FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AMADOU LAMINE DIOUF,
Petitioner-Appellant,
v.
JANET NAPOLITANO, Secretary,
Department of Homeland
Security;* JULIE L. MYERS,
Assistant Secretary, United States No. 09-56774
Immigration and Customs
D.C. No.
Enforcement; NORMA BONALES-
GARIBAY, Field Office Director US 2:06-cv-07452-TJH-
Immigration and Customs FMO
Enforcement; GEORGE MOLINAR, OPINION
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,**
Respondents-Appellees.
Appeal from the United States District Court
for the Central District of California
Terry J. Hatter, Jr., District Judge, Presiding
Argued and Submitted
October 4, 2010—Pasadena, California
*Janet Napolitano is substituted for her predecessor, Michael Chertoff,
as Secretary of Homeland Security, pursuant to Fed. R. App. P. 43(c)(2).
**Eric H. Holder Jr. is substituted for his predecessor, Michael B.
Mukasey, as Attorney General of the United States, pursuant to Fed. R.
App. P. 43(c)(2).
3151
3152 DIOUF v. NAPOLITANO
Filed March 7, 2011
Before: Cynthia Holcomb Hall, Raymond C. Fisher and
Jay S. Bybee, Circuit Judges.***
Opinion by Judge Fisher
***Before her untimely death, Judge Hall fully participated in the argu-
ment and the post-argument conference of the panel and concurred fully
in this opinion.
DIOUF v. NAPOLITANO 3155
COUNSEL
Judy Rabinovitz (argued), Farrin R. Anello and Tanaz
Moghadam, ACLU Foundation Immigrants’ Rights Project,
New York, New York; Peter J. Eliasberg, Ahilan T. Arula-
nantham and Jennifer Stark, ACLU Foundation of Southern
California, Los Angeles, California; Cecillia D. Wang, ACLU
Foundation Immigrants’ Rights Project, San Francisco, Cali-
fornia; and Jayashri Srikantiah, Stanford Law School Immi-
grants’ Rights Clinic, Stanford, California, for the petitioner-
appellant.
Theodore W. Atkinson (argued), Office of Immigration Liti-
gation, Washington, D.C., Tony West, Assistant Attorney
General, Civil Division, David J. Kline, Director, District
Court Section, Office of Immigration Litigation, Victor M.
Lawrence, Principal Assistant Director, and Gjon Juncaj,
Senior Litigation Counsel, Office of Immigration Litigation,
Washington, D.C., for the respondents-appellees.
Charles Roth, National Immigrant Justice Center, Chicago,
Illinois, for amicus curiae National Immigrant Justice Center.
OPINION
FISHER, Circuit Judge:
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.
BACKGROUND1
1
We provided a more detailed summary of the factual and procedural
background in a previously published opinion, Diouf v. Mukasey, 542 F.3d
1222 (9th Cir. 2008) (“Diouf I”).
3156 DIOUF v. NAPOLITANO
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 expira-
tion of his student visa, failed to maintain nonimmigrant sta-
tus 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 exten-
sion 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 Cus-
toms 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
DIOUF v. NAPOLITANO 3157
arrangements for Diouf to depart on May 26, 2005 for Sene-
gal. 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 ongo-
ing 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.2
As an alternative to immediate release, Diouf requested a pre-
liminary 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
2
As we explained in Diouf I, 542 F.3d at 1229, at that time Diouf actu-
ally was detained under § 1231(a)(6), not § 1226(a).
3158 DIOUF v. NAPOLITANO
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 § 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
jurisdiction under 28 U.S.C. § 1292(a)(1), and we reverse.3
3
Before oral argument, we asked the parties to brief whether Diouf’s
claims have become moot given that he has been free on bond since Feb-
DIOUF v. NAPOLITANO 3159
STANDARD OF REVIEW
We review denial of a preliminary injunction for an abuse
of discretion. See Harris v. Bd. of Supervisors, 366 F.3d 754,
760 (9th Cir. 2004). The district court abuses its discretion
when it bases its decision on an erroneous legal standard or
on clearly erroneous findings of fact. See id. Accordingly,
whether § 1231(a)(6) requires a bond hearing is a question of
law reviewed de novo.
DISCUSSION
We hold that individuals detained under § 1231(a)(6) are
entitled to the same procedural safeguards against prolonged
detention as individuals detained under § 1226(a).
