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Reid v. Donelan

United States District Court, D. Massachusetts

July 9, 2019

MARK ANTHONY REID; ROBERT WILLIAMS; and LEO FELIX CHARLES, on behalf of themselves and others similarly situated, Plaintiffs/Petitioners,
v.
CHRISTOPHER DONELAN, Sheriff, Franklin County, et al., Defendants/Respondents.

          MEMORANDUM AND ORDER

          Hon. Patti B. Saris Chief United States District Judge.

         INTRODUCTION

         In this class action, Plaintiffs challenge the constitutionality of mandatory detention of noncitizens with certain criminal convictions who have been detained for more than six months during removal proceedings without the opportunity for a bond hearing pursuant to 8 U.S.C. § 1226(c). Plaintiffs represent a class of “[a]ll individuals who are or will be detained within the Commonwealth of Massachusetts or the State of New Hampshire pursuant to 8 U.S.C. § 1226(c) for over six months and have not been afforded an individualized bond or reasonableness hearing.” Reid v. Donelan, No. 13-30125-PBS, 2018 WL 5269992, at *8 (D. Mass. Oct. 23, 2018). Both Plaintiffs and the Government have moved for summary judgment on whether mandatory detention of the class members under 8 U.S.C. § 1226(c) for over six months violates the Fifth Amendment Due Process Clause or the Eighth Amendment Excessive Bail Clause. After hearing, the Court ALLOWS IN PART and DENIES IN PART Plaintiffs' motion for summary judgment (Docket No. 453) and ALLOWS IN PART and DENIES IN PART the Government's motion for summary judgment (Docket No. 455).

         In summary, the Court holds and declares as follows: First, as the Government agrees, mandatory detention without a bond hearing under 8 U.S.C. § 1226(c) violates due process when an noncitizen's individual circumstances render the detention unreasonably prolonged in relation to its purpose in ensuring the removal of deportable noncitizens with criminal records. Second, the determination of whether mandatory detention without a bond hearing has become unreasonably prolonged is a fact-specific analysis. The most important factor in determining whether detention has become unreasonably prolonged is the length of the detention. The Court rejects Plaintiffs' request that the Court impose a bright-line six-month rule on the ground that it is unsupported by the record and the caselaw. Third, in the unusual instances when mandatory, categorical detention lasts for more than one year during agency removal proceedings, excluding any dilatory tactics attributable to the noncitizen, the delay is likely to be unreasonable. This one-year period reflects the Government's own regulations and policies, which aim to complete removal proceedings in no more than nine months, and statistics showing that most removal proceedings take less than one year. However, detention of under a year may be unreasonably prolonged if the matter just lingers on the immigration court or Board of Immigration Appeals (“BIA”) docket.

         Fourth, a noncitizen subject to mandatory detention without a bond hearing under § 1226(c) must bring a habeas petition in federal court to challenge his detention as unreasonably prolonged. If the court agrees, the individual is entitled to a bond hearing before an immigration judge at which the Government bears the burden of proving that he is either dangerous by clear and convincing evidence or a risk of flight by a preponderance of the evidence. If the Government demonstrates that the individual is dangerous or a risk of flight, for example if he has a serious criminal record, he is not entitled to release. Fifth, in making its release determination, the immigration court may not impose excessive bail, must evaluate the individual's ability to pay in setting bond, and must consider alternative conditions of release such as GPS monitoring that reasonably assure the safety of the community and the individual's future appearances.

         PROCEDURAL HISTORY

         The Court assumes familiarity with the complex procedural posture of this case from its October 23, 2018 memorandum and order and only briefly summarizes the relevant background. See Reid, 2018 WL 5269992, at *1-3.

         On July 1, 2013, Plaintiff Mark Anthony Reid filed a petition for writ of habeas corpus and complaint for injunctive relief that raised statutory and constitutional claims challenging mandatory detention under § 1226(c). On January 9, 2014, the court (Ponsor, J.) granted Reid's individual habeas petition. Reid v. Donelan, 991 F.Supp.2d 275, 282 (D. Mass. 2014), aff'd, No. 14-1270, 2018 WL 4000993 (1st Cir. May 11, 2018). Following its earlier decision in Bourguignon v. MacDonald, 667 F.Supp.2d 175 (D. Mass. 2009), the court held that § 1226(c) “include[d] a ‘reasonableness' limit on the length of time an individual can be detained without an individualized bond hearing” to avoid due process concerns with indefinite detention, Reid, 991 F.Supp.2d at 279. The court evaluated two approaches to implementing this reasonableness requirement: an automatic bond hearing once mandatory detention exceeds six months (“six-month rule”) or a bond hearing only when mandatory detention has become unreasonable as analyzed on a case-by-case basis (“individualized reasonableness rule”). See id. at 279-82. The court determined that Reid was entitled to a bond hearing under either approach but suggested it would adopt the six-month rule. See id. at 279.

