IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD ... · 21.06.2012 · CHEIKH DIOP, a/k/a Ibou Ndiaya, a/k/a Ebou Njie Agency No. A 097-702-755 Petitioner-Appellant, v. UNITED

IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

____________________________________________________

Docket No. 10-1113____________________________________________________

CHEIKH DIOP, a/k/a Ibou Ndiaya, a/k/a Ebou NjieAgency No. A 097-702-755

Petitioner-Appellant,

v.

UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT, et al.,

Respondents-Appellees. ____________________________________________________

REPLY BRIEF FOR AMICI CURIAEAMERICAN CIVIL LIBERTIES UNION FOUNDATION AND AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF

PENNSYLVANIA____________________________________________________

Judy Rabinovitz Witold WalczakFarrin R. Anello Mary Catherine RoperTanaz Moghadam Valerie BurchAmerican Civil Liberties Union American Civil Liberties UnionFoundation Foundation of Pennsylvania125 Broad Street, 18th Floor 313 Atwood StreetNew York, NY 10004 Pittsburgh, PA 14213(212) 549-2660 (412) 681-7864

Case: 10-1113 Document: 003110189611 Page: 1 Date Filed: 06/21/2010

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INTRODUCTION

Petitioner-Appellant Cheikh Diop has been held in immigration detention

now for 27 months, without even a bond hearing to determine if his detention is

warranted. Mr Diop has lived in the United States for twenty years since fleeing

persecution by government security forces in Senegal, and he has four U.S. citizen

children. Amici’s Supplemental Appx. (hereinafter “SA-1”) at 161; Amici’s Second

Supplemental Appx. at 3 (hereinafter “SA-2”).2 In its response to the brief of

amici curiae, the government does not contend that Mr. Diop poses either a danger

or a flight risk. Nor does it contend that he has engaged in frivolous or dilatory

conduct. Instead the government reiterates its sweeping position that there is no

statutory or constitutional limit on the length of mandatory detention authorized by

8 U.S.C. §1226(c), Resp’ts-Appellees’ Response to Br. for Amici Curiae

(hereinafter Gov. Response) at 8-10, and that if there were, Mr. Diop’s good-faith

requests for continuances and appeals justify his prolonged mandatory detention,

id. at 12-15. The government also maintains that Mr. Diop is subject to the

mandatory detention statute even though he has an at least colorable claim that his

2005 conviction for reckless endangerment is not a “crime involving moral

turpitude” (CIMT) and therefore does not render him “inadmissible” within the

1 Pet’n (Doc. No. 1, 09-cv-1489 (M.D. Pa.) at 4.

2 BIA Decision of Mar. 17, 2009 (Doc. No. 10-2, 09-cv-1480 (M.D. Pa.).


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meaning of §1226(c), and even though he was released from custody for his 1995

conviction before this statute’s effective date. Id. at 18-29.

For the reasons previously set forth, these positions should be rejected. See

Brief of Amici Curiae (hereafter Amici’s Br.). The government’s continued

insistence that §1226(c) authorizes detention without an individualized bond

hearing for as long as removal proceedings may last cannot be reconciled with the

Supreme Court’s reasoning in Demore v. Kim, 538 U.S. 510 (2003), or Zadvydas v.

Davis, 533 U.S. 678 (2001), and ignores the emerging judicial consensus to the

contrary. Likewise, its argument that prolonged detention attributable to a

detainee’s actions is per se reasonable – even when the detainee’s actions are in

good faith – fundamentally misconstrues the requirements of due process and

§1226(c). Absent a showing of bad faith on the part of a detainee, the only

relevant question in determining whether mandatory detention has become

unreasonably prolonged is whether it exceeds the brief period of time typically

necessary to conclude removal proceedings – a period that the Supreme Court in

Demore found to be less than six months.

The government’s additional arguments – that “the facts of [Mr. Diop’s]

case are now significantly different” since he is back before the BIA for a third

time following the IJ’s denial of his application for relief, Gov. Response at 2; that

he did not raise certain claims before the district court, this Court, or the agency,


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see id. at 2-3, 20-22, – are equally without merit. Indeed, procedural developments

in Mr. Diop’s case underscore his constitutional and statutory entitlement to a

constitutionally adequate bond hearing. Mr. Diop has now been detained almost

eight months longer than when the district court initially dismissed his case.

Moreover, given that his pending BIA appeal has not yet been briefed, id. at 2, and

would likely be followed by either a circuit court appeal or a remand to the IJ, and

given that he has a pending motion for reconsideration of the BIA’s April 12, 2010

decision, SA-2 at 7, he faces months if not years of future proceedings.3

Finally, the government never squarely addresses Mr. Diop’s argument that

he should never have been subjected to mandatory detention in the first place,

because he does not properly fall under the statute. Instead, it mischaracterizes his

claim as a challenge to whether his reckless endangerment conviction is a CIMT,

and then argues that this claim is unreviewable. Gov. Response at 3-4, 18-22. But

this Court need not decide whether Mr. Diop’s conviction is a CIMT, only that he

has a colorable claim that it is not, and that, contrary to the BIA’s decision in

Matter of Joseph, 22 I. & N. Dec. 799, 806 (B.I.A. 1999), the mandatory detention

3 Mr. Diop continues to pursue his claim for deferral of removal under the Convention Against Torture (“CAT”), a form of relief for which one remains eligible even if convicted of a “particularly serious crime.” Compare 8 C.F.R. §208.17 (deferral under CAT, no criminal bars) with §208.16(d)(2) (conviction of “particularly serious crime” requires denial of withholding); see generally Pet’r’s Informal Br. at 1-9 (describing torture in Senegal); see also SA-2 at 4 (vacating IJ’s ruling that current country conditions precluded CAT claim).


