Melie I. v. Secretary Homeland Security

Background

Melie I. filed a petition under 28 U.S.C. § 2241 challenging his continued immigration detention while his removal proceedings were pending. The dispute concerned whether his detention was governed by 8 U.S.C. § 1226(a), which allows discretionary detention, or § 1226(c), which requires detention for certain categories of noncitizens. At a bond hearing under § 1226(a), the immigration judge had found that Melie I. was dangerous and denied a change in custody status.

A magistrate judge’s Report and Recommendation concluded that the immigration judge had improperly placed on Melie I. the burden of proving that he was not dangerous, rather than requiring the government to prove danger by clear and convincing evidence. The recommendation proposed granting Melie I.’s amended detention petition in part and denying his motions for an emergency preliminary injunction and to expedite an order to show cause.

Changed Circumstances

While the parties’ objections were pending, Melie I.’s state-court conviction became final for immigration purposes, or appeared to do so based on the record described in the order. The court explained that this change could make Melie I. subject to mandatory detention under § 1226(c). The immigration judge had not yet considered whether the conviction supported mandatory detention after it became final, and the parties had not developed that issue before the magistrate judge.

The parties disputed whether the conviction qualified under the mandatory-detention statute. The court expressly stated that it was not deciding which side was correct. It also declined to decide whether due process required the government, rather than Melie I., to bear the burden of proof at a discretionary-detention hearing under § 1226(a), because that constitutional issue could become irrelevant if mandatory detention applied.

Order and Disposition

The court reviewed the respondents’ objection to the constitutional conclusion de novo, meaning it independently reviewed the challenged part of the recommendation. It reviewed the portions concerning Melie I.’s motions for clear error because no party objected to those portions. The court found no clear error as to those motions.

The court ordered the following:

- The respondents’ objections to the Report and Recommendation were DENIED WITHOUT PREJUDICE. - The Report and Recommendation was ACCEPTED IN PART and REJECTED IN PART because of the change in Melie I.’s circumstances. - Melie I.’s motion for an emergency preliminary injunction was DENIED, in part for lack of jurisdiction and in part as moot. - Melie I.’s motion to expedite an order to show cause was DENIED as moot. - The matter was REMANDED to the immigration judge for a custody hearing consistent with the order, to be held within 30 days.

The remand did not decide whether Melie I. was subject to mandatory detention or whether the government had to bear the burden of proof under § 1226(a). The order stated that the remand was without prejudice to arguments about discretionary detention in the immigration proceeding or in a renewed detention challenge.