Rosemond v. Decker

Background

Jean Rosemond filed a petition under 28 U.S.C. § 2241 challenging his prolonged detention in United States Immigration and Customs Enforcement custody. He had been detained at the Orange County Jail since April 2, 2019, without a bond hearing. The immigration authorities charged him as removable based on aggravated-felony convictions. Although the immigration judge found him removable, the judge also found that his removal should be withheld because he faced a clear probability of persecution in Haiti due to significant mental-health conditions. The Board of Immigration Appeals upheld findings concerning persecution risk but remanded for additional analysis concerning the connection between the feared persecution and government involvement.

Rosemond argued that his continued detention violated the Fifth Amendment’s Due Process Clause. He sought an individualized bond hearing at which the Department of Homeland Security would have to prove by clear and convincing evidence that continued detention was justified, and the immigration judge would consider alternatives to detention and Rosemond’s ability to pay. He separately filed an emergency motion for immediate release under the rule recognized in Mapp v. Reno, citing the COVID-19 pandemic and his serious medical conditions.

Emergency Motion for Immediate Release

Magistrate Judge Lisa Margaret Smith recommended granting the habeas petition but denying immediate interim release. The court agreed that the Mapp procedure could apply even though Rosemond was detained under 8 U.S.C. § 1226(c), a provision requiring detention in specified circumstances. The court rejected the respondents’ argument that § 1226(c) eliminated the court’s authority to order interim release.

Under the Mapp standard, immediate release requires both a substantial habeas claim and extraordinary circumstances making bail necessary to ensure that the habeas remedy is effective. The court agreed that Rosemond presented a substantial claim, but it found that immediate release was not necessary because the requested relief was an individualized bond hearing and the court was granting that relief. The court also agreed that Rosemond had not shown circumstances comparable to cases in which medical conditions created an extraordinary need for immediate release. It therefore denied the Emergency Motion.

Habeas Petition and Bond Hearing

The court applied the five-factor analysis used in Sajous v. Decker to decide whether continued detention under § 1226(c) without a bond hearing had become unreasonable. The factors were: the length of detention; whether Rosemond caused the delays; whether he asserted defenses to removal; whether his civil detention exceeded the time he spent imprisoned for the conviction underlying removability; and whether his detention facility was meaningfully different from a criminal penal institution.

The court concluded that all five factors favored Rosemond. His detention had lasted more than one year, which supported relief although it was not by itself determinative. Although some of Rosemond’s filings and appeal contributed to delays, the respondents also caused lengthy delays, and they did not claim that his defenses were frivolous or that he was trying to manipulate the proceedings. Rosemond had asserted non-frivolous defenses to removal. His detention had exceeded the one year he served for the conviction that allegedly made him removable. Finally, he was held in the Orange County Jail, which was used for criminal detention.

The court rejected the respondents’ argument that detention under § 1226(c) was automatically constitutional. It explained that the statute may serve valid purposes but does not mean every individual detention complies with due process. Because Rosemond’s continued detention had become unreasonable and unconstitutional, he was entitled to a bond hearing.

Required Hearing Procedures and Disposition

The court required the government to prove by clear and convincing evidence that Rosemond posed a flight risk or danger to the public. It also required the immigration judge to meaningfully consider alternatives to detention and Rosemond’s ability to pay if setting a monetary bond. The court adopted Judge Smith’s Report and Recommendation, granted the Petition, and denied the Emergency Motion. Respondents were ordered either to produce Rosemond before an immigration judge by April 28, 2020, for the required individualized bond hearing or to release him on his own recognizance that day. The court directed the Clerk to terminate the emergency motion and close the case.