Reid v. Donelan

United States Court of Appeals
For the First Circuit

Nos. 19-1787, 19-1900

MARK ANTHONY REID; ROBERT WILLIAMS, on behalf of himself and
others similarly situated; LEO FELIX CHARLES, on behalf of
himself and others similarly situated,

Petitioners, Appellants/Cross-Appellees,

v.

CHRISTOPHER J. DONELAN, Sheriff, Franklin County, Massachusetts;
LORI STREETER, Superintendent, Franklin County Jail & 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; ALEJANDRO MAYORKAS*, Secretary of the
Department of Homeland Security; DENIS C. RIORDAN, Director,
Immigration and Customs Enforcement Boston Field Office; MERRICK
B. GARLAND, Attorney General; JEAN KING, Acting Director of the
Executive Office for Immigration Review; EXECUTIVE OFFICE FOR
IMMIGRATION REVIEW; DAVID DUBOIS, Sheriff, Strafford County, New
Hampshire; CHRISTOPHER BRACKETT, Superintendent, Strafford
County House of Corrections; TAE D. JOHNSON, Acting Director,
Immigration and Customs Enforcement,

Respondents, Appellees/Cross-Appellants.

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

[Hon. Patti B. Saris, U.S. District Judge]

* Pursuant to Fed. R. App. P. 43(c)(2), Secretary of Homeland
Security Alejandro Mayorkas, Attorney General Merrick B. Garland,
Acting Director Jean King, and Acting Director Tae D. Johnson have
been substituted as respondents.
 Before
Lynch, Lipez, and Kayatta,
Circuit Judges.

Anant K. Saraswat and Michael Tayag, with whom Michelle Nyein,
Wolf, Greenfield & Sacks, P.C., Grace Choi, Kayla Crowell, Aseem
Mehta, Alden Pinkham, Bianca Rey, Marisol Orihuela, Michael
Wishnie, Jerome N. Frank Legal Services Organization, Michael K.T.
Tan, and ACLU Immigrants' Rights Project were on brief, for
appellants/cross-appellees.
William Tong, Attorney General of the State of Connecticut,
Clare Kindall, Solicitor General of the State of Connecticut,
Joshua Perry, Special Counsel for Civil Rights, Kathleen Jennings,
Attorney General of the State of Delaware, Keith Ellison, Attorney
General of the State of Minnesota, Aaron D. Ford, Attorney General
of the State of Nevada, Hector H. Balderas, Attorney General of
the State of New Mexico, Letitia James, Attorney General of the
State of New York, Ellen F. Rosenblum, Attorney General of the
State of Oregon, Thomas J. Donovan, Jr., Attorney General of the
State of Vermont, Maura Healey, Attorney General of the
Commonwealth of Massachusetts, Mark R. Herring, Attorney General
of the Commonwealth of Virginia, and Karl A. Racine, Attorney
General of the District of Columbia, on brief for the States of
Connecticut, Delaware, Minnesota, Nevada, New Mexico, New York,
Oregon, and Vermont, the Commonwealths of Massachusetts and
Virginia, and the District of Columbia, amici curiae.
Alina Das, Rebecca Suldan, and Washington Square Legal
Services, Immigrant Rights Clinic, on brief for Boston College
Immigration Clinic, Boston University School of Law, Immigrants'
Rights and Human Trafficking Program, Detention Watch Network,
Families for Freedom, Greater Boston Legal Services, Harvard Law
School Crimmigration Clinic, Immigrant Defense Project, Immigrant
Legal Resource Center, Lawyers for Civil Rights, National
Immigration Project of the National Lawyers Guild, and Suffolk
University Law School Immigration Clinic, amici curiae.
Kevin P. Martin, Madelaine M. Cleghorn, and Goodwin Procter
LLP, on brief for The American Immigration Lawyers Association,
amicus curiae.
Sarah H. Paoletti and Transnational Legal Clinic, University
of Pennsylvania Law School, on brief for International Law
Professors and Human Rights Clinicians, amici curiae.
James J. Beha II and Morrison & Foerster LLP, on brief for
Retired Immigration Judges and Board of Immigration Appeals
Members, amici curiae.
Nina Rabin and Immigrant Family Legal Clinic, UCLA School of

