Bolus A. D. v. Secretary of Homeland Security

Background

Bolus A. D. was convicted of motor-vehicle theft in January 2016 and second-degree assault with a dangerous weapon in December 2017. Immigration and Customs Enforcement took him into custody on December 22, 2017, under 8 U.S.C. § 1226(c), which requires detention of certain noncitizens who are deportable because of specified criminal convictions.

An immigration judge ordered Bolus A. D. removed in June 2018 based on the motor-vehicle theft conviction. The Board of Immigration Appeals later concluded that conviction was not an aggravated felony under the Immigration and Nationality Act, sustained his appeal, and sent the case back to the immigration judge. Immigration authorities then began removal proceedings based on his second-degree assault conviction. An immigration judge again ordered him removed, and Bolus A. D. appealed. At the time of the order, he remained in immigration custody and had also sought post-conviction relief concerning his assault conviction.

Issues and analysis

Bolus A. D. filed a petition for a writ of habeas corpus, a legal procedure used to challenge unlawful detention. The magistrate judge recommended granting the petition in part by ordering an individualized bond hearing. The government objected to the conclusions that continued detention without such a hearing violated the Fifth Amendment’s due-process guarantee and that the government should have to prove by clear and convincing evidence that continued detention was necessary.

Judge Wright held that prolonged detention under § 1226(c) may violate due process even though mandatory detention is permitted during the brief period needed to complete removal proceedings. The court applied a fact-specific review of the reasonableness of continued detention, considering the total time already detained, the likely future duration, the conditions of confinement, delays caused by either side, and the likelihood of a final removal order.

The court found that Bolus A. D.’s more than 16 months of detention weighed heavily in his favor. It also found that the conditions strongly favored a hearing because he was held in a corrections facility with people serving criminal sentences or awaiting criminal trials, making his confinement resemble criminal incarceration. Neither party had engaged in delaying tactics, so those factors weighed equally. The court treated the likelihood of a final removal order as neutral because it was not in a position to evaluate the merits of the government’s removal grounds or Bolus A. D.’s appeal.

Disposition

The court adopted the February 11, 2019 Report and Recommendation as modified and granted Bolus A. D.’s habeas petition in part. It ordered an immigration judge to hold a bond hearing within 30 days and to make an individualized determination whether detention remained necessary because Bolus A. D. presented a flight risk, a danger to the community, or both.

The court did not adopt the recommendation that the government must prove those facts by clear and convincing evidence. Because no injury had resulted from assigning an incorrect burden or proof standard, Judge Wright declined to issue an advance ruling on those questions. The court left those decisions for the immigration judge to address first at the bond hearing.