Reid v. Donelan

United States Court of Appeals
For the First Circuit

Nos. 14-1270, 14-1803,
14-1823

MARK ANTHONY REID,

Petitioner, Appellee/Cross-Appellant,

v.

CHRISTOPHER DONELAN, Sheriff, Franklin County, Massachusetts;
DAVID A. LANOIE, Superintendent, Franklin County Jail and House
of Correction; THOMAS M. HODGSON, Sheriff, Bristol County,
Massachusetts; JOSEPH D. MCDONALD, JR., Sheriff, Plymouth
County, Massachusetts; STEVEN W. TOMPKINS, Sheriff, Suffolk
County, Massachusetts; JEH CHARLES JOHNSON, United States
Secretary of Homeland Security; DOROTHY HERRERA-NILES, Director,
Immigration and Customs Enforcement, Boston Field Office;
JOHN T. MORTON, Director of Immigration and Customs Enforcement;
ERIC H. HOLDER, JR., Attorney General; JUAN OSUNA, Director of
the Executive Office for Immigration Review;
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW,

Respondents, Appellants/Cross-Appellees.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Michael A. Ponsor, U.S. District Judge]

Before

Howard, Chief Judge,
Selya and Stahl, Circuit Judges.

 Elianis N. Perez, Senior Litigation Counsel, with whom
Joyce Branda, Acting Assistant Attorney General, Civil Division,
William C. Peachey, Director, Office of Immigration Litigation,
District Court Section, Colin A. Kisor, Deputy Director, and
Regan Hildebrand, Senior Litigation Counsel, Officer of
Immigration Litigation, District Court Section, were on brief,
for appellant.
Anant K. Saraswat and Swapna C. Reddy, Law Student Intern,
with whom Mark C. Fleming, Wilmer Cutler Pickering Hale and Dorr
LLP, Ahilan T. Arulanantham, Michael Tan, ACLU Immigrants'
Rights Project, Nicole Hallett, Supervising Attorney, Michael
Wishnie, Supervising Attorney, Conchita Cruz, Law Student
Intern, Grace Kao, Law Student Intern, Lunar Mai, Law Student
Intern, My Khanh Ngo, Law Student Intern, Ruth Swift, Law
Student Intern, and Jerome N. Frank Legal Services, were on
brief, for appellee.

April 13, 2016

 STAHL, Circuit Judge. Under 8 U.S.C. § 1226(c),

aliens who have committed certain criminal offenses are subject

to mandatory detention after serving their criminal sentence and

pending their removal proceedings. Petitioner, a lawful

permanent resident, committed such offenses, served his

sentence, and then was held under § 1226(c) without an

individualized showing that he posed a flight risk or danger to

society and without an opportunity to seek release on bond.

After eight months, Petitioner challenged his continuing

detention and filed a class action on behalf of himself and

similarly situated noncitizens held for over six months.

The district court held that detention pursuant to

§ 1226(c) for over six months was presumptively unreasonable and

granted summary judgment to the class, thereby entitling each

class member to a bond hearing. With respect to Petitioner, the

court also held, in the alternative, that the individualized

circumstances of his case rendered his detention unreasonable.

Finally, the court declined to mandate certain procedural

protections for the class members' bond hearings. We affirm the

judgment with respect to Petitioner, vacate the judgment with

respect to the class members, and remand the class action for

reconsideration of the district court's class certification.

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 I. Facts & Background

The U.S. Department of Homeland Security ("DHS")

generally has the discretionary authority to detain an alien

during removal proceedings. 8 U.S.C. § 1226(a). An alien that

U.S. Immigration and Customs Enforcement ("ICE") decides to

detain under § 1226(a) may seek a bond hearing before an

immigration judge ("IJ") to show that he or she is not a flight

risk or a danger. 8 C.F.R. § 236.1(c)(8). For aliens who have

committed certain criminal or terrorist offenses, however,

Congress made detention during removal proceedings mandatory,

except for witness protection purposes. 8 U.S.C. § 1226(c).

Mark Anthony Reid ("Reid" or "Petitioner") came to the

United States in 1978 as a lawful permanent resident. Between

1978 and 1986, Reid served in the U.S. Army, pursued post-

secondary education, was employed as a loan originator, worked

in construction, and owned and rented several properties.

Following a conviction for narcotics possession in 1986,

however, Reid amassed an extensive criminal record, including

larceny, assault, drug and weapon possession, failure to appear,

interfering with an officer, driving on a suspended license,

selling drugs, violation of probation, and burglary.

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 After being released from criminal custody on November

13, 2012, Reid was detained by ICE under § 1226(c) without bond

pending immigration removal proceedings. Reid conceded the

factual allegations underlying his removability charges, but

sought relief from removal on two grounds: (1) that the

Convention Against Torture ("CAT") applied, and (2) that removal

was a disproportionate punishment for his crimes.

At several IJ hearings held between February 13, 2013

and March 11, 2013, Reid presented evidence in support of his

application for relief from removal. On April 5, 2013, the IJ

denied Reid's application and ordered him removed to Jamaica.

