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CONSTITUTIONAL LAW - Case-By-Case Test Applies to Determine Whether Mandatory Detention Violates Due Process Rights - Sopo v. United States AG.

CONSTITUTIONAL LAW--Case-By-Case Test Applies to Determine Whether Mandatory Detention Violates Due Process Rights--Sopo v. United States AG, 825 F.3d 1199 (11th Cir. 2016).

The Fifth Amendment to the United States Constitution provides due process rights to citizens and non-citizens in the United States. (1) Pursuant to 8 U.S.C. [section] 1226, a non-citizen can be detained during removal proceedings, but constitutionally there is "an implicit temporal limitation" in 8 U.S.C. [section] 1226(c) where the government has to provide criminal non-citizens a bond hearing if their detention has been unreasonably prolonged. (2) In Sopo v. United States AG, (3) the Eleventh Circuit Court of Appeals, in a case of first impression, dealt with the issue of whether a criminal non-citizen who has been detained under 8 U.S.C. [section] 1226(c) can receive a bond hearing due to the Due Process Clause. (4) The Eleventh Circuit vacated the district court's order and remanded to enter a judgment in the appellant's favor due to the fact that he was detained for an unreasonable amount of time without a bond hearing in violation of the Due Process Clause. (5)

Maxi Dinga Sopo was a native of Cameroon and fled to the United States in May 2003 to apply for asylum because he was being persecuted due to his political affiliations with the Bali Catholic Youth Association and the Southern Cameroons National Council. (6) Upon entering the United States, Sopo was granted asylum in 2004. (7) However, Sopo was arrested in 2010, pled guilty to bank fraud, and sentenced to serve 33 months in prison. (8) Once Sopo served his sentence, the U.S. Immigration and Customs Enforcement (ICE) detained him on February 2, 2012, pursuant to 8 U.S.C. [section] 1226(c) because as an aggravated felon, he was subject to removal. (9)

Since immigration authorities arrested Sopo in 2012, his removal proceeding has been before the Board of Immigration Appeals (BIA) for four rounds of review. (10) However, separate from Sopo's ongoing removal proceeding in the BIA, Sopo filed a petition for a writ of habeas corpus in the United States District Court for the Middle District of Georgia in May 2013 to obtain a bond hearing. (11) The district court dismissed Sopo's petition and he immediately filed an appeal to the Eleventh Circuit Court of Appeals. (12) The Eleventh Circuit vacated the district court's order and remanded with instructions to grant Sopo an individualized bond hearing because the "case-by-case" test demonstrates that Sopo's detention was unreasonably prolonged and in violation of his due process rights implicit in 8 U.S.C. [section] 1226(c). (13)

Despite the enactment of 8 U.S.C. [section] 1226 and 8 U.S.C. [section] 1231, which deal with the detention of criminal and non-criminal immigrants, the United States Supreme Court determined the constitutionality of these statutes in two landmark cases. (14) First, in Zadvydas v. Davis, (15) the U.S. Supreme Court had to decide whether 8 U.S.C. [section] 1231(a)(6) constitutionally allowed the Attorney General to continue to detain criminal non-citizens indefinitely past the ninety-day removal period. (16) The U.S. Supreme Court ruled that there was "an implicit reasonable time limitation" of six months under 8 U.S.C. [section] 1231(a)(6) and that any time after this would be unreasonable and a violation of the non-citizen's due process rights unless there is a likelihood of removal in the foreseeable future. (17) Second, in Demore v. Hyung Joon Kim, (18) the U.S. Supreme Court dealt with the constitutionality of mandatory detention under 8 U.S.C. [section] 1226(c) and whether it was constitutional to detain a criminal non-citizen for the whole removal proceeding without a bond hearing. (19) The Court held that mandatory detention in 8 U.S.C. [section] 1226(c) was constitutional because it prevented criminal non-citizens from engaging in more crimes before their removal and the average length of detention for criminal non-citizens was less than 90 days. (20)

While the U.S. Supreme Court upheld the constitutionality of mandatory detention under 8 U.S.C. [section] 1226(c) in Demore, several U.S. Courts of Appeals around the country have concluded that there is "an implicit temporal limitation" underlying mandatory detention in order for criminal non-citizens to receive a bond hearing after a reasonable amount of time. (21) These circuits are using present-day statistics in order to show that criminal non-citizens are being detained for prolonged periods of time because of backlog in immigration proceedings, unlike in 2003 when Demore was decided. (22) Furthermore, not only have circuits ruled that mandatory detention under 8 U.S.C. [section] 1226(c) can become unconstitutional if a criminal non-citizen has been detained for an unreasonable amount of time without a bond hearing, some circuits have also held that there is "an implicit temporal limitation" because there is no clear intent on the part of Congress to allow the Attorney General to detain criminal non-citizens indefinitely. (23)

To decide whether mandatory detention under 8 U.S.C. [section] 1226(c) has violated a criminal non-citizen's due process rights, courts such as the Second and Ninth Circuits have used a "bright-line" test to show that detention without a bond hearing past six months is unreasonably prolonged (24) Circuits that use the "bright-line" test apply a six-month rule to mandatory detention and also place the burden of proof on the government during bond hearings so that the government can provide evidence that the detainee should continue to be imprisoned because of his or her flight risk or danger to the community. (25) On the other hand, courts such as the First, Third, and Sixth Circuits have bypassed the "bright-line" test for the "case-by-case" approach when deciding the point in which detention has become unreasonable. (26) Courts often apply certain reasonableness factors to the "case-by-case" test in order to determine whether a detainee's individualized imprisonment has been unnecessarily prolonged. (27) However, it is important to note that the U.S. Supreme Court recently decided Jennings v. Rodriguez, in which the Court held in a 5-3 decision that Congress did not permit bond hearings after six months in detention under 8 U.S.C. [section] 1226(c). (28)

