Jose Chavez-Alvarez v. Warden York County Prison

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________

No. 14-1402
__________

JOSE JUAN CHAVEZ-ALVAREZ,
Appellant

v.

WARDEN YORK COUNTY PRISON;
THOMAS DECKER, In his official capacity as Philadelphia
Field Office Director for United States Immigration
and Customs Enforcement; JOHN T. MORTON, In his
official capacity as Assistant Secretary of United States
Immigration and Customs Enforcement; SECRETARY
UNITED STATES DEPARTMENT OF HOMELAND
SECURITY; ATTORNEY GENERAL
UNITED STATES OF AMERICA
__________

On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 1-12-cv-02130)
District Judge: Honorable John E. Jones, III

ARGUED
November 18, 2014
 BEFORE: RENDELL, JORDAN,
and NYGAARD, Circuit Judges

(Filed: April 9, 2015)

Valerie A. Burch, Esq. [Argued]
The Shagin Law Group
120 South Street
The Inns of St. Jude
Harrisburg, PA 17101
Counsel for Appellant

Leon Fresco, Esq. [Argued]
United States Department of Justice
Civil Division, Room 3129
950 Pennsylvania Avenue, N.W.
Washington, DC 20530

Katherine E.M. Goettel, Esq.
United States Department of Justice
Office of Immigration Litigation
P.O. Box 868
Ben Franklin Station
Washington, DC 20001

Timothy S. Judge, Esq.
Office of United States Attorney
235 North Washington Avenue
P.O. Box 309, Suite 311
Scranton, PA 18503

Troy D. Liggett, Esq.

2
United States Department of Justice
Office of Immigration Litigation
Room 6036
P. O. Box 868
Ben Franklin Station
Washington, DC 20001

Mark E. Morrison, Esq.
Office of United States Attorney
228 Walnut Street, P.O. Box 11754
220 Federal Building and Courthouse
Harrisburg, PA 17108
Counsel for Appellees

Michael K.T. Tan, Esq. (Argued)
American Civil Liberties Union Foundation
39 Drumm Street
San Francisco, CA 94111
Counsel for Amicus Appellants
__________

OPINION OF THE COURT
__________

NYGAARD, Circuit Judge.

Jose Juan Chavez-Alvarez appeals the District Court’s
denial of his petition for a writ of habeas corpus. He contends
that the Government is violating his right to due process by
detaining him, pursuant to 8 U.S.C. §1226(c), 1 without a bond

1
“The Attorney General shall take into custody any alien who
. . . (B) is deportable by reason of having committed any

3
hearing since June 5, 2012. We will reverse the District
Court’s order and remand with instruction to grant the writ of
habeas corpus and ensure that Chavez-Alvarez is promptly
afforded a bond hearing.

I.

Chavez-Alvarez, a citizen of Mexico, entered the
United States at a young age without inspection and later
adjusted to lawful permanent resident status. He married a
United States citizen, but is now divorced. He has two sons
who are United States citizens. In 2000, while serving in the
United States Army in South Korea, a General Court-Martial
convicted him of giving false official statements (10 U.S.C. §
907), sodomy (10 U.S.C. § 925), and violating the general
article (10 U.S.C. § 934). 2 It sentenced him to eighteen
months of imprisonment. He served thirteen months in prison
and was released on February 4, 2002.

offense covered in section 1227(a)(2)(A)(ii), (A)(iii), (B), (C),
or (D) of this title.” 8 U.S.C. § 1226(c)(1)(B); See also 8
C.F.R. § 241.3.
2
“Though not specifically mentioned in this chapter, all
disorders and neglects to the prejudice of good order and
discipline in the armed forces, all conduct of a nature to bring
discredit upon the armed forces, and crimes and offenses not
capital, of which persons subject to this chapter may be
guilty, shall be taken cognizance of by a general, special, or
summary court-martial, according to the nature and degree of
the offense, and shall be punished at the discretion of that
court.” 10 U.S.C. § 934.

