint."195 Second, provided the noncitizen's situation is analogous to Preap, the government interest should always be comparatively low for the same reasons Perera describes: the government's awareness of the noncitizen's deportability, easy ability to apprehend the noncitizen, and subsequent failure to do so for a significant period of time.196
The last factor, risk of erroneous deprivation, is the most difficult to prove using Perera's framework, but should balance in favor of the petitioning noncitizen if they have a high likelihood of a positive bond determination should they receive that opportunity.197 This means petitioning noncitizens following the Perera model effectively must pre-litigate their sought-after bond hearings, but, depending on the seriousness of their criminal offenses, many can successfully demonstrate their positive bond eligibility.198 In addition, noncitizens may be able to rely on statistics showing the incredible effect of release from detention on migrants in removal proceedings, as over the last decade, those securing release received favorable outcomes in their removal proceedings at twice the rate of those remaining detained until proceedings ended.199 Further, while those released on bond are removed at higher rates than those released generally, their outcomes are still significantly more favorable than those of detained migrants, evidencing the great effect a bond hearing can have in achieving the correct result in a given case.200 Thus, through reliance on this framework-common to most noncitizens affected by Preap-practitioners can better advocate for those subject to mandatory detention years after securing their release from criminal custody in the hope of cementing the due process rights ignored by the Preap Court.
C. The Importance of Constructing § 1226(c)'s Constitutional Ceiling: Stifling Irresponsible Statutory Expansion
Romero-Romero and Perera demonstrate straightforward legal strategies to circumvent Jennings and Preap's statutory defenses established by the Supreme Court's flawed and irresponsible rationales.201 Jennings and Preap's statutory holdings reinforce the anomalous status of American immigration law by refusing to provide any consideration to the due process rights of noncitizens.202 Instead, they actively ignore valid constitutional arguments by simply declining to grapple with the troubling divergence from constitutional due process norms kept from thousands of noncitizens detained daily under § 1226(c).203 This blatant disregard of constitutional norms contributes to the deteriorating trust in American societal mechanisms to act consistently, as both Jennings and Preap create scenarios where practitioners can hardly counsel noncitizens uniformly when faced with § 1226(c) detention without any constitutional clarification on the reach of the statute itself.204 Overall, both Romero-Romero and Perera evidence uniform strategies practitioners can use to challenge Jennings and Preap and attempt to finally force the Supreme Court to set needed constitutional limits on the modern enforcement of § 1226(c).
CONCLUSION
In 2022, the Supreme Court issued another statutory decision rejecting the use of constitutional avoidance to read implied temporal limits into 8 U.S.C. § 1231(a)(6), the post-removal detention statute.205 This 8-1 decision employed Jennings's rationale and, again, refused to rule on the constitutional merits of the case, showing that the time for using constitutional avoidance to statutorily challenge immigration statutes has long since passed.206 Consequently, the developments illustrated by the Northern District of California in Romero-Romero and Perera have become more relevant than ever, especially as mandatory detention under § 1226(c) continues to affect thousands of detainees like Pierre Michel and Sylvester Owino.207
Through their innovative rationales, both Romero-Romero and Perera heed the Supreme Court's rejection of statutory arguments to cleverly establish model frameworks to place constitutional limits on Jennings' and Preap's statutory expansions of § 1226(c).208 This important task serves both to limit the harmful effects of mandatory detention without bond and curb the growing cost of American immigration detention, all while pushing the serious due process concerns created by § 1226(c)'s enforcement in multiple forums.209 The expansion of these rationales is desperately needed, and if enough cases push these constitutional limits, the Supreme Court may finally be unable to sidestep the inevitable reckoning their § 1226(c) jurisprudence has been desperately trying to avoid: facing the constitutionality of mandatory detention.
1 Rachel Levenson & Terry Ding, No Other Option: Pierre Michel's Story, PROLONGED DETENTION STORIES, https://web.archive.org/web/20221208195547/http s://www.prolongeddetentionstories.org/the-stories#new-page (last visited Apr. 8, 2025).
2 Id.
3 Id.
4 Aline Barros, Kenyan Immigrant Spends a Decade Fighting Deportation, VOANEWS (June 18, 2019), https://www.voanews.com/a/usa_kenyan-immigrantspends- decade-fighting-deportation/6170220.html [https://perma.cc/2BPL-PMDY].
5 Id.
6 See ICE Detainees, TRAC IMMIGRATION, https://tracreports.org/immigration/detentionstats/pop_agen_table.html [https://perma.cc/XH5D-5BXW] (last visited Apr. 8, 2025).