         On February 10, 2014, the court (Ponsor, J.) certified the following class under Federal Rule of Civil Procedure 23(b)(2): “All individuals who are or will be detained within the Commonwealth of Massachusetts pursuant to 8 U.S.C. § 1226(c) for over six months and have not been afforded an individualized bond hearing.” Reid v. Donelan, 297 F.R.D. 185, 194 (D. Mass. 2014). Three months later, the court (Ponsor, J.) awarded summary judgment and a permanent injunction to the class on the basis of its holding that § 1226(c) includes a requirement for a bond hearing after six months of mandatory detention. See Reid v. Donelan, 22 F.Supp.3d 84, 88-89, 93-94 (D. Mass. 2014), vacated, No. 14-1270, 2018 WL 4000993 (1st Cir. May 11, 2018). The court also held that due process did not require that the Government bear the burden of proof at the class members' bond hearings, let alone by clear and convincing evidence. Id. at 92-93.

         On appeal, the First Circuit agreed that “categorical, mandatory, and indeterminate detention raises severe constitutional concerns” and that the canon of constitutional avoidance necessitated reading a bond hearing requirement into § 1226(c). Reid v. Donelan, 819 F.3d 486, 494 (1st Cir. 2016), withdrawn, No. 14-1270, 2018 WL 4000993 (1st Cir. May 11, 2018). Disagreeing with the district court, however, the First Circuit held that Supreme Court precedent required it to adopt the individualized reasonableness rule. See id. at 495-98. It instructed district courts evaluating the reasonableness of § 1226(c) detention without a bond hearing to “examine the presumptions upon which [mandatory detention] was based (such as brevity and removability)” and consider “the total length of the detention; the foreseeability of proceedings concluding in the near future . . .; the period of the detention compared to the criminal sentence; the promptness (or delay) of the immigration authorities or the detainee; and the likelihood that the proceedings will culminate in a final removal order.” Id. at 500. Based on this holding, the First Circuit vacated the grant of summary judgment to Plaintiffs on the class claims. Id. at 501. Since its decision raised questions as to the continued propriety of class certification, the court declined to address Plaintiffs' cross-appeal challenging the district court's holding that due process does not require the Government to bear the burden of proof at a bond hearing. See id. The court noted, however, that Plaintiffs raised “a bevy of weighty constitutional arguments” concerning the procedural protections required at a bond hearing. Id.

         Two months later, the Supreme Court granted certiorari in Jennings v. Rodriguez, a class action in the Ninth Circuit also challenging mandatory detention under § 1226(c). See 136 S.Ct. 2489 (2016) (mem.). The First Circuit stayed this lawsuit pending resolution of Jennings. On February 27, 2018, the Supreme Court held that the explicit language in § 1226(c) requiring mandatory detention during removal proceedings barred courts from invoking the canon of constitutional avoidance to read an implicit requirement for bond hearings into the statute. Jennings v. Rodriguez, 138 S.Ct. 830, 846-47 (2018). Because the Ninth Circuit did not decide if such mandatory detention is constitutional, the Court declined to rule on that question. See id. at 851.

         Shortly thereafter, the First Circuit withdrew its previous opinion in this case. See Reid, 2018 WL 4000993, at *1. In a summary decision, it affirmed the district court's judgment for Reid individually, vacated the judgment for the class, and remanded the case for reconsideration of the certification order. Id. After the case was reassigned on remand, this Court determined that continued certification of the class was proper. See Reid, 2018 WL 5269992, at *8. While adoption of the individualized reasonableness rule would require an analysis of the circumstances of each class member's detention, the class still raised the common question of “whether the Due Process Clause or Excessive Bail Clause requires that they at least have the chance to plead their case after six months at an individualized bond or reasonableness hearing.” Id. at *5. The Court declined to address whether 8 U.S.C. § 1252(f)(1) would bar a classwide permanent injunction because it could, at a minimum, issue a declaratory judgment establishing class members' right to a bond or reasonableness hearing. Id. at *6. After an opportunity for discovery, both Plaintiffs and the Government now move for summary judgment.