I.
When the United States commences removal proceedings
against an alien, the Attorney General has discretion to detain
the alien “pending a decision on whether the alien is to be
removed from the United States.” 8 U.S.C. § 1226(a).4,5 If the
ruary 2007 and the government has not to date elected to redetain him
(despite our decision vacating the preliminary injunction that had led to
the immigration court hearing that had ordered him released on bond).
Consistent with the position taken by both sides in their supplemental
briefing, we are satisfied that his claims have not become moot. The vol-
untary cessation exception to mootness applies because — absent action
by this court — the government could redetain Diouf, and deny him a
bond hearing, at any time. See Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs., Inc., 528 U.S. 167, 190 (2000) (“[A] defendant claiming that its
voluntary compliance moots a case bears the formidable burden of show-
ing that it is absolutely clear the allegedly wrongful behavior could not
reasonably be expected to recur.”). The government has offered no assur-
ance that Diouf will not be redetained; Picrin-Peron v. Rison, 930 F.2d
773, 775-76 (9th Cir. 1991), is therefore distinguishable.
4
For aliens who have been convicted of certain crimes, including aggra-
vated felonies, detention during this period is mandatory. See 8 U.S.C.
§ 1226(c).
5
On March 1, 2003, various immigration enforcement responsibilities of
3160 DIOUF v. NAPOLITANO
proceedings result in an order of removal, the Attorney Gen-
eral is required to remove the alien from the United States
within a period of 90 days, known as the “removal period.”
See id. § 1231(a)(1)(A).6 Detention during the relatively brief
removal period is mandatory. See id. § 1231(a)(2). The
removal period begins on the latest of the date the order of
removal becomes administratively final or, if the alien files a
petition for review in the court of appeals and the court of
appeals orders a stay of removal, the date of the court of
appeals’ final order upholding the order of removal. See id.
§ 1231(a)(1)(B). At all times before the removal period begins
and mandatory detention is authorized by § 1231(a)(2), the
alien is subject to discretionary detention under § 1226(a).
[1] If the alien is not removed during the removal period,
continued detention is authorized, in the discretion of the
Attorney General, by § 1231(a)(6), the statutory provision at
issue here. Section 1231(a)(6) authorizes continued detention
“beyond the removal period” of an alien “who has been deter-
mined by the Attorney General to be a risk to the community
or unlikely to comply with the order of removal.” Id.
§ 1231(a)(6). Section 1231(a)(6) encompasses aliens such as
Diouf, whose collateral challenge to his removal order (a
motion to reopen) is pending in the court of appeals, as well
as to aliens who have exhausted all direct and collateral
review of their removal orders but who, for one reason or
another, have not yet been removed from the United States.
the Attorney General were transferred to the Secretary of the newly cre-
ated Department of Homeland Security. See Homeland Security Act of
2002, Pub. L. No. 107-296, 116 Stat. 2135. For sake of convenience, in
this opinion we refer to the Attorney General rather than the Secretary of
Homeland Security to maintain conformity with the language of the stat-
utes themselves.
6
The removal period may be extended beyond 90 days if the alien fails
to cooperate in his departure or removal from the United States. See 8
U.S.C. § 1231(a)(1)(C).
DIOUF v. NAPOLITANO 3161
II.
[2] In Casas-Castrillon v. Department of Homeland Secur-
ity, 535 F.3d 942 (9th Cir. 2008), we addressed the prolonged
detention of aliens under § 1226(a) while seeking direct judi-
cial review of their administratively final orders of removal.
The petitioner in that case, a legal permanent resident, had
been detained in 2001, when the government commenced
removal proceedings against him based on his having been
convicted of two crimes involving moral turpitude. See id. at
944-45. The petitioner remained in detention for the next
seven years. Over that time span, an immigration judge issued
an order of removal, the BIA affirmed the order, the petitioner
filed a petition for review of the removal order in this court
and we granted the petition and remanded the matter to the
BIA. See id. at 945. The petitioner ultimately filed a habeas
petition, arguing that “his prolonged detention without a
meaningful opportunity to contest the necessity of continued
detention violated his right to procedural due process.” Id. We
determined that his habeas petition had merit. First, we con-
cluded that in the context of civil immigration proceedings,
“prolonged detention without adequate procedural protections
would raise serious constitutional concerns.” Id. at 950. Sec-
ond, applying the canon of constitutional avoidance to address
those concerns, we held as a matter of statutory interpretation
that § 1226(a) requires the Attorney General to provide aliens
with a bond hearing before an immigration judge to determine
the necessity of their ongoing detention. See id. at 950-52.7
We concluded that “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. at 951 (quoting
Tijani v. Willis, 430 F.3d 1241, 1242 (9th Cir. 2005)).
