Romero Romero v. Wolf

Background

Nectali Ulises Romero Romero had been held by the Department of Homeland Security’s Immigration and Customs Enforcement agency since December 2019. The government charged him with being removable based on a 2016 California conviction for lewd or lascivious acts with a minor under 14, which the parties did not dispute qualified as an aggravated felony. Romero Romero had served his criminal sentence and was then held under section 1226(c) of the Immigration and Nationality Act, a provision requiring detention of certain people facing removal based on qualifying criminal convictions.

An immigration judge found Romero Romero removable and denied his applications for protection under the Convention Against Torture, a waiver of inadmissibility, and adjustment of status. The immigration judge ordered him removed and found that he was subject to mandatory detention. Romero Romero appealed to the Board of Immigration Appeals, so his removal order was not yet administratively final. He had not received a bond or custody hearing.

Petition and Arguments

Romero Romero filed a petition under 28 U.S.C. § 2241, asking for release or, alternatively, a hearing to decide whether his continued detention was justified based on danger or flight risk. He argued that prolonged detention without such a hearing violated the Fifth Amendment’s Due Process Clause and the Eighth Amendment’s Excessive Bail Clause.

The government argued that section 1226(c) reflects Congress’s judgment that people convicted of specified offenses pose an undue flight risk or danger to the community. It also argued that Romero Romero’s litigation choices—including seeking reconsideration, pursuing relief from removal, and appealing to the Board—contributed to the length of his detention. The court did not accept those arguments as reasons to deny an individualized hearing.

Court’s Analysis

The court held that section 1226(c) requires detention in the covered circumstances and does not itself limit the length of detention. The Supreme Court’s decision in Jennings v. Rodriguez rejected the argument that section 1226(c) requires periodic bond hearings based solely on the statute, but left open whether prolonged detention without individualized review violates due process.

Relying on Ninth Circuit decisions, including Casas-Castrillon v. Department of Homeland Security and Diouf v. Napolitano, the court concluded that prolonged detention without adequate procedural protections raises serious constitutional concerns. Romero Romero had been detained for more than a year, and the government could not identify when his appeal or possible further review would end. The court also concluded that an emergency bail process in a separate case did not replace a custody hearing because, as described in the record, it did not provide the same opportunity to testify and present evidence or the same established appellate process.

Ruling and Remedy

The court found that Romero Romero’s prolonged and ongoing detention without a custody hearing was incompatible with due process. It granted the habeas petition and required an individualized custody hearing before an immigration judge. At that hearing, the government had to prove by clear and convincing evidence that continued detention was justified.

The government was ordered to release Romero Romero unless it obtained the required custody hearing within 28 days of the order. If the immigration judge did not issue a decision within 14 days after the hearing, Romero Romero had to be released. The court also granted Romero Romero’s motion to decide the petition on the written briefs without oral argument and ordered the parties to file a joint status report by April 1, 2021.