In Sopo v. United States AG, (29) the Eleventh Circuit Court of Appeals determined whether there is "an implicit temporal limitation" for mandatory detention in 8 U.S.C. [section] 1226(c) and if the "case-by-case" or "bright-line" test applies when a non-citizen has been detained for an unreasonable amount of time without a bond hearing in violation of due process rights. (30) The Eleventh Circuit Court of Appeals joined five other circuits in ruling that there is "an implicit temporal limitation" for mandatory detention, where a bond hearing is necessary after a reasonable amount of time. (31) It also agreed with the First, Third, and Sixth Circuits when it comes to using the "case-by case" test instead of the "bright-line" test to determine at which point mandatory detention has become unreasonably prolonged in violation of a non-citizen's due process rights. (32) Furthermore, the Court made it a priority to describe the flexible benefits that the "case-by-case" test provides for justices who have to decide whether mandatory detention has become unreasonable. (33)

Not only did the Eleventh Circuit reason that there is "an implicit temporal limitation" for mandatory detention in 8 U.S.C. [section] 1226(c) and that the "case-by-case" test should be used, but it also looked at certain reasonableness factors to be included in the "case-by-case" analysis such as the amount of time the non-citizen has been detained without a bond hearing and the reason why the removal proceeding has been prolonged. (34)

The Court reasoned that Sopo was able to satisfy these two important requirements due to the fact that he was detained for four years without a bond hearing and the bulk of the delay in the removal proceedings came from circumstances that were out of his control. (35) After deciding there was "an implicit temporal limitation" in 8 U.S.C. [section] 1226(c) and that the "case-by-case" test applied to mandatory detention, the Eleventh Circuit ultimately came to the conclusion that Sopo's detention was unreasonable and ordered the government to grant him an individualized bond hearing immediately. (36)

The Eleventh Circuit Court of Appeals, prior to the ruling handed down in Jennings v. Rodriguez, correctly vacated the district court's order denying Sopo a bond hearing and entered a judgment in his favor because it accurately applied precedent from the U.S. Supreme Court and the other circuits regarding "an implicit temporal limitation" for mandatory detention under 8 U.S.C. [section] 1226(c). (37) The Eleventh Circuit properly interpreted Demore in that mandatory detention is not indefinite but only for a reasonable amount of time. (38) Moreover, the Eleventh Circuit correctly used precedent from the other circuits to rule that mandatory detention can become unconstitutional if it has been unreasonably prolonged without a bond hearing. (39)

Based on statutory interpretation, the Eleventh Circuit properly ruled against the "bright-line" test when it comes to indefinite mandatory detention under 8 U.S.C. [section] 1226(c). (40) However, since the U.S. Supreme Court recently remanded Jennings v. Rodriguez, (41) to the Ninth Circuit regarding any constitutional issues to mandatory detention, detaining a criminal noncitizen indefinitely without a six-month "bright-line" rule is a violation of constitutional protections. (42) Moreover, even though the U.S. Supreme Court ruled against the "bright-line" test statutorily after Sopo was decided, the Eleventh Circuit should have adopted the "bright-line" test instead of the "case-by-case" test because constitutionally the "bright-line" test provides more uniformity in the judicial system and assures that the detainee's constitutional right to due process is met. (43)

Since there is a vast amount of non-citizens being detained beyond six months in the United States, the Eleventh Circuit's use of the "case-by-case" test will most likely cause an increase in due process cases in the circuit due to the unpredictable nature of that test. (44) Those non-citizens who are being detained beyond six months would have at least been afforded the due process right to receive a bond hearing after six months if they lived in a jurisdiction that follows the "bright-line" test. (45) Moreover, most of the non-citizens who are being detained in the Eleventh Circuit are not able to afford legal representation, so following the "case-by-case" test will make it even more difficult for them to plead for bond hearings. (46)

To conclude, the Eleventh Circuit Court of Appeals considered for the first time whether there is "an implicit temporal limitation" under 8 U.S.C. [section] 1226(c) when it comes to mandatory detention of non-citizens and whether the "case-by-case" or "bright-line" test would best preserve a non-citizen's due process rights in Sopo v. United States AG. (47) The Court accurately reasoned that legal precedent has shown there is "an implicit temporal limitation" when it comes to mandatory detention, where a non-citizen cannot be detained for an unreasonable length of time without being afforded a bond hearing. However, even though the Eleventh Circuit decided this case before the U.S. Supreme Court's recent decision in Jennings v. Rodriguez, the Eleventh Circuit applied the right test statutorily but not constitutionally. In the future, the Eleventh Circuit Court of Appeals could be dealing with more unreasonable detention cases in violation of a detainee's due process rights because of the unpredictability of the "case-by-case" test and the fact that there is a vast amount of non-citizens being detained beyond the six-month threshold that the "bright-line" test would have been able to combat against.

(1.) See U.S. Const, amend. V (providing due process rights for individuals in United States). As the Fifth Amendment states, "[n]o person shall be ... deprived of life, liberty, or property, without due process of law...." Id. See also Zadvydas v. Davis, 533 U.S. 678, 690 (2001) (asserting Due Process Clause protects from unlawful imprisonment). According to the U.S. Supreme Court in Zadvydas, "[f]reedom from imprisonment--from government custody, detention, or other forms of physical restraint --lies at the heart of the liberty that [the Due Process] Clause protects." Id. Moreover, as the U.S. Supreme Court stated in Zadvydas, the Due Process Clause applies "to 'any person,' which means that aliens, no less than native-born citizens, are entitled to its protection." Id. at 693.