7 See Emily Ryo & Ian Peacock, A National Study of Immigration Detention in the United States, 92 S. CAL. L. REV. 1, 7-8 (2018).
8 Legal Noncitizens Receive Longest ICE Detention, TRAC IMMIGRATION (June 3, 2013), https://tracreports.org/immigration/reports/321/ [https://perma.cc/KQ8C- 7QYR].
9 See id.
10 See Dara Lind, The disastrous, forgotten 1996 law that created today's immigration problem, VOX (Apr. 28, 2016, 8:40 AM), https://www.vox.com/2016/4/28/11515132/iirira-clinton-immigration [https://perma.cc/9UZY-8KBV].
11 See id.
12 See Perera v. Jennings, 598 F. Supp. 3d 736, 743 (N.D. Cal. 2022).
13 8 U.S.C. § 1226(c)(1). Although immigration practitioners more commonly cite directly to Immigration and Nationality Act § 236(c) when appearing in immigration court, see EXEC. OFF. FOR IMMIGR. REV., EOIR POLICY MANUAL app. I § (a)(3)(A)(ii)(b), this Note will instead largely use citations to the United States Code, as it advocates litigation strategies for use in federal court to obtain access to bond hearings.
14 See Rodriguez v. Nielsen, No. 18-cv-04187-TSH, 2019 WL 7491555, at ·5 (N.D. Cal. Jan. 7, 2019) ("460 members of the respondent section 1226(c) subclass were detained for an average of 427 days (over fourteen months) with some individual detention periods exceeding four years.").
15 See discussion infra Part II.
16 See 138 S. Ct. 830, 842, 846-47 (2018).
17 See 139 S. Ct. 954, 959 (2019).
18 See discussion infra Part II.
19 See discussion infra Parts III-IV.
20 See discussion infra Part I.
21 See discussion infra Part II.
22 See discussion infra Part III.
23 See discussion infra Part IV.
24 See Gary C. Jacobson, The 1994 House Elections In Perspective, 111 POL. SCI. Q. 203, 207 (1996).
25 Id.
26 Id. at 208.
27 Id. at 203.
28 See Lind, supra note 10.
29 See id.
30 See Mario Koran, 'A failed experiment': the racist legacy of California governor Pete Wilson, GUARDIAN (July 31, 2020), https://www.theguardian.com/usnews/ 2020/jul/31/california-pete-wilson-governor-affirmative-action [https://perma.cc/KU8T-U32U].
31 See Lind, supra note 10.
32 See id.
33 See id.; see also Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) (1996), IMMIGR. HIST., https://immigrationhistory.org/item/1996-illegalimmigration- reform-and-immigrant-responsibility-act/ [https://perma.cc/D6U8- W3NE] (last visited Mar. 14, 2024).
34 Presidential Statement on Singing the Omnibus Consolidated Appropriations Act, 1997, 32 WEEKLY COMP. PRES. DOC. (Sept. 30, 1996).
35 See Lind, supra note 10.
36 See id.
37 See H.R. REP. NO. 104-828, at 210-11 (1996) (Conf. Rep.).
38 HILLEL R. SMITH, CONG. RSCH. SERV., IF11343, THE LAW OF IMMIGRATION DETENTION: A BRIEF INTRODUCTION (2021).
39 H.R. REP. NO. 104-828, supra note 37, at 210-11.
40 See Lind, supra note 10. In fact, the Clinton administration saw these criminal alien enforcement provisions as political gains, even though the rival Republican party proposed them. Rahm Emmanuel, a senior advisor to the president in the Clinton administration, argued these provisions could allow for aggressive detention and deportation policies, helping to "claim and achieve record deportations of criminal aliens" and "build[ing] up a strong Administration record on immigration." Id.
41 See Demore v. Kim, 538 U.S. 510, 518 (2003).
42 See S. REP. NO. 104-48, at 2 (1995).
43 Id.
44 Id.
45 See id. at 3-4.
46 See Demore, 538 U.S. at 521.
47 8 U.S.C. § 1226(c)(1).