Reid filed a notice of appeal to the Board of Immigration

Appeals ("BIA") on May 5, 2013. On October 23, 2013, nearly

half a year after the IJ's decision and nearly a full year after

Reid's detention began, the BIA reversed and remanded the case

for further proceedings related to Reid's CAT claim. On

December 17, 2013, the IJ again denied Reid's CAT claim. Reid

appealed again and, on December 29, 2014, the BIA found error

and remanded the case once more.

Between his first appeal and the BIA's first remand,

Reid filed the present habeas corpus petition along with a

class-action complaint in the United States District Court for

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the District of Massachusetts. Reid contends that he and other

similarly situated noncitizens cannot be held under § 1226(c) in

prolonged detention without an individualized bond hearing to

ascertain individual flight or safety risk. Reid argues that

§ 1226(c) contains an implicit "reasonableness" requirement and

should be read to authorize mandatory detention only up to six

months, at which time the government must provide a bond

hearing. At the bond hearing, Reid argues, the government must

bear the burden of presenting clear and convincing evidence that

detention remains necessary. What is more, Reid contends that

the government must employ the least restrictive means available

to prevent the alien's flight or danger to the community.

On January 9, 2014, the district court granted Reid's

habeas petition and held that § 1226(c) only authorizes

mandatory detention for a reasonable period of time. Reid v.

Donelan (Reid I), 991 F. Supp. 2d 275, 278-79 (D. Mass. 2014).

The court further held that detention over six months was

presumptively unreasonable absent individualized justification.

Id. at 279-81. The court also noted that even if no such

presumption applied, the individualized circumstances of Reid's

case rendered his continued detention unreasonable. Id. at 281-

82. The court ordered the government to set a hearing and to

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determine whether conditions could be placed upon Reid's release

to reasonably account for any flight or safety risks. Id. at

282. On February 25, 2014, Reid posted bond and was released

after 400 days of civil detention, subject to electronic

monitoring, monthly reporting, and other conditions.

On May 27, 2014, the district court granted summary

judgment in the related class action and ordered bond hearings

for all class members. Reid v. Donelan (Reid II), 22 F. Supp.

3d 84, 93-94 (D. Mass. 2014). The court reiterated its holding

that § 1226(c) only justifies mandatory detention for a period

of six months, at which time the detention becomes presumptively

unreasonable absent an individualized showing at a bond hearing.

Id. at 88. However, the court declined to adopt any specific

procedural protections for the bond hearings themselves. Id. at

92-93. The court observed that aliens detained under § 1226(a)

bore the burden of proof at their bond hearings, and

"individuals who committed a § 1226(c) predicate offense should

not receive more protections than § 1226(a) detainees." Id. at

92.

The government appeals the lower court's determination

that § 1226(c) contains an implicit reasonableness requirement,

that any detention under § 1226(c) is presumptively unreasonable

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after six months, and that Reid's specific detention had become

unreasonable. Reid cross-appeals the lower court's class

determination that bond hearings for aliens held pursuant to

§ 1226(c) do not require specific procedural protections.

II. Analysis

Until the late 1980s, the Attorney General had broad

authority to take aliens into custody during their removal

proceedings and to release those aliens in his discretion. See

Demore v. Kim, 538 U.S. 510, 519 (2003) (citing 8 U.S.C.

§ 1252(a) (1982)). Over time, Congress became concerned that

criminal aliens too often obtained release and were thereby able

to evade removal and continue committing crimes. See id. at

518-21. In response, "Congress limited the Attorney General's

discretion over custody determinations with respect to

deportable aliens who had been convicted of aggravated felonies"

and then expanded the definition of "aggravated felonies" in

subsequent legislation to subject more criminal aliens to

mandatory detention. Id. at 520-21. "At the same time,

however, Congress . . . authorize[d] the Attorney General to

release permanent resident aliens during their deportation

proceedings where such aliens were found not to constitute a

flight risk or threat to the community." Id. at 521.

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 The current take on this mandatory detention theme can

be found in 8 U.S.C. § 1226(c), which requires the Attorney

General1 to take criminal aliens into custody "when released"2

from criminal custody and only permits the release of such

aliens for limited witness protection purposes. See 8 U.S.C.

§ 1226(c). Whatever the merits of this approach may be as a

matter of policy, we must ensure that the statute falls within

constitutional limits.

The constitutionality of the categorical detention

scheme embodied in § 1226(c) was first put to the test in

Demore. In Demore, the petitioner launched a broad attack on

the statute, arguing "that his detention under § 1226(c)

violated due process because the [government] had made no

determination that he posed either a danger to society or a

1
Although the relevant statutory sections refer to the
Attorney General, the Homeland Security Act of 2002, Pub. L. No.
107-296, 116 Stat. 2135 (2002), transferred all immigration
enforcement and administration functions vested in the Attorney
General, with few exceptions, to the Secretary of Homeland
Security.
2
The instant case asks what § 1226(c) requires after a
criminal alien has been brought into custody. This case does
not touch upon what the statute requires at the commencement of
such detention. This circuit recently considered the meaning of
the statute’s "when . . . released" provision in Castañeda v.
Souza, 810 F.3d 15 (1st Cir. 2015) (en banc).

