Fortune v. Decker

Background

Marielle Fortune had been detained by U.S. Immigration and Customs Enforcement since March 7, 2019, at the Hudson County Correctional Center. The government had begun removal proceedings against her and charged that she was removable based on unlawful presence and certain criminal convictions. The opinion states that Fortune had lived in the United States for nearly 25 years, had two U.S. citizen children, and had served about 45 total days in jail for her prior convictions.

Fortune sought relief from removal, including protection under the Convention Against Torture and a visa available to certain victims of human trafficking. She also investigated whether she might have a claim to citizenship through her biological father. A DNA test ultimately indicated that the person she believed was her father was not her father. As of November 20, 2019, she had been detained for 258 days.

Legal framework and arguments

The court explained that Section 236(a) of the Immigration and Nationality Act generally allows individualized review of immigration detention and possible release on bond or conditional parole. Section 236(c), however, requires detention of certain noncitizens with specified criminal convictions and generally does not provide for a bond hearing.

The respondents argued that Section 236(c) required Fortune’s continued detention during her removal proceedings. Fortune argued that detention without a bond hearing violated the Fifth Amendment’s Due Process Clause as applied to her particular circumstances. She relied on the long delay between the convictions that allegedly triggered mandatory detention and her arrest by immigration authorities, the nonviolent nature of her criminal record, her family and community ties, her continued defenses against removal, and the length of her detention. She also argued that due process required the government to prove by clear and convincing evidence that she was a danger to the community or a flight risk.

Court’s analysis

Judge Torres held that Fortune’s mandatory detention without a bond hearing violated due process in light of her particular circumstances. The court emphasized that immigration authorities arrested her 10 years after her release connected to the 2009 marijuana conviction and 18 years after her release connected to the 2001 fraud conviction. The court also compared her 258 days of immigration detention with the approximately 45 days she had spent in jail for all of her prior convictions.

The court distinguished the Supreme Court’s decision in Demore v. Kim because Fortune brought an as-applied constitutional challenge, meaning she argued that the detention law was unconstitutional as applied to her specific circumstances, rather than arguing that the law was unconstitutional in every case. The court also noted that the detention period described in Demore was generally much shorter than Fortune’s more than eight months of detention.

The court rejected the respondents’ argument that it should disregard detention time resulting from Fortune’s efforts to investigate possible citizenship and pursue other defenses. Judge Torres stated that doing so would penalize Fortune for pursuing nonfrivolous defenses, and the opinion described the practical difficulties of arranging DNA testing while she was detained.

The court did not reach Fortune’s separate argument that every person detained under Section 236(c) must receive a bond hearing after six months. It decided the petition based on Fortune’s as-applied challenge.

Disposition

The petition was granted. The respondents were ordered to cause Fortune to appear before an immigration judge for an individualized bond hearing by November 27, 2019. At that hearing, the respondents had to prove by clear and convincing evidence that Fortune was a danger to the community or a flight risk. If they failed to provide the hearing by the deadline, the court ordered them to immediately release her. The court directed the Clerk of Court to close the case.