Nyynkpao B. v. Garland

Background

Nyynkpao B. is a citizen of the Ivory Coast who entered the United States as a refugee in January 2004 and became a lawful permanent resident in November 2005. Between June 2016 and June 2018, he was convicted of multiple criminal offenses, including theft, marijuana possession, and robbery involving a firearm, dangerous weapon, or destructive device. After completing his robbery sentence on March 31, 2021, immigration authorities arrested him and began removal proceedings. The government charged him as removable under the Immigration and Nationality Act based on convictions involving a controlled substance, a crime of violence, and moral turpitude. The opinion states that detention was mandatory under 8 U.S.C. § 1226(c).

An immigration judge initially granted Nyynkpao B.’s application for cancellation of removal on July 15, 2021. The Department of Homeland Security appealed to the Board of Immigration Appeals. While that appeal was pending, Nyynkpao B. filed this petition challenging his continued detention without a bond hearing. The magistrate judge’s report and recommendation concluded that the detention had become unreasonable and violated due process. It recommended a bond hearing within 30 days and required the government to prove by clear and convincing evidence that Nyynkpao B. was a danger to the community or likely to flee if released.

Due Process and Prolonged Detention

The district court reviewed the respondents’ specific objections to the report and recommendation de novo, meaning it independently considered those objections. The court explained that mandatory detention under § 1226(c) is constitutionally permissible during the brief period ordinarily needed to complete removal proceedings, but prolonged detention can implicate due-process rights.

The court applied six factors used by courts in the District of Minnesota to evaluate prolonged detention: the total length of detention, the likely future length of detention, the conditions of confinement, delays caused by the detainee, delays caused by the government, and the likelihood that the removal proceedings will end in a final removal order.

The court found that Nyynkpao B. had been detained for more than 12 months, beyond the brief period contemplated in relevant Supreme Court precedent. It also concluded that the likely future duration of detention weighed in his favor because the proceedings had no imminent end. His confinement at Kandiyohi County Jail strongly favored him because the respondents conceded that the facility was a criminal correctional facility and the conditions were indistinguishable from criminal incarceration. The parties agreed that neither side had engaged in delaying tactics, making the fourth and fifth factors neutral. The likelihood of a final removal order was also neutral because the court could not predict the outcome of the immigration proceedings.

The court rejected the respondents’ argument that due process was satisfied as long as detention lasted for the duration of removal proceedings. It also rejected their contention that the court should focus on whether the detention served the purpose of § 1226(c) or was an extraordinary case. The court concluded that the factors largely favored an individualized bond hearing and that the respondents had not shown a comparably strong justification for continuing to detain Nyynkpao B. without an individualized determination of flight risk or danger to the community.

Burden of Proof

The court also upheld the recommendation that the government bear the burden at the bond hearing. It applied factors concerning the private interest at stake, the risk of wrongly taking away that interest, and the government’s interests, including administrative and financial burdens. Because physical liberty was at stake, the court concluded that the government must prove by clear and convincing evidence that continued detention is warranted.

The court rejected the respondents’ arguments that Supreme Court decisions had already resolved this burden-of-proof question, that procedures for noncriminal immigration detainees should control, or that the court was required to defer to immigration authorities’ interpretation of the statute. The court noted that neither the Supreme Court nor the Eighth Circuit had addressed which party bears this burden or what level of proof is required for a bond hearing involving continued detention under § 1226(c).

Disposition

The court overruled the respondents’ objections and adopted the report and recommendation. It granted in part and denied in part Nyynkpao B.’s petition. Specifically, it denied the request for a bond hearing within 14 days, ordered an immigration judge to conduct an individualized bond hearing within 30 days after the order, allowed the parties to present evidence and arguments about danger to the community and flight risk, and required the government to prove by clear and convincing evidence that Nyynkpao B. was either a danger to the community or likely to flee if not detained. The order directed that judgment be entered accordingly.