(2.) See 8 U.S.C. S 1226(a) (2018) (outlining detention of non-criminals). Under 8 U.S.C. [section] 1226(a):

(a) Arrest, detention, and release. On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States. Except as provided in subsection (c) and pending such decision, the Attorney General--

(1) may continue to detain the arrested alien; and

(2) may release the alien on--

(A) bond of at least $1,500 with security approved by, and containing conditions prescribed by, the Attorney General; or

(B) conditional parole; but

(3) may not provide the alien with work authorization (including an "employment authorized" endorsement or other appropriate work permit), unless the alien is lawfully admitted for permanent residence or otherwise would (without regard to removal proceedings) be provided such authorization.

Id. But see 8 U.S.C. [section] 1226(c) (2018) (describing detention of criminal non-citizens). Under 8 U.S.C. 8 1226(c):

(c) Detention of criminal aliens.

(1) Custody. The Attorney General shall take into custody any alien who--

(A) is inadmissible by reason of having committed any offense covered in 8 U.S.C. 81182(a)(2),

(B) is deportable by reason of having committed any offense covered in 8 U.S.C. [section] 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D),

(C) is deportable under 8 U.S.C. [section] 1227(a)(2)(A)(i) on the basis of an offense for which the alien has been sentenced to a term of imprisonment for at least 1 year, or

(D) is inadmissible under 8 U.S.C. [section] 1182(a)(3)(B) or deportable under 8 U.S.C. [section] 1227(a)(4)(B), when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense.

(2) Release. The Attorney General may release an alien described in paragraph (1) only if the Attorney General decides pursuant to section 3521 of title 18, United States Code, that release of the alien from custody is necessary to provide protection to a witness, a potential witness, a person cooperating with an investigation into major criminal activity, or an immediate family member or close associate of a witness, potential witness, or person cooperating with such an investigation, and the alien satisfies the Attorney General that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding. A decision relating to such release shall take place in accordance with a procedure that considers the severity of the offense committed by the alien.

Id. See also Reid v. Donelan, 819 F.3d 486, 494 (1st Cir. 2016) (detailing time limitation for mandatory detention). Since it would be a violation of the Due Process Clause to detain a criminal non-citizen for an indefinite period of time, 8 U.S.C. [section] 1226(c) contains a reasonableness requirement. Id. See also Farrin R. Anello, Due Process and Temporal Limits on Mandatory Immigration Detention, 65 Hastings L. J. 363, 364 (2014) (pointing to 1996 when Congress passed mandatory detention statute). Congress passed the mandatory detention statute in 1996 without the support of the Immigration and Naturalization Service (INS) because the INS disagreed with the amount of discretion Congress would have over detention decisions. Id. at 370.

(3.) 825 F.3d 1199 (11th Cir. 2016).

(4.) See id. at 1202 (articulating issue considered).

(5.) See id. at 1221 (stating holding of case). As the Court stated, "[t]here can be no question that [Sopo's] detention . . . without further inquiry into whether it was necessary to ensure his appearance at the removal proceedings or to prevent a risk of danger to the community, [is] unreasonable and, therefore, a violation of the Due Process Clause." Id. Instead of adopting the "bright-line" test, like the Second and Ninth Circuits, when determining whether mandatory detention without a bond hearing violates due process rights, the Court joined the First, Third, and Sixth Circuits in using the "case-by-case" test to determine unreasonable detention. Id. at 1214.

(6.) See id. at 1203 (describing Sopo's background). The reason Sopo fled Cameroon and applied for asylum in the United States was because he was persecuted for being a leader of the Bali Catholic Youth Association (BCYA) and the Southern Cameroons National Council (SCNC). Id. The Cameroon police were against Sopo's political beliefs and thus arrested, beat, and starved him. Id. For instance, while under arrest, "the police hung him upside-down from a metal pole, strapped electrical nodes to his feet, and shocked him with increasing voltage." Id. Sopo became ill and the police dropped him off at a local hospital; however, later that year, the police sought to find where Sopo was and beat and raped his mother in order to get information about Sopo's whereabouts. Id. Sopo was arrested and persecuted two more times before he fled the country. Id.

(7.) See id. (commenting on Sopo's difficulty in getting to United States). Once Sopo received an American visa with his real name on it in January 2003, the airport police in Cameroon would not allow him to leave due to the outstanding warrants on his record. Id. Therefore, he was forced to put a false name in his visa and was then able to depart in May 2003. Id. Due to the persecution Sopo received in Cameroon, he was able to obtain asylum in 2004 in the United States and resided in Seattle, Washington, with his wife and daughter. Id.

(8.) See Sopo, 825 F.3d at 1202-04 (discussing Sopo's criminal conviction). Sopo was convicted of bank fraud because he instructed loan applicants to put false information regarding their employment and salary when they were filling out applications to buy used cars. Id. at 1203.

(9.) See id. at 1202 (providing insight into Sopo's detainment). U.S. Immigration and Customs Enforcement (ICE) authorities have detained Sopo since they arrested him on February 2, 2012, and he has not been afforded the opportunity to receive a bond hearing in those four years. Id.

(10.) See id. at 1203 (outlining back-and-forth nature of Sopo's removal proceeding). Sopo first appealed to the Board of Immigration Appeals (BIA) after the Immigration Judge (IJ) denied him "withholding of removal, CAT relief, and adjustment of status with a [section] 209(c) waiver, and ordered Sopo's removal to Cameroon" on December 19, 2012. Id. at 1205. During the appeal on October 23, 2013, the BIA ordered a remand in order for the IJ to figure out if Sopo's asylee status needed to be discontinued. Id. On remand, the IJ ruled on March 5, 2014, that Sopo's asylee status was terminated and he was denied relief under the United Nations Convention Against Torture (CAT) because he was not a credible witness. Id. at 1205-06. The reason the IJ found Sopo was not a credible witness was because the government filed a motion that alleged Sopo was in the United Kingdom and not Cameroon at various points in 2000 and 2002, which was contrary to what he said in his asylum application. Id. at 1205. Sopo appealed this decision to the BIA, and the BIA remanded back to the IJ on August 22, 2014, due to the fact that the IJ erred in denying him CAT relief and the fact that Sopo should have been given the opportunity to object to the evidence that the government presented. Id. at 1206. During remand, the IJ denied CAT relief for Sopo again due to the fact that he failed to show his entitlement to the CAT relief. Id. Sopo appealed for a third time to the BIA and the BIA affirmed his order of removal on August 3, 2015 because Sopo did not show how he qualified for CAT relief. Id. However, Sopo filed for a petition to review and a motion to stay the removal in the Eleventh Circuit on August 10, 2015. Id. The Eleventh Circuit vacated and remanded the BIA's order because the government conceded the fact that the BIA used an erroneous legal standard when it affirmed the denial of CAT relief. Id. at 1206-07.