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flight risk." 538 U.S. at 514. In other words, the petitioner

argued that his detention was unconstitutional from the outset

due to the categorical nature of the mandatory detention regime.

The Supreme Court rejected the challenge and upheld

the statute in a narrowly framed ruling. The Court recognized

the constitutional pressures at play, calling it "well

established that the Fifth Amendment entitles aliens to due

process of law in deportation proceedings." Id. at 523 (quoting

Reno v. Flores, 507 U.S. 292, 306 (1993)). Yet, the Court also

noted that "[d]etention is necessarily a part of [the]

deportation procedure," id. at 524 (alteration in original)

(quoting Carlson v. Landon, 342 U.S. 524, 538 (1952)), and that

Congress may employ "reasonable presumptions and generic rules"

when legislating with respect to aliens, id. at 526 (quoting

Flores, 507 U.S. at 313). Accordingly, the Court left a limited

degree of constitutional space to Congress' categorical judgment

that, "even with individualized screening, releasing deportable

criminal aliens on bond would lead to an unacceptable rate of

flight." Id. at 520.

The "limited" scope of this categorical sanction,

however, was plainly evident. The Court made the brevity of the

detention central to its holding: "We hold that Congress,

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justifiably concerned that deportable criminal aliens who are

not detained continue to engage in crime and fail to appear for

their removal hearings in large numbers, may require that

persons such as respondent be detained for the brief period

necessary for their removal proceedings." Id. at 513 (emphasis

added). This was no passing remark. See id. at 526 ("[T]he

Government may constitutionally detain deportable aliens during

the limited period necessary for their removal proceedings."

(emphasis added)). Indeed, the Court took pains to point out

the specific durations that it envisioned were encompassed by

its holding: "[T]he detention at stake under § 1226(c) 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." Id. at 530.

In a concurring opinion, Justice Kennedy drove the

point of temporal limitations home, noting that an alien "could

be entitled to an individualized determination as to his risk of

flight and dangerousness if the continued detention became

unreasonable or unjustified." Id. at 532 (Kennedy, J.,

concurring). "Were there to be an unreasonable delay by the

[government] in pursuing and completing deportation proceedings,

it could become necessary then to inquire whether the detention

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is not to facilitate deportation, or to protect against risk of

flight or dangerousness, but to incarcerate for other reasons."

Id. at 532-33.

The case before us tests the assumption upon which

Demore was based, and asks whether Congress may employ

categorical, mandatory detention for "the period necessary for

removal proceedings" when that period turns out not to be so

"brief" after all.

The concept of a categorical, mandatory, and

indeterminate detention raises severe constitutional concerns.

"Freedom from imprisonment--from government custody, detention,

or other forms of physical restraint--lies at the heart of the

liberty that [the Due Process] Clause protects." Zadvydas v.

Davis, 533 U.S. 678, 690 (2001). Because of the limited nature

of the holding in Demore, every federal court of appeals to

examine § 1226(c) has recognized that the Due Process Clause

imposes some form of "reasonableness" limitation upon the

duration of detention that can be considered justifiable under

that statute. See Lora v. Shanahan, 804 F.3d 601, 606 (2d Cir.

2015); Rodriguez v. Robbins (Rodriguez I), 715 F.3d 1127, 1138

(9th Cir. 2013); Diop v. ICE/Homeland Sec., 656 F.3d 221, 232-33

(3d Cir. 2011); Ly v. Hansen, 351 F.3d 263, 269-70 (6th Cir.

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2003). And, each circuit has found it necessary to read an

implicit reasonableness requirement into the statute itself,

generally based on the doctrine of constitutional avoidance.

See Lora, 804 F.3d at 614; Rodriguez I, 715 F.3d at 1138; Diop,

656 F.3d at 235; Ly, 351 F.3d at 270.

This is not, as the government contends, contrary to

congressional intent. "[C]ourts interpret statutes with the

presumption that Congress does not intend to pass

unconstitutional laws." Diop, 656 F.3d at 231. In this case,

"while Congress did express a desire to have certain criminal

aliens incarcerated during removal proceedings, it also made

clear that such proceedings were to proceed quickly." Ly, 351

F.3d at 269; see also Diop, 656 F.3d at 235 ("We do not believe

that Congress intended to authorize prolonged, unreasonable[]

detention without a bond hearing."). This reading similarly

accords with Demore's authorization of only a "brief" or

"limited" detention, 538 U.S. at 513, 526, and Justice Kennedy's

stipulation that an individualized determination would become

necessary "if the continued detention became unreasonable or

unjustified," id. at 532 (Kennedy, J., concurring).

