No. 09-56774

IN THE UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT

AMADOU LAMINE DIOUF,Petitioner-Appellant,

v.

MICHAEL B. MUKASEY, et al., Respondents-Appellees.

APPEAL OF DENIAL OF PRELIMINARY INJUNCTION AND DENIAL

OF PETITION FOR HABEAS CORPUS FROM THE U.S. DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA

NO. CV 06-7452-TJH

OPENING BRIEF FOR PETITIONER-APPELLANT

JUDY RABINOVITZFARRIN R. ANELLOTANAZ MOGHADAMACLU FoundationImmigrants’ Rights Project125 Broad Street, 18th FloorNew York, NY 10004(212) 549-2660(212) 549-2654 (fax)

CECILLIA D. WANGACLU FoundationImmigrants’ Rights Project39 Drumm StreetSan Francisco, CA 94111(415) 343-0770(415) 395-0950 (fax)

PETER J. ELIASBERGAHILAN T. ARULANANTHAMJENNIFER STARKACLU Foundation of Southern California1313 West Eighth StreetLos Angeles, CA 90017(213) 977-9500 x211(213) 977-5297 (fax)

JAYASHRI SRIKANTIAHStanford Law SchoolImmigrants’ Rights ClinicCrown Quadrangle 559 Nathan Abbot WayStanford, CA 94305(650) 724-2442(650) 723-4426 (fax)

CORPORATE DISCLOSURE STATEMENT

There are no corporations involved in this case.

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TABLE OF CONTENTS

STATEMENT OF ISSUES PRESENTED FOR REVIEW . . . . . . . . . . . . . . . . . . 1

STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

I. SERIOUS CONSTITUTIONAL PROBLEMS WOULD ARISE IF §1231(a)(6) WERE READ AS AUTHORIZINGPROLONGED DETENTION WITHOUT A HEARING BEFORE A NEUTRAL DECISION MAKER WHERE THE GOVERNMENT BEARS THE BURDEN OF JUSTIFYING DETENTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

A. Petitioner’s Lack of Lawful Permanent Resident Status Has No Effect on the Constitutional Avoidance Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

1. Section 1231(a)(6) Applies to Lawful Permanent Residents. . . . . . . . . . . . . . . . . . . . . . . . . . . 21

2. Even Though He is Not a Lawful Permanent Resident, Mr. Diouf Has a Due Process Right to a Constitutionally Sufficient Bond Hearing. . . . . . . . . . . 25

a. Mr. Diouf is Protected by the Due Process Clause . . . . . . . . . . . . . . . . . . . . . . . . . . 25

b. The Due Process Clause Prohibits Mr.

ii

Diouf’s Prolonged Immigration Detention Without an Adequate Hearing Where the Government Bears the Burden of Proof to Justify Continued Detention. . . . . . . . . . . . . . . 27

B. The Due Process Problems Raised by Mr. Diouf’sDetention Are Not Affected By the Fact that He Challenges His Removal Order Through a Motion to Reopen. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

C. The Administrative Custody Review Process Is Constitutionally Inadequate. . . . . . . . . . . . . . . . . . . . . . . . . . . 36

II. SECTION 1231(A)(6) SHOULD BE READ TO REQUIRE AN INDIVIDUALIZED BOND HEARING. . . . . . . . . 39

III. SUBJECTING MR. DIOUF TO FURTHER DETENTION DESPITEAN IMMIGRATION JUDGE’S FINDING THAT HE DOES NOTPOSE A FLIGHT RISK OR DANGER WOULD VIOLATE DUEPROCESS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

iii

TABLE OF AUTHORITIES

FEDERAL CASES Page(s)

Ahmed v. Mukasey,548 F.3d 768 (9th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Al Mutarreb v. Holder,561 F.3d 1023 (9th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Andreiu v. Ashcroft,253 F.3d 477 (9th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Califano v. Yamasaki,442 U.S. 682 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Casas-Castrillon v. Department of Homeland Sec.,535 F.3d 942 (9th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Clark v. Martinez,543 U.S. 371 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 23, 24

Cooper v. Oklahoma,517 U.S. 348 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Dada v. Mukasey,128 S. Ct. 2307 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Diallo v. Gonzales,No. 05-1437, 175 Fed. Appx. 74, 2006 WL. 925034 (7th Cir. 2006) . . . . 34

Diouf v. Mukasey,542 F.3d 1222 (9th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Fiadjoe v. Attorney General,

411 F.3d 135 (3d Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Foucha v. Louisiana,

iv

504 U.S. 71 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Ghahremani v. Gonzales,498 F.3d 993 (9th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Goldberg v. Kelly,397 U.S. 254 (1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Jordan v. De George,341 U.S. 223 (1951) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Kansas v. Hendricks,521 U.S. 346 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Landon v. Plasencia,459 U.S. 21 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Maharaj v. Ashcroft,295 F.3d 963 (9th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Manimbao v. Aschroft,329 F.3d 655 (9th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Memphis Light, Gas and Water Division v. Craft,98 S. Ct. 1554 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Nadarajah v. Gonzalez,443 F.3d 1069 (9th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 40

Ngo v. INS,192 F.3d 390 (3d Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37, 38

Ontiveros-Lopez v. Immigration & Naturalization Svc.,213 F.3d 1121 (9th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 33, 34

Prieto-Romero v. Clark,

v

534 F.3d 1053 (9th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Romero v. Holder,568 F.3d 1054 (9th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Santosky v. Kramer,455 U.S. 745 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Ssali v. Gonzales,424 F.3d 556 (7th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Sun v. Mukasey,555 F.3d 802 (9th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Tijani v Willis,430 F.3d 1241 (9th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

United States v. Salerno,481 U.S. 739 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Wong Wing v. United States,163 U.S. 228 (1896) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 26

Zadvydas v. Davis,533 U.S. 678 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

vi

STATUTES Page(s)

8 U.S.C. § 1226(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

8 U.S.C. § 1231(a)(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

28 U.S.C. § 1292(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

28 U.S.C. § 2241 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

18 U.S.C. § 3142(g)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

1

STATEMENT OF ISSUES PRESENTED FOR REVIEW

1. Whether the Government’s prolonged detention of noncitizens

detained under 8 U.S.C. § 1231(a)(6) pending this Court’s consideration

of their denied motions to review raises a serious Constitutional problem

under the Due Process Clause, given that the Government does not

provide an in-person, individualized hearing, and given that the category

of individuals included under 8 U.S.C. § 1231(a)(6) includes lawful

permanent residents as well as lawful entrants like Mr. Diouf. Excerpt of

Record (hereinafter “ER”) 16-23.

2. Whether the Court should avoid the Constitutional problem that

would otherwise be presented by such prolonged detention under §

1231(a)(6) by construing the statute to require an in-person,

individualized bond hearing, as it did for individuals detained under 8

U.S.C. § 1226(a) in Casas-Castrillon v. Dep’t of Homeland Sec., 535

F.3d 942 (9th Cir. 2008). ER 16-23.

These issues were raised below in Mr. Diouf’s Supplemental Brief on 8 U.S.C. §

1231(a)(6) and Response to Defendant-Respondents’ Opening Brief on Remand, as

well as in Mr. Diouf’s Motion for Reconsideration. ER 14-23. The issues were

2

considered by the district court in its order below denying Mr. Diouf’s preliminary

injunction motion. ER 5-9. Although the district court treated the case as

involving resolution only of Mr. Diouf’s motion for preliminary injunction, it

dismissed the habeas petition after deciding the preliminary injunction motion and

Mr. Diouf’s motion to reconsider. ER 5-9. Accordingly, this Court should apply a

de novo standard of review in deciding this appeal. See Diouf v. Mukasey, 542

F.3d 1222, 1228 (9th Cir. 2000).