48 See id. § 1182(a)(2); see also id. § 1182(a)(3)(B); see also id. § 1227(a)(2)(A)-(D); see also id. § 1227(a)(4)(B). Unfortunately, as this Note was originally first conceived in late 2022, § 1226(c)'s detention mandate has since only grown in scope with the January 2025 passage of the Laken Riley Act. See Press Release, U.S. Dep't of Homeland Sec., President Trump Signs the Laken Riley Act into Law (Jan. 29, 2025), https://www.dhs.gov/news/2025/01/29/president-trump-signs-laken-riley-act-law [https://perma.cc/SQ9W-RB8Z]. Section 1226(c) now includes any noncitizen who entered the United States without inspection and has been charged with, arrested for, or convicted of any theft-related offense, assault against a law enforcement officer, or a crime that results in death or serious bodily injury to another person, regardless of the noncitizen's innocence of the triggering charge. See 8 U.S.C. § 1226(c)(1)(E); see also Heidi Altman, Five Things to Know about the Laken Riley Act, NAT'L IMMIGR. L. CTR. (Jan. 6, 2025), https://www.nilc.org/articles/nilc-opposes-the-h-r-29-the-lakenriley- act/. Regardless of mandatory immigration detention's broadened scope, the legal framework this Note examines and advocates for in Parts III and IV, infra, remains applicable in this context.
49 Saavedra-Figueroa v. Holder, 625 F.3d 621, 626 (9th Cir. 2010).
50 8 U.S.C. § 1226(c)(1); see also S. REP. NO. 104-48, supra note 42, at 4 ("Problems of undetained criminal aliens who fail to appear or who abscond after they are ordered deported would be lessened if the INS detained more criminal aliens.").
51 8 U.S.C. § 1226(c)(2).
52 See S. REP. NO. 104-48, supra note 42, at 3-4.
53 See 8 U.S.C. § 1226(c)(2).
54 See H.R. REP. NO. 104-828, supra note 37, at 211; see also SMITH, supra note 38 (noting that detention under the current statutory framework is "pending a determination on whether the alien shall be removed from the United States").
55 See Farrin R. Anello, Due Process and Temporal Limits on Mandatory Immigration Detention, 65 HASTINGS L.J. 363, 367 (2014).
56 Id. at 368.
57 See Lind, supra note 10.
58 See discussion infra Section I.C.
59 See Alix Sirota, Note, Locked Up: Demore, Mandatory Detention, and the Fifth Amendment, 74 WASH. & LEE L. REV. 2337, 2349 (2017).
60 See id. at 2349-61 (discussing the history of the plenary power doctrine regarding regulation of immigration).
61 See Demore v. Kim, 538 U.S. 510, 515-16 (2003) (discussing the contemporary circuit split regarding due process challenges to § 1226(c)).
62 See Anello, supra note 55, at 372.
63 See Zadvydas v. Davis, 533 U.S. 678, 683-86 (2001).
64 Id. at 684-86.
65 See Sirota, supra note 59, at 2363.
66 Zadvydas, 533 U.S. at 693.
67 See Sirota, supra note 59, at 2363.
68 Zadvydas, 533 U.S. at 699-700.
69 Id. at 701.
70 See Demore v. Kim, 538 U.S. 510, 516 (2003).
71 Id.
72 Id. at 513.
73 Id. at 514.
74 Id. at 531.
75 Id. at 529.
76 Id. ("[I]n 85% of the cases in which aliens are detained pursuant to § 1226(c), removal proceedings are completed in an average time of 47 days and a median of 30 days. In the remaining 15% of cases, in which the alien appeals the decision of the Immigration Judge to the Board of Immigration Appeals, appeal takes an average of four months, with a median time that is slightly shorter.").
77 Id. at 531.
78 Id. at 527-28.
79 See id. at 527-31 (discussing the material differences between Zadvydas and Demore supporting Demore's holding).
80 See Letter from Ian Heath Gershengorn, Acting Solic. Gen., U.S. Dep't of Just., to Hon. Scott S. Harris, Clerk of the Ct., Sup. Ct. of the U.S. (Aug. 26, 2016), https://tracreports.org/immigration/reports/580/include/01-1491%20- %20Demore%20Letter%20-%20Signed%20Complete.pdf [https://perma.cc/927NDNU6].
81 Id.
82 Leading Cases, Jennings v. Rodriguez, 132 HARV. L. REV. 417, 424-25 (2018) [hereinafter Jennings Article] (detailing the many challenges to mandatory detention before Jennings).
83 See Demore, 538 U.S. at 529-30.
84 See discussion infra Sections II.A-B.
85 David L. Hudson Jr., What Due-Process Procedural Safeguards Should Immigration Detainees Receive?, 45 PREVIEW OF U.S. SUP. CT. CASES 30, 30 (2017); see also Jennings v. Rodriguez, 138 S. Ct. 830, 833 (2018).