7
The canon of constitutional avoidance is a “cardinal principle” of statu-
tory interpretation. Zadvydas v. Davis, 533 U.S. 678, 689 (2001). “[W]hen
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 pos-
sible by which the question may be avoided.” Id. (quoting Crowell v. Ben-
son, 285 U.S. 22, 62 (1932)) (internal quotation marks omitted).
3162 DIOUF v. NAPOLITANO
III.
[3] We now extend Casas-Castrillon to aliens detained
under § 1231(a)(6). We find no basis for withholding from
aliens detained under § 1231(a)(6) the same procedural safe-
guards accorded to aliens detained under § 1226(a). As was
the case in Casas-Castrillon, prolonged detention under
§ 1231(a)(6), without adequate procedural protections, would
raise “serious constitutional concerns.” Casas-Castrillon, 535
F.3d at 950. To address those concerns, we apply the canon
of constitutional avoidance and construe § 1231(a)(6) as
requiring an individualized bond hearing, before an immigra-
tion judge, for aliens facing prolonged detention under that
provision. See id. at 951. Such aliens are entitled to release on
bond unless the government establishes that the alien is a
flight risk or will be a danger to the community. See id.
IV.
The government’s brief offers several arguments for treat-
ing aliens facing prolonged detention under § 1231(a)(6) dif-
ferently from those detained under § 1226(a). We address
these arguments in turn, but find none persuasive.
A. Direct Versus Collateral Review
[4] The government’s primary argument for treating
§ 1226(a) detainees differently from § 1231(a)(6) detainees is
that the former are detained while seeking direct judicial
review of administratively final orders of removal whereas the
latter are detained while seeking collateral review of final
orders of removal (through motions to reopen). According to
the government, this distinction matters in two ways: first, an
alien who is subject to a final order of removal and who is
merely attacking removal collaterally has a weaker liberty
interest in being free from governmental detention than one
who is challenging a removal order on direct review; and, sec-
ond, the government has a stronger interest in detaining an
DIOUF v. NAPOLITANO 3163
alien who is collaterally attacking a removal order because the
alien is closer to the point of actual, physical removal from
the United States. As we shall explain, these distinctions may
have some marginal validity, but they do not justify disparate
treatment of § 1231(a)(6) detainees.
1. Detainees’ Liberty Interest
[5] The government may be correct that at the margin,
§ 1231(a)(6) detainees have a lesser liberty interest in free-
dom from detention.8 Unlike a § 1226(a) detainee, a
§ 1231(a)(6) detainee is subject to a final order of removal
and is thus, at least as a theoretical matter, closer to actual
removal from the United States. This difference in status may
matter. See Zadvydas v. Davis, 533 U.S. 678, 694 (2001)
(stating that the nature of the due process protection an alien
is due “may vary depending upon status and circumstance”);
cf. Demore v. Kim, 538 U.S. 510, 552 (2003) (Souter, J., con-
curring in part and dissenting in part) (arguing that aliens
detained under § 1226(c) should be afforded greater proce-
dural protections than those detained under § 1231(a)(6)
because the latter have “already been ordered removed and
therefore enjoy[ ] no lawful immigration status”); id. at 560-
61 (suggesting that persons detained “pending removal pro-
ceedings” have a “stronger claim” than those detained “after
entry of a removal order”). But the government makes too
8
To the extent the government contends that aliens detained under
§ 1231(a)(6) possess no liberty interest in freedom from detention, we can-
not agree. In Zadvydas, the Supreme Court rejected the argument that
§ 1231(a)(6) detainees possess no liberty interest in freedom from civil
detention merely because they lack a “legal right” to live at large in the
United States. See Zadvydas, 533 U.S. at 696. In Casas-Castrillon, more-
over, we made clear that this liberty interest applies not only to indefinite
detention, but also to prolonged detention. See Casas-Castrillon, 535 F.3d
at 950 (“We conclude that prolonged detention without adequate proce-
dural protections would raise serious constitutional concerns.”). Any sug-
gestion that persons in Diouf’s position lack a liberty interest against
prolonged detention is thus untenable.
