Lee S. v. Immigration and Custom Enforcement

Background

Lee S., who was representing himself, was detained by U.S. Immigration and Customs Enforcement. He filed a petition under 28 U.S.C. § 2241, the federal statute that permits courts to review certain unlawful custody claims, challenging his detention while his removal proceedings were pending.

Lee S. had entered the United States in 1999 as an unadjusted refugee and became a lawful permanent resident in 2009. Between 2012 and 2017, he was convicted of six criminal offenses, including first-degree aggravated robbery. Immigration officials later charged him as removable based on his criminal convictions and arrested him after his release from state custody on May 13, 2019.

An immigration judge found Lee S. removable on October 7, 2019, but granted him a deferral of removal. The Department of Homeland Security appealed. In April 2020, Lee S. asked to be released while the appeal was pending; the immigration judge denied that request. In July 2020, Lee S. filed this case, claiming that his prolonged detention without a bond hearing violated the Fifth Amendment’s Due Process Clause and that detention without bail violated the Eighth Amendment.

Magistrate judge’s recommendation and changed detention status

The magistrate judge recommended granting the petition in part on the due-process claim and ordering a bond hearing. The magistrate judge found that Lee S.’s approximately seventeen months of pre-removal detention without a bond hearing was unreasonable. The recommendation also found the Eighth Amendment claim meritless.

The Board of Immigration Appeals had already decided the government’s appeal on September 8, 2020, reversing the deferral of removal and ordering Lee S. removed. That decision made the removal order final. As a result, Lee S.’s detention changed from pre-removal detention under 8 U.S.C. § 1226 to post-removal detention under 8 U.S.C. § 1231 before the magistrate judge issued the recommendation.

Court’s analysis

The court explained that pre-removal and post-removal detention are analyzed differently. Because Lee S.’s detention status had changed, his claim challenging pre-removal detention no longer presented a live controversy. The court therefore treated that claim, and the magistrate judge’s related recommendation, as moot.

The court also explained that post-removal detention is presumptively reasonable during the first six months after a final removal order. Lee S. had been in post-removal detention for approximately four months when the court ruled. The court therefore concluded that he was not entitled to relief on a due-process claim based on his post-removal detention at that time.

Order

The court sustained the government’s objection and adopted the magistrate judge’s report and recommendation as modified. It denied Count I, the due-process claim, as moot; treated the recommended bond hearing as moot; and dismissed Lee S.’s petition for a writ of habeas corpus without prejudice. The order does not separately state a final disposition for Count II, the Eighth Amendment claim, apart from dismissing the petition as a whole.

Note on the order’s text

The opinion’s discussion identifies the magistrate judge’s report as issued on November 9, 2020, while the final order refers to a July 22, 2020 report and recommendation at the same docket number. The order also contains a typographical error in labeling Count I.