- 2 -
Law, on brief for 35 Scholars and Researchers in Sociology,
Criminology, Anthropology, Psychology, Geography, Public Health,
Medicine, Latin American Studies, and Law, Whose Work Relates to
Incarceration, Detention, and the Effect of U.S. Immigration
Detention and Removal Policies on Migrant Populations, amici
curiae.
Jonathan D. Selbin, Jason L. Lichtman, Katherine I. McBride,
Elizabeth J. Cabraser, Andrew R. Kaufman, and Lieff Cabraser
Heimann & Bernstein, LLP, on brief for Civil Law Professors, amici
curiae.
Lauren E. Fascett, Senior Litigation Counsel, Civil Division,
Office of Immigration Litigation, with whom Joseph H. Hunt,
Assistant Attorney General, Civil Division, William C. Peachey,
Director, District Court Section, Office of Immigration
Litigation, Elianis N. Perez, Assistant Director, Sarah S. Wilson,
Senior Litigation Counsel, Appellate Counsel Section, Office of
Immigration Litigation, and Catherine M. Reno, Trial Attorney,
Civil Division, Office of Immigration Litigation, were on brief
for appellees/cross-appellants.

October 26, 2021

- 3 -
 KAYATTA, Circuit Judge. This class action, brought on

behalf of noncitizen detainees held without possibility of release

pending the completion of their removal proceedings, comes before

this court for a second time. See Reid v. Donelan, 819 F.3d 486

(1st Cir. 2016), cert. denied, 138 S. Ct. 1547 (2018), withdrawn,

Nos. 14-1270, 14-1803, 14-1823, 2018 WL 4000993 (1st Cir. May 11,

2018). On this occasion, we affirm the district court's ruling

that there is no per se constitutional entitlement to a bond

hearing after six months of detention. We otherwise vacate the

district court's declaratory and injunctive relief as advisory and

remand for entry of judgment. Our reasoning follows.

I.

Petitioners represent a certified class of noncitizens

who have been detained by the Department of Homeland Security's

(DHS) Immigration and Customs Enforcement (ICE) division in

Massachusetts and New Hampshire pursuant to 8 U.S.C. § 1226(c) for

more than six months without a bond hearing.1 Section 1226(c),

often called the mandatory detention provision, "carves out a

statutory category of aliens who may not be released" during

removal proceedings, outside of certain limited circumstances.

1 At the close of discovery in the district court case, 113
individuals had vested into the class; of those, 104 had received
bond hearings as a result of the district court's injunction in
this case. By the time briefing was submitted in this appeal, the
number of class members had risen to 158.

- 4 -
Jennings v. Rodriguez, 138 S. Ct. 830, 837 (2018) (emphasis in

original). Under section 1226(c), the government "shall take into

custody" any noncitizen who is inadmissible or deportable based

on, among other things, a conviction for certain crimes involving

moral turpitude, controlled substance offenses, aggravated

felonies, certain firearm offenses, or certain acts associated

with terrorism. 8 U.S.C. § 1226(c)(1). The statute allows release

of a noncitizen properly subject to mandatory detention under

section 1226(c) "only for witness protection purposes and only

[then] if the alien shows he is not a danger to the community or

a risk of flight." Reid v. Donelan, 390 F. Supp. 3d 201, 214 (D.

Mass. 2019); see also 8 U.S.C. § 1226(c)(2).

The district court judge to whom the case was first

assigned observed that the absence of any provision for release on

bond from a prolonged detention might call the statute's

constitutionality into question. The district court therefore

read into section 1226(c) a requirement that detainees receive an

individualized bond hearing once further detention becomes

"unreasonable." Reid v. Donelan, 991 F. Supp. 2d 275, 277—78 (D.

Mass. 2014). The court then further considered whether

"reasonableness" should be assessed for each detainee based on his

or her individual circumstances or whether the statute shall be

read as requiring a "bright-line rule" limiting detention without

a bond hearing to six months for all persons detained under

- 5 -
section 1226(c). Id. at 279—80. The court concluded that the

statute should be read as mandating an individualized bond hearing

after no more than six months of detention. Id. at 279. In the

alternative, the court found that even if no bright-line rule

applied, Reid's own individual circumstances required an

opportunity for a bond hearing, citing the length of his fourteen-

month detention, the uncertainty of his removal, and the absence

of any dilatory tactics by Reid himself. Id. at 282.

On appeal, this court reversed the holding that

section 1226(c) included a bright-line rule that all persons

detained must receive an individualized bond hearing after six

months of detention. Reid, 819 F.3d at 491, 496. We agreed,

though, that the statute included "an implicit reasonableness

limitation," the length of which would turn on the individual

circumstances presented by each detainee. Id. at 494, 496, 502.

