Nyynkpao B. v. Garland

Background

Nyynkpao B. sought relief under 28 U.S.C. § 2241, a federal law allowing courts to review certain unlawful detention claims. He is a native and citizen of the Ivory Coast who entered the United States as a refugee in 2004 and later became a lawful permanent resident. After convictions for several offenses, including theft, marijuana possession, and robbery involving a firearm, he was arrested by Immigration and Customs Enforcement on March 31, 2021, and placed in removal proceedings.

An immigration judge granted his application for cancellation of removal on July 15, 2021. The government appealed that decision to the Board of Immigration Appeals, and the appeal remained pending. Nyynkpao B. argued that his continued detention without a bond hearing violated due process. He requested a hearing within 14 days of any order granting relief, with the government required to prove by clear and convincing evidence that continued detention was justified.

Analysis

The court applied the six-factor test used in the District of Minnesota to evaluate whether detention under 8 U.S.C. § 1226(c) has become unreasonable: the detention’s total length, the likely duration of future detention, the conditions of detention, delays caused by the detainee, delays caused by the government, and the likelihood of a final removal order.

The court found that the length of detention favored Nyynkpao B. because he had been detained for more than eight months, exceeding the brief period discussed in relevant Supreme Court precedent. The conditions of detention also weighed heavily in his favor because he was held at a county jail that the government acknowledged was a criminal correctional facility. The absence of delay tactics by Nyynkpao B. favored him, while the absence of delay tactics by the government favored the government. The likely duration of future detention and the likelihood of a final removal order were neutral because the government’s appeal was pending and the record did not provide enough information to predict its outcome.

Recommendation and effect

Based on the six factors, the court concluded that Nyynkpao B.’s continued detention was unreasonable and violated due process. The Report and Recommendation recommended that the petition be granted in part and denied in part. It recommended denying the request for a bond hearing within 14 days, while recommending that an immigration judge conduct an individualized bond hearing within 30 days of any order adopting the recommendation.

The recommendation also provided that the parties should be allowed to present evidence and argument about danger to the community and flight risk. It recommended requiring the government to prove by clear and convincing evidence that continued detention was warranted. The document states that it is not a final district-court order or judgment and that parties could file written objections within the specified time.