Masood v. Barr

Background

Ady Masood had been held in a county jail since April 10, 2019, while pursuing an asylum application in the United States. He sought an individualized custody hearing before an immigration judge or, alternatively, immediate release. The government detained him under 8 U.S.C. § 1225(b)(1)(B)(ii), which permits detention of people found to have a credible fear of persecution while their asylum applications receive further consideration.

Masood arrived at San Francisco International Airport in April 2019 and immediately sought asylum. An asylum officer found that he had a credible fear of persecution if deported. An immigration judge later denied his asylum application and ordered his removal to Israel or Jordan. Masood challenged that order before the Board of Immigration Appeals, and the opinion states that the appeal appeared to be pending. He also sought a remand based on alleged ineffective assistance by his prior lawyer.

Masood had not received a custody hearing during nearly nine months of detention. He had submitted a parole request, but Immigration and Customs Enforcement denied it with conclusory statements. The opinion states that Masood was considered stateless by the United States and that he asserted neither Israel nor Jordan accepted deportations of people in his circumstances.

Claims and jurisdiction

Masood's petition under 28 U.S.C. § 2241 presented several claims seeking the same relief: an individualized custody hearing before a neutral decisionmaker or immediate release. Claim one alleged that detention without a hearing violated the Fifth Amendment's Due Process Clause. The court found that Masood was entitled to a custody hearing and reserved the other claims for later consideration as the case developed.

The court held that it had authority to consider constitutional challenges to Masood's continued detention and that personal jurisdiction and venue were proper in the Northern District of California. The federal respondents did not challenge jurisdiction or venue.

Due process analysis

The government relied heavily on Jennings v. Rodriguez, arguing that detention could continue through the asylum proceedings and that those proceedings would eventually end. It also suggested that Masood contributed to the length of his detention by pursuing an appeal. The court rejected this reasoning. It explained that Jennings rejected a statutory interpretation of § 1225(b) but did not decide the constitutional due-process question presented by prolonged detention without individualized review.

The court relied on Ninth Circuit decisions holding that prolonged immigration detention without adequate procedural safeguards raises serious constitutional concerns. It emphasized that due process generally requires an opportunity to be heard at a meaningful time and in a meaningful manner. Masood's detention had lasted nearly nine months, no reasonably certain end to custody was in sight, and the timing of his appeal and remand request could not be predicted with confidence. The court also considered his stateless status, his non-frivolous appeal, his diligent pursuit of asylum, and his confinement in a county jail.

The court rejected the argument that the removal hearing, credible-fear screening, and possibility of parole provided equivalent protections. Those proceedings had not given Masood individualized review of his detention. The record also did not show that the parole process gave him a meaningful opportunity to challenge continued custody or a hearing before an immigration judge.

Required hearing and evidentiary standard

The court held that an individualized custody hearing before an immigration judge was the appropriate remedy. It also held that the government must prove by clear and convincing evidence that continued detention is justified. The court explained that this standard was based on the Due Process Clause and was not undermined by Jennings.

Disposition

The court granted the petition for claim one. It ordered the government to release Masood unless, within 28 days of the order, he received a custody hearing before an immigration judge. At that hearing, the government would bear the burden of proving by clear and convincing evidence that continued detention was justified. If the immigration judge did not issue a decision within 14 days of the hearing, Masood had to be released. The parties were directed to report material developments, and the court reserved the remaining claims for possible later action.