3

STATEMENT OF JURISDICTION

This case is an appeal from the September 9, 2009 and October 19, 2009

orders of the District Court for the Central District of California, in which the

district court denied Mr. Diouf’s preliminary injunction motion and subsequent

motion to reconsider. ER 5-9, 13. The district court exercised jurisdiction

pursuant to, inter alia, 28 U.S.C. § 2241. This Court has jurisdiction to consider

this appeal pursuant to 28 U.S.C. § 1292(a)(1), as this is an appeal of an order

denying a preliminary injunction.

Mr. Diouf timely filed a notice of appeal on November 9, 2009. F.R.A.P.

3(a)(1).

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STATEMENT OF THE CASE

This appeal addresses whether 8 U.S.C. § 1231(a)(6) and the Due Process

Clause authorize the Government’s prolonged detention of Mr. Diouf’s pending

this Court’s consideration of his denied motion to reopen, without even the most

basic procedural safeguard – a bond hearing to determine if his ongoing detention

was justified.

For close to two years, the Department of Homeland Security (DHS)

detained Mr. Diouf while he litigated his immigration case. ER 44-46, 65-66.

Throughout this time, DHS never provided Mr. Diouf with a hearing to determine

whether his ongoing detention was justified; he never even had an in-person

interview. ER 78-79. The only process he received was in the form of a DHS

official twice reviewing his paper file and summarily declaring that Mr. Diouf was

a “flight risk,” despite Mr. Diouf’s having strong family ties to the United States

and never having committed a non-removable criminal offense. ER 24-37, 44-45,

78-79, 88-91. Ultimately, Mr. Diouf filed a petition for habeas corpus and a

motion for a preliminary injunction in late 2006 and was released on bond in

February 2007, after an in-person hearing before an immigration judge. ER 62-66,

71-78. Mr. Diouf has lived without incident since that time.

In reversing the district court, this Court focused almost entirely on the

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question of what statute authorized Mr. Diouf’s detention – the pre-final-order

detention statute, 8 U.S.C. § 1226(a), or the post-final-order detention statute, 8

U.S.C. § 1231(a)(6). After extensive statutory analysis, the Court held that based

on the plain language of the statute, Mr. Diouf’s detention was governed by §

1231(a)(6) rather than § 1226(a). Diouf v. Mukasey, 542 F.3d 1222, 1239 (9th Cir.

2008). Because the district court’s decision was based on § 1226(a), and because

the Court found that § 1231(a)(6) was ambiguous as to whether such a hearing is

required, the Court remanded Mr. Diouf’s case to the district court to determine in

the first instance whether Mr. Diouf was entitled to a bond hearing under 8 U.S.C.

§1231(a)(6). Diouf, 542 F.3d at 1234-35.

This Court distinguished Mr. Diouf’s case from the consolidated case of

Casas-Castrillon v. Dep’t of Homeland Sec., 535 F.3d 942 (9th Cir. 2008), in

which it construed the similarly ambiguous language of § 1226(a) to require an

individualized bond hearing to justify prolonged detention, in order to avoid the

“serious constitutional concerns” that would otherwise arise. Diouf, 542 F.3d at

1239 (citing Casas-Castrillon, 535 F.3d at 950). The Court noted that Casas-

Castrillon involved a lawful permanent resident whose removal order had been

stayed pending judicial review of his removal order, whereas Mr. Diouf was not a

1 In addition to distinguishing Mr. Diouf’s case based on his lack of lawful permanentresident status and the posture of his removal challenge, the Court noted that he had“previously been granted release on bond and had the bond cancelled for failure to timelydepart.” Diouf, 542 F.3d at 1235.

6

lawful permanent resident and was seeking review of a denied motion to reopen.1

It thus remanded to the district court to determine – with the benefit of “more

focused briefing” and “possible additional factfinding” – “whether due process

concerns would require a similar construction of § 1231(a)(6) in a case involving

an alien, such as Diouf.” Diouf, 542 F.3d at 1234. The Court also directed the

district court to address “whether the post-order custody review process that Diouf

received satisfies the requirements of 1231(a)(6) or the Due Process Clause.”

Diouf, 542 F.3d at 1235.

On remand, the district court acknowledged § 1231(a)(6)’s statutory

ambiguity, and that the statute creates “the same Constitutional concern” as section

1226(a). ER 6-7. The district court nevertheless held that Mr. Diouf was neither

statutorily nor constitutionally entitled to an individualized hearing as to the

legality of his detention. ER 5-9. The Court first explained that, despite the

similarity in language between the two statutes, “it is the purpose of the statute that

controls.” ER 7. It did not explain, however, how the “purpose” of Mr. Diouf’s

detention under § 1231(a)(6) was any different than the “purpose” of Mr. Casas-

2 The district court likewise reiterated this Court’s statement that Mr. Diouf had“previously been granted release on bond and had the bond cancelled for failure todepart.” ER 5-9.

7

Castrillon’s detention under § 1226(a).

The district court summarily concluded that because the “status and

circumstances” of Mr. Diouf differ from those of the petitioner in Casas-

Castrillon, he “is not entitled to a bond hearing as a matter of due process.” ER 7-

8. The district court offered no explanation for why it changed its position

completely from its previous holding in Mr. Diouf’s case that his prolonged

detention posed a constitutional problem necessitating a bond hearing. ER 39-41,

48-61. Instead, the district court reiterated the distinguishing factors identified by

this Court in its remand – namely that, unlike the petitioner in Casas-Castrillon,

Mr. Diouf was not a lawful permanent resident and was seeking review of a denied

motion to reopen rather than direct review of a removal order. ER 7-8.2 It did not

explain how either of these factors affect the due process analysis. Nor did it

address the fact that § 1231(a)(6) also applies to lawful permanent residents who

are detained pending review of their denied motions to reopen.

The district court placed great weight on the fact that Mr. Diouf had

“received two-post-order custody reviews,” concluding, without analysis, that

these “provided ample procedural due process.” ER 8. The district court did not

8

examine the custody review decisions themselves, nor compare them with either

the bond decision Mr. Diouf later received or with his subsequent two and half

years of release on bond without incident. Compare ER 5-9 with ER 24-37, 62-66,

88-91. The district court also did not address the fact that the petitioner in Casas-

Castrillon received a custody review as well and this Court found the process to be

constitutionally inadequate.

Following the district court’s order, Mr. Diouf submitted a motion for

reconsideration. ER 14-23. The district court denied the motion, ER 13, and this

appeal ensued.

9

STATEMENT OF FACTS

Mr. Diouf is a Senegalese national who lawfully entered the United States as

a student in 1996. ER 63-64, 76, 82; Supplemental Excerpts of Record (hereinafter

“SER”) 23. He graduated from California State University at Northridge with a

degree in information systems, and has worked as a business systems analyst. ER

63-64, 76, 82. In 2001, Mr. Diouf began a long-term romantic relationship with

Renae Campbell, a U.S. citizen. ER 63-65, 76, 82. She became his fiancée in

2002, and they married on June 17, 2003. ER 63-65; SER 21-22.

In January 2003, Mr. Diouf was arrested and pled guilty to possession of a

small quantity of marijuana, an offense that carries no immigration consequences.