At the same time, we reviewed and affirmed the district court's

alternative holding that section 1226(c) required an

individualized bond hearing in Reid's own case. Id. at 501.

Importantly for our present purposes, we observed that

"the bright-line rule was an essential predicate to class

certification." Id. In vacating the class certification order,

we left it for the district court in the first instance to decide

on remand whether "it is feasible to redefine the class." Id. at

502.

- 6 -
 The Supreme Court subsequently issued its decision in

Jennings v. Rodriguez, rejecting the contention that

section 1226(c) can be read as requiring bond hearings after six

months of immigration detention. The Court found that

section 1226(c) clearly precludes release on bond prior to the end

of removal proceedings (except for witness protection purposes).

138 S. Ct. at 846-47. The Court reasoned that the canon of

constitutional avoidance had no role to play when the statute

itself spoke clearly on the matter at hand. Id. at 847. Whether

the statute for that reason might be unconstitutional under some

circumstances, the Court did not decide. See id. at 851.

Following Jennings, we withdrew our 2016 opinion and

vacated the judgment. See Reid v. Donelan, Nos. 14-1270, 14-1803,

14-1823, 2018 WL 4000993, at *1 (1st Cir. May 11, 2018). In so

doing, we affirmed the district court's judgment as to named

plaintiff Mark Reid himself,2 vacated the judgment as to the class

members, and remanded the case to the district court for

"reconsideration of the certification order." Id.

2 The district court made only one ruling specific to Reid:
that even if there was no presumption that detention over six
months was unreasonable, the individualized circumstances of
Reid's case rendered his continued detention unreasonable. The
district court ordered a hearing. After the hearing, Reid posted
bond and was released, following 400 days of civil detention.
Reid, 819 F.3d at 492.

- 7 -
 Following remand, a second district court judge took

over the case. After briefing and argument, the district court

allowed the addition of two new named plaintiffs to replace Reid.

Reid v. Donelan, No. 13-30125-PBS, 2018 WL 5269992, at *3 (D. Mass.

Oct. 23, 2018). The court also allowed plaintiffs to pursue a new

theory: that "the Due Process Clause or Excessive Bail Clause

requires that they at least have the chance to plead their case

after six months at an individualized bond or reasonableness

hearing." Id. at *5. Based on this new constitutional version of

a bright-line six-month rule, the district court allowed the case

to proceed as a class action. Analogizing to the earlier ruling

certifying a class to advocate for relief based on an implied

statutory requirement of a bright-line six-month rule, the court

reasoned that the new theory similarly posed a common question

that could generate a right to relief as a matter of law without

reference to varying individual circumstances. Id. at *5—6. "A

holding that the Constitution provides a right to a reasonableness

hearing during a prolonged detention would resolve all class

members' claims at once." Id. at *6.3 The district court also

expanded the class slightly to include "[a]ll individuals who are

or will be detained within the Commonwealth of Massachusetts or

3 The "reasonableness hearing" sought by plaintiffs would
take place before an immigration judge, who would determine
"whether the continued denial of a bond hearing was reasonable."

- 8 -
the State of New Hampshire pursuant to 8 U.S.C. § 1226(c) for over

six months and have not been afforded an individualized bond or

reasonableness hearing." Id. at *8.4

After cross-motions for summary judgment "on whether

mandatory detention of the class members under 8 U.S.C. § 1226(c)

for over six months violates the Fifth Amendment Due Process Clause

or the Eighth Amendment Excessive Bail Clause," the district court

partially granted and partially denied each side's motion and

issued a declaratory order and a permanent injunction. Reid, 390

F. Supp. 3d at 209–10, 227–28.

Most significantly for present purposes, the district

court rejected petitioners' contention that every detainee must

have the opportunity for a hearing after no more than six months

of detention. Instead, the court reasoned, determining the length

of time that might constitutionally pass without a bond hearing

requires "a fact-specific analysis" that turns on each

"noncitizen's individual circumstances." Id. at 209.

Rather than stopping at that point, the district court

also issued declaratory and injunctive relief in favor of all class

members, irrespective of their individual circumstances. That

4 The class was defined originally as "all individuals who
are or will be detained within the Commonwealth of Massachusetts
pursuant to § 1226(c) for over six months and are not provided an
individualized bond hearing." Reid v. Donelan, 297 F.R.D. 185,
187 (D. Mass. 2014).