4
 Immigration Customs and Enforcement agents arrested
Chavez-Alvarez on June 5, 2012, and served him with a
Notice to Appear, charging him with being removable under
8 U.S.C. § 1227(a)(2)(A)(iii) for his conviction on an
aggravated felony. He was ordered detained without bond
under 8 U.S.C. §1226(c) and sent to York County Prison.

The total number of days that Chavez-Alvarez has
been held in civil detention since his arrest, of itself, gives us
reason for pause. However, we judge the reasonableness of a
detention during the removal process by “tak[ing] into
account a given individual detainee’s need for more or less
time, as well as the exigencies of a particular case.” Diop v.
ICE/Homeland Sec., 656 F.3d 221, 234 (3d Cir. 2011). Our
close review of this record has been significant to our
deliberation about the constitutionality of Chavez-Alvarez’s
detention. And so, we begin by summarizing what happened
in the Immigration Court.

II.

Shortly after his arrest, Chavez-Alvarez obtained
counsel and challenged the Government’s case for removal.
The Immigration Judge accepted pleadings on June 19, 2012;
Chavez-Alvarez argued against removability. Ten days later,
the Government, pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii),
added a charge that Chavez-Alvarez was removable on the
ground of being convicted for two or more crimes involving
moral turpitude. Roughly five weeks after he was arrested,
on July 11, 2012, the Immigration Judge denied Chavez-
Alvarez’s request for a bail hearing—filed two days after his
arrest on June 7, 2012—ruling that he was subject to

5
mandatory detention under section 1226(c) in compliance
with Matter of Joseph, 22 I. & N. Dec. 799 (BIA 1999).

Between August and October of 2012, the Immigration
Judge held two hearings. During this time, Chavez-Alvarez
denied that he was removable on the new charge, and
challenged the Government’s claim that his earlier conviction
made him removable. Two issues emerged during these
hearings: whether the Manual for Courts Marshal—which
the Government used to categorize his crime—has the effect
of law; and, whether Chavez-Alvarez’s eighteen month
sentence arose from all of his crimes, or just the sodomy
conviction. Chavez-Alvarez said at the October hearing that,
if necessary, he would request a 212(h) waiver of
inadmissibility, pursuant to 8 U.S.C. § 1182(h).

The fifth hearing was held on November 1, 2012,
almost five months into Chavez-Alvarez’s detention. The
Immigration Judge ruled that Chavez-Alvarez was removable.
Specifically, he concluded that sodomy by force is a crime of
violence under 18 U.S.C. § 16(a) and (b), qualifying as an
aggravated felony under 8 U.S.C. § 1101(a)(43)(F). But, the
Immigration Judge also told Chavez-Alvarez that he would
consider a 212(h) waiver, and encouraged him to have a
petition for an alien relative (Form I-130) filed on his behalf
to accompany the waiver.

Over the next four months, the Immigration Judge held
four more hearings. During this time, it became clear that
Chavez-Alvarez was seeking only a standalone waiver.3 This

3
The Immigration Judge acted on an apparent credible
possibility that Chavez-Alvarez would marry. Later, Chavez-

6
brought up a question of whether and when Chavez-Alvarez
had been admitted to the country. The Immigration Judge
then requested briefing on the implications of the ruling in
Matter of Sanchez, 17 I. & N. Dec. 218 (BIA 1980), to
Chavez-Alvarez’s eligibility for the waiver.

On March 5, 2013, at the final hearing, nine months
after he was arrested and detained, the Immigration Judge
issued an oral decision denying Chavez-Alvarez’s application
for a 212(h) waiver. This was the sole remaining issue.
Chavez-Alvarez stated that he was reserving his right to
appeal.