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statute does not apply to individuals with colorable claims that they are not

removable on a ground enumerated in the statute. The government’s alternative

argument – that Mr. Diop is subject to mandatory detention based on his 1995

controlled substance conviction – should also be rejected, as mandatory detention

does not apply retroactively to convictions for which an individual was released

from criminal custody prior to the statute’s the effective date.

ARGUMENT

I. Section 1226(c) Does Not Authorize Prolonged Mandatory Detention, and if It Did, It Would Be Unconstitutional.

The government’s argument that the Due Process Clause imposes no limits on

the length of pre-final-order mandatory detention under 8 U.S.C. §1226(c) is based

on a fundamental misreading of the Supreme Court’s decisions in Demore and

Zadvydas, and a refusal to acknowledge the emerging judicial consensus to the

contrary. With respect to Demore, the government emphasizes the Supreme

Court’s conclusion “that detention during removal proceedings is a constitutionally

permissible part of that process,” which “necessarily serves the purpose” of

preventing against flight. Demore, 538 U.S. at 531, 528; see Gov. Response at 9,

6. The government offers no explanation, however, for the Court’s repeated

emphasis on the “brief” and “limited” period of such proceedings and detention.

See Amici’s Br. at 9, 16-17, 21 (citing Demore, 538 U.S. at 513, 529, 530

(“detention at stake under § 1226(c) lasts roughly a month and a half in the vast


5

majority of cases in which it is invoked, and about five months in the minority of

cases in which the alien chooses to appeal”); see also Demore, 538 U.S. at 523,

526, 529 n. 12; Madrane v. Hogan, 520 F.Supp.2d 654, 664 (M.D. Pa. 2007)

(Demore was “a narrow[] holding grounded in repeated reference to the anticipated

brevity” of removal proceedings); Oyedeji v. Ashcroft, 332 F.Supp.2d 747, 753

(M.D. Pa. 2004) (“The Supreme Court … stressed that such detention would be

only ‘for the brief period necessary for their removal proceedings.’”) (citing

Demore). Instead, the government argues that because Demore did not set a “time

limit” on detention, no such limit exists. Gov. Response at 9. But Demore’s

silence with respect to a time limit can hardly be viewed as a validation of the

constitutionality of prolonged mandatory detention. Moreover, the mere fact that

detention during removal proceedings is “a constitutionally permissible part of that

process” says nothing about whether the due process clause permits prolonged and

mandatory detention beyond the “brief period” contemplated in Demore.

While the government adopts an overly broad reading of Demore, its reading

of Zadvydas is overly narrow. Thus, the government reiterates its argument that

because prolonged pre-final-order detention is not “indefinite” within the meaning

of Zadvydas, it does not raise the same due process problems that the Supreme

Court recognized in that case. Id. at 10-11. But, as previously explained,

Zadvydas’s due process analysis has application beyond indefinite detention. See


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Amici’s Br. at 8-9, 11, 15-18, 21-22. Moreover, the government mischaracterizes

amici’s argument. Amici do not claim that prolonged pre-final order detention is

“indefinite” within the meaning of Zadvydas – although in appropriate

circumstances that argument can be made. See, e.g., Oyedeji, 332 F.Supp.2d at

753. Rather, amici’s argument here is a more limited one – that prolonged

detention, even if not indefinite, is still subject to due process constraints and must

be accompanied by adequate procedural safeguards. See Amici’s Br. at 8-13

(citing, inter alia, Ly v. Hansen, 351 F.3d 263, 267, 271-72 (6th Cir. 2003); Casas-

Castrillon v. Dep’t of Homeland Sec., 535 F.3d 942, 950 (9th Cir. 2008); Tijani v.

Willis, 430 F.3d 1241, 1242 (9th Cir. 2005) (all holding that prolonged pre-final-

order mandatory detention raises serious constitutional problems and therefore

construing statute to avoid these problems)).

The government provides no persuasive authority to the contrary. 4 Instead,

consistent with its approach to Zadvydas, the government attempts to distinguish

the circuit court decisions that have squarely held that §1226(c) does not authorize

4 Apart from Demore and Zadvydas, the only case the government cites for its argument that the due process clause imposes no limit on the length of prolonged mandatory detention is an unreported decision from this Court, Jah v. Attorney General of the U.S., 258 Fed.Appx. 394 (3d Cir. Dec. 12, 2007). See Gov. Response at 5. Jah, a nonprecedential summary opinion, does not address whether detention was prolonged. Moreover, Jah’s claim was found to be moot because after filing his petition, he had become subject to a final removal order and was no longer detained under §1226(c). Jah, 258 Fed. Appx. at 395 n.2.


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prolonged mandatory detention by limiting them to their facts. Gov. Response at

15-18. But the differences that the government highlights between these cases and

Mr. Diop’s do not alter these decisions’ statutory and constitutional analysis. For

example, although the petitioner in Tijani had not conceded removability, nothing

in the Tijani decision suggests that a noncitizen pursuing claims to relief from

removal may be subjected to prolonged detention without a bond hearing --

particularly given that Mr. Tijani, unlike Mr. Diop, was already subject to a final

order of removal. 430 F.3d at 1242. Similarly, while the Sixth Circuit’s decision

in Ly involved a petitioner whose removal was not reasonably foreseeable, the

court’s decision was not limited to such a case but rather construed §1226(c) as

only authorizing detention for a period of time reasonably necessary to conclude

removal proceedings. 351 F.3d at 268, 270.

