APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Michael A. Ponsor, U.S. District Judge]
Elianis N. Perez, Senior Litigation Counsel, with whom Joyce Branda, Acting Assistant Attorney General, Civil Division, William C. Peachey, Director, Office of Immigration Litigation, District Court Section, Colin A. Kisor, Deputy Director, and Regan Hildebrand, Senior Litigation Counsel, Officer of Immigration Litigation, District Court Section, were on brief, for appellant.
Anant K. Saraswat and Swapna C. Reddy, Law Student Intern, with whom Mark C. Fleming, Wilmer Cutler Pickering Hale and Dorr LLP, Ahilan T. Arulanantham, Michael Tan, ACLU Immigrants' Rights Project, Nicole Hallett, Supervising Attorney, Michael Wishnie, Supervising Attorney, Conchita Cruz, Law Student Intern, Grace Kao, Law Student Intern, Lunar Mai, Law Student Intern, My Khanh Ngo, Law Student Intern, Ruth Swift, Law Student Intern, and Jerome N. Frank Legal Services, were on brief, for appellee.
Before Howard, Chief Judge, Selya and Stahl, Circuit Judges.
STAHL, CIRCUIT JUDGE.
Under 8 U.S.C. § 1226(c), aliens who have committed certain criminal offenses are subject to mandatory detention after serving their criminal sentence and pending their removal proceedings. Petitioner, a lawful permanent resident, committed such offenses, served his sentence, and then was held under § 1226(c) without an individualized showing that he posed a flight risk or danger to society and without an opportunity to seek release on bond. After eight months, Petitioner challenged his continuing detention and filed a class action on behalf of himself and similarly situated noncitizens held for over six months.
The district court held that detention pursuant to § 1226(c) for over six months was presumptively unreasonable and granted summary judgment to the class, thereby entitling each class member to a bond hearing. With respect to Petitioner, the court also held, in the alternative, that the individualized circumstances of his case rendered his detention unreasonable. Finally, the court declined to mandate certain procedural protections for the class members' bond hearings. We affirm the judgment with respect to Petitioner, vacate the judgment with respect to the class members, and remand the class action for reconsideration of the district court's class certification.
I. Facts & Background
The U.S. Department of Homeland Security ("DHS") generally has the discretionary authority to detain an alien during removal proceedings. 8 U.S.C. § 1226(a). An alien that U.S. Immigration and Customs Enforcement ("ICE") decides to detain under § 1226(a) may seek a bond hearing before an immigration judge ("IJ") to show that he or she is not a flight risk or a danger. 8 C.F.R. § 236.1(c)(8). For aliens who have committed certain criminal or terrorist offenses, however, Congress made detention during removal proceedings mandatory, except for witness protection purposes. 8 U.S.C. § 1226(c).
Mark Anthony Reid ("Reid" or "Petitioner") came to the United States in 1978 as a lawful permanent resident. Between 1978 and 1986, Reid served in the U.S. Army, pursued post-secondary education, was employed as a loan originator, worked in construction, and owned and rented several properties. Following a conviction for narcotics possession in 1986, however, Reid amassed an extensive criminal record, including larceny, assault, drug and weapon possession, failure to appear, interfering with an officer, driving on a suspended license, selling drugs, violation of probation, and burglary.
After being released from criminal custody on November 13, 2012, Reid was detained by ICE under § 1226(c) without bond pending immigration removal proceedings. Reid conceded the factual allegations underlying his removability charges, but sought relief from removal on two grounds: (1) that the Convention Against Torture ("CAT") applied, and (2) that removal was a disproportionate punishment for his crimes.
At several IJ hearings held between February 13, 2013 and March 11, 2013, Reid presented evidence in support of his application for relief from removal. On April 5, 2013, the IJ denied Reid's application and ordered him removed to Jamaica. Reid filed a notice of appeal to the Board of Immigration Appeals ("BIA") on May 5, 2013. On October 23, 2013, nearly half a year after the IJ's decision and nearly a full year after Reid's detention began, the BIA reversed and remanded the case for further proceedings related to Reid's CAT claim. On December 17, 2013, the IJ again denied Reid's CAT claim. Reid appealed again and, on December 29, 2014, the BIA found error and remanded the case once more.
Between his first appeal and the BIA's first remand, Reid filed the present habeas corpus petition along with a class-action complaint in the United States District Court for the District of Massachusetts. Reid contends that he and other similarly situated noncitizens cannot be held under § 1226(c) in prolonged detention without an individualized bond hearing to ascertain individual flight or safety risk. Reid argues that § 1226(c) contains an implicit "reasonableness" requirement and should be read to authorize mandatory detention only up to six months, at which time the government must provide a bond hearing. At the bond hearing, Reid argues, the government must bear the burden of presenting clear and convincing evidence that detention remains necessary. What is more, Reid contends that the government must employ the least restrictive means available to prevent the alien's flight or danger to the community.
On January 9, 2014, the district court granted Reid's habeas petition and held that § 1226(c) only authorizes mandatory detention for a reasonable period of time. Reid v. Donelan (Reid I), 991 F.Supp.2d 275, 278-79 (D. Mass. 2014). The court further held that detention over six months was presumptively unreasonable absent individualized justification. Id. at 279-81. The court also noted that even if no such presumption applied, the individualized circumstances of Reid's case rendered his continued detention unreasonable. Id. at 281-82. The court ordered the government to set a hearing and to determine whether conditions could be placed upon Reid's release to reasonably account for any flight or safety risks. Id. at 282. On February 25, 2014, Reid posted bond and was released after 400 days of civil detention, subject to electronic monitoring, monthly reporting, and other conditions.
On May 27, 2014, the district court granted summary judgment in the related class action and ordered bond hearings for all class members. Reid v. Donelan (Reid II), 22 F.Supp.3d 84, 93-94 (D. Mass. 2014). The court reiterated its holding that § 1226(c) only justifies mandatory detention for a period of six months, at which time the detention becomes presumptively unreasonable absent an individualized showing at a bond hearing. Id. at 88. However, the court declined to adopt any specific procedural protections for the bond hearings themselves. Id. at 92-93. The court observed that aliens detained under § 1226(a) bore the burden of proof at their bond hearings, and "individuals who committed a § 1226(c) predicate offense should not receive more protections than § 1226(a) detainees." Id. at 92.
The government appeals the lower court's determination that § 1226(c) contains an implicit reasonableness requirement, that any detention under § 1226(c) is presumptively unreasonable after six months, and that Reid's specific detention had become unreasonable. Reid cross-appeals the lower court's class determination that bond hearings for aliens held pursuant to § 1226(c) do not require specific procedural protections.
Until the late 1980s, the Attorney General had broad authority to take aliens into custody during their removal proceedings and to release those aliens in his discretion. See Demorev.Kim, 538 U.S. 510, 519 (2003) (citing 8 U.S.C. § 1252(a) (1982)). Over time, Congress became concerned that criminal aliens too often obtained release and were thereby able to evade removal and continue committing crimes. See id. at 518-21. In response, "Congress limited the Attorney General's discretion over custody determinations with respect to deportable aliens who had been convicted of aggravated felonies" and then expanded the definition of "aggravated felonies" in subsequent legislation to subject more criminal aliens to mandatory detention. Id. at 520-21. "At the same time, however, Congress . . . ...