3164 DIOUF v. NAPOLITANO
much of this distinction. Regardless of the stage of the pro-
ceedings, the same important interest is at stake — freedom
from prolonged detention. The liberty interests of persons
detained under § 1231(a)(6) are comparable to those of per-
sons detained under § 1226(a).
Minimizing § 1231(a)(6) detainees’ liberty interests also
understates the importance of motions to reopen in safeguard-
ing immigrants’ rights. As the Supreme Court has explained,
“[t]he purpose of a motion to reopen is to ensure a proper and
lawful disposition” of an alien’s claims: it is an “important
safeguard” of the alien’s rights. Dada v. Mukasey, 554 U.S.
1, 18 (2008) (emphasis added). Motions to reopen afford
aliens a means to challenge in absentia removal orders, to set
aside removal orders when an underlying conviction upon
which the removal was based has been vacated, to raise (as in
Diouf’s case) a claim that the removal order resulted from
ineffective assistance of counsel and to raise an argument that
new developments would show that removal to a particular
country would result in torture or persecution. See Amicus Br.
of Nat’l Immigrant Justice Ctr. at 4-23.
2. The Government’s Interest
The government also may be correct that it has a margin-
ally greater interest in detaining § 1231(a)(6) detainees than
§ 1226(a) detainees. The primary purpose of § 1231(a)(6) is
“assuring the alien’s presence at the moment of removal.”
Zadvydas, 533 U.S. at 699. This interest strengthens as actual
removal from the United States becomes closer in time and
more certain to occur. In part, this is because an alien’s incen-
tive to flee may increase as the removal date approaches.
The distinctions between § 1226(a) and § 1231(a)(6), how-
ever, are not substantial enough to justify denying a bond
hearing to all aliens subject to extended detention under
§ 1231(a)(6). First, the government has an interest in ensuring
that aliens are available for removal if their legal challenges
DIOUF v. NAPOLITANO 3165
do not succeed whether they are detained under § 1226(a) or
§ 1231(a)(6). Second, in either circumstance, the govern-
ment’s interest in the prompt removal of aliens who have
exhausted their legal challenges is served by the bond hearing
process itself. If the alien poses a flight risk, detention is per-
mitted.
[6] Third, the same concerns about prolonged detention
arise irrespective of whether an alien has petitioned for review
of an order of removal (direct review) or an order denying a
motion to reopen (collateral review). In both situations, it may
take years for the petitions for review to be resolved. Diouf’s
petition for review from the BIA’s decision denying his
motion to reopen, for example, was filed in 2006 and remains
pending today — more than four years later. Thus, although
aliens detained pending collateral review may on average be
somewhat closer to removal than those detained pending
direct review, detention under both circumstances raises sub-
stantially the same due process concerns. Fourth, although
aliens detained under § 1231(a)(6) may on average be less
likely to succeed in setting aside their orders of removal, their
motions to reopen certainly may succeed, and in many cases
do. It is thus far from certain that § 1231(a)(6) detainees such
as Diouf will be removed.
Of course, an alien’s status, as well as the stage of the pro-
ceedings, may be relevant to an immigration judge’s assess-
ment of whether detention is necessary to ensure an alien’s
availability for removal. As an alien’s hopes of setting aside
a removal order fade, the risk of flight may increase. In the
same vein, changed circumstances may justify the revocation
of release that at one time was properly granted. Nonetheless,
although these factors are important enough for an immigra-
tion judge to consider at bond hearings, they do not warrant
categorically denying to § 1231(a)(6) detainees the right to a
bond hearing that § 1226(a) detainees already enjoy.
[7] In sum, although there are shades of difference,
§ 1231(a)(6) detainees and § 1226(a) detainees are similarly
3166 DIOUF v. NAPOLITANO
situated. Both may be detained for prolonged periods; both
may succeed in setting aside their orders of removal; and both
may be detained without bond when necessary to ensure their
availability for removal.
