Villatoro v. Joyce

Background

Samuel Villatoro sought relief under 28 U.S.C. § 2241, a federal law allowing a court to review certain unlawful detention, after U.S. Immigration and Customs Enforcement detained him beginning July 30, 2021. Villatoro is a citizen of El Salvador who had lived in the United States since 1989 and held Temporary Protected Status from 2003 to 2021.

Villatoro pleaded guilty in Suffolk County Court to disorderly conduct and second-degree sexual abuse of a minor. He received a time-served sentence and six years of probation. After immigration authorities ended his Temporary Protected Status, ICE arrested him and issued a final administrative removal order based on its charge that he had committed an aggravated felony. Villatoro said that he was illiterate, did not speak English, could not read the documents given to him, and was not assisted by fluent Spanish-speaking agents.

Villatoro challenged the removal order and the denial of his fear-based request for protection in the U.S. Court of Appeals for the Second Circuit. That matter remained pending, and the appeals court held it in abeyance. During his nearly 30 months of detention, ICE conducted custody reviews, but Villatoro did not receive a bond hearing before an immigration judge.

Issues

The parties disagreed about which detention statute applied. The government argued that Villatoro was detained under 8 U.S.C. § 1231, which generally governs detention after a final removal order. Villatoro argued that 8 U.S.C. § 1226(c), the mandatory-detention provision for certain noncitizens with specified criminal convictions, applied because his removal could not proceed while his challenge and stay request were pending.

The court also considered whether Villatoro’s prolonged detention without a bond hearing violated the Due Process Clause. Due process, in this context, requires detention to remain reasonably related to its lawful purpose and provides procedural protections when detention becomes unreasonably long.

Court’s reasoning

Judge Torres agreed with Villatoro that § 1231 did not govern his detention. The Second Circuit’s policy generally prevented the government from removing a person who had requested a stay while pursuing a petition for review, unless the stay request or petition was denied or the government gave the required advance notice. The court held that this policy functioned as a stay for purposes of the detention statute. Because Villatoro’s removal was not immediately possible, his detention was governed by § 1226 rather than § 1231.

The court then applied seven factors used to determine whether detention under § 1226(c) had become unreasonably prolonged: the length of detention; responsibility for delay; defenses to removal; whether detention exceeded the criminal sentence; the nature of the detention facility; the seriousness of the criminal offenses; and whether detention was near its conclusion.

Five factors strongly favored Villatoro. He had been detained for more than 29 months, far longer than the periods described by the Supreme Court when it upheld the general detention scheme. No party was individually responsible for the delay, and the court would not penalize Villatoro for pursuing non-frivolous challenges. He had defenses that could potentially prevent his removal. His immigration detention had greatly exceeded his approximately five-week criminal-custody period, and he had spent more than 24 months in a jail that the Second Circuit had found was not meaningfully different from criminal incarceration. Finally, his detention was not close to ending because his appeal was being held in abeyance and further proceedings could follow if he prevailed.

The seriousness of Villatoro’s sexual-abuse conviction favored the government. One factor—responsibility for delay—was neutral. On balance, however, the court concluded that continued detention without a hearing violated due process.

Disposition and required hearing

The court granted Villatoro’s petition. It ordered the respondents to bring him before an immigration judge for an individualized bond hearing by January 19, 2024. At that hearing, the respondents had to prove by clear and convincing evidence that Villatoro posed a danger to the community or a flight risk. The immigration judge also had to meaningfully consider alternatives to detention and Villatoro’s ability to pay. If the respondents failed to provide the hearing by the deadline, the court ordered them to release Villatoro immediately. The clerk was directed to close the case.