ER 41, 77. Subsequently, the Government initiated removal proceedings against

Mr. Diouf for overstaying his student visa. ER 43-44. The Immigration Judge

ordered that, in lieu of removal, Petitioner voluntarily depart from the United

States by June 24, 2003. ER 24, 44, 63.

Before his voluntary departure deadline passed, Mr. Diouf retained an

immigration attorney to reopen his removal proceedings and adjust his status based

on his anticipated marriage to his long-time fiancée. ER 63-65; SER 2-3. Mr.

Diouf’s attorney, however, never filed the motion to reopen as promised. ER 63-

65, 77; SER 4. The attorney also erroneously advised Mr. Diouf that as long as he

3 Mr. Diouf alleged that his former counsel (1) failed to file a timely motion to reopenafter Mr. Diouf’s June 17, 2003 marriage, (2) failed to seek an extension of Diouf’svoluntary departure period, and (3) failed to appeal Mr. Diouf’s grant of voluntarydeparture. Diouf, 542 F.3d at 1225.

10

set his wedding date prior to the voluntary departure deadline, submitted an

immediate relative petition (form I-130), and filed a motion to reopen, he would

not have to depart the country. SER 4. Because the motion to reopen was never

filed, Mr. Diouf unwittingly violated his voluntary departure order. Id. This

voluntary departure order automatically converted into a removal order and his

bond was cancelled. Id. DHS arrested Mr. Diouf on March 29, 2005 and detained

him. ER 44, 77, 83.

While in detention, Mr. Diouf learned for the first time that a motion to

reopen had never been filed in his case. ER 64, 77. Mr. Diouf filed a motion to

reopen based on his eligibility for relief from removal due to his marriage to a U.S.

citizen. ER 44, 83. The immigration judge denied his motion to reopen on the

basis of Mr. Diouf’s failure to voluntarily depart. Diouf, 542 F.3d at 1225. In

September 2005, Mr. Diouf filed a second motion to reopen citing ineffective

assistance of counsel. Id. at 1225; ER 44.3 Subsequently, he filed several pro se

petitions for review to this Court. ER 44. As this Court recognized, Mr. Diouf’s

multiple petitions were in no way attributable to “bad faith,” but rather his “status

4 Mr. Diouf also resisted removal on one prior occasion, when DHS attempted to removehim without notice. At that time, Mr. Diouf refused to leave because he had not beengiven an opportunity to say goodbye to his wife or to obtain any clothing or moneynecessary for return to Senegal. ER 65-66.

11

at the time as a pro se litigant who was unfamiliar with the appellate process.” ER

65; Diouf, 42 F.3d at 1232. Once Mr. Diouf filed a procedurally adequate petition

for review, this Court granted his stay of removal. ER 86.

Despite this Court’s issuance of a stay in Mr. Diouf’s case, DHS attempted

to remove Mr. Diouf on or about February 1, 2006. Diouf v. Chertoff, No. CV 07-

03977-AHM (SHX), Complaint at 5-7 (C.D. Cal. June 19, 2007). Mr. Diouf

refused to be deported because he had a stay of removal from this Court. Id.

Nevertheless, DHS agents forced Mr. Diouf to board a plane to Senegal, restrained

him, and forcibly injected him with powerful psychotropic drugs to sedate him,

making him extremely dizzy, weak, and tired for several days. Id.4

During the pendency of proceedings in Mr. Diouf’s case, and over the

nearly-two year period that DHS detained him, DHS never provided Mr. Diouf

with a bond hearing to determine whether his prolonged detention was justified.

ER 44, 78-79. The only procedure DHS provided was a paper “file review.” ER

24-37, 78-79, 88-91. Although Mr. Diouf submitted a letter from his U.S. citizen

brother explaining that he would have support (including a place to stay if

12

necessary) and detailing his ties to the community (both his wife and his brother),

and despite the fact that he had never failed to appear for any proceeding, DHS

denied his request for release in a form letter summarily stating that “based on your

criminal history and lack of family support you are considered a flight risk.” ER

24-37, 78-79, 88-91.

The two years Mr. Diouf spent in detention placed enormous stress on his

marriage. ER 64-65. Following his release on bond, the marriage deteriorated.

SER 25-27. Mr. Diouf’s wife became increasingly emotionally and physically

abusive, ordering Mr. Diouf to act in certain ways and threatening to have him

deported if he did not comply. SER 14, 25-27. Ultimately she refused to show up

when it came time for the couple’s I-130 immediate relative petition interview,

leading to denial of the petition on the grounds of abandonment. SER 14. Mr.

Diouf then petitioned for immigration relief as a battered spouse under the

Violence Against Women Act (VAWA), based on the extreme cruelty and abuse

he had endured at his wife’s hands. Although he received an initial denial of his

petition, he has filed a motion to reopen and a motion to reconsider, which remain

pending.

Mr. Diouf’s petition for review also remains pending in this Court. SER 12-

20. Mr. Diouf continues to seek a reopening of his removal case based on

13

ineffective assistance of counsel: without his attorney’s ineffective assistance, Mr.

Diouf would be eligible to file for adjustment in the event his VAWA petition is

granted. He would also be eligible for a reinstatement of his voluntary departure

so that he would not face the lasting consequences of a removal order. SER 16.

14

SUMMARY OF ARGUMENT

The district court erred in holding that Mr. Diouf was not entitled to the

same kind of bond hearing that this Court has held is required to justify prolonged

detention under §1226(a) – namely a hearing before an impartial adjudicator where

the government bears the burden of showing that continued detention is justified.

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

Basic principles of statutory construction require that “when an Act of Congress

raises ‘a serious doubt’ as to its constitutionality, this Court will first ascertain

whether a construction of the statute is fairly possible by which the question may

be avoided.” Zadvydas v. Davis, 533 U.S. 678, 689 (2001) (quotations and

citations omitted).

As set forth herein, prolonged detention under 8 U.S.C. § 1231(a)(6) of Mr.

Diouf and other individuals covered by the statute, raises a serious constitutional

problem – the same constitutional problems that compelled this Court in Casas-

Castrillon to construe 8 U.S.C. § 1226(a) to require an individualized bond

hearing. 535 F. 3d at 950-52. Although the petitioner in Casas-Castrillon was a

lawful permanent resident, the fact that Mr. Diouf lacks such status does not alter

the constitutional analysis.

15

First, § 1231(a)(6) applies equally to the detention of lawful permanent

residents as to others like Mr. Diouf. Thus, for the same reasons that prolonged

detention of lawful permanent residents under § 1226(a) raises a constitutional

problem, see Casas-Castrillon, 535 F.3d at 950, such detention under § 1231(a)(6)

causes a problem as well. See infra Part I.A.1.

Second, lawful entrants like Mr. Diouf have a due process right to a

constitutionally adequate hearing to justify their prolonged detention, regardless of

whether they have lawful permanent resident status. Thus, even if this Court were

to conclude that § 1231(a)(6) somehow does not apply to lawful permanent

residents, it must still conclude that the statute raises a serious constitutional

problem as applied to a lawful entrant like Mr. Diouf. In the immigration detention

context, the Supreme Court has recognized that the protections of the Due Process

Clause extend to individuals who are present in this country. A long line of

precedent in immigration and other civil detention contexts reveals that the

Supreme Court has never sustained prolonged civil detention without a bond

hearing. See infra Part I.A.2.