Finally, the government misstates the difference in the procedural posture of

the petitioner in Casas-Castrillon as compared to Mr. Diop. While Casas-

Castrillon initially was detained pending court of appeals review of his removal

order, by the time the Ninth Circuit granted his habeas petition and ordered a bond

hearing, his removal proceedings had been remanded to the BIA for a new round

of administrative removal proceedings. The Ninth Circuit held that §1226(c) did

not apply to individuals facing a second round of administrative proceedings after

remand since the petition for review itself “often takes more than a year” and such


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individuals thus have “not received expeditious process.” 535 F.3d at 948. This

same reasoning applies to Mr. Diop, whose removal proceedings have twice been

remanded from the BIA to the IJ and have already lasted well over two years, and

who is now back before the BIA for a third time.5

II. Length of Detention Must Be the Primary Factor in Determining When Mandatory Detention Becomes Unreasonable, and Delays Caused by Good-Faith Challenges to Removal Do Not Justify Prolonged Detention.

The government argues that, even if there is a limit on §1226(c) mandatory

detention, it has not been exceeded in Mr. Diop’s case because the length of his

removal proceedings and detention is “largely attributable to his actions.” Gov.

Response at 15. Specifically, the government points to Mr. Diop’s requests for

continuances to obtain counsel and other good faith actions he took to pursue relief

from removal. Id. at 12-15. It then argues that any delay that was caused by these

actions – even though taken in good faith – “should not be counted against the

Government” in determining whether Mr. Diop is entitled to a bond hearing. Id. at

13, 15.

5 The government makes no attempt to address amici’s statutory arguments: that the canon of constitutional avoidance requires construing statutes to avoid deciding serious constitutional questions whenever such a construction is “fairly possible;” that §1226(c) is silent as to the length of mandatory detention authorized; and that the Supreme Court in Zadvydas interpreted similar silence in 8 U.S.C. §1231 to include a reasonableness limit on detention.


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The government’s approach is fundamentally flawed. By treating the inquiry

into the reasonableness of prolonged mandatory detention as a contest between the

parties, rather than an analysis of what due process requires, the government

obscures the most important element of the due process calculus – the deprivation

of liberty. Thus, the length of detention, past and future, must be the primary

factor informing whether continued detention requires a bond hearing. See Amici’s

Br. at 8-9, 20, 22-23 (citing, inter alia, Ngo v. INS, 192 F.3d 390, 392, 398 (3d Cir.

1999)); Oyedeji, 332 F.Supp.2d at 754); see, e.g., Sengkeo v. Horgan, 670

F.Supp.2d 116, 127 (D. Mass. 2009) (“This length of detention [20 months], plus

the fact that an end to these proceedings cannot be seen on the horizon, entitles

[petitioner] to an individualized determination of whether she poses a danger to

society or a risk of flight.”).

Of course, when an individual intentionally delays proceedings in order to

win release from detention, such delays would not entitle them to a bond hearing.

See, e.g., Ly, 351 F.3d at 272; see also Amici’s Br. at 24. But in the absence of bad

faith, length of detention should be the determining factor. An individual “who

would not normally be subject to indefinite detention cannot be so detained merely

because he seeks to explore avenues of relief that the law makes available to him.”

Ly, 351 F.3d at 272; see also Alli v. Decker, 644 F.Supp.2d 535, 544 (same);

Oyedeji, 332 F.Supp.2d at 753; Amici’s Br. at 24. Individuals in removal


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proceedings have the right to be represented by counsel at no cost to the

government, 8 U.S.C. §1229A(b)(4)(A), and to present defenses to removal,

§1229A(b)(4)(B). The good-faith exercise of these rights often requires

continuances. Similarly, appeals are often necessary specifically to correct agency

error. See generally 8 C.F.R. §1240.15 (administrative appeal); 8 U.S.C. §1252(a)

(judicial review).

The government relies on the Supreme Court’s statement in Demore that

“the legal system … is replete with situations requiring the making of difficult

judgments,” and that the Constitution does not prohibit “requiring parties to make

such choices.” See Gov. Response at 13-14 (citing 538 U.S. at 530 n.14 (citation

omitted)). But this statement was made against the backdrop of the Supreme

Court’s assumption that, even when administrative appeals are taken, detention

will last approximately five months. 538 U.S. at 530. It does not apply to

prolonged detention such as at issue here. See, e.g., Ly, 351 F.3d at 271-72; Alli,

644 F.Supp.2d at 545; Madrane, 520 F.Supp.2d at 666 (“fact that Petitioner

obtained continuances and prevailed on his claims before an IJ in having his status

adjusted do not serve to vitiate the Court's concern over what appears to be an

extraordinarily lengthy deprivation of liberty”); Oyedeji, 332 F.Supp.2d at 753; see

also Casas-Castrillon, 535 F.3d at 948-49 (detained noncitizen “whose case is


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being adjudicated before the agency for a second time” following circuit court

remand is entitled to bond hearing).6

As previously set forth, for prudential reasons among others, amici urge this

Court to adopt a rule that after six months of mandatory detention, an individual

should presumptively be afforded a bond hearing. See Amici’s Br. at 19-22. The

government fundamentally misconstrues this argument, suggesting that it is an

inappropriate attempt to import Zadvydas’ six month rule to the pre-final-order

detention context. Gov. Response at 10-12. But the presumption amici propose

derives principally from Demore itself, which assumed that pre-final order

detention typically lasts 45 days, or approximately five months in the small

minority of proceedings that involve appeals, as well as the fact that other

immigration statutes that authorize detention beyond six months do so explicitly.

