Graham v. Decker

Background

Roland Graham filed a petition under 28 U.S.C. § 2241, a law allowing a federal court to review whether a person is being held unlawfully. He asked for release or a bond hearing while his immigration removal proceedings were pending. Graham is a lawful permanent resident who arrived in the United States from Jamaica in 1993 and had lived there since then. Immigration and Customs Enforcement detained him on August 13, 2019.

Graham was subject to mandatory detention under 8 U.S.C. § 1226(c) based on marijuana-related convictions. An immigration judge found him removable because of a controlled-substance offense, denied his applications for asylum and protection under the Convention Against Torture, and ordered his removal. Graham filed a motion asking the immigration judge to reconsider and appealed to the Board of Immigration Appeals; both matters were pending when this court ruled. His appeal challenged, among other things, the exclusion of proposed expert testimony about conditions in Jamaica and the immigration judge’s ruling concerning persecution based on Graham’s bisexuality.

Graham had previously filed a separate petition seeking release because of COVID-19 risks. The Government argued that the new petition was an abuse of the habeas process because Graham could have raised his due-process claim earlier. The court rejected that argument, explaining that the earlier petition concerned health and safety risks while this petition concerned the lack of a bond hearing, and that the two petitions involved different facts and legal theories.

Due-Process Analysis

The court considered whether Graham’s continued detention without a bond hearing violated the Due Process Clause. It rejected a fixed rule that every detention longer than six months is automatically unconstitutional. Instead, it applied a multi-factor approach used by courts in the district.

The factors included: (1) the length of detention; (2) responsibility for delays; (3) whether the person has raised defenses to removal; (4) whether immigration detention has lasted longer than the criminal sentence connected to removability; (5) whether the detention facility is meaningfully different from a criminal jail; (6) how close the removal proceedings are to ending; and (7) the interests served by continued detention.

The court found that the factors decisively favored Graham. His detention had lasted about 10 months, which strongly favored him. Although Graham had requested some adjournments, the court found that much of the delay was not attributable to him; some delay resulted from problems involving Immigration and Customs Enforcement and the immigration court. Graham had also raised asylum and Convention Against Torture defenses, which the Government did not claim were frivolous. His immigration detention had lasted more than twice as long as the 120-day sentence associated with his marijuana convictions. He was held in Orange County Jail, which the court described as a local criminal jail rather than a civil immigration facility. The court found the timing of the end of his detention was at least neutral and likely favored Graham, while the Government’s interest in continued detention was outweighed by the limited burden of holding a bond hearing.

Ruling and Remedy

Judge Engelmayer held that Graham’s 10-month detention without a bond hearing violated due process. The court granted Graham’s petition and ordered the Government to hold a bond hearing within seven days of the order. If the hearing was not held within that time, the Government was ordered to release Graham on his own recognizance.

The court also ruled that, at the bond hearing, the Government must prove by clear and convincing evidence that Graham presents a risk of flight or danger to the community. The immigration judge must consider Graham’s ability to pay and alternative ways of assuring his appearance. The court directed the Clerk of Court to close the pending motion and the case.