(11.) See id. at 1202, 1207 (articulating reason why Sopo filed pro se [section] 2241 petition in district court). Sopo made the argument to the district court that the government violated his due process rights throughout his mandatory detention because he did not receive a bond hearing. Id. at 1207. The government countered by making the argument that Sopo's due process rights were not violated because 8 U.S.C. [section] 1226(c) prohibits criminal non-citizens from being released from prison during their entire removal proceeding. Id.

(12.) See id. (describing holding of district court). The U.S. District Court for the Middle District of Georgia denied Sopo's petition because an aggravated felon is subject to mandatory detention for the entirety of the removal proceeding under 8 U.S.C. [section] 1226(c). Id. at 1202.

(13.) See Sopo, 825 F.3d at 1221 (indicating reason why Court held in favor of Sopo). The Court could have adopted one of two tests in order to determine whether Sopo's due process rights were violated through the prolonged mandatory detention. Id. at 1214. The Court had the option to use the "bright-line" test or the "case-by-case" test, but the Court ultimately came to the conclusion that the reasonableness standard in the "case-by-case" test was the deciding factor in determining whether mandatory detention violates a criminal non-citizen's due process rights. Id. at 1215.

(14.) See supra note 2 (citing to 8 U.S.C. S 1226(a) and [section] 1226(c)). See also 8 U.S.C. [section] 1231 (2018) (detailing 90-day removal period). According to 8 U.S.C. [section] 1231(a)(l)(A)-(B):

(A) In general. Except as otherwise provided in this section, when an alien is ordered removed, the Attorney General shall remove the alien from the United States within a period of 90 days (in this section referred to as the "removal period").

(B) Beginning of period. The removal period begins on the latest of the following:

(i) The date the order of removal becomes administratively final.

(ii) If the removal order is judicially reviewed and if a court orders a stay of the removal of the alien, the date of the court's final order.

(iii) If the alien is detained or confined (except under an immigration process), the date the alien is released from detention or confinement.

Id. See also 8 U.S.C. [section] 1231(a)(3), (a)(6) (2018) (differentiating between detention of criminal and non-criminal immigrants within 90-day removal period). A non-criminal immigrant must be released by the Attorney General "subject to supervision" once he or she cannot be removed within the 90-day removal period. Id. at 8 U.S.C. [section] 1231(a)(3). However, when it comes to criminal immigrants, the Attorney General can continue to detain "the criminal alien as a matter of discretion" if he or she is not able to be removed within the 90-day period. Id. at 8 U.S.C. [section] 1231(a)(6). See also Zadvydas v. Davis, 533 U.S. 678 (2001) (addressing constitutionality of 8 U.S.C. [section] 1231(a)(6)). See also Demore v. Hyung Joon Kim, 538 U.S. 510 (2003) (determining constitutionality of 8 U.S.C. [section] 1226(c)).

(15.) 533 U.S. 678 (2001).

(16.) See id. at 695 (describing issue of case). Kestutis Zadvydas was living as a non-citizen in the United States and was born to Lithuanian parents in Germany in 1948. Id. at 684. However, his criminal record included drug crimes, attempted robbery, and theft. Id. Moreover, Zadvydas had the reputation of fleeing from both his criminal and deportation proceedings. Id. On his latest criminal record was his conviction for possession of and intending to distribute cocaine, which he was sentenced to 16 years in prison but released on parole after serving two years. Id. After his release, the INS took him into custody and he was ordered to deport to Germany in 1994. Id. However, Germany would not accept Zadvydas into the country due to the fact that he was not a German citizen. Id. Moreover, Lithuania also did not allow him to enter their country because he was not a Lithuanian citizen or a permanent resident. Id. Due to this prolonged confinement after the expiration of the removal period, Zadvydas filed suit challenging his continued detention. Id. at 684-85.

(17.) See id. at 682, 701 (articulating holding of case). The U.S. Supreme Court vacated the decision of the Fifth Circuit, who ruled that Zadvydas' continued detention was lawful, and remanded for further evaluation of whether Zadvydas will be removed in the foreseeable future. Id. at 702.

(18.) 538 U.S. 510 (2003).

(19.) See id. at 513 (portraying issue of case). The respondent was a citizen of South Korea but entered the United States and became a lawful permanent resident in 1986. Id. However, he was convicted of first-degree burglary in 1996 and "petty theft with priors" in 1997, which allowed the INS to charge him with being deportable and subject to detainment throughout his removal proceeding. Id.

(20.) See id. at 518, 529 (asserting holding of case). As the Court stated about criminal non-citizens performing more crimes before being removed, "[o]ne 1986 study showed that, after criminal aliens were identified as deportable, 77% were arrested at least once more and 45%--nearly half--were arrested multiple times before their deportation proceedings even began." Id. at 518. Moreover, as the Court stated about the short average length of detention for criminal non-citizens:
   The Executive Office for Immigration Review has calculated that, in
   85% of the cases in which aliens are detained pursuant to 8
   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.