See Amici’s Br. at 9, 20-22; see 8 U.S.C. §§1226A(a)(6), 1537(b)(2)(C).

Moreover, the presumption amici propose is fundamentally different from the one

in Zadvydas since it does not require release but merely a bond hearing. Indeed,

6 Equally unpersuasive is the government’s citation to speedy trial caselaw. See Gov. Response at 14. This caselaw is grounded in the Sixth Amendment right to a speedy trial (as compared to the Fifth Amendment right to due process when an individual is deprived of liberty) and addresses the narrow question of which pretrial delays count toward the speedy trial clock. Notably, in the criminal context defendants receive bond hearings to determine if they should be detained while awaiting trial – the very relief Mr. Diop seeks here.


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the presumption can be overcome if the government establishes that length of

detention is result of an individual engaging in intentionally dilatory conduct.

Based on the above analysis, Mr. Diop is entitled to a bond hearing. ICE has

already imprisoned him for nearly five times the average length of detention in

even “the minority of cases in which the alien chooses to appeal.” Demore, 538

U.S. at 530. Setting aside the question of precisely when a presumption should

arise that mandatory detention has become so prolonged as to require a bond

hearing, a two-year detention is such a severe liberty deprivation that it should

rarely if ever be permitted without an adjudication of criminal culpability, let alone

without an individualized bond hearing.

Moreover, Mr. Diop faces months if not years of continued detention until

his case is finally resolved. Although the government emphasizes that the IJ

ordered him removed during his third round of proceedings, the record lacks any

substantive information about the basis for the immigration judge’s decision. Mr.

Diop has appealed this decision and it is impossible to predict on this record which

party will prevail.7

7 Although the government speculates that Mr. Diop “would not likely have received the grant of relief from removal in the first instance if he had been up front about the nature of his controlled substance violation,” Gov. Response at 14, the record contains no evidence that Mr. Diop misled the IJ; indeed, the 1995 conviction had occurred fourteen years before the removal hearing at issue. See SA-2 at 18, Ellington Declaration, No. 04:CV-09-1489 (M.D. Pa.), Doc. No. 10,


13

III. Mr. Diop Does Not Fall within the Class of Noncitizens Subject to Mandatory Detention under §1226(c).

In addition to arguing that his mandatory detention has been unlawfully

prolonged, Mr. Diop argues that his mandatory detention was unlawful from the

beginning because he does not fall within the class of noncitizens properly subject

to §1226(c). SA-1 26, 28-298; Appellant’s Informal Brief at 15-16. Because Mr.

Diop is entitled to a bond hearing based solely on his prolonged detention, the

Court need not reach this claim. But if it does, it should clarify that mandatory

detention does not apply to individuals who have colorable claims that they are not

inadmissible or deportable on one of the grounds enumerated in the statute, and

does not apply retroactively to individuals who were released from custody for

enumerated convictions prior to the statute’s effective date.

A. Section 1226(c) Does Not Apply to Noncitizens Like Mr. Diop who Have Colorable Claims that They Are Not Inadmissible or Deportable on One of the Statute’s Enumerated Grounds.

As previously set forth, see Amici’s Br. at 25, 29, the mandatory detention

statute, §1226(c), applies to a noncitizen who “is inadmissible” or “is deportable”

on specific designated grounds. Although neither the statute nor the regulations

Ex. 3 at ¶ 2(g). Moreover, evidence the government recently introduced regarding this conviction would have been equally available to it at the time of the first removal hearing, yet ICE waited until after the second IJ hearing before moving to introduce this evidence.8 Pet’n (Doc. No. 1, 09-cv-1489 (M.D. Pa.) at 14, 16-17.


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define these terms, use of the word “is” suggests Congress did not intend the

statute to apply to individuals who may ultimately be found not deportable or

inadmissible on one of these grounds. Demore, 538 U.S. at 578-79 (Breyer, J.,

dissenting) (“ [§]1226(c) tells the Attorney General to ‘take into custody any alien

who … is deportable’ (emphasis added), not one who may, or may not, fall into

that category.”); Tijani, 430 F.3d at 1247 (Tashima, J., concurring).

Notably, the Supreme Court expressly left open this question in Demore,

because the petitioner in that case conceded that he was subject to the statute. 538

U.S. at 514 n.3.9 However, in a decision that preceded both Demore and Zadvydas,

the BIA construed §1226(c) as permitting mandatory detention of any individual

who is charged with inadmissibility or deportability on a designated ground, unless

he or she can show the government is “substantially unlikely to prevail” on the

charge. Matter of Joseph, 22 I.&N. Dec. 799, 807 (B.I.A. 1999).

This arbitrarily high standard runs afoul of both the statutory language and

the due process requirement that the government bear the burden for justifying

deprivations of liberty. See Tijani, 430 F.3d at 1246 (Tashima, J., concurring)

9 Although the government cites the Seventh Circuit’s decision in Gonzalez v. O’Connell as holding “that Joseph hearings and the administrative process provide aliens with constitutionally adequate reviews,” Gonzalez offered no judgment on the constitutional adequacy of this standard. Rather, the Court specifically noted that the question of whether mandatory detention violates due process as applied to an individual with a colorable challenge to deportability remains open after Demore. 355 F.3d 1010, 1019-20 (7th Cir. 2004).