On April 3, 2013, approximately 10 months after his
arrest and detention, Chavez-Alvarez appealed to the Board
of Immigration Appeals (BIA). The Government filed a
motion with the BIA for a summary affirmance, but the BIA
affirmed the Immigration Judge’s decision in a precedential
decision on March 14, 2014, over twenty-one months after
Chavez-Alvarez’s arrest and detention. Chavez-Alvarez then
petitioned this Court for review of the BIA’s decision. 4

Alvarez told the Immigration Judge that he was no longer
considering marriage.
4
On October 25, 2012, Chavez-Alvarez filed a petition for
writ of habeas corpus. The District Court granted Chavez-
Alvarez’s order to show cause on October 31, 2012. It
referred the petition to the Magistrate Judge on December 7,
2012. The Magistrate Judge held oral argument on May 29,
2013 and issued a report and recommendation on December
18, 2013, recommending the District Court deny the writ.
Chavez-Alvarez objected to the report and recommendation

7
 III.

Chavez-Alvarez says that the Government is violating
his due process rights by detaining him for an unreasonable
amount of time without conducting a hearing at which he
would have the opportunity to be released on bond. 5 The law
applying to Chavez-Alvarez’s issue is well established. It
was long ago decided that the Government has authority to
detain any alien during removal proceedings. Wong Wing v.
United States, 163 U.S. 228, 235 (1896). Before 1996,
significant numbers of aliens convicted of serious crimes
were taking advantage of their release on bond as an
opportunity to flee, avoid removal, and commit more crimes.
Demore v. Kim, 538 U.S. 510, 518-19 (2003). Congress fixed
this problem by enacting section 1226(c), expanding the
range of serious crimes for which the Government was
required to detain convicted aliens. Notably, section 1226(c)
does not give the Attorney General any authority to release
these aliens on bond. Id. at 521.

The Supreme Court left no doubt that the
Government’s authority under section 1226(c) to detain aliens
without an opportunity for bond complies with the

on January 2, 2014. The District Court adopted the
Magistrate Judge’s recommendation on January 22, 2014,
almost twenty months after Chavez-Alvarez was arrested and
detained. Chavez-Alvarez appealed to this court. His case
was docketed on February 21, 2014.
5
We have jurisdiction over this appeal under 28 U.S.C. §
1291 and 28 U.S.C. § 2255.

8
Constitution. Id. at 531. However, as we discuss below, we
read Demore as also recognizing that there are limits to this
power. Diop, 656 F.3d 221; Leslie v. Attorney Gen. of the
United States, 678 F.3d 265 (3d Cir. 2012).

When the Supreme Court upheld the constitutionality
of the law in Demore, it also gave us insight into how, from a
due process perspective, section 1226(c)’s allowance of
detention without bail worked. The Court reiterated the
fundamental idea that aliens are protected by constitutional
due process. Demore, 538 U.S. at 523 (citing Reno v. Flores,
507 U.S. 292, 306 (1993)). But, it put the alien’s issue in
perspective, saying ‘“[i]n the exercise of its broad power over
naturalization and immigration, Congress regularly makes
rules that would be unacceptable if applied to citizens.”’ Id.
at 521 (quoting Matthews v. Diaz, 426 U.S. 67, 79-80
(1976)). The Court went on to say that applying ‘“reasonable
presumptions and generic rules”’ to groups of aliens—for
purposes of due process—can be consistent with the idea that
aliens can be treated differently. Id. at 526 (quoting Flores,
507 at 313); see also Carlson v. Landon, 342 U.S. 524
(1952).

The Court, in essence, concluded that Congress
lawfully required the Attorney General to make presumptions
of flight and dangerousness about the alien solely because he
belonged to the group of aliens convicted of the types of
crimes defined in section 1226(c).6 These presumptions,

6
Demore expresses the goal of the statute in terms of
preventing flight (ensuring that aliens who are subject to a
removal order will actually be removed (538 U.S. at 528.)).
However, the Supreme Court also considered data that was

9
Demore says, justified the alien’s detention and eliminated
the need for an individualized bond hearing: they were the
reason the alien’s six-month detention without a bond hearing
was not an arbitrary deprivation of liberty. Id. at 528 (“Such
detention necessarily serves the purpose of preventing
deportable criminal aliens from fleeing prior to or during their
removal proceedings, thus increasing the chance that, if
ordered removed, the aliens will be successfully removed.”).