86 See Jennings Article, supra note 82, at 418-19.
87 Jennings, 138 S. Ct. at 838-39.
88 Rodriguez v. Robbins (Rodriguez III), 804 F.3d 1060, 1073 (9th Cir. 2015), rev'd, 138 S. Ct. 830 (2018). In 2008, after the Ninth Circuit held that joyriding-driving a stolen vehicle-was not an aggravated felony, Rodriguez's application for cancelation of removal was granted by the BIA, allowing him to remain lawfully in the United States. Id.
89 Id. at 1081, 1079 (quoting Zadvydas v. Davis, 533 U.S. 678, 682 (2001)).
90 The canon of constitutional avoidance is a doctrine that dictates courts should avoid, when possible, ruling on constitutional issues where resolution on other grounds is possible, often through statutory construction and interpretation. Accordingly, when a court is faced with two different readings of a statute-one of which is plainly constitutional and the other of which raises constitutional questions-"the court will interpret the statute as having the plainly constitutional meaning in order to avoid the hard constitutional questions that would come with the other interpretation." constitutional avoidance, LEGAL INFO. INST., https://www.law.cornell.edu/wex/constitutional_avoidance [https://perma.cc/6W8WT8DP] (Aug. 2022).
91 Rodriguez III, 804 F.3d at 1089.
92 See Sopo v. U.S. Att'y Gen., 825 F.3d 1199, 1213-14 (11th Cir. 2016), vacated, 890 F.3d 952 (11th Cir. 2018); Reid v. Donelan, 819 F.3d 486, 494-95 (1st Cir. 2016), withdrawn, Nos. 14-1270, 14-1803, 14-1823, 2018 WL 4000993 (1st Cir. May 11, 2018); Lora v. Shanahan, 804 F.3d 601, 606 (2d Cir. 2015), vacated, 138 S. Ct. 1260 (2018); Diop v. ICE/Homeland Sec., 656 F.3d 221, 231 (3d Cir. 2011); Ly v. Hansen, 351 F.3d 263, 267-68 (6th Cir. 2003).
93 See Jennings v. Rodriguez, 138 S. Ct. 830, 839 (2018).
94 Id. at 847.
95 Id. at 842 (quoting Clark v. Martinez, 543 U.S. 371, 385 (2005)). Interestingly, the Court here relied on Clark's definition of the canon of constitutional avoidance, yet only so far as is useful to the majority's argument against its application in Jennings. Contrary to Alito's Jennings rationale, Justice Scalia aptly noted in Clark that the canon was employed in Zadvydas by reading a six-month implied reasonability limit to detention through an examination of textual analysis related to the statute's purpose, stating that this was a plausible reading of the statute at issue even though the plain text was silent on the length of detention. Clark, 543 U.S. at 385 (stating that "[i]n Zadvydas, it was the statute's text read in light of its purpose . . . which produced the rule that the Secretary may detain aliens only for the period reasonably necessary to bring about their removal"). Thus, although both cases relied on the same definition of constitutional avoidance, the Court used this definition differently to arrive at competing conclusions.
96 Jennings, 138 S. Ct. at 842.
97 Id. at 846-47.
98 Id. at 846.
99 Id. at 846-47.
100 Id. at 847, 851.
101 See id. at 848-51. In fact, instead of attempting to discuss the serious constitutional concerns in the current application and enforcement of § 1226(c)- unlike the dissent, which focused on constitutional arguments the Court specifically ordered in supplemental briefings-the majority simply chastised the dissent for "ignoring the statutory language [of § 1226(c)] for as long as possible" and "devoting the first two-thirds of its opinion to a disquisition on the Constitution." Id. at 848; Jennings Article, supra note 82, at 420 n.33.
102 See Jennings, 138 S. Ct. at 861-63.
103 See id. at 868.
104 Id. at 869.
105 Nielsen v. Preap, 139 S. Ct. 954, 961 (2019).
106 Id.
107 See id.
108 Id.
109 Id. at 963-64.
110 Id. at 961.
111 Id.
112 Leading Cases, Nielsen v. Preap, 133 HARV. L. REV. 392, 394 (2019) [hereinafter Preap Article].
113 8 U.S.C. § 1226(c)(1).
