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Diouf v. Napolitano

March 7, 2011

AMADOU LAMINE DIOUF, PETITIONER-APPELLANT,
v.
JANET NAPOLITANO, SECRETARY, DEPARTMENT OF HOMELAND SECURITY;*FN1 JULIE L. MYERS, ASSISTANT SECRETARY, UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT; NORMA BONALES-GARIBAY, FIELD OFFICE DIRECTOR US IMMIGRATION AND CUSTOMS ENFORCEMENT; GEORGE MOLINAR, CHIEF OF DETENTION AND REMOVAL OPERATIONS, SAN PEDRO DETENTION FACILITY; STUART CORTEZ, OFFICER-IN-CHARGE, SAN PEDRO DETENTION FACILITY; ERIC H. HOLDER JR., ATTORNEY GENERAL,*FN2 RESPONDENTS-APPELLEES.



Appeal from the United States District Court for the Central District of California Terry J. Hatter, Jr., District Judge, Presiding D.C. No. 2:06-cv-07452-TJH-FMO

The opinion of the court was delivered by: Fisher, Circuit Judge

FOR PUBLICATION

Argued and Submitted October 4, 2010-Pasadena, California

Before: Cynthia Holcomb Hall, Raymond C. Fisher and Jay S. Bybee, Circuit Judges.*fn3

OPINION

We hold that an individual facing prolonged immigration detention under 8 U.S.C. § 1231(a)(6) is entitled to release on bond unless the government establishes that he is a flight risk or a danger to the community. We accordingly reverse the district court's denial of petitioner's motion for a preliminary injunction.

BACKGROUND*fn4

Amadou Lamine Diouf, a citizen of Senegal, was admitted to the United States on a student visa in 1996. The visa expired in June 2002. In December 2002, Diouf was found in possession of less than 30 grams of marijuana and charged with a misdemeanor. He pled guilty the following month.

The government initiated removal proceedings against Diouf in January 2003, alleging that he was removable because he had remained in the United States after the expiration of his student visa, failed to maintain nonimmigrant status and committed a controlled-substance offense. The immigration judge (IJ) determined that Diouf was subject to removal. At Diouf's request, the judge ordered in lieu of removal that he voluntarily depart from the United States by June 24, 2003. The judge also issued an alternate order of removal and ordered that Diouf would be removed to Senegal if he did not depart voluntarily by the specified date. Diouf waived appeal and posted bond on March 3, 2003. Diouf did not petition for review of the voluntary departure order or the alternate removal order.

Following his release, Diouf retained counsel, hoping to reopen the removal proceedings and adjust his status from nonimmigrant alien to lawful permanent resident based on his planned marriage to a United States citizen. He married on June 17, 2003. Although counsel prepared both a motion to reopen the removal proceedings and a request for an extension of the voluntary departure period, he did not file those documents at that time. Meanwhile, the deadline for Diouf's voluntary departure passed.

Upon learning that Diouf remained in the country beyond the June 24, 2003 departure deadline, Immigration and Customs Enforcement (ICE) sent him a notice requiring him to present himself for removal on September 4, 2003. Diouf failed to report as instructed, so ICE cancelled his bond, apprehended him at his home on March 29, 2005 and detained him pending execution of the removal order. ICE made arrangements for Diouf to depart on May 26, 2005 for Senegal. When Diouf refused to leave on that date, ICE continued to detain him.

In late 2005, after obtaining new counsel, Diouf filed a motion to reopen his removal proceedings, arguing that his first attorney had provided ineffective assistance of counsel by failing to file a timely motion to reopen after his marriage, to seek an extension of the voluntary departure date and to appeal the voluntary departure order. The IJ denied the motion to reopen and the Board of Immigration Appeals (BIA) affirmed. Diouf filed a pro se petition for review of that decision in this court and requested a stay of removal. We granted a stay and appointed pro bono counsel to represent him. His petition for review, docketed as No. 06-71922, remains pending before another panel of this court.

Diouf's detention, which began in March 2005, continued throughout this period. To determine whether Diouf's ongoing detention remained justified, ICE conducted post-order custody reviews pursuant to 8 C.F.R. § 241.4 on July 21, 2005 and July 25, 2006. In both instances, ICE determined that Diouf should remain in custody pending removal because his "criminal history and lack of family support" suggested he might flee if released.

In November 2006, Diouf filed a 28 U.S.C. § 2241 petition for writ of habeas corpus in district court. He requested the court to enter a preliminary injunction for immediate release on the grounds that his lengthy detention violated 8 U.S.C. § 1226(a) and the Due Process Clause of the Fifth Amendment.*fn5

As an alternative to immediate release, Diouf requested a preliminary injunction ordering an immigration judge to hold a hearing at which the government would have the burden of justifying his detention. On January 4, 2007, the district court granted a preliminary injunction requiring a bond hearing before an immigration judge. Pursuant to the injunction, the IJ conducted a hearing on February 9, 2007 to determine whether Diouf's prolonged detention remained justified. After receiving evidence from both sides, the immigration judge ruled that Diouf did not present a sufficient danger to the community or risk of flight to justify the detention, which by then had extended over 22 months. Accordingly, the IJ released Diouf on bond the same day.

In September 2008, this court vacated the preliminary injunction and remanded to the district court. First, we held that at the time Diouf filed his habeas petition, he was detained under 8 U.S.C. § 1231(a)(6), not § 1226(a), as Diouf and the district court had erroneously assumed. See Diouf I, 542 F.3d at 1228-32. Second, we held that Diouf's detention was authorized by statute because, although it was prolonged, it was not indefinite. See id. at 1232-33. Third, we held that the injunction constituted an abuse of discretion insofar as it relied on the erroneous premise that Diouf was being detained under § 1226(a). See id. at 1233-35. Finally, we remanded to the district court to determine in the first instance "whether aliens such as Diouf, who are detained under § 1231(a)(6), are entitled to receive bond hearings and to obtain release on bond unless the Government proves that they are a danger or a flight risk." Id. at 1234; cf. Casas-Castrillon v. Dep't of Homeland Sec., 535 F.3d 942, 951 (9th Cir. 2008) (holding that these procedural safeguards apply to aliens detained under § 1226(a)).

On remand, the district court concluded that individuals facing prolonged detention under ยง 1231(a)(6) are not entitled to a bond hearing and accordingly denied Diouf's motion for a preliminary injunction. Diouf timely appealed. We have ...


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