Diouf v. Napolitano (9th Cir. 3/7/2011)

The Ninth Circuit has previously ruled that a person who is in detention and has been ordered deported, but who has filed an appeal of the deportation order, is entitled to a bond hearing before an immigration judge to determine whether or not continued detention is appropriate because such person is dangerous or a flight risk.  The court has followed that decision in a case with different, but related circumstances.  The court ruled that a person in prolonged detention, who has a final deportation order against him, but who has filed a motion to reopen his case, is also entitled to a similar bond hearing.

The differences are not exactly breathtaking, except to those who practice immigration law (and those who are detained).  The issue arises out of motions and procedural rules, topics which are not dear and near to anyone except lawyers.  Nonetheless, the ruling is important, because it implicates the rights of two classes of people in similar circumstances, but who have legally distinct rights.  Before the Ninth Circuit issued its ruling on this case, DHS treated people who have removal orders against them, but who are appealing such orders, differently than those people who have final removal orders against them, but who are trying to reopen their cases.  The reason being is that even though a person in removal proceedings may have lost his case and the judge issued a removal order against him, the order does not become administratively “final” until all appeals have been exhausted (or waived).  An appeal of an order before it become final is a “direct” appeal.  On the other hand, a person who has a final removal order against him is in a different legal position because he cannot appeal the removal order; he can only file a motion to reopen his case based upon other circumstances.  This is known as a collateral attack.  Most motions to reopen are unsuccessful because their bases are narrow in scope.  There are only a small number of reasons by which such a motion may be granted. 

People who are directly appealing an order, and who are in detention, are afforded a bond hearing before an immigration judge to determine whether or not their continued detention is appropriate.  Their prospects of a successful appeal are greater because their appeals may be based on a larger number of grounds.  According to the immigration regulations, the only reason why such a person should continue to be detained is because he presents a danger to himself or others, or because he presents a flight risk.  Meaning, he will try to evade the authorities by fleeing.  The government has the burden of establishing the need for detention.

People who were collaterally appealing a final removal order, and who were in detention, were not afforded such a hearing.  The government could keep him in detention as long as it wants and he would have very little opportunity to challenge the detention.  Sometimes such a person could be detained for months or even years.  The petitioner in this case was in such circumstances.  He came to the U.S. on a student visa in 1996.  The visa expired in 2002.  The same year, he was convicted of possession of a small amount of marijuana.  The government placed him in detention and initiated removal proceedings against him on the bases that he overstayed his nonimmigrant visa, and he was convicted of a controlled substance offense.  The immigration judge found the petitioner removable, and issued a removal order and allowed him to voluntarily depart.  The petitioner waived his appeal of the order.  After he was released from detention for voluntary departure, he married a U.S. citizen.  He sought to reopen his immigration hearing in order to adjust status based upon his marriage.  His lawyer never submitted the necessary paperwork to file the motion to reopen.  The period for the petitioner to voluntarily depart expired, and DHS put him back into detention.  At that point, he no longer had a viable appeal of his removal order because it had become finalized.  The only recourse he had left was to file a motion to reopen based on the fact that his lawyer had failed to do his job competently.

For persons such as the petitioner, DHS has a policy which would have guaranteed his continued detention.  He was not permitted to plead his case for freedom to a neutral judicial officer, such as an immigration judge.  DHS had the last say on whether or not he is allowed to be released.  The great majority of the time, a person in similar circumstances would be held in detention indefinitely.

This ruling changes all that.  The petitioner is now permitted to request a bond hearing in front of an immigration judge.  The government is required to show that his continued detention is necessary because he is dangerous or poses a flight risk. DHS no longer has sole discretion.  In short, he is given to chance to walk a free man while awaiting the disposition of his collateral appeal, just like a person who is waiting the results of a direct appeal.  The bottom line was that the court saw no compelling reason to treat these two classes of similarly situated people differently, and ruled accordingly.