Yet, the courts of appeals have split on the method

for enforcing this statutory reasonableness requirement. The

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Third and Sixth Circuits have held that individualized review is

necessary in order to determine whether the detention has become

unreasonable. See Diop, 656 F.3d at 233 (noting that the

inquiry into whether detention has become unreasonable "will

necessarily be a fact-dependent inquiry that will vary depending

on individual circumstances" and "declin[ing] to establish a

universal point at which detention will always be considered

unreasonable"); Ly, 351 F.3d at 271 ("A bright-line time

limitation . . . would not be appropriate . . . . [C]ourts must

examine the facts of each case[] to determine whether there has

been unreasonable delay in concluding removal proceedings.").

"Under this approach, every detainee must file a habeas petition

challenging detention, and the district courts must then

adjudicate the petition to determine whether the individual's

detention has crossed the 'reasonableness' threshold, thus

entitling him to a bail hearing." Lora, 804 F.3d at 614; see

also Ly, 351 F.3d at 272.

The Second and Ninth Circuits, on the other hand, have

"appl[ied] a bright-line rule to cases of mandatory detention"

and have held that "the government's 'statutory mandatory

detention authority under Section 1226(c) . . . [is] limited to

a six-month period, subject to a finding of flight risk or

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dangerousness.'" Lora, 804 F.3d at 614 (alterations in

original) (quoting Rodriguez I, 715 F.3d at 1133). Under this

interpretation, every alien held pursuant to § 1226(c) must be

provided a bond hearing once his or her detention reaches the

six-month mark, because any categorical and mandatory detention

beyond that timeframe is presumptively unreasonable. Id. at

616. The detainee may continue to be held if an IJ determines

that the individual does, in fact, pose a flight risk or danger

to society, but the categorical nature of the detention expires.

Id.

In this circuit split, we sense a tension between

legal justifications and practical considerations. From a

strictly legal perspective, we think that the Third and Sixth

Circuits have the better of the argument. This view is informed

by our analysis regarding the source of the six-month rule, the

nature of the reasonableness inquiry itself, and the

circumstances surrounding the Supreme Court's Demore decision.

To justify employing a six-month presumption, the

Second and Ninth Circuits point to the Supreme Court's decision

in Zadvydas. There, the Court was faced with a particularly

thorny problem. Aliens who had been deemed unlawfully present,

had completed removal proceedings, and had a final removal order

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entered against them were subject to detention during a 90-day

statutory "removal period" while the government secured their

physical removal from the country. 533 U.S. at 682. If the

government failed to remove the alien from the country during

this time period, the government could continue to detain them

for successive periods so long as they posed a risk to the

community or were unlikely to comply with the order of removal

when such physical removal became possible. Id. The trouble

arose when, for one reason or another, there was simply no

country willing to accept the alien and no reasonably

foreseeable point at which the detained individual would ever be

released from this theoretically interim detention. Id. at 684-

86. The question thus became "whether [the] post-removal-period

statute authorize[d] the Attorney General to detain a removable

alien indefinitely beyond the removal period or only for a

period reasonably necessary to secure the alien's removal." Id.

at 682.

There, as here, the solution was to read an implicit

reasonableness limitation into the statute to avoid

constitutional conflict. Id. at 689. The Court held that "if

removal is not reasonably foreseeable," then "continued

detention . . . [is] no longer authorized by [the] statute."

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Id. at 699-700. The Court then went one step further and

adopted a six-month presumption: "After [a] [six]–month period,

once the alien provides good reason to believe that there is no

significant likelihood of removal in the reasonably foreseeable

future, the Government must respond with evidence sufficient to

rebut that showing." Id. at 701.

Although it is tempting to transplant this presumption

into § 1226(c) based on the superficial similarities of the

problems posed, such a presumption has no place here. Unlike

the "post-removal-period detention" at issue in Zadvydas, which

had "no obvious termination point," a "detention pending a

determination of removability" under § 1226(c) has "a definite

termination point." Demore, 538 U.S. at 529 (quoting Zadvydas,

533 U.S. at 697). Just because the conclusion of removal

proceedings may not be imminent does not mean the conclusion is

not reasonably foreseeable. Why does this distinction matter?

Because the six-month presumption developed in Zadvydas would

never be triggered under the circumstances found here.

In adopting a bright-line six-month rule, the Second

and Ninth Circuits have looked past the primary lesson of

Zadvydas and fixated on a secondary, backup rule. In Zadvydas,

the Court read an implicit reasonableness limitation into the

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statute and then noted that judges evaluating such cases "should

measure reasonableness primarily in terms of the statute's basic

purpose." 533 U.S. at 699. When faced with a detention with no

reasonably foreseeable end, the statute's purpose--"namely,

assuring the alien's presence at the moment of removal"--was

drawn into doubt, making continued detention "unreasonable and

no longer authorized by [the] statute." Id. at 699-700.