Likewise, the fact that detention under § 1231(a)(6) involves individuals

who challenge denied motions to reopen in this Court, rather than seeking direct

review of their removal orders, does not lessen the constitutional concerns raised

16

by prolonged detention under the statute. Motions to reopen are a central feature in

the immigration administrative system, and are the vehicle by which individuals

who could not obtain initial review through a petition for review — because of

ineffective assistance (like Mr. Diouf), changed circumstances, or lack of notice

from DHS — can have their day in court. Not surprisingly, this Court and the

other Courts of Appeals have repeatedly reversed the immigration courts on

petitions to review from denied motions to reopen. See infra Part I.B.

Finally, DHS’s cursory, paper reviews do not cure the due process violations

caused by prolonged detention without a hearing under § 1231(a)(6). This Court

already recognized that such reviews were constitutionally inadequate in Casas-

Castrillon. As illustrated by the reviews Mr. Diouf received, they are patently

insufficient, particularly given the significant liberty interests at stake. See infra

Part I.C.

Because of the serious constitutional problems presented by Mr. Diouf’s

detention as well as the detention of lawful permanent residents under section

1231(a)(6), the Court should construe the statute to require an in-person bond

hearing. As acknowledged by this Court, as well as the district court, section

1231(a)(6) is as ambiguous as section 1226(a) in regard to whether the Attorney

General’s authority to detain non-citizens for a prolonged period of time requires

17

an individualized bond hearing. See Diouf, 542 F.3d at 1234-35; ER 16-20. Given

this ambiguity, this Court should adopt the same saving construction of §

1231(a)(6) that it adopted in Casas-Castrillon for purposes of section 1226(a). See

infra Part II.

In the alternative, should this Court conclude that § 1231(a)(6) cannot be

construed to require such a hearing, it must hold that Mr. Diouf’s prolonged

detention without a hearing would violate his right to due process. Indeed, even if

a hearing were not constitutionally compelled, Mr. Diouf’s prolonged detention

would violate due process since the file reviews he received were so patently

deficient and there is no evidence that he poses any danger or flight risk. Thus, in

the event that this Court were to decide that neither the statute nor the Due Process

Clause require a bond hearing, Petitioner requests that the Court find that the bond

hearing already conducted was appropriate in Petitioner’s case, and that he should

remain free because he does not pose a danger or flight risk. See infra Part III.

18

ARGUMENT

I. SERIOUS CONSTITUTIONAL PROBLEMS WOULD ARISE IF §1231(a)(6) WERE READ AS AUTHORIZINGPROLONGED DETENTION WITHOUT A HEARING BEFORE A NEUTRAL DECISION MAKER WHERE THE GOVERNMENT BEARS THE BURDEN OFJUSTIFYING DETENTION.

This Court’s analysis of the constitutional problems posed by prolonged

detention under §1231(a)(6) must be informed by its prior analyses of prolonged

detention in Casas-Castrillon v. Dep’t of Homeland Sec., 535 F.3d 942 (9th Cir.

2008) and Tijani v Willis, 430 F.3d 1241 (9th Cir. 2005). Although those cases

involved prolonged detention under a different statute, 8 U.S.C. § 1226(a), the

constitutional concerns identified by this Court are the same as here. Moreover,

the fact that the petitioners in those cases were lawful permanent residents, unlike

Mr. Diouf who lacks such status, does not alter the constitutional analysis.

In Casas-Castrillon, this Court considered the case of a lawful permanent

resident who had been subjected to prolonged detention pending judicial review of

his removal order, without ever receiving a bond hearing to determine if his

detention was justified. After first determining that his detention was governed by

8 U.S.C. §1226(a) – rather than the mandatory detention statute, § 1226(c), or the

5 This Court held § 1226(c) did not apply because his removal proceedings had notbeen “expeditious,” and that § 1231(a)(6) did not apply because his removal orderhad been stayed pending judicial review of the order.  Casas-Castrillon, 535 F. 3dat 947-48.

19

post-final-order detention statute, § 1231(a)(6), at issue here5 – this Court found

that “serious constitutional concerns” would be raised if the statute were construed

as authorizing “prolonged detention without adequate procedural protections.”

Casas-Castrillon, 535 F. 3d at 950. Drawing on the Supreme Court’s decisions in

Zadvydas and Demore, as well as this Court’s prior decision in Tijani, the Court

held that “prolonged detention must be accompanied by appropriate procedural

safeguards, including a hearing to establish whether releasing the alien would pose

a danger to the community or a flight risk.” Casas-Castrillon, 535 F.3d at 944; see

also 535 F.3d. at 951 (“Because the prolonged detention of an alien without an

individualized determination of his dangerousness or flight risk would be

‘constitutionally doubtful,’ we hold that §1226(a) must be construed as requiring

the Attorney General to provide the alien with such a hearing” – one where the

government bears the burden of establishing that detention is justified) (citing

Tijani, 430 F. 3d at 1242) (emphasis in original). The Court noted that Casas-

Castrillon had received an administrative custody review but found that such

review “falls far short of the procedural protections afforded in ordinary bond

20

hearings, where aliens may contest the necessity of their detention before an

immigration judge and have an opportunity to appeal that determination to the

BIA.” Id. at 951-52.

The same constitutional problems present in Casas-Castrillon and Tijani are

present here. In these cases, non-citizens with potentially meritorious claims to

remain in the United States face the possibility of prolonged detention without

sufficient procedural safeguards while they litigate their immigration cases. The

fact that Mr. Diouf is not a lawful permanent resident – unlike the petitioners in

those cases – does not alter the constitutional analysis. Nor does it matter that he is

seeking review of a denied motion to reopen rather than direct review of his

removal order – a review which he was denied because of ineffective assistance of

counsel. Moreover, this Court has already found the administrative file custody

reviews that accompany detention under § 1231(a)(6) to be constitutionally

inadequate. Casas-Castrillon, 535 F.3d at 951-52.

A. Petitioner’s Lack of Lawful Permanent Resident Status HasNo Effect on the Constitutional Avoidance Analysis.

The district court relied in large part on Mr. Diouf’s lack of lawful

permanent resident status as a basis for concluding that §1231(a)(6) does not

require that he receive the same kind of bond hearing as is required under Casas.

21

ER 7-8. However, Mr. Diouf’s immigration status does not alter the constitutional

avoidance analysis required in construing §1231(a)(6). As a threshold matter,

while both Casas-Castrillon and Tijani involved lawful permanent residents, their

constitutional analysis did not hinge on that factor. However, even if this Court

were to conclude otherwise, it would not change the result here for two reasons.

First, § 1231(a)(6) applies not only to individuals like Mr. Diouf who lack

lawful permanent resident status, but also to lawful permanent residents, who are

also detained under §1231(a)(6) when they seek review of denied motions to

reopen rather than direct review of their removal orders. The district court

misapplied the canon of constitutional avoidance by failing to consider the serious

constitutional problems that would indisputably be raised if §1231(a)(6) authorized

the prolonged detention of such lawful permanent residents without a hearing. ER

17-18. Second, even though he is not a lawful permanent resident, Mr. Diouf also

has a due process right to a constitutionally sufficient bond hearing.

1. Section 1231(a)(6) Applies to Lawful Permanent Residents.

The Government has never disputed that the statute under which Mr. Diouf

is detained, §1231(a)(6), also applies to longtime lawful permanent residents who

are detained, sometimes for years, pending appeal of a denied motion to reopen.

22

Indeed, the Ninth Circuit routinely entertains motions to reopen filed by lawful

permanent residents, some of whom win their cases and are restored to their lawful

permanent resident status. See, e.g., Ghahremani v. Gonzales, 498 F.3d 993 (9th

Cir. 2007) (granting petition for review of lawful permanent resident who – like

Mr. Diouf – sought motion to reopen based on ineffective assistance of counsel);

Ontiveros-Lopez v. Immigration & Naturalization Svc., 213 F.3d 1121 (9th Cir.

