Ali v. Sessions

Background

Farass Ali entered the United States as a refugee on January 16, 2014, and became a lawful permanent resident on July 28, 2015. After his 2016 arrest on state criminal charges, the Department of Homeland Security reviewed his immigration status. Federal officials alleged that he had not disclosed military service and training in the Iraqi Republican Guard, or an arrest and interrogation in Iraq related to an explosion at a police station.

Federal immigration agents detained Ali on May 10, 2017, and charged him with being removable because he allegedly obtained admission or adjustment of status through fraud or willful misrepresentation. He was briefly transferred to state custody while the criminal charges were pending, but those charges were dismissed, and he returned to federal immigration custody on July 11, 2017. The FBI later informed immigration officials that it would consider Ali a national-security threat if he were released. An immigration judge denied Ali’s request for bond on September 19, 2017; Ali did not appeal that bond decision.

Ali’s Habeas Petition

Ali filed a petition under 28 U.S.C. § 2241, a procedure allowing a person to challenge unlawful custody. He sought release while his immigration case was pending. He argued that the Fifth Amendment’s Due Process Clause prohibits indefinite detention before a removal decision and that removal might not be reasonably achievable because of diplomatic relations between the United States and Iraq.

The government argued that Ali’s continued detention was constitutional and that he should pursue available administrative procedures, including bond modification. It also argued that any delay was attributable to Ali’s requests before the immigration judge.

Court’s Analysis

The court said it could not review the immigration judge’s bond decision or the attorney general’s discretionary decision to detain Ali. Its jurisdiction was limited to deciding whether the length of Ali’s pre-removal detention violated the Constitution.

The court applied the Supreme Court’s reasoning in Zadvydas v. Davis, which held that immigration detention cannot continue indefinitely and must last no longer than reasonably necessary to carry out the government’s immigration objective. The court concluded that this limitation also applies to detention under 8 U.S.C. § 1226(a), which governs detention while the government decides whether a person should be removed. In this setting, detention could last only for the period reasonably necessary to obtain a removal decision.

The court rejected the government’s argument that Ali had to exhaust administrative remedies before seeking habeas relief. It also found no evidence that Ali had used bad-faith tactics to prolong the immigration proceedings. Although officials had presented evidence that Ali might pose a national-security threat, he was not subject to mandatory detention under 8 U.S.C. § 1226(c); his detention was based on the attorney general’s discretionary authority.

Ruling and Relief

Ali had been in consecutive immigration detention for 18 months without a final decision on removal. The court held that, under the circumstances, this exceeded the period reasonably necessary to carry out the immigration process. The court therefore granted the habeas petition and ordered that Ali be released from pre-removal detention within 30 days, subject to conditions under 8 C.F.R. § 241.13(h). If he was not released within that period, the court ordered that a writ issue compelling his immediate release.

The order did not address detention after a removal order. The court stated that detention after such an order is required by 8 U.S.C. § 1231(a)(2), is presumptively reasonable for six months, and could be imposed again if removal were ordered. The court also identified Sherburne County Sheriff Joel Brott, in his official capacity, as the proper respondent because he was the person with custody over Ali. The order dismissed Kirstjen Nielsen, Ronald Vitiello, Peter Berg, and Jefferson Beauregard Sessions, III.