Eight years after Demore, we addressed the question of
whether the Government’s use of section 1226(c) to detain an
alien for almost three years without a bond hearing complied
with due process. Diop, 656 F.3d 221. Citing earlier
decisions by the Supreme Court, we recognized the
importance of judicial deference to the Executive Branch in
immigration matters, Negusie v. Holder, 555 U.S. 511 (2009),
but also noted that a court must use its independent judgment
to decide whether a detention is ‘“reasonably necessary to
secure removal.”’ Diop, 656 F.3d at 234 (quoting Zadvydas,
533 U.S. at 699). Although the Government cited to Demore
and argued it had authority to detain Diop for as long as the
removal process takes, we highlighted Justice Kennedy’s
concurring opinion in Demore, which made it clear that
balancing competing interests was implicit in the Supreme
Court’s ruling that section 1226(c) was constitutional. He
said:

examined by Congress on crime rates of aliens who had
skipped bail. Id. at 518-19. Therefore, in Diop, we said that
the purpose of the statute is to “ensur[e] that an alien attends
removal proceedings and that his release will not pose a
danger to the community.” Diop, 656 F.3d at 231.

10
 [S]ince the Due Process Clause
prohibits arbitrary deprivations of
liberty, a lawful permanent
resident alien such as respondent
could be entitled to an
individualized determination as to
his risk of flight and
dangerousness if the continued
detention became unreasonable or
unjustified.

Demore, 538 U.S. at 532 (citing Zadvydas v. Davis, 533 U.S.
678, 684-86 (2001)). Importantly, he added:

Were there to be an unreasonable
delay by the INS in pursuing and
completing deportation
proceedings, it could become
necessary to inquire whether the
detention is not to facilitate
deportation, or to protect against
risk of flight or dangerousness,
but to incarcerate for other
reasons.

Id. at 532-33 (Kennedy, J., concurring). Considering this,
along with the attention the Court gave to the average length
of removal cases, we concluded that the Court in Demore
expected the detentions under section 1226(c) to be brief, and
that this expectation was key to their conclusion that the law
complied with due process. Diop, 656 F.3d at 233-34 (citing
Demore, 538 U.S. at 529). For all of these reasons, we said:

11
“[T]he constitutionality of this practice is a function of the
length of the detention. . . . [T]he constitutional case for
continued detention without inquiry into its necessity
becomes more and more suspect as detention continues past
[certain] thresholds.” Diop, 656 F.3d at 232, 234.

By its very nature, the use of a balancing framework
makes any determination on reasonableness highly fact-
specific. 7 In circumstances like those in Demore, it is not

7
Chavez-Alvarez and the American Civil Liberties Union as
amicus urge us to adopt a rebuttable presumption that all pre-
removal detentions exceeding six months must be justified by
the government at a bond hearing. See Appellant's Br. at 24
("[T]his Court has thus far declined to declare that all pre-
removal detentions exceeding six months must be justified by
the Government at a bond hearing . . . . Such a rule would
provide much-needed guidance to the district courts and ease
the burden on detained noncitizens - most of whom cannot
afford to retain counsel to pursue a habeas petition." (internal
quotation marks and citations omitted)); ACLU Br. at 14
("[T]he surest and simplest way to clarify the reasonableness
standard is for the Court to establish a presumptively
reasonable period, preferably six months, for which
mandatory detention is authorized under § 1226(c), and after
which a bond hearing before the [Immigration Judge] would
usually be required."). We declined to adopt presumptive
thresholds in both Diop and Leslie, and we decline to do so
now. While we appreciate the merits of the presumption
urged by Chavez-Alvarez and the ACLU, the highly fact-
specific nature of our balancing framework does not comport
with a bright-line rule.