114 Preap, 139 S. Ct. at 964.
115 Id.
116 Id. at 965.
117 Id. at 966.
118 Id.
119 Id. at 967.
120 Id.
121 Id. at 968.
122 Id. at 968, 972.
123 Id. at 969.
124 Id.
125 Id. at 971-72.
126 Id. at 966-67.
127 See id. at 982.
128 Id. at 972.
129 Preap Article, supra note 112, at 398.
130 See Preap, 139 S. Ct. at 965, 972; see also Jennings v. Rodriguez, 138 S. Ct. 830, 847, 851 (2018).
131 See discussion infra Sections III.A-B.
132 See discussion infra Sections III.A-B.
133 Romero-Romero v. Wolf, No. 20-cv-08031-TSH, 2021 WL 254435, at ·1 (N.D. Cal. Jan. 26, 2021).
134 Id. at ·1, ·4.
135 Id. at ·1.
136 Id. at ·2.
137 Id.
138 See id. at ·4-5.
139 Id. at ·2.
140 Id. The court also acknowledged the lack of further guidance from the Ninth Circuit following Jennings's remand from the Supreme Court, noting that the Ninth Circuit remanded the constitutional issue in Jennings back down to the district court where the case had languished for years on issues of class certification and miscommunication between federal courts. Id.; see Rodriguez v. Marin (Rodriguez IV), 909 F.3d 252, 257 (9th Cir. 2018); see also Rodriguez v. Barr, No. 20-55770, 2021 WL 4871067, at ·1 (9th Cir. Oct. 19, 2021).
141 Romero-Romero, 2021 WL 254435, at ·3 (describing that the relevant precedents' " 'reasoning was constitutional in nature.' Thus, on the issue of due process, they h[e]ld as much force after Jennings as they did before").
142 Id. The court noted that although Casas-Castrillon addressed detention under § 1226(c) and Diouf II addressed detention under § 1231(a)(6), both dealt with statutes mandating detention without the possibility of a bond hearing for detainees. Id. In fact, the Ninth Circuit relied on Casas-Castrillon's reasoning in its Diouf II decision, acknowledging the analogous due process concerns of the two statutes as far back as 2011. See id.
143 See id at ·3, ·4 n.1.
144 See id.
145 See id. at ·4.
146 Id.
147 Id.
148 Id.
149 Id.
150 See id.
151 Id. at ·5.
152 See Romero-Romero v. Garland, No. 21-15565, 2021 WL 2660662, at ·1 (9th Cir. June 8, 2021).
153 See Rodriguez v. Nielsen, No. 18-cv-04187-TSH, 2019 WL 7491555, at ·6 (N.D. Cal. Jan. 7, 2019) (holding that a noncitizen's detention for over 440 days violated due process using the same precedential rationale as Romero-Romero in the face of a lack of controlling authority following Jennings's avoidance of constitutional issues); see also Lopez v. Garland, 631 F. Supp. 3d 870, 879-82 (E.D. Cal. 2022) (holding that a noncitizen's detention for over a year violated due process based on a modernization of Demore and the examination of such factors as length of detention, likely duration of future detention, and legitimacy of delays in removal proceedings); see also Martinez v. Clark, 36 F.4th 1219, 1223 (9th Cir. 2022) (acknowledging that "district courts throughout [the Ninth C]ircuit have ordered immigration courts to conduct bond hearings for noncitizens held for prolonged periods under § 1226(c)").
154 See discussion infra Section III.B.
155 See Perera v. Jennings, 598 F. Supp. 3d 736, 739-40 (N.D. Cal. 2022).
156 Id. at 739.
157 Id.
158 Id. at 740.
159 Id.
160 Id. at 741.
161 Id.
162 Id. After his release on bond, Perera justified the court's TRO decision. He continued to work at his job and recommitted to his studies, married his fiancée, welcomed a son, and purchased a home for his family, all while his habeas petition was still pending. Id.
163 See id. at 743-48.
164 See id. at 742.
165 Id. at 743-44.
166 Id. at 744.
167 Id. at 744-45.
168 Id. at 746. In determining the process due Perera, the court employed the Mathews balancing test, examining three different factors: (1) "the private interest that will be affected by the official action"; (2) "the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards"; and (3) "the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail." Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
169 Perera, 598 F. Supp. 3d at 745.
170 Id.
171 Id. at 746.
172 Id.
173 See infra Sections IV.A-B.
174 See Tremaine Hemans, Note, The Intersection of Race, Bond, and "Crimmigration" in the United States Immigration Detention System, 22 U.D.C. L. REV. 69, 74 (2019); see Frances P. Bernat, Craig Curtis & Rebecca Davalos, Weber and Judicial Legitimacy: A Critical Analysis of the U.S. Supreme Court Immigration Cases Nielsen v. Preap (2019) and Barton v. Barr (2020), 4 J. CRIM. JUST. & L. 1, 13- 16 (2020).
