Section 1226(c)(I) of Title 8 provides that aliens who have committed certain crimes must be detained during their removal proceedings. In Demore v. Kim, 538 U.S. 510, (2003), the Supreme Court upheld the constitutionality of mandatory detention under § 1226(c), reasoning that detention during deportation proceedings is "a constitutionally valid aspect of the deportation process" because it facilitates the effective removal of deportable aliens. A corollary of this principle is that when detention has lasted so long that its "justification - preventing flight - is weak or nonexistent where removal seems a remote possibility at best, then it can no longer bear a reasonable relation to the purpose for which the individual was committed. Thus, the Supreme Court distinguished the Demore case from that of Zadvydas because detention during removal proceedings necessarily serves the purpose of preventing deportable criminal aliens from fleeing prior to or during their removal proceedings, thus increasing the chance that, if ordered removed, the aliens will be successfully removed. In contrast, the Court noted that the Zadvydas petitioners were aliens for whom removal was no longer practically attainable. Hence, in Zadvydas, the Supreme Court held that detention after an alien has been ordered removed cannot be indefinite and must be limited by principles of due process, even though the statute governing post-removal detention does not specify a particular time limit. Based on its reading of Congressional intent, the Supreme Court determined that detention beyond six months would be presumptively unreasonable.
The Supreme Court has also distinguished detention under § 1226(c) from the potentially "indefinite" or "potentially permanent" detention under § 1231 (a) that it found required limits in Zadvydas v. Davis. Because detention under § 1226(c) has a definite termination point, which in the majority of cases lasts for less than the 90 days the Court considered presumptively valid in Zadvydas, and only about five months in the minority of cases in which the alien chooses to appeal, the Supreme Court rejected the habeas petition challenging § 1226(c) mandatory detention. Notably, throughout the Demore opinion, the Court explicitly stated that the detention anticipated under § 1226(c) would be for a brief period of time. The concurrence and fifth vote in favor of the judgment in Demore also hinted that the Due Process Clause limits the reach of § 1226(c) detention, concluding that were there to be an unreasonable delay by the INS in pursuing and completing deportation proceedings, it could become necessary to then inquire whether the detention is not to facilitate deportation, or to protect against risk of flight or dangerousness, but to incarcerate for other reasons.
Where DHS claims that the petitioner is dangerous, yet it will not deport him, one therefore concludes that either the petitioner is not dangerous or he is being held for some other reason. Either way, DHS cannot apprehend someone, imprison him, and then throwaway the key.
Where DHS, more than four years ago, took the then sixty-six-year-old petitioner who pleaded no contest to indecency with a minor under the age of 17 into custody pending the resolution of his removal case, and where the now seventy-year-old petitioner is still without an administratively final order of removal and is still in detention, this court must grant the habeas corpus petition, particularly when it has given the Government many months to rectify the situation. This court's holding is the direct result of the unconscionable action or, more accurately, the unconscionable inaction, of the Government. To take more than four years to deport an alien who voluntarily pleaded guilty to a serious offense--indecency with a minor--not only offends any notion of prompt justice, it breaches any semblance of constitutional propriety. This is especially true given that this court made it clear to the Government's counsel months ago that immediate action was imperative.
Even though the petitioner on occasion has exercised his rights which has at times delayed the final resolution of this matter, the total delay caused by the petitioner's actions, which amounts to no more than one year, is a mere fraction of the four years that he has been in custody. This means the Government has held the petitioner through delays unrelated to the exercise of his rights for at least three years without any resolution, well exceeding the finding by the Supreme Court in Demore v. Kim, 538 U.S. 510, (2003), that the average time for proceedings of this type was less than ninety (90) days or even that Court's conclusion that the proceedings take five months in the vast minority of circumstances where the alien appeals the IJ's decision. Thus, this Court is left with no other course of action, particularly when the Government ignored this court’s warnings on several occasions over a ten-month period against inaction. No one should be imprisoned for four years without a proper adjudication. The Government has failed in this instance to comply with the Constitution and in doing so may arguably be putting the public at risk. Nevertheless, this Court has been given no reason, much less a credible reason, for this delay.
While sympathetic to the rationales underlying the mandatory detention scheme of 8 U.S.C. § 1226(c), this Court finds that the petitioner's detention pending his removal proceedings has crossed the line of reasonableness and no longer relates to the goal of the statute. Given the past inaction, it is not reasonable to expect that actual removal will be accomplished; in fact, it is not reasonably foreseeable that it will even be ordered.
In the instant case, the petitioner’s detention cannot continue consistent with the rights guaranteed by the Fifth Amendment's Due Process Clause. His detention has lasted seven to eight times longer than six-month limit that the Supreme Court considered presumptively reasonable. Moreover, the likelihood of removal in the reasonably foreseeable future, based upon the record in this case, is virtually nil. The Government has had four-plus years to remove the petitioner, but has accomplished nothing. This Court gave the immigration officials more than a generous amount of time to reach a decision before it would even reconsider the petitioner's request for relief, yet the petitioner still awaits a final decision on his removal case. This court then gave the Government another sixty days-still nothing. Nor has the BIA ruled on the appeal since. The Government has offered not a shred of evidence to show that a final decision is likely to be reached soon or will ever be reached. Given that the goal of detention is to ensure removal, this Court finds that it is not reasonably related here because after four years, there is still no final order of removal. For the foregoing reasons, this Court grants the petitioner's Renewed Petition for Writ of Habeas Corpus.
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