         STATISTICAL BACKGROUND ON § 1226(c) DETENTION

         The Court allowed for limited discovery concerning the average and median detention times for individuals subject to mandatory detention under 8 U.S.C. § 1226(c). The parties did not submit any deposition testimony but present dueling statistics about § 1226(c) detention. Plaintiffs state that the median length of detention for released or removed class members (whose detention has ended and who, per the class definition, were detained for at least 180 days) was 363.5 days, with 25% detained for fewer than 253 days and 25% detained for more than 561.5 days. Dkt. No. 460-1 ¶ 8. The two longest periods of detention were 1, 541 and 1, 291 days. Id. Non-class members detained under § 1226(c) (i.e., for less than 180 days) were held for a median of 98 days, with 25% detained for 60 days or fewer. Id. ¶ 11. Plaintiffs do not provide information on the average period of § 1226(c) detention overall. They do add, however, that 27% of class members detained under § 1226(c) before implementation of Judge Ponsor's 2014 injunction obtained relief from removal or termination of their removal proceedings. Dkt. No. 387-5 ¶ 9.

         The Government provided the Court with data on the duration of removal proceedings in the Boston and Hartford Immigration Courts for individuals detained under § 1226(c) over the past twenty years. Dkt. No. 415-1 at 9-14. The Government emphasizes that immigration court proceedings for only 3.8% of aliens lasted more than a year, but this figure does not account for the duration of an appeal to the BIA. From the Government's charts, the Court has calculated that removal proceedings, including any appeal to the BIA, but not including any petition for review to the circuit court, lasted longer than one year for 5.8% of aliens detained under § 1226(c) over the past five years.[1] See id. The median completion time for removal proceedings at the immigration court level over the past five years was around 40 days in non-appealed cases and three months in cases that were ultimately appealed to the BIA. Id. ¶ 18. In 2018, the median pendency of an appeal to the BIA was around four months. Id. ¶ 24. Nearly 90% of non-appealed cases were completed within six months. Id. ¶ 18. Only 22% of § 1226(c) detainees were granted relief or had their removal proceedings terminated in 2018 in the Boston Immigration Court. Id. ¶ 20.

         The parties agree that close to half of the class members that received a bond hearing pursuant to Judge Ponsor's 2014 injunction were given an opportunity for release. Immigration judges set bond for 37 of the 104 class members (36%) and released 13 others under orders of supervision or recognizance (13%). See Dkt. No. 460-1 ¶¶ 14-15; Dkt. No. 467 ¶¶ 5-6.

         The Government has also submitted the criminal histories of all of the members of the class. This information reveals that the class is comprised of immigrants with a wide range of criminal backgrounds. Some class members have only one conviction for a nonviolent offense. See, e.g., Dkt. No. 459-1 at 33 (gambling); id. (identity theft). A number have been convicted of drug offenses. See, e.g., id. at 21 (two convictions for drug possession); id. at 22 (one conviction for selling marijuana). Others have lengthy criminal histories with a number of convictions for violent crimes. See, e.g., id. at 10 (multiple convictions for burglary and aggravated assault); id. at 23-24 (two convictions for assault and one for kidnapping).

         Mark Reid, the original class representative, was convicted in 2002 and 2010 of drug trafficking and possession and conspiracy to commit burglary. U.S. Immigration and Customs Enforcement (“ICE”) detained him on November 13, 2012 and initiated removal proceedings. At the bond hearing Judge Ponsor ordered for him in January 2014, an immigration judge released him on bond. Reid's removal proceedings are still ongoing, as the BIA has remanded his case back to the immigration judge three times. The immigration judge determined that Reid has not committed an aggravated felony, and Reid is currently challenging whether his convictions are crimes involving moral turpitude and is claiming eligibility for asylum, withholding of removal, and relief under the Convention Against Torture. In March and April 2019, Reid was charged in two separate incidents with, inter alia, threatening, breach of the peace, and possession of cocaine.

         Robert Williams, another class representative, pled guilty to drug possession and weapons charges. ICE served Williams with a Notice to Appear and took him into custody on December 6, 2017. An immigration judge ordered him removed and denied his application for cancellation of removal, and the BIA dismissed his appeal. He was removed on October 25, 2018 while his petition for review of the BIA order was pending at the Second Circuit.

         Leo Felix Charles, the final class representative, was convicted of drug trafficking and first-degree assault. After completing his term of imprisonment, he was detained by ICE on February 2, 2018. An immigration judge terminated his deferral of removal under the Convention Against Torture, which he had received in 2003, and the BIA dismissed his appeal. Charles filed a petition for review of the BIA dismissal, and the Second Circuit stayed his removal on December 11, 2018 pending resolution of his petition. ICE released Charles from custody on February 14, 2019.

