Immigration court matters arguably present some of the most challenging areas to understand. This is especially so with respect to detention issues, where an individual's liberty is restrained, sometimes indefinitely. In a recent Third Circuit case, Guerrero-Sanchez v. Warden, York County Prison, 2018 WL 4608970 (3d Cir. 2018), a person was held in ICE detention for a staggering 637 days before finally securing release (and only after protracted litigation involving several motions). This case is particularly important for non-US citizens residing in the Third Circuit who are at risk of lengthy detention.
In deciding Mr. Guerrero-Sanchez's case, the court draws a clear distinction between INA Sections 8 USC 1226(a) and 8 USC 1231(a). The distinction is dispositive because if 1226(a) applies, an individual will normally receive a bond hearing at the outset of proceedings; on the other hand, if section 1231(a) applies, the person will already have been the subject of an order of removal and therefore not necessarily entitled to a bond hearing. The case at hand specifically concerned an individual who was the subject of a reinstatement order but who had applied for withholding of removal. The court ultimately held that detention of such people-subject to reinstatement but applicants for withholding-is governed by the post-order statute, 8 USC 1231. But the holding goes beyond that, which is why this case is so significant. While the literal language of 1231(a)(6) does not explicitly refer to bond hearings for individuals who are the subject of final orders of removal, the government is ordinarily expected to remove the alien within 90 days. If the person is still in custody past the 90-day, Supreme Court precedent construes and authorizes continued detention "only as long as 'reasonably necessary' to remove them from the country." Within this context, the Third Circuit identified due process concerns, but rather than engaging in a constitutional calculus, chose to adopt a bright line rule enforced in the Ninth Circuit, namely that all aliens detained under section 1231(a)(6) and facing prolonged detention are entitled to a bond hearing after six months (180 days) of custody. During this hearing, the government bears the burden of demonstrating, by clear and convincing evidence, that the individual is a flight risk or poses a danger to the community.
The impact of this holding is not only tremendous but far reaching. It affects individuals who have been ordered removed but still detained for more than six months, including those who have been detained pursuant to reinstatement orders but now applicants for withholding; those who have petitioned for direct review of their removal orders without a stay of removal in place; those who have final orders and petitioned to reopen their cases (or petitioned for review of a denied motion to reopen) without a stay; as well as individuals who have final orders without any pending challenges or stays.
In light of this new decision, those who have been ordered removed and remain in detention past six months are encouraged to explore their options with an attorney. The above is general information only and not intended to serve as legal advice. It does not create an attorney client relationship, nor should it be relied upon in lieu of consultation with an immigration attorney.