2000) (same). Yet, the district court failed even to consider the serious

constitutional problems that would be posed if §1231(a)(6) were construed as

authorizing their prolonged detention without a hearing, problems that this Court

already acknowledged in both Casas-Castrillon and Tijani. Instead, by focusing

solely on the “specific status and circumstances” of Mr. Diouf, ER 7, and the due

process concerns raised by his particular case, the district court fundamentally

misapprehended and misapplied the canon of constitutional avoidance.

As the Supreme Court has made clear, the canon of constitutional avoidance

requires that a court construe a statute not only to avoid any constitutional

problems posed by the particular case in front of it, but more broadly to avoid

construing the statute in a way that would raise constitutional problems in its other

applications. See Clark v. Martinez, 543 U.S. 371, 380-81 (2005) (“[W]hen

deciding which of two plausible statutory constructions to adopt, a court must

23

consider the necessary consequences of its choice. If one of them would raise a

multitude of constitutional problems, the other should prevail—whether or not

those constitutional problems pertain to the particular litigant before the Court.”)

(emphasis added).

In Clark, the Supreme Court squarely held that §1231(a)(6) – the same

statute at issue here – had to be interpreted the same way for both admissible and

inadmissible noncitizens, even though the former did not present the same

constitutional problems as the latter. Id. at 378-83. The Court had already

construed the statute to avoid the serious constitutional problems that would be

raised were it construed to authorize the indefinite detention of admitted

noncitizens. Because the statutory text made no distinction between admitted and

non-admitted noncitizens, the Court held that the same interpretation applied. Id.

at 379. Moreover, the Court made clear that the same interpretation would have

been required even if the Court had considered the situation of non-admitted

noncitizens first, since the canon of constitutional avoidance “is not a method of

adjudicating constitutional questions” but rather one of statutory interpretation – “a

tool for choosing between competing plausible interpretations of a statutory text,

resting on the reasonable presumption that Congress did not intend the alternative

which raises serious constitutional doubts.” Id. at 382.

24

Likewise, the language of §1231(a)(6) applies without distinction to both

lawful permanent residents and non-lawful-permanent-residents who are detained

pending review of denied motions to reopen. Because the statute would

unquestionably raise a serious constitutional problem if construed to authorize the

prolonged detention of lawful permanent residents without an individualized

hearing before an impartial adjudicator – and because there is no evidence that

Congress intended such a result, see infra, Part II – the canon of constitutional

avoidance compels this Court to construe it to require such a hearing. Moreover,

once the statute is construed to require such a hearing for lawful permanent

residents, the same interpretation applies to non-lawful-permanent-residents such

as Mr. Diouf, regardless of whether their detention would raise the same

constitutional problems. See also Nadarajah v. Gonzalez, 443 F.3d 1069, 1078

(9th Cir. 2006) (ruling that “the holding and reasoning in Clark” preclude “treating

some detentions authorized by the same statute differently, depending on the

identity and status of the detainee.”).

2. Even Though He is Not a Lawful Permanent Resident, Mr. Diouf Has a Due Process Right to a Constitutionally Sufficient Bond Hearing.

25

Even if §1231(a)(6) were somehow construed to apply to only non-lawful-

permanent-residents like Mr. Diouf, his detention would raise a serious

constitutional problem absent a constitutionally sufficient bond hearing.

a. Mr. Diouf is Protected by the Due Process Clause.

As a non-citizen who was admitted lawfully into this country over 13 years

ago, and who continues to challenge his removal, Mr. Diouf is covered by the

protections of the Due Process Clause. The Supreme Court has long made clear

that the Due Process Clause protects all people who have entered the United States,

not only those who have obtained lawful permanent resident status. See Zadvydas,

533 U.S. at 693 (“But once an alien enters the country, the legal circumstance

changes, for the Due Process Clause applies to all ‘persons’ within the United

States, including aliens, whether their presence here is lawful, unlawful, temporary,

or permanent.”); id. at 693-94 (citing, inter alia, Wong Wing v. United States, 163

U.S. 228, 238 (1896) (holding, in the detention context, that non-citizens with final

orders of deportation are entitled to Due Process protections, because “all persons

within the territory of the United States are entitled to the protection” of the

Constitution)); see also id. at 721 (Kennedy, J., dissenting) (concluding that even

26

non-citizens who have lost their removal cases and all possible appeals were

“entitled to be free from detention that is arbitrary or capricious”).

In Zadvydas, the Supreme Court reasoned that even non-citizens who had

lost the right to remain in the United States had a fundamental liberty interest in

being free from prolonged detention. As an individual who is still contesting

removal and has a potentially meritorious claim to remain in the United States, Mr.

Diouf has an even greater liberty interest in remaining free from prolonged

detention than the non-citizens in Zadvydas. The fact that Mr. Diouf “has been

ordered removed by the BIA [and] has exhausted his opportunities to challenge

that final order of removal directly” does not warrant a conclusion that the Due

Process Clause permits his prolonged detention. Compare Diouf, 542 F.3d at

1235, with Zadvydas, 533 U.S. at 684, 693-94 (holding that Due Process protected

non-citizen who had lost all ability to challenge his removal order). Mr. Diouf’s

challenge to his removal order remains pending with a stay from the Ninth Circuit.

If he prevails in that challenge, his removal order will be vacated and he will be

released from detention.

Mr. Diouf was admitted to this country on a valid visa, subsequently married

a U.S. citizen, has lived in this country for thirteen years, and developed other

substantial ties over time. As a practical matter, his case is indistinguishable from

6 The district court, as well as this Court, made passing mention of the fact thatMr. Diouf’s bond had been cancelled in an earlier stage of the proceedings in hisimmigration case prior to his habeas petition. See ER 7-8; Diouf, 542 F.3d at 1235. It is hard to see how this would bear on his due process rights, but in any event hisprior release on bond and its subsequent cancellation (which the district courtfound was a result of the ineffective assistance of Mr. Diouf’s immigrationattorney at the time, ER 61) is irrelevant in this case because what Mr. Dioufchallenges is not his initial detention, but rather his later detention of twentymonths, from 2005 to February 2007. He has remained free on bond withoutviolating conditions for the last two and a half years, rendering the dispute over theprior cancellation immaterial.

27

that of a lawful permanent resident. See Landon v. Plasencia, 459 U.S. 21, 32

(1982) (“[O]nce an alien gains admission to our country and begins to develop the

ties that go with permanent residence, his constitutional status changes

accordingly.”).6

b. The Due Process Clause Prohibits Mr. Diouf’s Prolonged Immigration DetentionWithout an Adequate Hearing Where the Government Bears the Burden of Proof toJustify Continued Detention.

Due process requires that prolonged immigration detention must serve an

immigration purpose, namely ensuring the non-citizen’s availability for removal

proceedings and for removal itself, if the government prevails. Zadvydas, 533 U.S.

at 690. The Constitution requires strict procedural safeguards to ensure that

prolonged detention continues to serve this purpose. See id. at 691-92. As set

forth in Casas-Castrillon, the strong procedural protections that due process

28

requires for prolonged detention include an individualized hearing before an

impartial adjudicator where the government bears the burden of proof to justify

prolonged detention. 535 F.3d at 950.

