The Third Circuit Court of Appeals and the Fourth Circuit held that immigrants are subject to mandatory detention regardless of when they are released from criminal custody. ( The Third Circuit in Sylvain and the Fourth Circuit in Hosh). Prior to Sylvain , I filed twenty writs for clients who were picked up after being released from criminal incarceration and the majority were successful. What now? Filing a writ in the Third or Fourth Circuits would be fruitless because the District Court is bound by the Circuit Court of Appeals’ decisions. Recently, the 9th Circuit Court of Appeals handed down a great decision which should encourage attorneys to keep on fighting.
The Ninth Circuit Court of Appeals held that the mandatory detention statute has a six-month temporal limitation. “§ 1226(c)’s mandatory language must be construed to contain an implicit ‘reasonable time’ limitation, the application of which is subject to federal-court review.” Rodriguez . The Rodriguez decision involved a different issue, but an examination of the identical statute as in ‘when released’ habeas cases. Therefore, it is a powerful precedent because it provides counterarguments against the government . For example, in many cases the AUSA will make the following arguments:
1. Congress enacted mandatory detention to counteract the flight of immigrants released during removal proceedings and the crimes that they will commit. Thus, why should the statue be read to entitle them to bond. In Rodriguez, the court rejected this argument in favor of a temporal limitation on mandatory detention because of the constitutional concerns raised by an extensive period of detention. Therefore, courts should continue to reject the government’s arguments.
2. Immigrants who are detained after they are released from incarceration will receive a windfall in comparison to those who are picked up immediately on release. However, In Rodriguez, the Court held that every immigrant detained beyond six months is entitled to a bond hearing. Thus, the immigrant who is not detained upon release does not receive any windfall because he should be entitled to a bond hearing in six months. Also, in Diop, the Third Circuit Court of Appeals held that prolonged detention is unreasonable. Thus, immigrants who are detained for an extended period of time are entitled to bond. How can the government claim that your client receives a windfall when they will be entitled to a bond hearing in the future?
The Rodriguez decision should be mined for great counter-arguments within the when released context. I am going to be posting regularly about this topic. Also, the AILA Federal litigation committee provides a great set of sample briefs http://www.aila.org/Please contact me at [email protected] with any questions or comments.