12
arbitrary or capricious to use a presumption that the alien will
flee or be dangerous in the case of every detainee for the
purpose of eliminating the need for bond hearings, because
the cost of their short-term deprivation of liberty is
outweighed by the need or benefit of detaining this whole
group to achieve the goals of the statute. The relative weight
of the competing interests in cases like these favor the
Government’s position. Yet, due process requires us to
recognize that, at a certain point—which may differ case by
case8—the burden to an alien’s liberty outweighs a mere
presumption that the alien will flee and/or is dangerous. At
this tipping point, the Government can no longer defend the
detention against claims that it is arbitrary or capricious by
presuming flight and dangerousness: more is needed to
justify the detention as necessary to achieve the goals of the
statute. As we said in Diop, section 1226(c) “implicitly
authorizes detention for a reasonable amount of time, after
which the authorities must make an individualized inquiry
into whether detention is still necessary to fulfill the statute’s
purposes of ensuring that an alien attends removal
proceedings and that his release will not pose a danger to the
community.” Id. at 231. In Diop’s case, we weighed the
goals of the statute against the personal costs to his liberty
resulting from his detention of roughly two years, eleven
months, and concluded that Diop’s detention was
unconstitutional. Id.
In Diop, however, our balancing also took into account
our finding that the Government was responsible for creating
unreasonable delays. Id. at 234. In contrast, Chavez-Alvarez
does not accuse the Government of creating unreasonable
delays. He attributes the length of his case to complex issues.

8
Diop, 656 F.3d at 234.

13
The Government uses Chavez-Alvarez’s position to defend
the reasonableness of the detention here, pointing to our
statement in Diop that every case is unique and requires
different amounts of time. See id. Building on this idea, the
Government says where its handling of the case is reasonable,
and the length of the case is due mostly to issues raised by the
alien, we have no authority to rule that the length of the
detention is unreasonable.

The flaw in the Government’s argument is that it too
closely ties the reasonableness of the detention to the way it
acted during the removal process. The primary point of
reference for justifying the alien’s confinement must be
whether the civil detention is necessary to achieve the
statute’s goals: ensuring participation in the removal process,
and protecting the community from the danger that he or she
poses. See Demore, 538 U.S. at 528. Therefore, it is possible
that a detention may be unreasonable even though the
Government has handled the removal case in a reasonable
way. Diop, 656 F.3d at 223 (“[I]ndividual actions by various
actors in the immigration system, each of which takes only a
reasonable amount of time to accomplish, can nevertheless
result in the detention of a removable alien for an
unreasonable, and ultimately unconstitutional, period of
time.”).

The Government next wants us to judge the
reasonableness of the detention based upon Chavez-Alvarez’s
handling of the case. It argues that Chavez-Alvarez created
the circumstances that resulted in his long detention and he is
not, therefore, deserving of any relief. It takes care, however,
to alter its position from the one it took in a case we decided
in 2012. Leslie, 678 F.3d 265. There, it asserted—

14
unsuccessfully—that the petitioner’s decision to appeal his
removal order was the reason for a lengthy detention,
undermining his claim that the detention was
unconstitutional. We granted Leslie’s petition, ruling that the
Government’s position would ‘“effectively punish [Leslie]
for pursuing applicable legal remedies.’” Id. at 271
(alteration in original) (quoting Oyedeji v. Ashcroft, 332 F.
Supp.2d 747, 753 (M.D. Pa.2004)). In this case, the
Government acknowledges that Chavez-Alvarez raised
complicated issues that required time to argue and decide, but
it wants us to focus on the fact that, thus far, his challenge has
been unsuccessful. It argues that Chavez-Alvarez has been
merely delaying his inevitable removal.

Although, as we will explain, we are not persuaded
that Chavez-Alvarez’s case is little more than a delay tactic,
we get the point that the Government is trying to make:
certain cases might be distinguishable from our holding in
Leslie. An argument could be made that aliens who are
merely gaming the system to delay their removal should not
be rewarded with a bond hearing that they would not
otherwise get under the statute. 9 Requiring a bond hearing in
such cases might return us to the very situation that Congress
was trying to fix.