B. Legal Permanent Resident Status
[8] The government also posits that Casas-Castrillon is
distinguishable because Diouf was an admitted alien before he
was ordered removed, whereas the alien in Casas-Castrillon
was a legal permanent resident. The government may be cor-
rect that legal permanent residents, or LPRs, are entitled to
greater due process protections than other aliens. See Demore,
538 U.S. at 547 (Souter, J., concurring in part and dissenting
in part) (“[W]e have accorded LPRs greater protections than
other aliens under the Due Process Clause.”); Zadvydas, 533
U.S. at 694 (opining that the nature of due process protection
may vary depending upon an alien’s status). Because we are
construing a statute under the canon of constitutional avoid-
ance, however, whether Diouf was a legal permanent resident
is irrelevant. What matters is that § 1231(a)(6), like § 1226(a),
applies to some legal permanent residents. See Clark v. Marti-
nez, 543 U.S. 371, 380-81 (2005) (“[W]hen deciding which of
two plausible statutory constructions to adopt, a court must
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)). We therefore cannot distinguish Casas-
Castrillon on the basis that Diouf himself was not a legal per-
manent resident.9
9
In Diouf I, we noted that Diouf was not a legal permanent resident in
order to give the parties the opportunity to address on remand whether this
distinction matters to the analysis. See Diouf I, 542 F.3d at 1234-35. For
the reasons given in Clark, we have found no basis for distinguishing
Casas-Castrillon on this basis.
DIOUF v. NAPOLITANO 3167
C. Express Statutory Authority for Release on Bond
We also reject the government’s contention that Casas-
Castrillon is distinguishable on the theory that the statutory
framework there “already authorized” release on bond,
whereas § 1231(a)(6) does not. We recognize that § 1226(a)
expressly authorizes release on bond, see 8 U.S.C.
§ 1226(a)(2), whereas § 1231(a)(6) does not. But we have no
doubt that bond is also authorized under § 1231(a)(6), as we
have held and as Department of Homeland Security (DHS)
regulations acknowledge. See Diouf I, 542 F.3d at 1234 (“We
have specifically construed § 1231(a)(6) to permit release on
bond.”); 8 C.F.R. § 241.5(b). We thus see no meaningful dis-
tinction between applying the doctrine of constitutional avoid-
ance here and applying it in Casas-Castrillon.
D. Deference to DHS Regulations
We also disagree with the government’s contention that
DHS regulations provide sufficient safeguards to protect the
liberty interests of § 1231(a)(6) detainees, obviating the need
for hearings before an immigration judge in all cases. The
government argues that we should accord Chevron deference
to these regulations, which address the issue of prolonged
detention under § 1231(a)(6) by providing for one or more
“post-order custody reviews” by DHS employees, but not for
an independent determination of the need for continued deten-
tion by a neutral decisionmaker such as an immigration judge.
See 8 C.F.R. §§ 241.4, 241.13, 241.14.10
[9] Under the DHS regulations, the custody reviews are
supposed to take place within 90 days, 180 days and 18
months of confinement. During the 90-day removal period,
10
The government modified these regulations in response to the
Supreme Court’s Zadvydas decision. See Continued Detention of Aliens
Subject to Final Orders of Removal, 66 Fed. Reg. 56967, 56969 (Nov. 14,
2001).
3168 DIOUF v. NAPOLITANO
DHS is required to detain the alien. See 8 U.S.C. § 1231(a)(2).
Upon conclusion of the 90-day removal period the statute
authorizes continued detention in the discretion of the Attor-
ney General. See id. § 1231(a)(6). Under the regulations, DHS
is required to conduct an initial custody review before the 90-
day removal period expires if the alien’s removal cannot be
accomplished during the removal period (“the 90-day
review”). See 8 C.F.R. § 241.4(k)(1)(i). The alien is afforded
certain rights with respect to this review, including the rights
to receive written notice of the review, to submit information
in writing to support release and to be assisted by any individ-
ual of his or her choosing in preparing or submitting informa-
tion in response to the notice. See id. § 241.4(h)(1)-(2). At the
conclusion of the review, DHS may either release the alien on
supervised release, see 8 U.S.C. § 1231(a)(3), or continue the
alien’s detention beyond the removal period under
§ 1231(a)(6), pending removal or further review of his or her
custody status. See 8 C.F.R. § 241.4(k)(1)(i). If the alien is not
released or removed at the time of the 90-day review, he or
she will receive a second review three months later, or after
180 days have passed from the date the removal period began
(“the 180-day review”). See id. § 241.4(k)(2)(ii). If the alien
is not released following the 180-day review, a subsequent
review will be commenced within approximately one year
after the 180-day review — i.e., 18 months after the begin-
ning of the removal period. See id. § 241.4(k)(2)(iii).