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(“[T]he Joseph standard is not just unconstitutional, it is egregiously so. The

standard not only places the burden on the defendant to prove that he should not be

physically detained, it makes that burden all but insurmountable.”). See also

Gonzalez v. O’Connell, 355 F.3d 1010, 1019-20 (7th Cir. 2004) (noting that the

constitutionality of mandatory detention as applied to individuals with challenges

to deportability remains an open question after Demore). Thus the canon of

constitutional avoidance compels rejection of the Joseph standard and a holding

that 1226(c) authorizes the mandatory detention only of individuals with no

colorable challenge to inadmissibility or removability on grounds enumerated in

the statute. Because Mr. Diop has at least a colorable argument that his 2005

conviction for reckless endangerment is not a crime involving moral turpitude

(CIMT), he is not properly subject to the mandatory detention statute. See

Amici’s Br. at 27-29.

The government’s arguments to the contrary are without merit. First, the

government argues that Mr. Diop’s claim is not reviewable by this Court because

he seeks a determination of whether his 2005 conviction renders him inadmissible

on the basis of a CIMT, a determination that the government asserts is reviewable

only as part of a petition for review of a removal order. Gov Response to Amici at

18-20 (citing 8 U.S.C. §1252(a)(5), (b)(9)). This argument misconstrues Mr.

Diop’s legal challenge: he does not ask the Court to determine conclusively


16

whether his crime is a CIMT. Rather, he asks the Court to determine whether he

has a colorable challenge to his conviction being a CIMT, and if so, whether he is

“inadmissible” within the meaning of §1226(c), such that his mandatory detention

is lawful. The statutory provisions cited by the government limit only judicial

review of removal orders.10 But Mr. Diop is not challenging his removal order; he

is challenging his detention. See, e.g., Flores-Torres v. Mukasey, 548 F. 3d 708

(9th Cir. 2008) (1252(a)(5) and (b)(9) do not bar habeas petition challenging

detention even where detention authority is “intertwined” with questions at issue in

the removal proceedings); Salas Velazquez v. Moore, No. SA-08-CA-635-

XR(NSN), 2008 WL 4890587, at *2 (W.D. Tex. Nov. 10, 2008) (retaining habeas

jurisdiction over petitioner’s challenge to Joseph hearing); Nnadika v. Att’y. Gen.,

484 F.3d 626, 630 (3d Cir. 2007) (REAL ID Act applies only to challenges to a

final order of removal and not to “challenges made to other aspects of the

administrative proceeding”); see also Demore, 538 U.S. at 517 (repeal of habeas

jurisdiction requires “a particularly clear statement” by Congress); INS v. St. Cyr,

533 U.S. 289, 314 (2001) (same).

The government’s next argument -- that review should be denied because Mr

10 See Gov. Response at 18-19 (citing, inter alia, 8 U.S.C. §1252(a)(5)

(exclusive circuit court jurisdiction to review “an order of removal”), (b)(9) (consolidation of questions “arising from any action taken or proceeding brought to remove an alien”) (emphasis added); Jimenez v. Holder, 338 Fed. Appx. 194, 196 (3d Cir. 2009) (no habeas jurisdiction to vacate removal order)).


17

Diop failed to exhaust his administrative remedies before the IJ and BIA, Gov.

Response at 20-22 -- should also be rejected. First, the record before this court is

unclear as to whether or not Mr. Diop exhausted his remedies.11 Second, the

government waived this affirmative defense because it did not raise it in the court

below. See Gov. Response to Pet’n (Doc. No. 10, 09-cv-1489 (M.D. Pa.)); see

also Ray v. Kertes, 285 F.3d 287, 295 (3d Cir. 2002) (even statutorily required

exhaustion is an affirmative defense). And third, exhaustion is not statutorily

required. In contrast to other provisions of the INA, Congress did not mandate that

administrative remedies be exhausted before a petitioner seeks judicial review of

detention under §1226(c). See Gonzalez, 355 F.3d at 1016. Thus, exhaustion is a

matter of “sound judicial discretion,” McCarthy v. Madigan, 503 U.S. 140, 144-49

(1992), superseded by statute on other grounds as stated in Booth v. Churner, 532

U.S. 731, 739-41 (2001), and subject to exceptions on the grounds of futility or

irreparable harm. In Mr. Diop’s case, both exceptions apply. Exhaustion would

have been futile because the administrative body has “predetermined the issue[s]

before it.” McCarthy, 503 U.S. at 148; see, e.g., Matter of Joseph, 22 I. & N. Dec. 11 Specifically, the government’s assertion that Mr. Diop was afforded a Joseph hearing in which he had the opportunity to raise his claim that his 2005 conviction is not a CIMT finds no support in the record. Compare Gov. Response at 6-8 (citing Ellington Declaration, No. 04:CV-09-1489 (M.D. Pa.), Doc. No. 10, Ex. 3 at ¶ 2(d)) with SA-2 at 18, Ellington Decl. ¶2.d (stating merely that on May 27, 2008, “a master calendar was held” and the “respondent was denied bond”). In addition, Mr. Diop was pro se and there is no evidence the IJ ever informed him of his right to contest the finding that he was subject to mandatory detention.


18

799, 806 (B.I.A. 1999). Additionally, requiring Mr. Diop to exhaust these claims

while remaining in detention would subject him to irreparable harm. See Grant v.

Zemski, 54 F.Supp.2d 437, 442 (E.D. Pa. 1999).

