Rosario v. Decker

Background

Victor Rosario had been detained by U.S. Immigration and Customs Enforcement since August 12, 2020. He was facing removal proceedings and had been convicted in a federal criminal case involving distribution and possession with intent to distribute a controlled substance. An immigration judge later granted Rosario’s request for deferral of removal under the Convention Against Torture. The Department of Homeland Security appealed that decision, and Rosario remained detained while the appeal was pending.

Rosario filed a petition under 28 U.S.C. § 2241, a statute allowing a person to challenge unlawful detention in federal court. He sought an individualized bond hearing and immediate release. He argued that his detention without a bond hearing had become unreasonably prolonged and violated the Due Process Clause. He also argued that his extraordinary circumstances—including his mental-health conditions, confinement in county jails, separation from family, and experience with COVID-19—justified immediate release.

The government argued that Rosario was subject to mandatory detention under § 1226(c) of the Immigration and Nationality Act. It contended that detention continued to serve immigration-related purposes, including ensuring his appearance and protecting the community, and that due process did not require a bond hearing merely because detention had lasted more than six months.

Bond Hearing

The court held that Rosario’s mandatory detention without an individualized bond hearing violated due process under the particular circumstances of his case. The court considered the length of his detention, the causes of delay, his successful defense to removal, the fact that his detention was not near an end because of the government’s appeal, and his confinement in facilities that were not meaningfully different from criminal detention centers. The court also considered his mental illness, the alleged threat of torture if he were returned to the Dominican Republic, and his isolation from family during the pandemic.

The court did not decide Rosario’s broader argument that every person detained under § 1226(c) must receive a bond hearing after six months. Instead, it ruled based on the specific circumstances of Rosario’s detention.

The court ordered an individualized bond hearing. At that hearing, the government had to prove by clear and convincing evidence that Rosario was a danger to the community or a flight risk. Clear and convincing evidence is a demanding level of proof, higher than the usual civil standard of a preponderance of the evidence.

Immediate Release

The court denied Rosario’s request for immediate release. Although his petition raised substantial claims, the court found that extraordinary circumstances did not require release before the bond hearing. The court stated that his medical records showed that he was feeling well and stable on his medication, and that his previous COVID-19 infection did not itself establish an extraordinary circumstance warranting release.

Disposition

The petition was granted in part and denied in part. Respondents were ordered to cause Rosario to appear for an individualized bond hearing by August 3, 2021. If they failed to provide that hearing by the deadline, they were ordered to release him immediately. The clerk was directed to close the case.