Tooby's California Post-Conviction Relief for Immigrants

The federal courts, including the U.S. Supreme Court, have grown increasingly willing to invalidate mandatory ICE detention on statutory and constitutional grounds. 

Numerous challenges to the mandatory detention provisions of INA § x236(c) pending removal proceedings[55] have prevailed in the federal district courts. 

            Petitioners have successfully argued in federal habeas corpus proceedings filed pursuant to 28 U.S.C. § 2241 that, while the United States has a legitimate interest in ensuring the appearance of aliens at their removal proceedings, and in protecting the public during this process, § 236(c) violates substantive due process because it mandates detention of aliens regardless of whether they are a danger to the community, or a flight risk, merely because they have been convicted of one of a broad range of criminal offenses.  Petitioners have also argued that the scheme violates procedural due process because it provides no procedure by which a noncitizen can demonstrate his or her suitability for release.  Federal district courts all across the nation, including those in the Ninth Circuit, have accepted these precise arguments and found the mandatory detention scheme of § 236(c) unconstitutional.[56]

            Counsel should consider filing a § 2241 federal habeas corpus action to challenge a client’s continued mandatory detention in immigration custody.[57] 

If granted, the federal court will not release your client -- the court will simply order the DHS to conduct a bond hearing.  At that time, the client can present all the reasons and equities as to why he should be released on bond. 

The venue for such an action is usually the federal district in which the client is being detained, which is often some distance from the client’s family and home in a remote location, such as Eloy or Florence, Arizona.  In such a circumstance, winning a federal habeas corpus challenge to mandatory detention can be the key to success.  Once a bond granted in immigration court, the client can then request a change of venue of the removal proceedings to a more convenient and favorable jurisdiction.

If a bond is granted, however, the DHS can invoke a mandatory stay of the release order by simply taking an appeal.  This delays actual release under the Immigration Judge’s release order until after the Board of Immigration Appeals has decided the DHS appeal from the release order in the noncitizen’s favor, which may take six months to one year.  Further habeas corpus challenges could be brought against such action as the functional equivalent of continued mandatory detention, since the “administrative remedy” of defending the immigration judge’s release order during such a lengthy appeal to the BIA is futile considered as a means of obtaining the noncitizen’s prompt release.

[55] Once the deportation order has become administratively final, either upon dismissal of the appeal by the Board of Immigration Appeals, or if no appeal was filed, continued detention is no longer authorized under INA § 236(c), but rather under a different provision.  In Zadvydas v. Davis, 121 S.Ct. 2491 (2001), however, the United States Supreme Court found Congressional intent insufficient to authorize indefinite detention of noncitizens subject to a final order of removal where there is no repatriation agreement with their home country.  For these so-called “lifers,” often from Cuba, Vietnam and Cambodia, among others, indefinite detention is only permissible for six months after the final order of removal, unless there is evidence that a repatriation agreement will be reached the foreseeable future. 

[56] See, e.g., Kim v. Shiltgen, No. C99-2257 SI, 1999 U.S. Dist. LEXIS 12511 (N.D. Cal. Aug. 10, 1999) (appeal pending); see also Danh v. Demore, 59 F. Supp. 2d 994 (N.D. Cal. 1999) (appeal pending); Rivera v. Demore, No. C99-3042 TEH, 1999 WL 521177, 1999 U.S. Dist. LEXIS 11015 (N.D. Cal. July 13, 1999); Ban v. Demore, No. C99-4717 CRB, slip op., (N.D. Cal. Nov. 12, 1999) (appeal pending); Szeto v. Reno, No. C00-531 CRB, 2000 WL 630869 (2000 U.S. Dist. LEXIS 6738) (N.D. Cal. May 5, 2000); Ruiz-Wilfredo v. Schiltgen, No. 00-CV-8063-NM, slip op., (C.D. Cal. Dec. 26, 2000); Koon Hao Ng v. Demore, No. 01-20095 RMW, slip. op., (N.D. Cal. Apr. 16, 2001); but see Parra v. Perryman, 172 F.3d 954 (7th Cir.1999)(finding scheme constitutional).

[57] The ACLU Immigrant’s Rights Project is happy to provide consultation and draft pleadings should criminal defense counsel wish to challenge a client’s mandatory detention.