Id. at 529. But see Demore v. Hyung Joon Kim, 538 U.S. 510,532 (2003) (Kennedy, J., concurring) (outlining when individualized hearing needed). Justice Kennedy believed that a detainee deserves some sort of individualized determination if detention has become unreasonable because of due process issues. Id. According to Justice Kennedy, "Since the Due Process Clause prohibits arbitrary deprivations of liberty, a lawful permanent resident alien such as respondent could be entitled to an individualized determination as to his risk of flight and dangerousness if the continued detention became unreasonable or unjustified." Id. Justice Kennedy went on to say, "[w]ere there to be an unreasonable delay by the INS in pursuing and completing deportation proceedings, it could become necessary then to inquire whether the detention is not to facilitate deportation, or to protect against risk of flight or dangerousness, but to incarcerate for other reasons." Id. at 532-33.

(21.) See Reid v. Doneian, 819 F.3d 486, 494 (1st Cir. 2016) (holding indeterminate detention violates Due Process Clause). In coming to this holding, the First Circuit relied on Justice Kennedy's concurring opinion in Demore in order to show that there is "an implicit reasonableness requirement" in 8 U.S.C. [section] 1226(c) when it comes to mandatory detention because the Due Process Clause is afforded to all individuals in the United States. Id. See also Lora v. Shanahan, 804 F.3d 601, 606 (2d Cir. 2015) (articulating "implicit temporal limitation" in 8 U.S.C. S 1226(c) due to constitutional concerns). See also Diop v. ICE/Homeland Sec., 656 F.3d 221, 231 (3d Cir. 2011) (describing 8 U.S.C. [section] 1226(c) provides for detention only for reasonable amount of time). See also Ly v. Hansen, 351 F.3d 263,268 (6th Cir. 2003) (reasoning government cannot detain non-citizen for unreasonable amount of time).

(22.) See Lora, 804 F.3d at 605 (addressing statistics for length of detention in 2001 and 2003). For example, a criminal non-citizen was detained for an average of 39 days in 2001 from the time removal proceedings started to either release or entry of final judgment of removal. Id. Moreover, when Demore was decided in 2003, the average length of detention for criminal non-citizens under 8 U.S.C. S 1226(c) was 47 days. Id. But see Mark Noferi, Cascading Constitutional Deprivation: The Right To Appointed Counsel For Mandatorily Detained Immigrants Pending Removal Proceedings, 18 Mich. J. Race & L. 63, 81 (2012) (providing data regarding length of detention for criminal non-citizens today). If a non-citizen has been detained under 8 U.S.C. [section] 1226(c) today, it is commonly expected that he or she will spend months to over a year in detention due to the amount of backlogs in immigration courts. Id. See Anello, supra note 2, at 365 (demonstrating vast increase of individuals mandatorily detained since 1996). When Congress passed the mandatory detention statute in 1996, 6,600 people were detained on a given day, while 34,000 individuals were detained in 2012. Id. Furthermore, as Anello states about the amount of people detained and the cost associated with detainment over the past couple of years, "[i]n 2011, the United States detained an unprecedented 429,000 people, and in fiscal year 2013 the federal government spent over $2 billion on immigration detention--about $164 per day per person detained." Id. See also Melanie Gleason, The U.S. Doesn't Need to Spend $2 Billion A Year Detaining Immigrants, The Hill (Nov. 9, 2017) available at http://thehill.com/opinion/immigration/359454-the-us-doesnt-need-tospend-2-billion-a-year-detaining- immigrants (documenting percentage of detained non-citizens in Georgia without legal representation).

(23.) See Diop, 656 F.3d at 235 (outlining reason for "implicit temporal limitation" in 8 U.S.C. [section] 1226(c)). The court in Diop made it clear that it would follow the intent of Congress when it came to 8 U.S.C. [section] 1226(c) and came to the belief that Congress did not intend the government to detain criminal non-citizens for a prolonged, unreasonable length of time without a bond hearing. Id. Moreover, Diop reasoned that the U.S. Supreme Court in Demore acknowledged that Congress mandated the INS to finish a criminal non-citizen's removal proceeding as quickly as possible. Id.

(24.) See Rodriguez v. Robbins, 804 F.3d 1060, 1065 (9th Cir. 2015) (articulating non-citizen subject to bond hearing after six months in detention). The Ninth Circuit ruled that any non-citizen subject to detention based on 8 U.S.C. [section] 1226(c) is entitled to receive a bond hearing after six months in confinement. Id. See also Lora, 804 F.3d at 615 (pointing to advantages when it comes to "bright-line" test). The Second Circuit in Lora believed a "bright-line" test would work best because it provides more certainty and predictability. Id. Moreover, according to the Second Circuit, "[a]dopting a six-month rule ensures that similarly situated detainees receive similar treatment. Such a rule avoids the random outcomes resulting from individual habeas litigation in which some detainees are represented by counsel and some are not, and some habeas petitions are adjudicated in months and others are not...." Id. See also Anello, supra note 2, at 396 (showing "bright-line" rule provides for more consistent framework). The "bright-line" test allows detained individuals who are not represented by counsel the ability to automatically obtain a bond hearing after six months without the need to file a petition. Id. at 403. According to Anello, "[i]n the Central District of California, pursuant to the injunction in the class action Rodriguez v. Holder, the DHS now routinely identifies individuals who have been in mandatory detention for six months and who are entitled to immigration court bond hearings." Id..

(25.) See Lora, 804 F.3d at 616 (discussing burden of proof on government during bond hearings). See also Restoring Due Process: How Bond Hearings Under Rodriguez v. Robbins Have Helped End Arbitrary Immigration Detention, American Civil Liberties Union of Southern California (2014) available at https://www.aclu .org/sites/default/files/assets/restoringdueprocess-aclusocal.pdf (documenting high percentage of non-citizens released during bond hearings in Central District of California). The Central District of California saw about 70% of non-citizens being released out of a total of 1,680 bond hearings from October 2012 to April 2014. Id.