175 See infra Sections IV.A-B.
176 See infra Section IV.C.
177 See supra Section III.A.
178 Romero-Romero v. Wolf, No. 20-cv-08031-TSH, 2021 WL 254435, at ·3 (N.D. Cal. Jan. 26, 2021). In fact, Romero-Romero cleverly cites this principle directly from Demore itself, relying on Zadvydas and Reno v. Flores to cement the legitimacy of due process for noncitizens in these situations. Id.
179 Jennings v. Rodriguez, 183 S. Ct. 830, 851 (2018) (noting the Supreme Court "had no occasion to consider respondents' constitutional arguments on their merits"); Romero-Romero, 2021 WL 254435, at ·2 (noting Jennings "leftopen the question of whether prolonged detention of an alien without individualized review by a neutral decisionmaker violates due process").
180 See Romero-Romero, 2021 WL 254435, at ·3; see also Rodriguez v. Nielsen, No. 18-cv-04187-TSH, 2019 WL 7491555, at ·6 (N.D. Cal. Jan. 7, 2019).
181 See Jennings Article, supra note 82, at 424-25.
182 See generally Anu Chugh, Note, Risk Assessment Tools: An Algorithmic Solution to the Due Process Problem in Immigration, 6 COLUM. HUM. RTS. L. REV. ONLINE 272 (2022) (advocating a new system of risk assessment in bond determinations for detained noncitizens in response to the vague guidance of Demore); see also Josh Stanton, Substantive Due Process and Pretrial Detention: Implications of Strict Scrutiny for the Law of Bail, 41 REV. LITIG. 365, 396-401 (2022) (detailing the analytical disconnect of Demore when placed in a due process context).
183 See Rodriguez, 2019 WL 7491555, at ·5 (detailing the flaws in Demore's data and EOIR's documented changes in the length of § 1226(c) detention since 2003); see also Romero-Romero, 2021 WL 254435, at ·3; see also Lopez v. Garland, 631 F. Supp. 3d 870, 880 (E.D. Cal. 2022).
184 See supra Section III.A.
185 Sarah Paoletti, Jennings v. Rodriguez in an Era of Mass Incarceration of Non- Citizens, THE REGUL. REV. (July 23, 2018), https://www.theregreview.org/2018/07/23/paoletti-jennings-rodriguez-era-massincarceration- non-citizens/ [https://perma.cc/6MHD-YDSG]; see also Romero-Romero, 2021 WL 254435, at ·4 (rejecting the government's argument that the respondent should not be entitled to a bond hearing because his prolonged detention is a product of his choice to legally appeal his removal order, stating that "the Court [does not] find compatible with our system of government that Petitioner should simply have to forfeit his due process rights because he is choosing (if one can really call it a choice) to pursue the rights provided to him by our laws").
186 See supra Section III.A.
187 See supra Section III.A.
188 See supra Section III.A.
189 See supra Section III.B.
190 See Perera v. Kaiser, No. 22-15898, 2022 WL 17587149, at ·1 (9th Cir. Sept. 21, 2022).
191 See supra Section III.B.
192 Nielsen v. Preap, 139 S. Ct. 954, 961 (2019).
193 See Perera v. Jennings, 598 F. Supp. 3d 736, 744 (N.D. Cal. 2022).
194 See supra Section III.B.
195 Perera, 598 F. Supp. 3d at 745 (quoting Zadvydas v. Davis, 533 U.S. 678, 690 (2001)).
196 Id. at 746.
197 See id. at 745-46.
198 See id. (balancing the "risk of erroneous deprivation" factor in favor of Perera due to the abundant record of evidence that would support a positive bond determination by an Immigration Judge).
199 See infra App. I (created by author with data gathered from ICE Detainees, supra note 6).
200 See infra App. I.
201 See discussion supra Part II (addressing flaws in the Court's Jennings and Preap rationales).
202 See discussion supra Part II; see Preap Article, supra note 112, at 392.
203 See discussion supra Part II.
204 See Bernat et al., supra note 174, at 12-13.
205 See Johnson v. Arteaga-Martinez, 142 S. Ct. 1827, 1833-34 (2022).
206 See id. at 1834-35.
207 See supra text accompanying notes 1-5.
208 See supra Part IV.
209 See supra Parts III-IV.
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