This primary holding was then buttressed by a

secondary bright-line six-month rule. The Court pointed out

that not every alien to be removed would be released after six

months. "To the contrary, an alien may be held in confinement

until it has been determined that there is no significant

likelihood of removal in the reasonably foreseeable future."

Id. at 701. If six months had passed and the alien had

demonstrated "no significant likelihood of removal in the

reasonably foreseeable future," then the government was required

to "respond with evidence sufficient to rebut that showing."

Id. If the government could demonstrate a reasonably

foreseeable termination point, the detention continued.

Thus, the secondary six-month rule was predicated on

there being no foreseeable hope of removal. Unlike in this

case, the confinement at issue in Zadvydas was "potentially

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permanent." Id. at 691. Because the detention in such cases

had to stop at some point, and there were simply no metrics by

which to judge just how much longer towards eternity could be

considered "reasonable," a bright-line rule was warranted. That

is why we think it inappropriate to import the six-month

presumption from Zadvydas into a statute where individualized

reasonableness review remains feasible.

This brings us to the character of the

"reasonableness" inquiry itself. As the Diop court pointed out,

"[r]easonableness, by its very nature, is a fact-dependent

inquiry requiring an assessment of all of the circumstances of

any given case." 656 F.3d at 234. The reasonableness of

continued detention under § 1226(c) must be measured "primarily

in terms of the statute's basic purpose." Zadvydas, 533 U.S. at

699. Although the statute's purpose at first glance is to

protect public safety and ensure that aliens appear for their

removal proceedings, we think the purpose is a bit more nuanced

than that. If an individualized determination of flight and

safety risk were sufficient, for example, there would be little

reason to pass § 1226(c) at all.

Instead, the statute was passed "against a backdrop of

wholesale failure by the INS to deal with increasing rates of

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criminal activity by aliens" and "near-total inability to remove

deportable criminal aliens" due to "the agency's failure to

detain [such] aliens during their deportation proceedings."

Demore, 538 U.S. at 518-19. Thus, the animating force behind

§ 1226(c) is its categorical and mandatory treatment of a

certain class of criminal aliens. Measuring reasonableness by

this basic purpose requires a different inquiry than the flight-

and-safety-risk evaluation conducted in an individualized bond

hearing. Therefore, arguing that aliens receive the equivalent

of an individualized "reasonableness" review at their bond

hearings entails a certain judicial sleight-of-hand. See

Rodriguez I, 715 F.3d at 1139. It is a supposed finding of

"unreasonableness" under the implicit statutory limitation that

entitles the alien to a bond hearing in the first place. In

other words, while the Second and Ninth Circuits claim to have

read an implicit "reasonableness limitation" into § 1226(c), we

think it more accurate to say that they have simply read an

implicit "six-month expiration" into § 1226(c).

Finally, we view Demore as implicitly foreclosing our

ability to adopt a firm six-month rule. In Demore, the Supreme

Court declined to state any specific time limit in a case

involving a detainee who had already been held for approximately

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six months. See 538 U.S. at 530-31 (noting that most removal

proceedings usually require one to five months, and that the

respondent had been "detained for somewhat longer than the

average – spending six months in INS custody prior to the

. . . habeas relief"); Ly, 351 F.3d at 271 (noting that Demore

"specifically authorized such detention in the circumstances

there"). The Demore Court also briefly discussed facts specific

to the detainee, such as his request for a continuance of his

removal hearing. 538 U.S. at 531 & n.15. Taken together,

Zadvydas, Demore, and the inherent nature of the

"reasonableness" inquiry weigh heavily against adopting a six-

month presumption of unreasonableness.

From a more practical standpoint, however, the

approach employed by the Third and Sixth Circuits has little to

recommend it. Reid and his amici point to a plethora of

problems raised by the method. First, the approach has resulted

in wildly inconsistent determinations. See Lora, 804 F.3d at

615 (collecting cases and noting that "the pervasive

inconsistency and confusion exhibited by district courts . . .

when asked to apply a reasonableness test on a case-by-case

basis weighs, in our view, in favor of adopting an approach that

affords more certainty and predictability").

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 Second, the failure to adopt a bright-line rule may

have the perverse effect of increasing detention times for those

least likely to actually be removed at the conclusion of their

proceedings. See Rodriguez v. Robbins (Rodriguez II), 804 F.3d

1060, 1072 (9th Cir. 2015) ("Non-citizens who vigorously pursue

claims for relief from removal face substantially longer

detention periods than those who concede removability.").

Moreover, federal habeas litigation itself is both complicated

and time-consuming, especially for aliens who may not be

represented by counsel. See Lora, 804 F.3d at 615 ("[A six-

month] rule avoids the random outcomes resulting from individual

habeas litigation in which some detainees are represented by

counsel and some are not, and some habeas petitions are

adjudicated in months and others are not adjudicated for

years.").

