Tooby's California Post-Conviction Relief for Immigrants

Federal circuit courts are increasingly finding that detention without an individualized determination of suitability for release under INA § 236(c) violates due process of law.  The Third, Ninth and Tenth Circuits have held that mandatory detention under INA § 236(c) is unconstitutional for legal permanent residents.[42]  In these jurisdictions, it is therefore possible to request and obtain a bond from the Immigration Judge for aggravated felons and those convicted of deportable drug crimes.  Other jurisdictions should follow suit.

            The Ninth Circuit has extended the U.S. Supreme Court's decision in Zadvydas v. Davis,[43] which prohibits the indefinite detention of noncitizens subject to a final order of removal where there is no repatriation agreement with their home country, to those who were never formally admitted into the United States.[44] 

[42] Kim v. Ziglar, 276 F.3d 523 (9th Cir. 2002), cert. granted by U.S. Supreme Court; Hoang  v. Comfort, 282 F.3d 1247, 1255 (10th Cir. 2002); Patel v. Zemski, 275 F.3d 299 (3rd Cir. 2001).

[43] Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.E.2d 653 (2001).

[44] Xi v. I.N.S., 298 F.3d 832 (9th Cir. 2002).