(26.) See Diop, 656 F.3d at 232-33 (explaining need for individualized, "case-bycase" test). According to the Third Circuit regarding the appropriate test to use when it comes to the unreasonable nature of mandatory detention, "[t)his will necessarily be a fact-dependent inquiry that will vary depending on individual circumstances. We decline to establish a universal point at which detention will always be considered unreasonable." Id. at 233. See also Ly, 351 F.3d at 271 (addressing different procedures that go on during removal proceedings). The Sixth Circuit in Ly defended the "case-by-case" test because the court needs to have some leeway when it comes to scheduling certain proceedings in accord with the caseload of IJs. Id. Because of this, the Sixth Circuit is in favor of the "case-by-case" approach where it can review the facts of individual cases and determine whether there has been unreasonable delay. Id. See also Reid, 819 F.3d at 497 (distinguishing legal precedent from using "brightline" rule). The First Circuit in Reid looked at the U.S. Supreme Court's ruling in Demore as a case that went contrary to the rationale behind the "bright-line" rule because the U.S. Supreme Court did not state any specific time limit when it came to whether a detainee's already six-month detention was unreasonable or not. Id. Furthermore, the First Circuit emphasized the fact that the Demore Court took a more individualized approach when it "discussed facts specific to the detainee, such as his request for a continuance of his removal hearing." Id. But see Sopo v. United States AG, 825 F.3d 1199, 1226 (11th Cir. 2016) (Pryor, J., dissenting) (citing negatives of "case-by-case" test). Courts that use the "case-by-case" test fail to create "predictable, consistent, and fair outcomes." Id. See Anello, supra note 2 at 391 (articulating disadvantages of "case-by-case" test). Even though the "case-by-case" test adopted by the First, Third, and Sixth Circuits is flexible, it creates inconsistent approaches to cases that have similar facts. Id.

(27.) See Chavez-Alvarez v. Warden York County Prison, 783 F.3d 469, 478 (3d Cir. 2015) (describing amount of time in detention as one factor). See also Diop, 656 F.3d at 234 (outlining reason why removal proceedings protracted as another factor). The Third Circuit in Diop ruled that the IJ's continued errors that led to appeals and remands caused unreasonable delay in the detainee's removal proceedings. Id. See also Reid, 819 F.3d at 500 (discussing courts might look at length of detention compared to criminal sentence as another factor).

(28.) See Jennings v. Rodriguez, 2018 U.S. 1516, 35 (discussing holding of case). Alejandro Rodriguez was "a lawful permanent resident of the United States" who was detained due to a drug offense and theft under 8 U.S.C. [section] 1226(c) for three years before he filed suit petitioning for a bond hearing. Id. at 13-14. The case reached the U.S. Supreme Court after the Ninth Circuit Court of Appeals ruled that a "brightline" rule of six months applied to those in mandatory detention. Id. at 16. The U.S. Supreme Court held that Congress wrote 8 U.S.C. [section] 1226(c) so that detainees would continue to be in detention until their removal proceeding was finalized. Id. at 32. The majority makes it a priority to demonstrate that the statute is clear regarding non-citizens being detained throughout their removal proceeding and the Court of Appeals went contrary to the statute's intent. Id. at 36. However, the U.S. Supreme Court did not rule on the constitutional issues of mandatory detention and instead remanded the case back for the Ninth Circuit to decide. Id. at 44. As Justice Alito states in the majority opinion,
   Because the Court of Appeals erroneously concluded that periodic
   bond hearings are required under the immigration provisions at
   issue here, it had no occasion to consider respondents'
   constitutional arguments on their merits. Consistent with our role
   as "a court of review, not of first view," we do not reach those
   arguments. Instead, we remand the case to the Court of Appeals to
   consider them in the first instance.


Id. See also Kevin Johnson, Opinion Analysis: Court Tees Up Issue of the Constitutionality of Indefinite Immigration Detention for the 9th Circuit, SCOTUSblog (Feb. 27, 2018), http://www.scotusblog.com/2018/02/opinion-analysis-court-tees-issue-constitutionality-indefinite- immigration-detention-9th-circuit/ (articulating big constitutional question in front of Ninth Circuit). According to Johnson about the ruling from the U.S. Supreme Court in Jennings v. Rodriguez, "the court's decision . . . takes us back to the drawing board. After sparring among themselves over two terms, the justices remanded the case to the 9th Circuit to decide a meaty constitutional question --whether indefinite detention of noncitizens without a bond hearing as authorized by the immigration statute is constitutional." Id.

(29.) 825 F.3d 1199 (11th Cir. 2016).

(30.) See id. at 1202 (providing issue of case).

(31.) See id. at 1212 (explaining temporal limitation underlying 8 U.S.C. [section] 1226(c)). The Eleventh Circuit realized that Sopo's mandatory detention for four years without a bond hearing raised serious constitutional issues. Id. at 1213. As the Court states, "Congress constitutionally can require mandatory detention during a criminal alien's removal proceedings as a general rule, but S 1226(c) may become unconstitutionally applied if a criminal alien's detention without even a bond hearing is unreasonably prolonged." Id. Thus, the Eleventh Circuit joined the other Circuits in ruling "that [section] 1226(c) 'implicitly authorizes detention for a reasonable ... time, after which the authorities must make an individualized inquiry into whether detention is still necessary to fulfill the statute's purpose of ensuring that an alien attends removal proceedings and that his release will not pose a danger to the community.'" Id. at 1214 (quoting Diop v. ICE/Homeland Sec., 656 F.3d 221, 231 (3d Cir. 2011)).