Finally, in the event that Mr. Diop’s claim is reviewable, the government

argues that his 2005 conviction is in fact a CIMT and thus he is properly subject to

1226(c). But as previously explained, the question before this Court is not whether

Mr. Diop’s conviction would ultimately be found to be a CIMT, but only whether

he has a colorable claim that it is not. If he does have such a colorable claim –

which the government essentially conceded in its answering brief, see Amici’s Br.

at 28 – then the question this Court must decide is whether an individual with a

colorable challenge to inadmissibility is “inadmissible” for purposes of §1226(c)

and thereby subject to mandatory detention.

Mr. Diop has a colorable claim that his conviction is not a CIMT. The

statute under which he was convicted requires only a mens rea of recklessness,

without the statutory aggravating factors required for such a crime to become a

CIMT. Amici’s Br. at 27 (citing Knapik v. Ashcroft, 384 F.3d 84, 89-90 (3d Cir.

2004)). The government argues that the statute satisfies Knapik’s requirement of

“aggravating factors” because it defines recklessness as “conscious disregard of a

substantial and unjustifiable risk.” Gov Response to Amici at 24 (citation omitted).

But the New York statute at issue in Knapik included the same definition of


19

recklessness. See N.Y. Penal Law §15.05 (in defining the term “recklessly,”

requiring that one “consciously disregards a substantial and unjustifiable risk …”).

Yet this Court did not find this element of the definition sufficient to render the

crime one of moral turpitude. Instead it based its ruling on additional aggravating

factors that are not found in the Pennsylvania statute. See Knapik, 385 F.3d at 90

(“the elements of depravity, recklessness and grave risk of death, when considered

together, implicate accepted rules of morality and the duties owed to society.”)

(emphasis added) Thus, contrary to the government’s argument, the Pennsylvania

statute remains materially distinguishable from the statute held to be a CIMT in

Knapik.12

B. Section 1226(c) Does Not Apply Retroactively to Noncitizens Like Mr. Diop Who Were Released From Custody for an Enumerated Offense Prior to the Statute’s Effective Date.

The government argues that if this Court were to find that Mr. Diop is not

subject to mandatory detention on the basis of his 2005 conviction, it should still

find that he is subject to mandatory detention on account of his 1995 conviction,

based on the BIA’s decision in Matter of Saysana and principles of Chevron

deference. Gov. Response at 27-29. In repeating this argument, however, the

government never addresses the fact that virtually every court to consider this issue 12 The Government also argues that the statute at issue here is “not in the same category” as the New York attempted reckless endangerment offense in Knapik. Gov. Response at 26. This argument is a red herring as amici make no argument with respect to an attempted reckless endangerment offense.


20

has rejected this argument, finding that the Board’s decision is contrary to the plain

language of the statute. Moreover, the government itself has asked the Board to

revisit its decision. See Amici’s Br. at 26-27.

CONCLUSION

For all of the reasons set forth above, and for the reasons set forth in the

Brief of Amici Curiae, this Court should grant Mr. Diop’s habeas petition and

order that he receive an immediate bond hearing where the government bears the

burden of demonstrating that his continued detention is justified.

Dated: June 21, 2010

Respectfully submitted,

/s/ Judy RabinovitzJudy RabinovitzFarrin R. AnelloTanaz MoghadamAMERICAN CIVIL LIBERTIES

UNION FOUNDATIONIMMIGRANTS' RIGHTS PROJECT125 Broad Street, 18th FloorNew York, NY 10004Tel.: (212) 549-2618Fax: (212) 549-2654

Witold WalczakMary Catherine RoperValerie Burch American Civil Liberties UnionFoundation of Pennsylvania 313 Atwood StreetPittsburgh, PA 14213

Attorneys for Court-Appointed Amicus Curiae


CERTIFICATE OF COMPLIANCE

I, Judy Rabinovitz, hereby certify that:

1. In accordance with Federal Rule of Appellate Procedure

32(a)(5)-(7), that the text of the foregoing reply brief, excluding the Table of

Contents, the Table of Authorities, and the Certificate of Compliance and

Service, contains 4,996 words of proportional spacing as determined by the

automated word count feature of Microsoft Office Word 2003 and is printed

in 14-point type.

2. The hard copy and the electronic copy of the Brief for Amici

Curiae American Civil Liberties Union Foundation and American Civil

Liberties Union Foundation of Pennsylvania, filed on June 21, 2010, are

identical.

3. This file has been scanned for viruses and no virus was

detected.

Dated: June 21, 2010 /s/ Judy RabinovitzJudy Rabinovitz


ADDENDUM OF UNPUBLISHED CASES(In Alphabetical Order)


Page 1

Not Reported in F.Supp.2d, 2008 WL 4890587 (W.D.Tex.)(Cite as: 2008 WL 4890587 (W.D.Tex.))

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

Only the Westlaw citation is currently available.

United States District Court,W.D. Texas,

San Antonio Division.Luis Gerardo SALAS VELAZQUEZ, Petitioner

v.Marc MOORE, Field Office Director for Detention and Removal, U.S. Immigration and Customs En-forcement, Department of Homeland Security and

Gary Gomez, Warden, South Texas Detention Com-plex, Respondents.

Civil Action No. SA-08-CA-635-XR (NSN).

Nov. 10, 2008.

