Salesh P. v. Kaiser

Background

Salesh P., a noncitizen from Fiji, entered the United States as a lawful permanent resident in 1978. In 1995, he was convicted of second-degree murder in California state court and received a sentence of 15 years to life. The California Board of Parole Hearings later ordered his release from prison, but the Department of Homeland Security charged him as removable based on an aggravated-felony conviction. He was transferred to Immigration and Customs Enforcement custody on August 19, 2021, while his removal proceedings continued.

Salesh P. applied for deferral of removal under the Convention Against Torture based on his fear of being targeted and tortured in Fiji. The Board of Immigration Appeals dismissed his appeal in part and sent the request for deferral back to the immigration judge for reconsideration of his combined risk of future torture. The opinion states that he was not subject to a final removal order when the district court ruled.

Salesh P. made four requests for release, all of which Immigration and Customs Enforcement denied. He then filed a petition under 28 U.S.C. § 2241, asking for release or an individualized custody hearing. He also later requested a temporary restraining order requiring a hearing or release.

Jurisdiction and Motion to Dismiss

The respondents argued that the petition had to be filed in the federal district where Salesh P. was confined—the Eastern District of California—and that the facility’s warden, rather than Polly Kaiser, was the proper respondent. They alternatively asked the court to transfer the case.

The court held that it had jurisdiction because the petition challenged detention, not the underlying removal proceedings. It also concluded that Kaiser was a proper respondent because the evidence showed that she had ultimate control over the facility through her responsibility for the relevant immigration enforcement operations and had legal authority to provide the requested relief. Because Kaiser was present in the Northern District of California, the court held that district was a proper forum. The motion to dismiss was denied.

Merits

The parties agreed that Salesh P. was detained under the mandatory-detention provision in 8 U.S.C. § 1226(c) and that he had spent more than fourteen months in custody without a bond hearing. Salesh P. argued that this prolonged detention without a hearing violated the Fifth Amendment’s Due Process Clause. He sought a hearing at which the government would have to prove by clear and convincing evidence that he posed a flight risk or danger to the community.

The court applied the three-part test from Mathews v. Eldridge. That test considers the individual’s private interest, the government’s interest, and the value of additional procedural protections. The court found that Salesh P.’s private liberty interest weighed strongly in his favor because of the length and uncertain duration of his detention. It found the government’s interest to be neutral at best because the respondents did not explain how providing a bond hearing would interfere with immigration enforcement. The court also found that a hearing would provide substantial additional protection because Salesh P. had received no bond hearing during his detention.

The court therefore held that continued detention without a bond hearing violated Salesh P.’s due process rights. It ordered the respondents to provide a bond hearing before an immigration judge by December 5, 2022. At that hearing, the Department of Homeland Security must establish by clear and convincing evidence that Salesh P. is a flight risk or danger to the community to justify continued detention.

The court denied Salesh P.’s request for immediate release because it did not have an adequate basis to determine whether he was a flight risk or danger to the community. The petition was granted in part and denied in part.

Temporary Restraining Order and Disposition

The court denied the temporary restraining order as moot because it sought the same relief as the petition: a bond hearing or immediate release. The motion to dismiss was denied, the habeas petition was granted in part and denied in part, and the temporary restraining order was denied as moot.