(32.) See id. at 1215 (emphasizing use of "case-by-case" test when deciding unreasonable detention). The Eleventh Circuit looked at Justice Kennedy's concurring opinion in Demore as a guide for why it adopted the "case-by-case" test. Id. at 1215-16. The Eleventh Circuit reasoned that Justice Kennedy did not "impose a one-sizefits-all solution" to the mandatory detention problem that would have favored the "bright-line" test. Id. The Court made it a priority to indicate that Justice Kennedy emphasized that there may be scenarios where the government has to delay removal proceedings and then continue to hold the non-citizen "for non-statutory purposes." Id. at 1216. the Eleventh Circuit also reasoned that 8 U.S.C. S 1226(c) does not reference a specific time limitation or cutoff for mandatory detention, so the statutory construction favors the "case-by-case" test. Id.

(33.) See id. at 1216 (portraying advantages of "case-by-case" test). The Eleventh Circuit reasoned that the "case-by-case" test is more flexible to deal with the different circumstances that each case presents. Id. Due to continuances, frivolous appeals, and the different demands of each docket, the Court argued that there is no consistency when it comes to immigration cases. Id. According to the Eleventh Circuit:
   Critics of the case-by-case approach claim that the standard is too
   difficult for the federal courts to administer and creates
   inconsistencies in [section] 2241 proceedings. But federal courts
   have the institutional competence to make fact-specific
   determinations, and they have great experience applying
   reasonableness standards. We agree with the First Circuit that the
   reasonableness standard adheres more closely to legal precedent,
   and the practical advantages of the bright-line approach are
   "persuasive justifications for legislative or administration
   intervention, not judicial decree."


Id. at 1217.

(34.) See Sopo, 825 F.3d at 1217-18 (articulating factors considered in "case-by-case" test). The Court reasoned that the amount of time a non-citizen has been detained without being afforded a bond hearing is a crucial factor in the analysis because the U.S. Supreme Court ruled that detention becomes more and more suspect as time continues to pass beyond the six-month threshold. Id. at 1217. The Eleventh Circuit argued that detention without a bond hearing is likely to be unreasonable within "the six-month to one-year window." Id. Moreover, the Court reasoned that the evaluation into why the removal proceeding has been extended is another crucial factor in the analysis. Id. at 1218. The Eleventh Circuit said it would consider whether there were repeated continuances, filing extensions, and/or errors by the courts that caused unnecessary delays. Id. Under this factor, the Court is also looking at whether the non-citizen has been acting in bad faith by trying to deliberately slow the process down so that he/she can be released. Id. Some other factors that the Court considers are whether the non-citizen's detention exceeds the amount of time he/she spent in prison for the crime that made him/her removable and whether there is any difference between the detention facility and the criminal facility. Id.

(35.) See id. at 1220-21 (discussing how Sopo met reasonableness requirements in "case-by-case" analysis). The Court held that Sopo was able to meet the durational requirement because he was in continuous detention without a bond hearing for four years. Id. at 1220. As the Eleventh Circuit stated about Sopo's prolonged detention, "[t]he sheer length of Sopo's detention on its own is enough to convince us that his liberty interest long ago outweighed any justifications for using presumptions to detain him without a bond inquiry." Id. Moreover, the Court reasoned that Sopo was able to satisfy the cause of delay requirement as well because the government and the IJ were the ones to blame for the prolonged removal proceedings. Id. at 1220-21. For instance, the government failed to respond for months to Sopo's FOIA request. Id. at 1220. Also, the IJ's constant errors during the back-and-forth nature of Sopo's appeals were another reason why his removal proceedings were unnecessarily prolonged. Id. at 1221. Lastly, the Court also argued that the reasonableness factors were met because Sopo's detention was in a prison-like facility and was longer than the time he spent in prison for bank fraud. Id.

(36.) See id. at 1221 (detailing Court's holding). The Court vacated the order from the district court denying Sopo's [section] 2241 petition and entered a judgment in his favor. Id. According to the Eleventh Circuit, "[tjhere can be no question that [Sopo's] detention ... without further inquiry into whether it was necessary to ensure his appearance at the removal proceedings or to prevent a risk of danger to the community, [is] unreasonable and, therefore, a violation of the Due Process Clause." Id. (quoting Diop v. ICE/Homeland Sec., 656 F.3d 221, 234-235 (3d Cir. 2011)).

(37.) See id. at 1213-14 (citing to part of Court's holding).

(38.) See id. at 1212 (explaining Demore's interpretation of 8 U.S.C. 1226(c)). See also Anello, supra note 2, at 385 (pointing to majority and concurring opinions in Demore regarding detention). According to Anello,
   Both Justice Rehnquist's majority opinion and Justice Kennedy's
   concurrence in Demore rest on the idea that mandatory detention ...
   is typically brief. The majority stated that mandatory detention is
   authorized for 'the brief period necessary for [Kim's] removal
   proceedings,' which had lasted six months at the time of the
   decision....


Id.

(39.) See Sopo, 825 F.3d at 1212-14 (articulating Court's agreement with other circuits regarding temporal limitation in 8 U.S.C. [section] 1226(c)). See also Reid v. Donelan, 819 F.3d 486, 494 (1st Cir. 2016) (ruling implicit reasonableness requirement in 8 U.S.C. S 1226(c)). According to the First Circuit in Reid, "[i]n a concurring opinion, Justice Kennedy [in Demore] drove the point of temporal limitations home, noting that an alien 'could be entitled to an individualized determination as to his risk of flight and dangerousness if the continued detention became unreasonable or unjustified.'" Id. See also Lora v. Shanahan, 804 F.3d 601, 606 (2d Cir. 2015) (describing need to avoid constitutional concerns). The Second Circuit also came to the conclusion that 8 U.S.C. [section] 1226(c) contains "an implicit temporal limitation" because non-citizens are afforded due process rights and these rights would be violated if they are detained for an unreasonable amount of time without having a bond hearing. Id. See also Diop v. ICE/Homeland Sec., 656 F.3d 221, 231 (3d Cir. 2011) (expressing 8 U.S.C. [section] 1226(c) permits detention only for reasonable time). The Third Circuit in Diop rejected the Government's argument that non-citizens can be detained without a bond hearing under 8 U.S.C. 8 1226(c) for prolonged periods of time if their removal proceedings were pending. Id. See also Anello, supra note 2, at 384 (discussing circuits' interpretation of 8 U.S.C. S 1226(c)). As Farrin Anello states about how the other circuits have viewed the time limitation in 8 U.S.C. [section] 1226(c), "[i]n addition, all three appellate courts that have decided challenges to prolonged mandatory immigration detention have held that the mandatory detention statute does not authorize either 'prolonged' detention without a bond hearing or durations of detention without a bond hearing that are not 'reasonable.'" Id.