West KeySummaryHabeas Corpus 197 282

197 Habeas Corpus 197I In General 197I(C) Existence and Exhaustion of Other Remedies 197k275 Particular Issues and Problems 197k282 k. Aliens. Most Cited Cases

An alien's habeas corpus claim arising out of his mandatory detention because he had previously been convicted of assault in the United States could not be dismissed on the ground of failure to exhaust the claim before an immigration judge. As an arriving alien, the alien could not have an immigration judge determine whether he was properly included in the mandatory detention category. 28 U.S.C.A. §§ 2241; Immigration and Nationality Act, §§ 101(a)(13)(C)(v), 212(a)(2), 235(b)(2)(A,), 8 U.S.C.A. §§ 1101(a)(13)(C)(v), 1182(a)(2), 1225(b)(2)(A).

Alfonso Otero, Gonzalez and Otero, L.L.C., Javier N. Maldonado, Law Office of Javier N. Maldonado, P.C., San Antonio, TX, for Petitioner.

Gary L. Anderson, Assistant United States Attorney, San Antonio, TX, for Respondents.

U.S. MAGISTRATE JUDGE'S REPORT AND

RECOMMENDATION

NANCY STEIN NOWAK, United States Magistrate Judge.

*1 To: The Honorable Xavier Rodriguez, U.S. District Judge

Before the Court is Petitioner Luis Gerardo Salas Velazquez's 28 U.S.C. § 2241 Habeas Corpus Peti-tion challenging his mandatory detention without a bond determination during removal proceedings. This Report and Recommendation is submitted pursuant to 28 U.S.C. § 636(b)(1). It addresses only the jurisdic-tional arguments presented to the Court through re-spondents' motion to dismiss.

Statement of the Case

Petitioner is a national and citizen of Mexico who was admitted to the United States as a lawful perma-nent resident in 1990. On July 5, 2008, Petitioner was a passenger on a bus at the Juarez Lincoln Bridge in Laredo and sought to enter the United States from Mexico. A Notice to Appear was issued alleging Peti-tioner was an arriving alien who was convicted of “aggravated assault-non family-weapon/felony” in Nebraska in 1995, and was thus subject to removal under Immigration and Nationality Act (INA) § 212(a)(2)(A) (i)(I) (alien convicted of crime of moral turpitude). Petitioner requested a bond hearing. The Immigration Judge denied Petitioner's request for bond because Petitioner was being charged as an ar-riving alien and, therefore, the Immigration Judge lacked jurisdiction to issue a bond.

Petitioner complains he should not be classified as an arriving alien subject to mandatory detention. Peti-tioner asserts his constitutional rights are being vio-lated, and he seeks an order compelling an individu-alized custody re-determination hearing before an immigration judge.

Petitioner is charged as an arriving alien under INA § 101(a) (13)(C)(v) (8 U.S.C. § 1101(a)(13)(C)(v)) for having a conviction for an offense identified under INA § 212(a)(2) (8 U.S.C. § 1182(a)(2)). As an arriv-


Page 2



ing alien, Petitioner is being mandatorily detained under 8 U.S.C. § 1225(b)(2) pending removal pro-ceedings.

Prior to the April 1, 1997, effective date of Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), 110 Stat. 3009 (1996), for-mer 8 U.S.C. § 1101(a)(13) provided:

The term “entry” means any coming of an alien into the United States, from a foreign port or place or from an outlying possession, whether voluntarily or otherwise, except that an alien having a lawful permanent residence in the United States shall not be regarded as making an entry into the United States for the purposes of the immigration laws if the alien proves to the satisfaction of the Attorney General that his departure to a foreign port or place or to an outlying possession was not intended or reasonably to be expected by him ....

Under that statute, the Supreme Court held that, with some exceptions, a lawful permanent resident does not make an “entry” when returning from “an inno-cent, casual, and brief excursion” from outside the United States. Rosenberg v. Fleuti, 374 U.S. 449, 83 S.Ct. 1804, 10 L.Ed.2d 1000 (1963).

Now, however, § 1101(a)(13)(C)(v) provides, “An alien lawfully admitted for permanent residence in the United States shall not be regarded as seeking an admission into the United States for purposes of the immigration laws unless the alien-has committed an offense identified in section 1182(a)(2) of this title, unless since such offense the alien has been granted relief under section 1182(h) or 1229b(a) of this title.”Section 1182(a)(2)(A)(i) (I) provides, “[A]ny alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of-a crime involving moral turpi-tude ... is inadmissible.” Section 1225(b)(2)(A) pro-vides, “[I]n the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under section 1229a of this title .”

*2 The IIRIRA has superseded Fleuti, so there is no longer an inquiry into the intent of a lawful perma-nent resident's trip abroad. Malagon De Fuentes v.

Gonzales, 462 F.3d 498, 501-02 (5th Cir.2006). Peti-tioner argues that the application of the current ver-sion of 8 U.S.C. § 1101(a)(13) to a lawful permanent resident alien such as him, with a conviction prior to the effective date of that provision, is impermissibly retroactive, relying on Olatunji v. Ashcroft, 387 F.3d 383 (4th Cir.2004). Instead, Petitioner contends his case should be controlled by Fleuti. Since he is not an arriving alien, Petitioner's argument goes, he is not subject to mandatory detention.

Petitioner seeks habeas relief under 28 U.S.C. § 2241. That statute provides that the Court may grant habeas relief for persons in custody in violation of the constitution or laws of United States. Petitioner claims that his right to substantive and procedural due process guaranteed by the Fifth Amendment of the United States Constitution has been violated by respondent's classification of petitioner as an arriving alien and his detention without an individualized de-termination of his qualification for bond pending the completion of the removal proceedings.