Third, even courts that have adopted the

individualized habeas approach have questioned the federal

courts' "institutional competence" to adjudicate these issues

and the consequences of such an interpretation. See Ly, 351

F.3d at 272 (noting that the habeas approach raises "a question

of institutional competence" since "federal courts are obviously

less well situated to know how much time is required to bring a

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removal proceeding to conclusion"). As the Third Circuit has

lamented, federal courts are faced with a "moving target" in

such cases because petitioners presumably cannot challenge their

detention until it becomes unreasonable, but, even if the

petitioner prematurely lodges a challenge, the detention may

become unreasonable during the pendency of the claim. See Diop,

656 F.3d at 227.

Moreover, the federal courts' involvement is

wastefully duplicative. Not only may "the underlying removal

proceedings justifying detention . . . be nearing resolution by

the time a federal court of appeals is prepared to consider

them," id., but it is also likely that the evidence and

arguments presented in a "reasonableness" hearing before a

federal court are likely to overlap at the margins with the

evidence and arguments presented at a bond hearing before an

immigration court. This inefficient use of time, effort, and

resources could be especially burdensome in jurisdictions with

large immigration dockets. See Lora, 804 F.3d at 615-16.

Finally, Reid and his amici stress the harms suffered

by detainees and their families when detainees are held in

prolonged detention. While perhaps beyond our judicial

cognizance, we do not mean to diminish the real, human

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consequences of being held for prolonged periods of time in

civil confinement away from family, friends, and loved ones.

Despite the practical advantages of the Second and

Ninth Circuits' approach, however, we have surveyed the legal

landscape and consider ourselves duty-bound to follow the trail

set out by the Third and Sixth Circuits. A bright-line rule may

offer significant benefits, but these are persuasive

justifications for legislative or administrative3 intervention,

not judicial decree. In the end, we think the Third and Sixth

Circuits' individualized approach adheres more closely to legal

precedent than the extraordinary intervention requested by

Petitioner.

In conducting this individualized reasonableness

inquiry, the district court must evaluate whether the alien's

continued detention sufficiently serves the categorical purpose

of the statute. This is not, as the government contends, simply

3
To be clear, it is quite possible that the government is
less captive to § 1226(c)'s categorical command than it
believes. Because we read an implicit reasonableness limitation
into the statute itself, the statute authorizes a bond hearing
as soon as continued, mandatory detention has reached the point
of being constitutionally unreasonable. Whether (and how) the
government may rely upon this implicit component of the statute
to streamline its detention procedures for aliens who have been
detained under § 1226(c) for a prolonged period of time poses a
question for another day.

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a question of asking "whether there are significant,

unjustifiable delays in the proceedings ordered at the

government's request or other evidence demonstrating that the

government is not actively engaged in prosecution of the removal

case."

The government's view of reasonableness fails for two

reasons. First, while the Demore Court did not find any

specific duration dispositive, the holding was premised on the

notion that proceedings would be resolved within a matter of

months, including any time taken for appeal by the detainee.

See 538 U.S. at 529. The majority emphasized that "[t]he very

limited time of the detention at stake under § 1226(c) [was] not

missed by the dissent," which referred to proceedings taking

"several months." Id. at 529 n.12. The majority then employed

a "but see" citation with respect to the dissent's warning that

§ 1226(c) could result in a "potentially lengthy detention."

Id. Thus, the Demore majority disclaimed any suggestion that

its decision somehow sanctioned categorical custody beyond a

matter of months.

The Third Circuit's Diop decision provides a clear

example of why the government's reading must fail. In that

case, "[t]he Government doggedly pursued Diop's detention and

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removal for three years." Diop, 656 F.3d at 228. The

government did not "delay" proceedings, and yet the detention

still reached an unreasonable duration. As that court noted,

"individual 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 . . . period of time." Id.

at 223. Total duration matters to a person held in civil

confinement, and due process demands a better answer than "we

haven't gotten around to it yet."

The second problem with the government's suggested

reading is its failure to focus on the categorical nature of the

detention. While detention under § 1226(c) undoubtedly prevents

flight and protects the public, this argument involves the same

stratagem used by the Ninth Circuit in finding bond hearings

sufficient to satisfy the implicit reasonableness requirement.

The basic purpose of § 1226(c) is not merely flight and danger

prevention. After all, an alien who, at a bond hearing, is

found likely to abscond or harm society could clearly remain in

detention. The specific purpose of § 1226(c) is to

categorically deny bond hearings to a class of aliens who may

pose these threats. An inquiry into the reasonableness of

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categorical detention must, therefore, be measured by reference

to Congress' use of "reasonable presumptions and generic rules"

about danger and flight risk. Demore, 538 U.S. at 526 (quoting

Flores, 507 U.S. at 313).

Categorical detention is only permitted for a short

time as "a constitutionally valid aspect of the deportation

process." Id. at 523 (emphasis added). As Justice Kennedy

noted in his Demore concurrence, the government's categorical

denial of bond hearings is premised upon the alien's presumed

deportability and the government's presumed ability to reach the

removal decision within a brief period of time. See id. at 531

(Kennedy, J., concurring) ("While the justification for 8 U.S.C.

