Moscoso v. Joyce

Background

Elmer Moscoso had been held by U.S. Immigration and Customs Enforcement for approximately fourteen months. He filed a petition under 28 U.S.C. § 2241 challenging his detention under 8 U.S.C. § 1226(a). He argued that his bond hearing violated the Fifth Amendment because the immigration judge placed on him the burden of showing that he was not dangerous, rather than requiring the government to prove by clear and convincing evidence that he posed a danger to the community or a flight risk.

Moscoso was arrested on November 8, 2021, and removal proceedings began. An immigration judge ordered him removed on March 30, 2022, and denied his request for bond. The Board of Immigration Appeals affirmed the bond decision on August 9, 2022, and dismissed Moscoso’s appeal from the removal order on December 5, 2022. Moscoso then filed a petition for review with the Second Circuit and asked that court to stay his removal. As of this order, the Second Circuit had not ruled on that request.

Issue and arguments

The central issue was which statute governed Moscoso’s detention. Section 1226(a) applies to people detained while a decision on removal is pending. Section 1231(a) applies after a removal order becomes administratively final and the person enters the removal period. The government argued that Moscoso’s petition was moot because he was no longer detained under section 1226(a). It also argued that, if a removal stay later returned him to detention under section 1226(a), he could file a new petition.

Moscoso argued that the Second Circuit’s forbearance policy—which meant that the government would not remove people while their petitions for review and stay requests were pending—functioned as a stay of removal. He contended that section 1226(a) should therefore govern his detention.

Court’s reasoning

The court concluded that Moscoso’s removal order became administratively final when the Board of Immigration Appeals dismissed his appeal. Under the text of section 1231(a), his removal period therefore began on December 6, 2022. The statute provides an exception when a court orders a stay of removal, but the Second Circuit had not done so.

The court rejected the argument that the forbearance policy was equivalent to a court-ordered stay. It explained that the policy was a general government decision, while a stay is an exercise of judicial discretion based on the circumstances of an individual case. Because no court had ordered a stay, the court held that Moscoso remained detained under section 1231(a).

The court recognized that district courts in the circuit had held that due process requires the government to bear the burden at section 1226(a) bond hearings and to prove danger or flight risk by clear and convincing evidence. But because section 1231(a) currently governed Moscoso’s detention, the court stated that it was not then positioned to address the merits of his section 1226(a) claim.

Mootness and disposition

The court rejected the government’s argument that the petition was moot. A stay by the Second Circuit could change the statutory basis for Moscoso’s detention, and the government had sought expedited review of his stay request. The court therefore stayed final decision on Moscoso’s petition for the earlier of 30 days from the order or five days after the Second Circuit ruled on his request for a stay of removal.

The court did not decide whether Moscoso’s removal appeal or stay request was strong. It also did not decide the merits of his constitutional challenge to the bond hearing.