Because we conclude that Chavez-Alvarez did not act
in bad faith, we do not need to decide here whether an alien’s
delay tactics should preclude a bond hearing. However, the

9
We note that we referred to Leslie’s challenges as bona fide,
leaving the door open to this distinction. Leslie, 678 F.3d at
271.

15
Government’s argument requires us to consider how we are to
distinguish arguments made in good faith from those that are
not. The issue of good faith is necessarily decided on the
individual circumstances, but the analysis is more complex
than the method posed by the Government: counting wins
and losses. The most important consideration for us is
whether an alien challenges aspects of the Government’s case
that present real issues, for example: a genuine factual
dispute; poor legal reasoning; reliance on a contested legal
theory; or the presence of a new legal issue. Where questions
are legitimately raised, the wisdom of our ruling in Leslie is
plainly relevant: we cannot “effectively punish” these aliens
for choosing to exercise their legal right to challenge the
Government’s case against them by rendering “the
corresponding increase in time of detention [as] reasonable.”
Leslie, 678 F.3d at 271.

The case for Chavez-Alvarez’s removal is grounded in
his crimes that happened many years before Immigration and
Customs Enforcement detained him. Before the Immigration
Judge, Chavez-Alvarez questioned whether the Government
correctly alleged that he was convicted of an aggravated
felony under 8 U.S.C. §1101(a)(43)(F). This, in turn, made it
necessary to study whether the Manual for Courts Marshal
had the effect of law. He later argued that he was eligible for
a 212(h) waiver, and this created a number of unique
questions centering on the issue of whether Chavez-Alvarez
has been legally admitted to the country for purposes of the
waiver. We cannot find any evidence that Chavez-Alvarez
raised any of these issues, nor requested any continuance, for
the purpose of delay. As everyone agrees, the legal questions
were complex and unusual, and there is no evidence in the
record that the Immigration Judge viewed Chavez-Alvarez as

16
stalling or wasting the court’s time with frivolous arguments.
In fact, the Immigration Judge said the following before
issuing the removal order:

Ms. Burch, I want to thank you
and also Mr. Shagin, as well as
the Government for the arguments
that each of you have made. They
have been very learned and they
have referenced some decisions
that actually haven’t been used in
a number of years, so I’m grateful
to you for your willingness to
argue the points both orally and in
writing by both parties.

Supp. App. 234. We are confident that Chavez-Alvarez
raised a good faith challenge to the Government’s case to
remove him. 10 For this reason, our decision in Leslie controls
the outcome here. Chavez-Alvarez undoubtedly is
responsible for choosing to challenge his removal by raising
complicated issues that have taken a lot of time to argue and
decide, but this does not undermine his ability to claim that
his detention is unreasonable.

For these reasons, we reject the Government’s general
position that the conduct of either party here dictates a

10
This same confidence extends to the appeals he raised
before the BIA and this Court. We make no comment on the
merits of his appeal, but we do see the issues as worthy of
appeal.

17
conclusion that the detention is reasonable. However, as we
will explain, the reasonableness of the Government’s conduct,
and the bona fides of Chavez-Alvarez’s challenge did matter
when we began to weigh the various aspects of this case to
determine whether, and when, a tipping point had been
reached on the reasonableness of this detention.11

We are confident that much, if not all, of Chavez-
Alvarez’s detention during the proceedings before the
Immigration Judge was ‘“reasonably necessary to secure
[Chavez-Alvarez’s] removal.’” Diop, 656 F.3d at 234
(quoting Zadvydas, 533 U.S. at 699). The record shows that
the Immigration Judge scheduled hearings promptly to
examine issues relating both to Chavez-Alvarez’s removal
and his waiver; neither the Government nor Chavez-Alvarez
caused any extraordinary delays during this time; and the
parties were acting in good faith. Therefore, after the
detention went beyond the length considered by the Court in
Demore—six months—the overall progress of the case still
provided the Government with a credible argument that the
resolution of all the issues was reasonably within reach,

11
We said earlier that the total number of days that Chavez-
Alvarez has been detained, of itself, gives us reason for pause.
Even at the time the District Court made its decision, when
Chavez-Alvarez had been detained for over a year and a half,
we would have been hard-pressed to conclude that such a
detention is reasonable. But, for the sake of providing clear
guidance to the Attorney General, the Immigration Court and
the District Court, we want to specify more closely when the
shift in balance occurred between the benefits of using
detentions based upon presumptions to achieve the statutory
goals and the burdens to Chavez-Alvarez’s liberty.

