Zackaria D. M. v. Garland

Background

Zackaria D. M. entered the United States as a refugee in 1998 and again in 2006. After the government denied his application for permanent residence, he was convicted of multiple criminal offenses between 2011 and 2017, including theft of a motor vehicle and aggravated assault. Immigration authorities charged him as removable under the Immigration and Nationality Act based on those convictions.

After Zackaria D. M. completed his assault sentence on January 25, 2021, Immigration and Customs Enforcement detained him under 8 U.S.C. § 1226(c). His competency and removal proceedings remained pending, and he had been detained for more than 20 months when the court considered the matter.

Zackaria D. M. filed a petition for habeas corpus under 28 U.S.C. § 2241, a procedure for challenging unlawful custody. He argued that his continued detention without a bond hearing violated the Fifth Amendment’s guarantee of due process. He requested an individualized bond hearing at which the government would have to prove by clear and convincing evidence that detention was necessary because he was dangerous or likely to flee. He also asked that the immigration judge consider alternatives to detention and his ability to pay bond.

Report and Recommendation and Objections

Magistrate Judge Leo I. Brisbois recommended granting in part and denying in part the petition. He concluded that detention lasting 18 months without a bond hearing violated due process and recommended a hearing at which the government would bear the burden of proof. He did not recommend requiring the immigration judge to consider alternatives to detention or Zackaria D. M.’s ability to pay bond.

Both sides objected. The government challenged placing the burden of proof on the government. Zackaria D. M. argued that the recommended remedy was incomplete because it did not require consideration of release conditions and ability to pay. Judge Nelson reviewed those disputed issues independently.

Court’s Analysis

The court applied the fact-specific factors used in this District to evaluate whether detention under § 1226(c) has become unconstitutional. Those factors include the total length of detention, the likely future duration, the conditions of confinement, responsibility for delays in the removal proceedings, and the likelihood that the proceedings will result in a final removal order. The court agreed that the detention had become unconstitutional and that a prompt, individualized bond hearing was necessary.

The court rejected the government’s argument that § 1226(c) required Zackaria D. M. to prove that he was not dangerous or a flight risk. It concluded that the statute does not specify which party bears the burden of proof at such a hearing and that constitutional due process requirements control the remedy for prolonged detention.

Using the balancing framework from Mathews v. Eldridge, the court determined that Zackaria D. M.’s liberty interest was exceptionally strong and that the risk of erroneous detention was high. It therefore held that the government must prove by clear and convincing evidence that continued detention was necessary.

The court also agreed with Zackaria D. M. that the remedy had to address the conditions of release. It concluded that the burden and standard of proof could not logically be separated from whether any condition or combination of conditions—including release or parole and the person’s ability to post bond—could reasonably protect the community and ensure appearance at future immigration proceedings.

Disposition

The court overruled the respondents’ objections and sustained Zackaria D. M.’s objections. It adopted in part and declined to adopt in part Magistrate Judge Brisbois’s Report and Recommendation. The court granted Zackaria D. M.’s petition.

The respondents were ordered to ensure that Zackaria D. M. received an individualized bond hearing before an immigration judge within 21 days of the order. If no hearing occurred, he was to be released unless the court issued a further order. At the hearing, the government had to prove by clear and convincing evidence that no condition or combination of conditions of release and parole, including Zackaria D. M.’s ability to post bond, would ensure community safety or his appearance at future immigration proceedings.