         DISCUSSION

         I. Statutory Background

         8 U.S.C. § 1226 governs the detention of aliens[2] during removal proceedings. Jennings, 138 S.Ct. at 837. The Government may generally release an alien on bond or conditional parole pending a decision on his removability. 8 U.S.C. § 1226(a). However, 8 U.S.C. § 1226(c) “carves out a statutory category of aliens who may not be released.” Jennings, 138 S.Ct. at 837. Under § 1226(c), the Government “shall take into custody any alien” who is inadmissible or deportable based on a conviction for “certain crimes of moral turpitude, controlled substance offenses, aggravated felonies, firearm offenses, or acts associated with terrorism.” 8 U.S.C. § 1226(c)(1) (emphasis added); Gordon v. Lynch, 842 F.3d 66, 67 n.1 (1st Cir. 2016). The crimes that serve as predicates for mandatory detention under § 1226(c) vary widely from simple drug possession, 8 U.S.C. § 1227(a)(2)(B)(i), to violent crimes such as rape and murder, 8 U.S.C. § 1101(a)(43)(A).

         A criminal alien is subject to mandatory detention whether or not he is taken into immigration custody as soon as he is released from criminal custody for his underlying offense. See Nielsen v. Preap, 139 S.Ct. 954, 965 (2019).[3] The Government may release such an alien only for witness protection purposes and only if the alien shows he is not a danger to the community or a risk of flight. 8 U.S.C. § 1226(c)(2). The statute does not provide a right to a bond hearing, but an alien who believes he does not have the requisite criminal conviction to qualify for mandatory detention may challenge his classification in Joseph hearings. Preap, 139 S.Ct. at 971 n.8 (citing Matter of Joseph, 22 I. & N. Dec. 799 (BIA 1999)).

         Congress enacted § 1226(c) in the 1990s in response to the difficulty the Government faced in removing deportable criminal aliens. See Demore v. Kim, 538 U.S. 510, 521 (2003). Congress had evidence that the Government was unable to remove deportable criminal aliens in large part because of its “broad discretion” to release aliens on bond during removal proceedings and the “severe limitations on funding and detention space, which . . . affected its release determinations.” Id. at 519. Between one-in-five and one-in-four aliens with criminal records released on bond failed to appear at their removal hearings. See id. at 519-20. In enacting § 1226(c), Congress determined that “detention of criminal aliens during their removal proceedings might be the best way to ensure their successful removal.” Id. at 521.

         The Supreme Court has decided two cases concerning § 1226(c) that are relevant to Plaintiffs' constitutional claims. First, in Demore v. Kim, the Court rejected an alien's facial due process challenge to mandatory detention under § 1226(c). 538 U.S. at 522-23, 530. The Court emphasized that “[d]etention during removal proceedings is a constitutionally permissible part of that process” and Congress may detain aliens based on statutory presumptions rather than relying on individualized dangerousness and flight risk determinations for each alien. Id. at 526, 531. As the Court explained, “when the Government deals with deportable aliens, the Due Process Clause does not require it to employ the least burdensome means to accomplish its goal.” Id. at 528. Accordingly, mandatory detention under § 1226(c) was a permissible exercise of Congress's immigration authority to ensure that aliens removable for serious criminal offenses would neither commit new crimes nor abscond before execution of their removal orders. See id. at 517-20, 528.

         The Court relied on statistics showing that the vast majority of aliens subject to mandatory detention were detained for no more than five months and noted that the petitioner had been detained himself for only six months. Id. at 529-31. Unfortunately, these statistics turned out to be erroneous. See Jennings, 138 S.Ct at 869 (Breyer, J., dissenting) (explaining that the statistics the Court relied on in Demore were incorrect and that “[d]etention normally lasts twice as long as the Government then said it did”). The Court therefore emphasized that § 1226(c) detention was permissible for “the brief period necessary for . . . removal proceedings.” Demore, 538 U.S. at 513; see also id. at 531 (upholding the petitioner's detention “for the limited period of his removal proceedings”). In a concurrence, Justice Kennedy, who provided the fifth vote for the majority, noted that due process might require “an individualized determination as to [an alien's] risk of flight and dangerousness if the continued detention became unreasonable or unjustified.” Id. at 532 (Kennedy, J., concurring).

         Second, as discussed above, the Court held in Jennings v. Rodriguez that § 1226(c) unambiguously “mandates detention of any alien falling within its scope” and permits detention to end “prior to the conclusion of removal proceedings only if the alien is released for witness-protection purposes.” 138 S.Ct. at 847 (internal quotation omitted). Because of the statute's clarity, the Court reversed the Ninth Circuit's use of the canon of constitutional avoidance to read an implicit requirement for an individualized bond hearing once an alien is detained pursuant to § 1226(c) for six months. See id. at 836, 839. The Court declined to address whether this interpretation of § 1226(c) violated due process. Id. at 851.

         II. Due ...


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