The requirement that prolonged detention be accompanied by an in-person

hearing is clear from Zadvydas. The Supreme Court there questioned the

constitutionality of prolonged detention under § 1231(a)(6) without robust

procedures where the government bears the burden of proof. See id. at 691-92

(holding that § 1231(a)(6) raises constitutional concerns because the detention

period “is not limited,” and the “sole procedural protections” are administrative,

lack judicial review, and place the burden of proof on the detainee). The Court

observed that it had required more robust procedures even for the protection of

property. Id. at 692 (citing, inter alia, South Carolina v. Regan, 465 U.S. 367, 393

(1984) (O'Connor, J., concurring)).

Zadvydas follows from a long line of due process case law clarifying that the

Constitution requires in-person hearings, rather than mere paper reviews, where

significant interests are at stake. The Supreme Court has also held that the

government may not terminate welfare benefits or public utilities, or even recover

excess Social Security benefits, without providing an in-person hearing. See, e.g.,

Goldberg v. Kelly, 397 U.S. 254, 268 (1970) (government’s failure to provide an

29

in-person hearing prior to termination of welfare benefits was “fatal to the

constitutional adequacy of the procedures”); Memphis Light, Gas and Water

Division v. Craft, 98 S.Ct. 1554, 1564 (1978) (due process requires, at minimum,

an opportunity for utility clients to argue cases with designated employees prior to

termination of their utilities); Califano v. Yamasaki, 442 U.S. 682, 696 (1979) (in-

person hearing required for recovery of excess Social Security payments where

beneficiary was at fault because “written review hardly seems sufficient to

discharge the Secretary’s statutory duty to . . . assess the absence of ‘fault’”). It

follows logically from these cases that when physical liberty is at stake, the

Constitution requires an in-person hearing, especially when the government seeks

to deprive a person of their liberty for a prolonged period of time.

The justification for an in-person hearing in the prolonged detention context

is particularly strong given that the hearing may well call for determinations

concerning a non-citizen’s credibility, as it relates to his or her willingness to

appear for removal should the government ultimately prevail in the immigration

case. See, e.g., Califano, 442 U.S. at 697 (paper review without in-person hearing

failed to satisfy due process because determination at issue “usually requires an

assessment of the recipient’s credibility”). Cf. 18 U.S.C. § 3142(g)(3) (treating

“character” of defendant as relevant criteria in assessing bail eligibility);

30

Manimbao v. Aschroft, 329 F.3d 655, 661 (9th Cir. 2003) (holding, in the asylum

context, that immigration judges are in a “superior position” to assess credibility).

Due Process also requires the government to bear the burden of proof to

justify continued detention at an in-person hearing. This Court has already held

that the government must bear the burden of proof in immigration judge hearings

involving prolonged immigration detention under § 1226(a). See Casas-Castrillon,

535 F.3d at 951 (holding that the government must bear the burden of proof for

hearings involving prolonged detention under § 1226(a)); Tijani, 430 F.3d at 1242

(same). In Tijani, the Court referenced Cooper v. Oklahoma, 517 U.S. 348, 363

(1996), in which the Supreme Court unanimously held that “due process places a

heightened burden of proof on the State in civil proceedings in which the

individual interests at stake . . . are both particularly important and more substantial

than mere loss of money.” (internal citations and quotations omitted). See also

Santosky v. Kramer, 455 U.S. 745, 768-69 (1982) (holding that due process

requires the government to bear the burden of proof by clear and convincing

evidence before terminating parental rights).

That due process requires an in-person bond hearing for Mr. Diouf is clear

from the large body of analogous case law concerning prolonged detention in other

contexts. Nowhere in our legal system does the law permit detention of the length

31

at issue here without an in-person hearing. Pre-trial detainees, people who are

dangerous on account of having a mental illness, and even child sexual predators

all receive far greater procedural protections in regard to their detention than do

immigration detainees like Mr. Diouf. See United States v. Salerno, 481 U.S. 739,

750-52 (1987) (upholding a federal bail statute permitting pretrial detention in part

because the statute required strict procedural protections to be met for detention,

including hearings before a judicial officer where the government bore the burden

of proving dangerousness by clear and convincing evidence); Foucha v. Louisiana,

504 U.S. 71, 81-82 (1992) (striking down a civil insanity detention statute because

it placed the burden on the detainee to prove eligibility for release); Kansas v.

Hendricks, 521 U.S. 346, 353, 368 (1997) (upholding involuntary civil

commitment for periods of one year at a time, subject to “strict procedural

safeguards” including a right to a jury trial and the burden of proof beyond a

reasonable doubt).

For all these reasons, Mr. Diouf’s prolonged detention would raise serious

constitutional problems absent an in-person hearing at which the government bears

the burden to justify continued detention.

B. The Due Process Problems Raised by Mr. Diouf’s DetentionAre Not Affected By the Fact that He Challenges His Removal Order Through a Motion to Reopen.

32

The serious constitutional problems resulting from Mr. Diouf’s detention are

not somehow mitigated by the fact that he was detained pending this Court’s

review of a denied motion to reopen, rather than pending direct review of a

removal order – review that he was in any event denied because of ineffective

assistance of counsel. The district court assumed without analysis that the mere

fact that a noncitizen is seeking review of a denied motion to reopen, rather than

direct review of a removal order, somehow decreases the due process concerns

triggered by their prolonged detention. Yet, as recognized by the Supreme Court,

and this own Court’s record of granting relief in such cases, motions to reopen

serve a vital function in insuring the integrity of the removal process. Indeed, these

cases often present the most egregious circumstances. Thus, the constitutional

problems raised by Mr. Diouf’s detention are no different than those this Court

recognized in Casas-Castrillon.

In our immigration system, motions to reopen serve a critical function,

particularly as to an individual like Mr. Diouf, who was prevented from seeking

lawful permanent residence status at his removal hearing because of ineffective

assistance of counsel. As with a petition for review, the purpose of a motion to

reopen is “to ensure a proper and lawful disposition” of a non-citizen’s case. Dada

33

v. Mukasey, 128 S. Ct. 2307, 2318 (2008). Motions to reopen are required to

remedy claims of ineffective assistance of counsel, in absentia hearings conducted

without notice, and changed circumstances, including those in an individual’s

home country that create a risk of persecution, torture, or death. Indeed, this Court

has explained that, “[a] motion to reopen is the procedural vehicle through which a

petitioner may bring, usually for the first time, an ineffective assistance of counsel

claim before the BIA.” Ontiveros-Lopez v. INS, 213 F.3d 1121, 1123 (9th Cir.

2000). This “important safeguard” is particularly crucial in the immigration

context, where judicial decisions have life-altering consequences. Dada, 128 S.Ct.

at 2318. See also Jordan v. De George, 341 U.S. 223, 231 (1951) (“[D]eportation

is a drastic measure and at times the equivalent of banishment or exile . . . .”)

(internal quotation marks omitted).

Not surprisingly, this Court has repeatedly granted petitions for review from

denied motions to reopen. See, e.g., Al Mutarreb v. Holder, 561 F.3d 1023 (9th

Cir. 2009) (reversing IJ’s denial of motion to reopen, because no evidence

supported an in absentia removal order); Sun v. Mukasey, 555 F.3d 802 (9th Cir.

2009) (remanding motion to reopen where petitioner had adjusted status pursuant

to the Violence Against Women Act and requiring equitable tolling because her

attorney’s error caused her to miss the filing deadline); Romero v. Holder, 568 F.3d

34

1054 (9th Cir. 2009) (remanding motion to reopen because BIA had abused its

discretion by holding that subsequently-expunged simple drug possession plea

foreclosed cancellation of removal); Ahmed v. Mukasey, 548 F.3d 768 (9th Cir.