Motion to Dismiss

In their motion to dismiss respondents argue that this Court lacks jurisdiction under 8 U.S.C. §§ 1252(b)(9)and 1252(g). However, those provisions only apply when there is a final order of removal. Kambo v. Poppell, 2007 WL 3051601 (W.D.Tex. October 18, 2007) (citing Nnadika v. Attorney General, 484 F.3d 626 (3d Cir.2007); Madu v. U.S. Attorney General,470 F.3d 1362 (11th Cir.2006); Nadarajah v. Gonza-les, 443 F.3d 1069 (9th Cir.2006); Hernandez v. Gonzales, 424 F.3d 42 (1st Cir.2005)). This case does not concern review of a final order of removal, so § 1252(b)(9) and § 1252(g) do not deprive this Court of habeas jurisdiction.

Respondents further contend Petitioner's claim is unexhausted because an immigration judge has juris-diction to determine whether Petitioner is properly classified as an arriving alien. In many cases in which a person is mandatorily detained, the detainee may request a Joseph hearing. Matter of Joseph, 22 I. & N. Dec. 799 (BIA 1999). At such a hearing, the de-tainee may “raise any nonfrivolous argument avail-able to demonstrate that he was not properly included in a mandatory detention category.” Demore v. Kim,538 U.S. 510, 514, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003). However, a detainee who is designated an


Page 3



arriving alien cannot have an immigration judge de-termine whether the detainee is properly included in that category. “[A]n immigration judge may not rede-termine conditions of custody imposed by the Service with respect to [a]rriving aliens in removal proceed-ings....” 8 C.F.R. § 1003.19(h)(2)(i)(b). Although an immigration judge can determine whether a person is properly included within several categories, that of an arriving alien is not among them. 8 C.F.R. § 1003.19(h)(2)(ii). See Garza-Garcia v. Moore, 539 F.Supp.2d 899, 902, 906-07 (S.D.Tex.2007); In re Saint Fleury, 2008 WL 2783096 (BIA June 12, 2008). Because Petitioner cannot raise his claim be-fore the immigration judge, it follows that he cannot exhaust his claim in that fashion. Consequently, it is recommended that this Court decline to dismiss Peti-tioner's claim as unexhausted.

RECOMMENDATION:

*3 For the reasons stated above, I recommend that this Court has jurisdiction to consider Velazquez's § 2241 Petition and that respondents' motion be denied insofar as it seeks dismissal on this basis.FN1

FN1. On this date I have scheduled this case for evidentiary hearing on December 1, 2008 to allow petitioner an opportunity to establish “actual, subjective reliance” in or-der to determine whether IIRIRA may be retroactively applied so as to preclude con-sideration of bond pending removal pro-ceedings.

Instructions for Service and Objections:

The United States District Clerk shall serve a copy of this Report and Recommendation on all parties who have entered an appearance, by either (1) electronic transmittal to all parties represented by attorneys reg-istered as a “Filing User” with the Clerk of Court, or (2) by mailing a copy to those not registered by certi-fied mail, return receipt requested.

Pursuant to 28 U.S.C. § 636(b)(1) any party who de-sires to object to this Report and Recommendation must file with the Clerk of this Court and serve the Magistrate Judge and all parties with written objec-tions to the findings and recommendation included above within ten (10) days after being served with a copy of this Report and Recommendation. See United

States v. Wilson, 864 F.2d 1219, 1221 (5th Cir.), cert. denied, 492 U.S. 918, 109 S.Ct. 3243, 106 L.Ed.2d 590 (1989). A party filing objections must specifi-cally identify those findings, conclusions or recom-mendations to which objections are being made and the basis for such objections; the District Court need not consider frivolous, conclusive or general objec-tions. Failure to file written objections to the pro-posed findings, conclusions, and recommendations contained in this report within ten (10) days after being served with a copy, shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are ac-cepted by the District Judge, except for plain error. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir.1996) (en banc).

W.D.Tex.,2008.Salas Velazquez v. MooreNot Reported in F.Supp.2d, 2008 WL 4890587 (W.D.Tex.)

END OF DOCUMENT


CERTIFICATE OF SERVICE

I, Molly Lauterback, declare as follows:

I am employed in the City, County and State of New York, in the

office of one of amici curiae’s counsel at whose direction the following

service was made. I am over the age of eighteen years and am not a party to

the within action. My business address is the American Civil Liberties

Union Foundation, Immigrants’ Rights Project, 125 Broad Street, 18th Floor,

New York 10004.

On the 21st day of June, 2010, I sent a copy of the foregoing

Reply Brief of Amici Curiae by United Postal Service, addressed to the

following:

Stephen R. Cerutti, II, Esq. Dennis C. Pfannenschmidt, Esq.Office of United States Attorney Office of United States Attorney228 Walnut Street, P.O. Box 11754 228 Walnut Street, P.O. Box 11754220 Federal Building and Courthouse 220 Federal Building and CourthouseHarrisburg, PA 17108-0000 Harrisburg, PA 17108-0000

Nicole Prairie, Esq. Cheikh DiopUnited States Department of Justice A97-702-755Office of Immigration Litigation York County PrisonP.O. Box 868 3400 Concord RoadBen Franklin Station York, PA 17402Washington, DC 20001

On the same date, this brief was filed electronically through the United

States Court of Appeals for the Third Circuit CM/ECF system. I declare


under penalty of perjury under the laws of the State of New York that the

above is true and correct.

Dated: June 21, 2010

/s/ Molly Lauterback Molly Lauterback


Documents

IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD ... · 21.06.2012 · CHEIKH DIOP, a/k/a Ibou Ndiaya, a/k/a Ebou Njie Agency No. A 097-702-755 Petitioner-Appellant, v. UNITED