§ 1226(c) is based upon the Government's concerns over the risks

of flight and danger to the community, the ultimate purpose

behind the detention is premised upon the alien's

deportability." (citation omitted)); see also Ly, 351 F.3d at

271-72 ("The actual removability of a criminal alien . . . has

bearing on the reasonableness of his detention prior to removal

proceedings."). In other words, there is a difference between

the "foreseeability" of proceedings ending and the

"foreseeability" of proceedings ending adversely. As the

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likelihood of an imminent removal order diminishes, so too does

the government's interest in detention without a bond hearing.

Thus, a court looking to measure the reasonableness of

continued categorical detention must examine the presumptions

upon which that categorical treatment was based (such as brevity

and removability). As the actualization of these presumptions

grows weaker or more attenuated, the categorical nature of the

detention will become increasingly unreasonable. For example, a

court might examine, inter alia, the total length of the

detention; the foreseeability of proceedings concluding in the

near future (or the likely duration of future detention); the

period of the detention compared to the criminal sentence; the

promptness (or delay) of the immigration authorities or the

detainee; and the likelihood that the proceedings will culminate

in a final removal order.4

4
These non-exhaustive factors are similar to those advanced
by the Ly court. See Flores-Powell v. Chadbourne, 677 F. Supp.
2d 455, 471 (D. Mass. 2010) (summarizing the factors from Ly,
351 F.3d at 271-72, that are suggestive of unreasonable delay:
"(1) the overall length of detention; (2) whether the civil
detention is for a longer period than the criminal sentence for
the crimes resulting in the deportable status; (3) whether
actual removal is reasonably foreseeable; (4) whether the
immigration authority acted promptly to advance its interests;
and (5) whether the petitioner engaged in dilatory tactics in
the Immigration Court").

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Two clarifications are worth noting here. First, there is
a difference between "dilatory tactics" and the exercise of an
alien’s rights to appeal. As the Ly court noted:
[A]ppeals and petitions for relief are to be
expected as a natural part of the process.
An alien who would not normally be subject
to indefinite detention cannot be so
detained merely because he seeks to explore
avenues of relief that the law makes
available to him. Further, although an
alien may be responsible for seeking relief,
he is not responsible for the amount of time
that such determinations may take. The mere
fact that an alien has sought relief from
deportation does not authorize the INS to
drag its heels indefinitely in making a
decision. The entire process, not merely
the original deportation hearing, is subject
to the constitutional requirement of
reasonability.
351 F.3d at 272. In Demore, the Supreme Court held that
detention for a number of months remains appropriate "in the
minority of cases in which the alien chooses to appeal." 538
U.S. at 530 (emphasis added). When an alien appeals, and the
appeal occurs within this limited timeframe, a presumption of
removability remains and a presumption of promptness remains.
Although there may come a time when promptness lapses, aliens
may be detained for "several months" before this point is
reached. Id. at 529 n.12. Of course, the same logic would not
apply if a detainee prevails before an IJ and the government
appeals. In such cases, the presumption of ultimate
removability is weakened, rendering the alien’s continued
categorical detention far less reasonable. (Of course, an IJ
might still find such an alien too risky to release at an
individualized bond hearing.)
Second, we think it worth noting that the Ninth Circuit, in
Rodriguez II, recently rejected a proposal that an IJ consider
"the likely duration of future detention and the likelihood of
eventual removal" at bond hearings because consideration of

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 There may be other factors that bear on the

reasonableness of categorical detention, but we need not strain

to develop an exhaustive taxonomy here. We note these factors

only to help resolve the case before us and to provide

guideposts for other courts conducting such a reasonableness

review.

Applying the rule we have adopted today to the case at

bar, we affirm the district court's individualized holding with

respect to Reid's particular habeas petition. In its

alternative holding, the district court weighed "the length of

detention; the period of detention compared to the criminal

sentence; the foreseeability of removal; the prompt action of

immigration authorities; and whether the petitioner engaged in

any dilatory tactics." Reid I, 991 F. Supp. 2d at 281. The

court also noted that Reid had been detained for fourteen

months, which was "well beyond the brief detainment contemplated

in Demore." Id. These factors aptly anticipated those

those factors "would require legal and political analyses beyond
what would otherwise be considered at a bond hearing." 804 F.3d
at 1089. While we agree that these factors are not relevant at
a bond hearing, where the focus is on the alien’s flight and
safety risk, these factors are relevant when a federal court is
conducting a reasonableness inquiry and determining whether a
bond hearing needs to be held in the first place.

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articulated above, and we agree with the district court's

holding that Reid's detention had become unreasonable under

§ 1226(c).

Moreover, Reid's case had already been through one

round of appeals and was pending another round at the time of

the lower court's decision, making final resolution "certainly

far enough out to implicate due process concerns." Id. at 282.