2008) (remanding motion to reopen where BIA failed to consider new evidence

supporting marriage-based adjustment of status claim); Ontiveros-Lopez, 213 F.3d

at 1121 (remanding motion to reopen where petitioner’s former counsel had

improperly conceded deportability and where petitioner had been unable to meet

procedural requirements for ineffective assistance of counsel claim due to lack of

cooperation from ICE and EOIR). See also Diallo v. Gonzales, No. 05-1437, 175

Fed. Appx. 74, 2006 WL 925034 (7th Cir. 2006) (finding that the BIA abused its

discretion when denying petitioner’s motion to reopen by failing to consider the

changed country conditions in Guinea and the new available evidence supporting

petitioner’s asylum claim). In reviewing motions to reopen, the Courts of Appeals

have uncovered serious administrative errors, including an agency decision-

maker’s complete lack of familiarity with the facts of the case and

misunderstanding of its own precedent, Ssali v. Gonzales, 424 F.3d 556, 563-64

(7th Cir. 2005), and “extraordinarily abusive” treatment of petitioners. Fiadjoe v.

Att’y Gen., 411 F.3d 135, 155 (3d Cir. 2005).

35

Particularly where, as here, this Court has granted a discretionary stay

pending its consideration of a denied motion to reopen, there is no principled

justification for distinguishing between detention here and a case like Casas-

Castrillon involving a challenge to a petition for review. To obtain a stay from this

Court, Mr. Diouf was required to demonstrate either a “probability of success on

the merits” or that his case presented “serious legal questions.” Maharaj v.

Ashcroft, 295 F.3d 963, 966 (9th Cir. 2002) (citing Andreiu v. Ashcroft, 253 F.3d

477, 483 (9th Cir. 2001)).

Moreover, detention of individuals like Mr. Diouf, who challenge denials of

motions to reopen, serves the same immigration purpose as detention of individuals

pending resolution of petitions for review from removal orders. In both

circumstances, the purpose of detention is to ensure availability for removal,

should the non-citizen lose his challenge to removal. Accordingly, in both

circumstances, the constitutionality of the detention must be assessed in relation to

this governmental purpose. See supra Part I.A.2.b.

C. The Administrative Custody Review Process Is Constitutionally Inadequate.

Third, in holding that the administrative custody reviews Mr. Diouf received

satisfied his right to due process, the court overlooked the fact that the petitioner in

36

Casas-Castrillon had also received an administrative custody review and that this

Court expressly found such reviews to be constitutionally inadequate. Casas-

Castrillon v. DHS, 535 F.3d 942, 951 (9th Cir. 2008).

The district court also erred in holding that the custody reviews Mr. Diouf

received satisfy due process. ER 8. During his two-year detention, the only

review Mr. Diouf received involved a cursory paper process. ER 24-37, 44-45, 78-

79, 88-91. This Court in Casas-Castrillon has explained that the paper review

process falls “far short of the procedural protections afforded in ordinary bond

hearings, where aliens may contest the necessity of their detention before an

immigration judge and have an opportunity to appeal that determination to the

BIA.” 535 F.3d at 951-52. As discussed supra Part I.A.2.b., due process requires

that Mr. Diouf be provided an in-person bond hearing.

Indeed, the custody review denials Mr. Diouf received highlight the

constitutional deficiencies of the process. During his file review, Mr. Diouf sought

to demonstrate his strong family ties in order to explain why he was not a flight

risk. He submitted a letter from his U.S. citizen brother, explaining that he would

have financial and emotional support if released. ER 78-79. The immigration

officials also knew that he had a U.S. citizen wife, with whom he was living at the

time he was first arrested, who lived just a few miles away from the detention

37

center. ER 79. It was also clear from Mr. Diouf’s record that he never committed

an act of violence. ER 65. Despite this evidence, the reviewing officer denied Mr.

Diouf’s request for release in one sentence, stating simply that “[b]ased on your

criminal history and lack of family support, you are considered a flight risk and

will remain in custody until ICE establishes a sufficient release plan.” See ER 91.

Due process does not tolerate such cursory process. Cf. Ngo v. INS, 192 F.3d 390,

398 (3d Cir. 1999) (criticizing INS’s “rubber-stamp denials based on temporally

distant offenses” under the file review system).

After prevailing initially in district court, Mr. Diouf finally received an in-

person bond hearing before an immigration judge. ER 62-69. At this hearing, Mr.

Diouf was represented by counsel, testified on his own behalf, and was permitted

to present witnesses and other evidence before an impartial immigration judge. ER

62-66. Not surprisingly, the IJ ordered his release, concluding that the government

had failed to show that Mr. Diouf presented a risk of danger or flight. ER 10-11.

Since his release, Mr. Diouf has lived without incident for the past two-and-a-half

years.

The district court offered little analysis for its summary conclusion that the

custody review process was adequate. ER 8-9. Not only did the court overlook the

fact that the petitioner in Casas-Castrillon had received a similar file review—a

38

review that this Court found constitutionally lacking—but it also erroneously

suggested that this Court’s decision in Prieto-Romero provides further support for

its holding. See id. However, in deciding that the petitioner in Prieto-Romero

received adequate due process, this Court relied on the three individualized bond

hearings that he had already received. Prieto-Romero v. Clark, 534 F.3d 1053,

1065, 1068 (9th Cir. 2008). As this Court clarified, the petitioner in Prieto-

Romero contested the reasonableness of bond, not the failure to provide a bond

hearing. Id. at 1065-66.

For all of the reasons set forth above, prolonged detention under section

1231(a)(6) without a hearing raises the same constitutional problems that this

Court identified in Casas-Castrillon. Absent a clear intent by Congress to

authorize such prolonged detention without a hearing, this Court should adopt the

same saving construction of section 1231(a)(6) that it adopted for section 1226(a)

in Casas-Castrillon.

II. SECTION 1231(A)(6) SHOULD BE READ TO REQUIRE AN INDIVIDUALIZED BOND HEARING.

This Court should read § 1231(a)(6) to require a constitutionally adequate

bond hearing. As this Court recognized in its decision remanding this case to the

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district court, the language of § 1231(a)(6) is ambiguous as to whether it authorizes

prolonged detention without a hearing. Diouf v. Mukasey, 542 F.3d 1222, 1234

(9th Cir. 2008). See also ER 6 (District Court Order on Remand) (“Both §§

1226(a) and 1231(a)(6) are ambiguous as to the authority of the Attorney General

to prolong the detention of an alien.”). Indeed, the language of § 1231(a)(6) is

materially indistinguishable from that of § 1226(a), which the Court interpreted in

Casas-Castrillon to require bond hearings in cases of prolonged detention. See

Casas-Castrillon v. Dep’t of Homeland Sec., 535 F.3d 942, 949-52 (9th Cir. 2008).

Section 1231(a)(6)—the statute at issue here—provides that a noncitizen “may be

detained beyond the removal period,” (emphasis added), while section 1226(a)—at

issue in Casas-Castrillon—states that the Attorney General “may continue to

detain the arrested alien” (emphasis added). The Court here should construe

§1231(a)(6) just as it construed §1226(a)—to avoid the constitutional problem

presented by prolonged detention without a hearing by requiring that “prolonged

detention of aliens [be] permissible only where the Attorney General finds such

detention individually necessary by providing the alien with an adequate

opportunity to contest the necessity of his detention.” Id. at 951.

