Perera v. Jennings

Background

Imesh Perera, a lawful permanent resident, was detained by Immigration and Customs Enforcement (ICE) on April 21, 2021, while he was on his way to work. ICE served him with a notice alleging that he was removable because of an aggravated-felony conviction and detained him under 8 U.S.C. § 1226(c), a law requiring detention for certain noncitizens. ICE denied him the opportunity to post bond, and an immigration judge concluded that the judge lacked authority to reconsider ICE’s denial because the mandatory-detention law applied.

Perera had been released from federal custody nearly six years earlier after serving a 50-month sentence for a federal drug conspiracy conviction. He completed supervised release without incident and, according to the evidence described by the court, had no later arrests or charges. During the intervening years, he attended college, received multiple promotions at Safeway, became a store manager, married, had a child, bought a home, and participated in his church community.

Perera filed a petition for a writ of habeas corpus and sought injunctive and declaratory relief requiring a bond hearing before a neutral decisionmaker. The court first issued a temporary restraining order requiring a hearing at which the government had to justify continued detention by clear and convincing evidence. Perera received that hearing on June 16, 2021, was released on $30,000 bond with conditions, and returned to work.

Parties’ Positions

Perera argued that applying § 1226(c) to detain him without a bond hearing violated the Fifth Amendment’s Due Process Clause. He argued that the government should bear the burden of proving by clear and convincing evidence that he was a flight risk or danger to the community.

The respondents argued that mandatory detention under § 1226(c) was constitutional and that Perera had no protected liberty interest because the statute did not authorize the Attorney General to release him independently. They also argued that Perera’s petition should not succeed because he was no longer in ICE custody and had already received a bond hearing. The respondents further argued that Perera should bear the burden of showing that he was neither dangerous nor a flight risk.

Court’s Analysis

The court treated Perera’s claim as an as-applied constitutional challenge. That type of challenge argues that a law cannot constitutionally be applied to a particular person in particular circumstances, rather than arguing that the law is invalid in every situation. The court explained that Supreme Court decisions recognizing the general constitutionality of detention during removal proceedings did not foreclose this kind of challenge.

The court found that Perera had a protected liberty interest in avoiding detention without a bond hearing. It emphasized that the government knew he was potentially subject to detention, knew where he was during his supervised release, and nevertheless did not detain him for more than six years. During that period, Perera remained law-abiding and established substantial personal, educational, employment, and family ties. The court concluded that these circumstances made his reliance on remaining free unusually strong.

The court then applied the three factors from Mathews v. Eldridge: the private interest affected, the risk of an incorrect deprivation and the value of additional safeguards, and the government’s interest and administrative burden. The court concluded that the factors favored Perera. It found that freedom from detention was a significant private interest, that the risk of an incorrect deprivation was substantial without review by a neutral decisionmaker, and that the government’s interest in detention without a hearing was comparatively low. The court also found that requiring a bond hearing would not impose significant administrative burdens.

Burden of Proof

The court agreed with Perera that the government must prove by clear and convincing evidence that he is a flight risk or danger to the community to justify denying bond. The court relied on Ninth Circuit precedent and rejected the respondents’ argument that Perera should instead have to prove that he was not dangerous and would appear for future proceedings.

Disposition and Scope of Relief

The court held that Perera’s detention without a bond hearing under § 1226(c), when based on criminal convictions predating the order, violated the Fifth Amendment’s Due Process Clause. It granted the petition for a writ of habeas corpus and permanently enjoined the respondents from detaining Perera under § 1226(c) based on those convictions for more than seven days without a bond hearing.

At that hearing, the government must bear the burden of justifying detention by clear and convincing evidence. The order does not require a hearing before detention or require Perera’s release. It permits the government to detain him on an independent basis under § 1226(c), including a basis not involving a criminal conviction predating the order, if it provides the required hearing and meets the required burden. The opinion does not state that the court ruled on whether Perera is ultimately removable.