(40.) See Sopo, 825 F.3d at 1216 (rejecting "bright-line" test to mandatory detention analysis). Since there is no explicit time limitation in 8 U.S.C. [section] 1226(c) when it comes to mandatory detention, the Eleventh Circuit properly ruled that the "bright-line" test does not pass statutorily. Id. See also Jennings v. Rodriguez, 2018 U.S. LEXIS 1516, 36 (discussing no time limitation present in statute).

(41.) 2018 U.S. LEXIS 1516 (2018).

(42.) See Jennings, 2018 U.S. LEXIS at 44 (pointing to majority not ruling on constitutional issues but remanded for Ninth Circuit to decide). See also Jennings v. Rodriguez, 2018 U.S. LEXIS 1516, 68 (Breyer, J., dissenting) (citing constitutional issues when it comes to mandatory detention under 8 U.S.C. 8 1226(c)). Justice Breyer vehemently opposed the majority's opinion in Jennings because he believed the majority's ruling on the mandatory detention statute would make it unconstitutional and that there should be a "bright-line" rule inherent in the statute. Id. at 63-64. Justice Breyer believed the Due Process Clause prevents arbitrary detention for citizens and non-citizens in the United States. Id. at 69. As Justice Breyer states in his dissenting opinion about the constitutional issues of mandatory detention,
   No one can claim, nor since the time of slavery has anyone to my
   knowledge successfully claimed, that persons held within the United
   States are totally without constitutional protection. Whatever the
   fiction, would the Constitution leave the Government free to
   starve, beat, or lash those held within our boundaries? If not,
   then, whatever the fiction, how can the Constitution authorize the
   Government to imprison arbitrarily those who, whatever we might
   pretend, are in reality right here in the United States? The answer
   is that the Constitution does not authorize arbitrary detention.
   And the reason that is so is simple: Freedom from arbitrary
   detention is as ancient and important a right as any found within
   the Constitution's boundaries.


Id. at 71. Throughout his dissent, Justice Breyer made it a point to emphasis that any statute denying bail hearings after prolonged detentions is in violation of the Constitution. Id. at 89. See also Johnson, supra note 28 (articulating "meaty" constitutional issue U.S. Supreme Court deferred to Ninth Circuit regarding mandatory detention in Jennings).

(43.) See Lora v. Shanahan, 804 F.3d 601, 615 (2d Cir. 2015) (commenting on benefits of "bright-line" test). Part of the reason why the Second Circuit adopted the "bright-line" test was because it provided more certainty and predictability to mandatory detention cases. Id. See also Sopo v. United States AG, 825 F.3d 1199, 1225 (11th Cir. 2016) (Pryor, J., dissenting) (citing Reid v. Donelan, 819 F.3d 486, 497 (1st. Cir 2016)) (exposing First Circuit's belief "case-by-case" test has flaws). "The First Circuit--notwithstanding its decision to adopt the case-by-case approach agreed with the Second Circuit's assessment, noting that the case-by-case approach 'has resulted in wildly inconsistent determinations.'" Id. Moreover, the "bright-line" test provides more clarity to detainees who lack legal knowledge of the American court system and the financial resources to hire attorneys. Id. at 1226. See also Anello, supra note 2, at 403 (guaranteeing detainees bond hearings after six months without having to file any petitions). On the other hand, the "case-by-case" test allows judges the broad latitude to interpret similar facts in different ways and it could result in non-citizens being detained well past six months or even years without being afforded a bond hearing. Id. at 396-97.

(44.) See Noferi, supra note 22 (articulating average length of detention for criminal non-citizens). As Noferi states about the length of detention for non-citizens today, "[t]he average immigration case pending today has been pending for 529 days, with the average case involving a criminal charge (and thus, more likely to be a detainee's) pending for 455 days.... For mandatory detainees, their case processing time equals detention." Id. at 81-82.

(45.) See Noferi, supra note 22 (describing criminal non-citizens detained for longer than six months). See also Sopo v. United States AG, 825 F.3d 1199, 1226 (11th Cir. 2016) (Pryor, J., dissenting) (discussing non-citizens entitled to bond hearing after six months under "bright-line" test).

(46.) See Sopo, 825 F.3d at 1207 (stating Court appointed legal representation for Sopo during appeal). See also Gleason, supra note 22 (portraying stats regarding lack of representation in Georgia). According to Gleason about the low percentage of detainees represented by attorneys, "[a]s ProPublica cited at the remote Stewart Detention Center in Lumpkin, Georgia--only 6 percent of the 2,001-bed detention center had legal representation.... The American Immigration Council cites that only 14 percent of detained immigrants acquired legal counsel, compared with two-thirds of non-detained immigrants." Id. See also Sopo v. United States AG, 825 F.3d 1199, 1226 (11th Cir. 2016) (Pryor, J., dissenting) (favoring "bright-line" test because of clarity and predictability). Part of the reason why Justice Pryor favors the "brightline" test in her dissent is because most detainees cannot afford legal representation and having a predictable, concrete rule would help combat this issue by allowing detainees the due process right to an automatic bond hearing after six months in detention. Id.

(47.) 825 F.3d 1199 (11th Cir. 2016).
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