None of these appeals involved "dilatory tactics." Id. Rather,

Reid "raised a colorable claim against deportation and . . .

vigorously contest[ed] removal." Id. Finally, it should be

noted that although the IJ's initial order was adverse to Reid,

the BIA's first decision, rendered almost a year after detention

began, reversed and remanded the IJ's determination, drawing

into question Reid's presumed deportability.

With respect to the class claims, however, we must

vacate the district court's summary judgment decision. The

district court certified a class consisting of "[a]ll

individuals who are or will be detained within the Commonwealth

of Massachusetts pursuant to 8 U.S.C. § 1226(c) for over six

months and have not been afforded an individualized bond

hearing." Reid v. Donelan, 297 F.R.D. 185, 194 (D. Mass. 2014).

The court subsequently granted summary judgment to this class on

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the basis of its previous decisions adopting the six-month

bright-line rule. See Reid II, 22 F. Supp. 3d at 88-89. It

then examined the appropriate relief, which included a request

by Reid that the court mandate certain procedural protections at

bond hearings--protections that exceed those currently

contemplated by regulations implementing bond hearings under 8

U.S.C. § 1226(a). The court declined to impose these additional

procedural protections, concluding that due process did not

require them. See id. at 92-93. Reid cross-appeals this

conclusion, offering a bevy of weighty constitutional arguments.

Yet, Reid's personal situation does not warrant

adjudication of these constitutional questions. Reid received a

bond hearing pursuant to the district court's order and was

granted bond. He has thus suffered no cognizable harm

attributable to the challenged procedures, and the claim

persists only with respect to the class that Reid represents.

The problem, however, is that the district court's adoption of

the bright-line rule was an essential predicate to class

certification. Our ruling today, requiring an individualized

approach, removes that predicate. The class is thus

substantially overbroad in light of our disposition.

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 When a class representative lacks a live claim, and

changes in the law--whether through legislative enactment, see

Kremens v. Bartley, 431 U.S. 119, 130 (1977), or judicial

decision, see Hartman v. Duffey, 19 F.3d 1459, 1470, 1474-75

(D.C. Cir. 1994)--cast substantial doubt on the composition of

the class, it is appropriate to remand for reconsideration of

the class certification. This prudential procedure recognizes

that serious concerns about premature adjudication of

constitutional questions arise where the legitimacy of a class

is called into question by changes in the law. See Kremens, 431

U.S. at 128, 136-37; Smook v. Minnehaha County, 457 F.3d 806,

815 (8th Cir. 2006). Those concerns are heightened where, as

here, we lack information about the status of the unnamed class

members, including whether they have been afforded bond

hearings, whether any of them have been denied bond under the

challenged procedures, and the justification for those denials.

Remand (rather than dismissal) is also fairer to the class

members, especially since the government has not appealed the

class certification order, and we have no briefing from the

parties about the impact our case-by-case rule has on the class

as a whole.

- 32 -
 On remand, the district court may consider whether it

is feasible to redefine the class, excluding those class members

with moot claims and substituting class representatives with

live claims as appropriate. See Fed. R. Civ. P. 23; Kremens,

431 U.S. at 134-35; Hartman, 19 F.3d at 1474. It may well be

that no suitable class can be formed, and that the due process

concerns presented by the bond procedures must be raised by an

individual denied bond under these standards, in which case

decertification of the present class is the appropriate course.

See Smook, 457 F.3d at 815.

In concluding, we wish to emphasize that our

decision to read an implicit reasonableness requirement into

§ 1226(c) cannot be read so broadly as to unwind § 1226(c)'s

mandatory detention requirement. There is no doubt that a

challenge like Demore's would still fail today. Categorical and

mandatory detention for a brief, reasonable duration remains

constitutional, and any challenge to such detention at the

outset or early stages of categorical custody must be dismissed

without hesitation. As long as the statute remains in effect,

Demore so requires.

Yet, at a certain point the constitutional imperatives

of the Due Process Clause begin to eclipse the claimed

- 33 -
justifications for such bridling custodial power. When the

duration of this categorical custody exceeds reasonable bounds,

the implicit terms of the statute disclaim any pretense to

bolster the state's unconstitutional bidding.5

III. Conclusion

For the foregoing reasons, the judgment is AFFIRMED as

to Reid and VACATED as to the class members. Because we reject

the six-month presumption underlying the class certification and

judgment, the class action is REMANDED for reconsideration of

the certification order in a manner consistent with this

decision.

5
Because our affirmance in this case is limited to the
particular facts presented by Reid's petition, we have no
occasion to consider here whether another petitioner might be
able to challenge the individualized reasonableness of his
continued categorical detention before the immigration courts
rather than the federal courts. The regulatory and statutory
regime does not explicitly address the propriety of such an
approach, and the parties before us have not fully briefed or
argued the issue. Given the shortcomings of case-by-case habeas
review identified above, however, it would be appropriate for
the executive (or the legislature, as the case may be) to
consider explicitly permitting detainees in the position of the
petitioner to seek a reasonableness review before a federal
court or before an IJ more familiar with the intricacies of the
case and the particulars of the underlying removal proceedings.

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