18
neutralizing any concerns that the detention was no longer
limited or brief. The balance of interests at that point still
favored the Government’s position that the detention was
reasonably necessary. However, for many of the same
reasons we are convinced that, over the six months that
followed, the balance of interests at stake tipped in favor of
Chavez-Alvarez’s liberty interests.

By the time the Immigration Judge issued his final
order, the length of Chavez-Alvarez’s detention was, as we
alluded above, straining any common-sense definition of a
limited or brief civil detention. Additionally, having held
Chavez-Alvarez for this amount of time, the Government had,
by then, enough exposure to Chavez-Alvarez, and sufficient
time to examine information about him to assess whether he
truly posed a flight risk or presented any danger to the
community. Therefore, reviewing Chavez-Alvarez’s
detention would not have put the Government in a
disadvantaged position to make its case. 12 Finally, we have
little doubt that the parties had, by then, a good understanding
of the credibility and complexity of Chavez-Alvarez’s case.
Because of this, they could have reasonably predicted that
Chavez-Alvarez’s appeal would take a substantial amount of
time, making his already lengthy detention considerably
longer. We are aware that the Government filed a motion for
summary affirmance. This might have left the Government
with at least some basis to justify a continued reliance on
presumptions of flight and danger. But, certainly at the one-

12
We read 8 C.F.R. § 1003.19(c) as giving the Immigration
Judge jurisdiction to rule on the bond issue even though
Chavez-Alvarez filed an appeal to the BIA.

19
year mark for Chavez-Alvarez’s detention, we are convinced
that any ground for credibly claiming that a final resolution
was reasonably within reach would have vanished.

We have another concern as well. As the Supreme
Court said in Zadvydas regarding 8 U.S.C. § 1231(a)(6),
dealing with post-removal order detention: “The proceedings
at issue here are civil, not criminal, and we assume that they
are nonpunitive in purpose and effect.” Zadvydas, 533 U.S.
at 690. Yet, we cannot ignore the conditions of confinement.
Chavez-Alvarez is being held in detention at the York County
Prison with those serving terms of imprisonment as a penalty
for their crimes. Among our concerns about deprivations to
liberties brought about by section 1226(c) is the reality that
merely calling a confinement “civil detention” does not, of
itself, meaningfully differentiate it from penal measures.
Kansas v. Hendricks, 521 U.S. 346, 361 (1997); see also
Application of Gault, 387 U.S. 1, 27 (1967). As the length of
the detention grows, the weight given to this aspect of his
detention increases.

For all of these reasons, we are convinced that,
beginning sometime after the six-month timeframe
considered by Demore, and certainly by the time Chavez-
Alvarez had been detained for one year, the burdens to
Chavez-Alvarez’s liberties outweighed any justification for
using presumptions to detain him without bond to further the
goals of the statute. We conclude that the underlying goals of
the statute would not have been, and will not now be
undermined by requiring the Government to produce
individualized evidence that Chavez-Alvarez’s continued

20
detention was or is necessary.13 We will reverse the District
Court’s order, and remand with instruction to enter an order
granting the writ of habeas corpus and ensure that Chavez-
Alvarez is afforded, within ten days of the entry of this order,
a hearing to determine whether, on evidence particular to
Chavez-Alvarez, it is necessary to continue to detain him to
achieve the goals of the statute.

13
To the extent that it relevant, any additional burden given
to the Government here in this individual case is outweighed
by the general interest in our society of protecting against an
arbitrary deprivation of liberty.

21