The government contends that these regulations provide
adequate procedures to protect aliens’ liberty interests and
that we should defer to them under Chevron, U.S.A., Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837
(1984). Under Chevron’s two-step framework, the court first
must determine “whether Congress has directly spoken to the
precise question at issue. If the intent of Congress is clear,”
then the court “must give effect to the unambiguously
expressed intent of Congress.” Id. at 842-43. Under the sec-
ond step, “if the statute is silent or ambiguous with respect to
the specific issue, the question for the court is whether the
DIOUF v. NAPOLITANO 3169
agency’s answer is based on a permissible construction of the
statute.” Id. at 843.
We may not defer to DHS regulations interpreting
§ 1231(a)(6), however, if they raise grave constitutional
doubts. See, e.g., Kim Ho Ma v. Ashcroft, 257 F.3d 1095,
1105 n.15 (9th Cir. 2001) (“Although we recognize that, in
general, the Attorney General’s interpretation of the immigra-
tion laws is entitled to substantial deference, . . . Chevron
principles are not applicable where a substantial constitutional
question is raised by an agency’s interpretation of a statute it
is authorized to construe.”) (citations omitted); Williams v.
Babbitt, 115 F.3d 657, 662-63 (9th Cir. 1997) (holding that
courts should not apply Chevron deference to an agency’s
interpretation that “raises serious constitutional concerns”);
see also Hernandez-Carrera v. Carlson, 547 F.3d 1237, 1249
(10th Cir. 2008) (“It is well established that the canon of con-
stitutional avoidance does constrain an agency’s discretion to
interpret statutory ambiguities, even when Chevron deference
would otherwise be due.”); Nat’l Mining Ass’n v. Kemp-
thorne, 512 F.3d 702, 711 (D.C. Cir. 2008) (“This canon of
constitutional avoidance trumps Chevron deference, and we
will not submit to an agency’s interpretation of a statute if it
‘presents serious constitutional difficulties.’ ” (quoting Cham-
ber of Commerce v. FEC, 69 F.3d 600, 605 (D.C. Cir. 1995))
(citation omitted)).11
In Mathews v. Eldridge, 424 U.S. 319 (1976), the Supreme
Court articulated a balancing test for deciding what proce-
dures are required when there has been a deprivation of lib-
erty and due process is required. This test
11
We have held that the constitutional avoidance canon plays no role
during step two in the Chevron framework. See Morales-Izquierdo v. Gon-
zales, 486 F.3d 484, 493 (9th Cir. 2007) (en banc). But the canon applies
at Chevron step one, because it is “a means of giving effect to congressio-
nal intent.” Clark, 543 U.S. at 382.
3170 DIOUF v. NAPOLITANO
generally requires consideration of three distinct fac-
tors: First, the private interest that will be affected by
the official action; second, the risk of an erroneous
deprivation of such interest through the procedures
used, and the probable value, if any, of additional or
substitute procedural safeguards; and finally, the
Government’s interest, including the function
involved and the fiscal and administrative burdens
that the additional or substitute procedural require-
ment would entail.
Id. at 335.
Here, the DHS regulations providing for the initial, 90-day
review do not raise serious constitutional concerns. Our focus
here, as in Casas-Castrillon, is on prolonged detention. The
90-day review authorizes detention for only an additional 90
days, bringing the alien’s period of detention (including the
removal period) to 180 days. Detention during this period cer-
tainly affects aliens’ interests in freedom from confinement,
and requires that adequate procedural safeguards be in place
to protect against the erroneous deprivation of liberty. But
given the relatively limited period of detention involved, and
in view of the Mathews factors as a whole, the process
afforded by the DHS regulations is adequate.
[10] The DHS regulations governing the 180-day review,
however, do raise serious constitutional concerns. When the
180-day review takes place, the alien has been detained for
approximately six months and the review, if unfavorable to
the alien, authorizes detention for an additional year. At this
point, the alien’s continuing detention becomes prolonged.
