CONSTITUTIONAL LAW - Case-By-Case Test Applies to Determine Whether Mandatory Detention Violates Due Process Rights - Sopo v. United States AG.

• Author: Dimauro, Michael
• Position: Case note

CONSTITUTIONAL LAW--Case-By-Case Test Applies to Determine Whether Mandatory Detention Violates Due Process Rights--Sopo v. United States AG, 825 F.3d 1199 (11th Cir. 2016).

The Fifth Amendment to the United States Constitution provides due process rights to citizens and non-citizens in the United States. (1) Pursuant to 8 U.S.C. [section] 1226, a non-citizen can be detained during removal proceedings, but constitutionally there is "an implicit temporal limitation" in 8 U.S.C. [section] 1226(c) where the government has to provide criminal non-citizens a bond hearing if their detention has been unreasonably prolonged. (2) In Sopo v. United States AG, (3) the Eleventh Circuit Court of Appeals, in a case of first impression, dealt with the issue of whether a criminal non-citizen who has been detained under 8 U.S.C. [section] 1226(c) can receive a bond hearing due to the Due Process Clause. (4) The Eleventh Circuit vacated the district court's order and remanded to enter a judgment in the appellant's favor due to the fact that he was detained for an unreasonable amount of time without a bond hearing in violation of the Due Process Clause. (5)

Maxi Dinga Sopo was a native of Cameroon and fled to the United States in May 2003 to apply for asylum because he was being persecuted due to his political affiliations with the Bali Catholic Youth Association and the Southern Cameroons National Council. (6) Upon entering the United States, Sopo was granted asylum in 2004. (7) However, Sopo was arrested in 2010, pled guilty to bank fraud, and sentenced to serve 33 months in prison. (8) Once Sopo served his sentence, the U.S. Immigration and Customs Enforcement (ICE) detained him on February 2, 2012, pursuant to 8 U.S.C. [section] 1226(c) because as an aggravated felon, he was subject to removal. (9)

Since immigration authorities arrested Sopo in 2012, his removal proceeding has been before the Board of Immigration Appeals (BIA) for four rounds of review. (10) However, separate from Sopo's ongoing removal proceeding in the BIA, Sopo filed a petition for a writ of habeas corpus in the United States District Court for the Middle District of Georgia in May 2013 to obtain a bond hearing. (11) The district court dismissed Sopo's petition and he immediately filed an appeal to the Eleventh Circuit Court of Appeals. (12) The Eleventh Circuit vacated the district court's order and remanded with instructions to grant Sopo an individualized bond hearing because the "case-by-case" test demonstrates that Sopo's detention was unreasonably prolonged and in violation of his due process rights implicit in 8 U.S.C. [section] 1226(c). (13)

Despite the enactment of 8 U.S.C. [section] 1226 and 8 U.S.C. [section] 1231, which deal with the detention of criminal and non-criminal immigrants, the United States Supreme Court determined the constitutionality of these statutes in two landmark cases. (14) First, in Zadvydas v. Davis, (15) the U.S. Supreme Court had to decide whether 8 U.S.C. [section] 1231(a)(6) constitutionally allowed the Attorney General to continue to detain criminal non-citizens indefinitely past the ninety-day removal period. (16) The U.S. Supreme Court ruled that there was "an implicit reasonable time limitation" of six months under 8 U.S.C. [section] 1231(a)(6) and that any time after this would be unreasonable and a violation of the non-citizen's due process rights unless there is a likelihood of removal in the foreseeable future. (17) Second, in Demore v. Hyung Joon Kim, (18) the U.S. Supreme Court dealt with the constitutionality of mandatory detention under 8 U.S.C. [section] 1226(c) and whether it was constitutional to detain a criminal non-citizen for the whole removal proceeding without a bond hearing. (19) The Court held that mandatory detention in 8 U.S.C. [section] 1226(c) was constitutional because it prevented criminal non-citizens from engaging in more crimes before their removal and the average length of detention for criminal non-citizens was less than 90 days. (20)

While the U.S. Supreme Court upheld the constitutionality of mandatory detention under 8 U.S.C. [section] 1226(c) in Demore, several U.S. Courts of Appeals around the country have concluded that there is "an implicit temporal limitation" underlying mandatory detention in order for criminal non-citizens to receive a bond hearing after a reasonable amount of time. (21) These circuits are using present-day statistics in order to show that criminal non-citizens are being detained for prolonged periods of time because of backlog in immigration proceedings, unlike in 2003 when Demore was decided. (22) Furthermore, not only have circuits ruled that mandatory detention under 8 U.S.C. [section] 1226(c) can become unconstitutional if a criminal non-citizen has been detained for an unreasonable amount of time without a bond hearing, some circuits have also held that there is "an implicit temporal limitation" because there is no clear intent on the part of Congress to allow the Attorney General to detain criminal non-citizens indefinitely. (23)

