Guerrero v. Decker

Background

Idalia Guerrero, a citizen of El Salvador, was arrested and detained by U.S. Immigration and Customs Enforcement on June 18, 2018, after completing a criminal sentence. The Department of Homeland Security charged her as removable for being present in the United States without being admitted or paroled. Based on her convictions for reckless endangerment and endangering the welfare of a child, the government detained her under 8 U.S.C. § 1226(c), which generally requires detention of noncitizens with certain criminal convictions during removal proceedings.

An immigration judge denied Guerrero’s first bond request on October 25, 2018, finding both that the judge lacked authority to grant bond under the mandatory-detention law and, alternatively, that Guerrero had not shown she was not a danger to the community. Guerrero did not appeal that decision to the Board of Immigration Appeals.

On June 26, 2019, an immigration judge granted Guerrero asylum. Guerrero and the Department of Homeland Security appealed that decision. Guerrero then requested a second bond hearing, arguing that the asylum grant was a changed circumstance. On August 29, 2019, an immigration judge again denied bond, finding that Guerrero had not shown she was not a danger to the community and, alternatively, that the judge lacked authority to grant bond under § 1226(c).

Guerrero filed this petition asking the district court to order a constitutionally adequate bond hearing or release her. She argued that her sixteen-month detention was unreasonably prolonged and that the burden should have been on the government to justify continued detention.

Legal framework

The court explained that § 1226(c) generally requires detention without bond during removal proceedings for noncitizens covered by the statute. The Supreme Court had upheld the statute’s mandatory-detention requirement as a matter of statutory law, while leaving open whether due process could limit detention in particular circumstances.

Courts in the Southern District of New York had held that prolonged detention without a bond hearing can eventually violate procedural due process. Those courts generally examined factors such as the detention’s length, responsibility for delays, the defenses asserted, the comparison between immigration detention and the criminal sentence, and the nature of the detention facility.

The court emphasized, however, that the relevant concern in those cases was prolonged detention without a bond hearing. Guerrero had received two bond hearings during her sixteen months of detention. Both immigration judges considered the substance of her request and found that she had not shown she was not a danger to the community, even though both judges also stated that they lacked authority to grant bond under § 1226(c).

Court’s analysis

Judge Abrams concluded that Guerrero’s circumstances differed from cases in which noncitizens had been detained for lengthy periods without any bond hearing. Her second hearing occurred after the asylum grant, so the immigration judge had considered the changed circumstance that Guerrero identified. The court therefore found that Guerrero had received an individualized review of her detention, including review after the asylum decision.

The court rejected Guerrero’s reliance on an earlier related proceeding in which the court had ordered a supplemental bond hearing after removal proceedings were terminated. Unlike that earlier proceeding, Guerrero had already received a supplemental hearing after the asylum grant. The court also distinguished another decision requiring a later hearing after seventeen additional months without review, reasoning that Guerrero’s detention had been reviewed only about two months earlier.

The court declined to conduct the usual factor-based analysis for determining when detention without a bond hearing becomes unconstitutional because Guerrero had received the procedural safeguards that analysis addresses. It also rejected her argument concerning the burden of proof. According to the court, shifting the burden to the government is generally a remedy after a court finds an ongoing due-process violation caused by unreasonably prolonged detention without a hearing. The court found no such violation here and further explained that cases involving discretionary detention under § 1226(a) did not control because Guerrero was detained under the separate mandatory-detention provision in § 1226(c).

The court stated that it could not review the immigration judges’ weighing of evidence or factual findings that Guerrero posed a danger to the community. It held that her lengthy detention, by itself, did not violate due process.

Disposition

The court denied Guerrero’s petition without prejudice. It stated that, if Guerrero later sought permission to file the petition again on due-process grounds, she should submit a letter explaining the relevant changed circumstances.