See Casas-Castrillon, 535 F.3d at 950 (distinguishing the pro-
longed detention at issue in that case (seven years) from Dem-
ore, in which the Supreme Court upheld a six-month
detention under § 1226(c) “with the specific understanding
that § 1226(c) authorized mandatory detention only for the
‘limited period of [the alien’s] removal proceedings,’ which
DIOUF v. NAPOLITANO 3171
the Court estimated ‘lasts roughly a month and a half in the
vast majority of cases in which it is invoked, and about five
months in the minority of cases in which the alien chooses to
appeal’ his removal order to the BIA”) (quoting Demore, 538
U.S. at 530)); see also Zadvydas, 533 U.S. at 701 (treating six
months as a “presumptively reasonable period of detention”
in a related context). When the period of detention becomes
prolonged, “the private interest that will be affected by the
official action,” Mathews, 424 U.S. at 335, is more substan-
tial; greater procedural safeguards are therefore required. See
Zadvydas, 533 U.S. at 701 (explaining that the due process
analysis changes as “the period of . . . confinement grows”).
[11] Thus, at the 180-day juncture, the DHS regulations
are appropriate but not alone sufficient to address the serious
constitutional concerns raised by continued detention. The
regulations do not afford adequate procedural safeguards
because they do not provide for an in-person hearing, they
place the burden on the alien rather than the government and
they do not provide for a decision by a neutral arbiter such as
an immigration judge.12 See Casas-Castrillon, 535 F.3d at
951-52 (holding that the post-order custody review “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 opportu-
nity to appeal that determination to the BIA”); see also Zadvy-
das, 533 U.S. at 692 (holding that indefinite detention under
§ 1231(a)(6) raised serious constitutional concerns, in part
because “the sole procedural protections available to the alien
are found in administrative proceedings, where the alien bears
the burden of proving he is not dangerous”). When detention
crosses the six-month threshold and release or removal is not
imminent, the private interests at stake are profound.13 Fur-
12
Under the regulations, an in-person hearing is permitted, but not
required. See 8 C.F.R. § 241.4(h)(1).
13
If the 180-day threshold has been crossed, but the alien’s release or
removal is imminent, DHS is not required to conduct a 180-day review,
3172 DIOUF v. NAPOLITANO
thermore, the risk of an erroneous deprivation of liberty in the
absence of a hearing before a neutral decisionmaker is sub-
stantial. The burden imposed on the government by requiring
hearings before an immigration judge at this stage of the pro-
ceedings is therefore a reasonable one.
[12] Diouf’s own case illustrates why a hearing before an
immigration judge is a basic safeguard for aliens facing pro-
longed detention under § 1231(a)(6). The government
detained Diouf in March 2005. DHS conducted custody
reviews under § 241.4 in July 2005 and July 2006. In both
instances, DHS determined that Diouf should remain in cus-
tody pending removal because his “criminal history and lack
of family support” suggested he might flee if released. In Feb-
ruary 2007, however, an immigration judge determined that
Diouf was not a flight risk and released him on bond. If the
district court had not ordered the bond hearing on due process
grounds, Diouf might have remained in detention until this
day. To address these concerns, aliens who are denied release
in their 180-day reviews must be afforded the opportunity to
challenge their continued detention in a hearing before an
immigration judge.
CONCLUSION
We hold that an alien facing prolonged detention under
§ 1231(a)(6) is entitled to a bond hearing before an immigra-
see 8 C.F.R. § 241.4(k)(3), and neither should the government be required
to afford the alien a hearing before an immigration judge. As a general
matter, detention is prolonged when it has lasted six months and is
expected to continue more than minimally beyond six months. By the
same token, DHS should be encouraged to afford an alien a hearing before
an immigration judge before the 180-day threshold has been reached if it
is practical to do so and it has already become clear that the alien is facing
prolonged detention. When, for example, this court grants a stay of
removal in connection with an alien’s petition for review from a denial of
a motion to reopen, the alien’s prolonged detention becomes a near cer-
tainty.
DIOUF v. NAPOLITANO 3173
tion judge and is entitled to be released from detention unless
the government establishes that the alien poses a risk of flight
or a danger to the community. We accordingly reverse the
order of the district court denying Diouf’s motion for a pre-
liminary injunction.
REVERSED and REMANDED.