To decide whether mandatory detention under 8 U.S.C. [section] 1226(c) has violated a criminal non-citizen's due process rights, courts such as the Second and Ninth Circuits have used a "bright-line" test to show that detention without a bond hearing past six months is unreasonably prolonged (24) Circuits that use the "bright-line" test apply a six-month rule to mandatory detention and also place the burden of proof on the government during bond hearings so that the government can provide evidence that the detainee should continue to be imprisoned because of his or her flight risk or danger to the community. (25) On the other hand, courts such as the First, Third, and Sixth Circuits have bypassed the "bright-line" test for the "case-by-case" approach when deciding the point in which detention has become unreasonable. (26) Courts often apply certain reasonableness factors to the "case-by-case" test in order to determine whether a detainee's individualized imprisonment has been unnecessarily prolonged. (27) However, it is important to note that the U.S. Supreme Court recently decided Jennings v. Rodriguez, in which the Court held in a 5-3 decision that Congress did not permit bond hearings after six months in detention under 8 U.S.C. [section] 1226(c). (28)

In Sopo v. United States AG, (29) the Eleventh Circuit Court of Appeals determined whether there is "an implicit temporal limitation" for mandatory detention in 8 U.S.C. [section] 1226(c) and if the "case-by-case" or "bright-line" test applies when a non-citizen has been detained for an unreasonable amount of time without a bond hearing in violation of due process rights. (30) The Eleventh Circuit Court of Appeals joined five other circuits in ruling that there is "an implicit temporal limitation" for mandatory detention, where a bond hearing is necessary after a reasonable amount of time. (31) It also agreed with the First, Third, and Sixth Circuits when it comes to using the "case-by case" test instead of the "bright-line" test to determine at which point mandatory detention has become unreasonably prolonged in violation of a non-citizen's due process rights. (32) Furthermore, the Court made it a priority to describe the flexible benefits that the "case-by-case" test provides for justices who have to decide whether mandatory detention has become unreasonable. (33)

Not only did the Eleventh Circuit reason that there is "an implicit temporal limitation" for mandatory detention in 8 U.S.C. [section] 1226(c) and that the "case-by-case" test should be used, but it also looked at certain reasonableness factors to be included in the "case-by-case" analysis such as the amount of time the non-citizen has been detained without a bond hearing and the reason why the removal proceeding has been prolonged. (34)

The Court reasoned that Sopo was able to satisfy these two important requirements due to the fact that he was detained for four years without a bond hearing and the bulk of the delay in the removal proceedings came from circumstances that were out of his control. (35) After deciding there was "an implicit temporal limitation" in 8 U.S.C. [section] 1226(c) and that the "case-by-case" test applied to mandatory detention, the Eleventh Circuit ultimately came to the conclusion that Sopo's detention was unreasonable and ordered the government to grant him an individualized bond hearing immediately. (36)

The Eleventh Circuit Court of Appeals, prior to the ruling handed down in Jennings v. Rodriguez, correctly vacated the district court's order denying Sopo a bond hearing and entered a judgment in his favor because it accurately applied precedent from the U.S. Supreme Court and the other circuits regarding "an implicit temporal limitation" for mandatory detention under 8 U.S.C. [section] 1226(c). (37) The Eleventh Circuit properly interpreted Demore in that mandatory detention is not indefinite but only for a reasonable amount of time. (38) Moreover, the Eleventh Circuit correctly used precedent from the other circuits to rule that mandatory detention can become unconstitutional if it has been unreasonably prolonged without a bond hearing. (39)

Based on statutory interpretation, the Eleventh Circuit properly ruled against the "bright-line" test when it comes to indefinite mandatory detention under 8 U.S.C. [section] 1226(c). (40) However, since the U.S. Supreme Court recently remanded Jennings v. Rodriguez, (41) to the Ninth Circuit regarding any constitutional issues to mandatory detention, detaining a criminal noncitizen indefinitely without a six-month "bright-line" rule is a violation of constitutional protections. (42) Moreover, even though the U.S. Supreme Court ruled against the "bright-line" test statutorily after Sopo was decided, the Eleventh Circuit should have adopted the "bright-line" test instead of the "case-by-case" test because constitutionally the...