As with § 1226(a) in Casas-Castrillon, there is no evidence that when

drafting § 1231(a)(6) “Congress intended to authorize the long-term detention of

7 In Nadarajah v. Gonzales, this Court explained that when Congress intends toauthorize prolonged detention, such as in cases involving national security risks, ithas done so clearly. 443 F.3d 1069, 1079 (9th Cir. 2006). See also id. (holdingthat the “general detention statutes” authorize detention for only “brief andreasonable” time periods).

40

aliens . . . without providing them access to a bond hearing before an immigration

judge.” Id. at 950. To the contrary, as the Supreme Court clarified in Zadvydas,

Congress intended § 1231(a)(6) to authorize detention only for the period of time

reasonably necessary to effectuate removal, a period which it found to be

presumptively six months. Zadvydas v. Davis, 533 U.S. 678, 701 (2001). Thus, in

the absence of clear Congressional intent that Congress intended § 1231(a)(6) to

authorize prolonged detention in excess of six months without a bond hearing,7 this

Court should reject such an interpretation.

Despite the virtually identical language of the two statutes – sections

1231(a)(6) and 1226(a) – the district court held that they could be interpreted

differently because the purpose of the two statutes was somehow different. See ER

7. But there is no authority for the assertion that the purpose of detention under

section 1226(a) is any different from the purpose of detention under section

1231(a)(6), and the district court cites none. ER 5-9. Like all immigration

detention statutes, the “basic purpose” of § 1231(a)(6) is to “assur[e] the alien’s

presence at the moment of removal.” Zadvydas, 533 U.S. at 699.

8 The regulations are consistent with this reading of the statute. They are whollysilent with respect to the procedural safeguards necessary for prolonged detentionunder the statute, particularly where an individual’s removal order has been stayedpending review of a denied motion to reopen. To the extent that the regulationswere inconsistent with the statutory language, however, they would be ultra vires,as regulations cannot authorize detention that would violate the statute.

41

Accordingly, just as this Court interpreted § 1226(a) to avoid the

constitutional problem that would be created by prolonged detention without a

hearing in Casas-Castrillon, so should the Court interpret § 1231(a)(6) to require

such a hearing here. See supra Part I.A.2.b. Specifically, given that the same

constitutional concerns are present in § 1226(a) and § 1231(a)(6), this Court should

construe § 1231(a)(6) “as requiring the Attorney General to provide the alien with

. . . [an individualized bond] hearing.” Casas-Castrillon, 535 F.3d at 951

(emphasis in original). “Thus an alien is entitled to release on bond unless the

government establishes that he is a flight risk or will be a danger to the

community.” Id. (internal quotations and citations omitted).8

III. Subjecting Mr. Diouf to Further Detention Despite and Immigration Judge’s Finding That He Does Not Pose a Flight Risk or Danger Would Violate Due Process.

If this Court holds that 8 U.S.C. § 1231(a)(6) could not be read to require a

hearing at which the government must justify prolonged detention of individuals

pending this Court’s consideration of their denied motions to reopen, it must hold

42

that § 1231(a)(6) is unconstitutional. As explained above, prolonged detention of

individuals under § 1231(a)(6)—including lawful permanent residents and lawful

entrants like Mr. Diouf—violates due process, absent a hearing at which the

government bears the burden of justifying continued detention. See supra Part I.

The paper custody reviews provided by DHS do not satisfy due process because

they do not provide Mr. Diouf and others detained under § 1231(a)(6) with the

kind of in-person, individualized determination that this Court has required. See

Casas-Castrillon, 535 F.3d at 950-51; Tijani, 430 F.3d at 1242.

Alternatively, even if the Court were to decide that some individuals with

pending petitions for review of motions to reopen could be detained without

individualized bond hearings under § 1231(a)(6), the facts of Mr. Diouf’s case

demonstrate that his detention would violate due process. Detention here would

not be reasonably related to the goal of immigration detention, namely ensuring his

availability for removal and protecting society from danger. See Zadvydas, 333

U.S. at 690; Casas-Castrillon, 535 F.3d at 951-52. The government does not argue

that Mr. Diouf poses a danger. See ER 65 (“The government even admitted in

court that respondent is not a serious danger.”). And an immigration judge has

found that Mr. Diouf is not a flight risk and that he does not pose a danger. ER 65-

66. In the more than two years and nine months since Mr. Diouf was released from

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detention after initially prevailing on his preliminary injunction motion, he has

committed no crimes and has appeared for all required immigration proceedings.

Under these circumstances, his re-detention would serve no permissible, non-

punitive immigration purpose. See Zadvydas, 533 U.S. at 690 (due process permits

civil detention only in “certain special and narrow non-punitive circumstances,

where a special justification . . . outweighs the individual’s constitutionally

protected interest in avoiding physical restraint.”) (citations omitted) (internal

quotation marks omitted).

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CONCLUSION

Because of the constitutional problems raised by prolonged detention under

§ 1231(a)(6), the Court should construe the statute to require an in-person bond

hearing, as it did with § 1226(a) in Casas-Castrillon. If the Court concludes that

the statute cannot be construed in this way, it must hold that Mr. Diouf’s prolonged

detention without a hearing violates due process. In the alternative, Mr. Diouf’s

detention under any circumstances violates due process because he has been found

not to be a danger or a flight risk, and has lived without incident for the past two

years and nine months.

Respectfully submitted,

Dated: December 18, 2009 s/Judy Rabinovitz Judy RabinovitzFarrin R. AnelloTanaz MoghadamAmerican Civil Liberties Union FoundationImmigrants’ Rights Project125 Broad Street, 18th FloorNew York, NY 10004

CERTIFICATE OF COMPLIANCE

Pursuant to Fed. R. App. P. 32 (a)(7)(C), and Ninth Circuit Rule 32-1, I

certify that the attached reply brief is proportionately spaced, has a typeface of 14

points or more, and contains 9,085 words.

Dated: December 18, 2009 s/Judy Rabinovitz Judy RabinovitzCounsel for Petitioner-Appellant

STATEMENT OF RELATED CASES

Pursuant to Circuit Rule 28-2.6, counsel for Petitioner states that the

following cases in the Ninth Circuit may raise closely related issues concerning the

prolonged and indefinite detention of aliens pending completion of removal

proceedings:

Owino v. Chertoff, No. 09-56975

Rodriguez v. Hayes, No. 08-56156 (decided August 20, 2009)

Owino v. Napolitano, No. 08-56392 (decided August 4, 2009)

Casas-Castrillon v. Department of Homeland Security, No. 07-56261

(decided July 25, 2008)

Prieto-Romero v. Clark, No. 07-35458 (decided July 25, 2008)

The following cases relate to the habeas petition at issue in the present appeal.

Diouf v. Mukasey, No. 07-55337 (decided September 18, 2008)

Diouf v. Mukasey, No. 08-55504 (decided September 18, 2008)

The following pending cases relate to Petitioner’s claims against removal:

Diouf v. Holder, No. 06-71922

Diouf v. Holder, No. 06-73991

Counsel is not presently aware of other cases raising the same or closely- related

issues pending before this Court.

Respectfully submitted,

/s/ Judy RabinovitzJudy RabinovitzCounsel for Petitioner-Appellant

CERTIFICATE OF SERVICE

I hereby certify that on December 18, 2009 I electronically filed the

foregoing OPENING BRIEF OF PETITIONER-APPELLANT, with the Clerk

of the Court for the United States Court of Appeals for the Ninth Circuit by using

the appellate CM/ECF system. I certify that all participants in the case are

registered CM/ECF users and that service will be accomplished by the appellate

CM/ECF system.

s/Judy Rabinovitz Judy RabinovitzCounsel for Petitioner-Appellant