- 9 -
relief established detailed substantive and procedural rules

whereby individual detainees might pursue release. The court

decreed that detention without a bond hearing "is likely to be

unreasonable if it lasts for more than one year [during removal

proceedings before the agency], excluding any delays due to the

alien's dilatory tactics." Looking even further ahead to possible

bond hearings themselves, the district court also ordered the

government to follow the "procedural rules mandated by due process

at a bond hearing." Id. at 226. In the district court's view,

those rules meant that in any bond hearing held for a class member

whose individual circumstances warranted such a hearing, the

government must prove the noncitizen "either dangerous by clear

and convincing evidence or a risk of flight by a preponderance of

the evidence." Id. at 228. The immigration court would not be

allowed "to impose excessive bail, must evaluate the alien's

ability to pay in setting bond, and must consider alternative

conditions of release such as GPS monitoring that reasonably assure

the safety of the community and the alien's future appearances."

Id.

Both sides appeal.

II.

We begin with a jurisdictional digression not raised by

any party. In 2014, the district court ordered the government to

conduct a bond hearing as to Mark Reid; after the hearing took

- 10 -
place, Reid posted bond and was released after 400 days of civil

detention. Reid, 819 F.3d at 492. After detaining new class

representative Leo Charles for more than a year, the government

announced he was not properly subject to mandatory detention and

released him the day before the government's brief in his case was

due. And the government deported the last class representative,

Robert Williams, after eleven months of mandatory detention, but

he then won his petition for review. Petitioners point to no facts

at all showing that renewed detention is imminent, or even likely.

The government in turn disavows any intent to detain them further.

Their claims are therefore at this point moot.

Nevertheless, post-certification mootness of the

individual claims of a class representative regarding an actual

prior detention does not necessarily moot either the claims of the

class or the case as a whole. See Sosna v. Iowa, 419 U.S. 393,

402 (1975) ("[While] there must be a live controversy at the time

[a c]ourt reviews [a] case," "[t]he controversy may exist . . .

between a named defendant and a member of the class represented by

the named plaintiff, even though the claim of the named plaintiff

has become moot."); Genesis Healthcare Corp. v. Symczyk, 569 U.S.

66, 74 (2013) (citing Sosna for the proposition that "a class

action is not rendered moot when the named plaintiff's claim

becomes moot after the class has been duly certified" (emphasis in

original)). "The Court reasoned [in Sosna] that when a district

- 11 -
court certifies a class, 'the class of unnamed persons described

in the certification acquire[s] a legal status separate from the

interest asserted by [the named plaintiff].'" Genesis Healthcare

Corp., 569 U.S. at 74–75 (quoting Sosna, 419 U.S. at 399–402). We

therefore proceed to the merits of the appeal.5

III.

We consider next petitioners' argument that the district

court erred in refusing to hold that all persons detained under

section 1226(c) have a constitutional right to a hearing

concerning the reasonableness of their continued detention after

they have been detained longer than six months. For the following

reasons, we agree with the district court.

First, we adhere to the notion that "the Due Process

Clause imposes some form of 'reasonableness' limitation upon the

duration of detention . . . under [section 1226(c)]," Reid, 819

F.3d at 494. We nevertheless also continue to view the Supreme

Court's ruling in Demore v. Kim, 538 U.S. 510, 530–31 (2003), "as

implicitly foreclosing our ability to adopt a firm six-month rule"

5 The government does not argue that the failure to designate
a new class representative should affect this appeal, nor does it
challenge the adequacy of the currently named class
representatives under Rule 23(a) of the Federal Rules of Civil
Procedure. In the absence of prejudice to the defendant, courts
have consistently granted plaintiffs leave to substitute named
representatives when a class has already been certified and the
certified representative becomes unavailable. 1 McLaughlin on
Class Actions: Law & Practice § 4:36 (17th ed. 2020).

- 12 -
equally applicable to all section 1226(c) detainees, Reid, 819

F.3d at 497.6 Jennings, which caused the withdrawal of our previous

opinion in this case, did nothing to call that view into question.

It requires no reading of tea leaves to see that Demore

is fatal to the claim here that every single person detained for

six months must be entitled to a bond hearing. The detainee in

Demore, Hyung Joon Kim, had already been detained for six months,

yet the Court reversed the lower court's order requiring the

government to hold a bond hearing. Demore, 538 U.S. at 531. It

is simply not possible to read Demore as anticipating that the

Court's opinion would have been different if Kim's detention had

lasted one day more.

That is not to say that Demore categorically blessed

six-month detentions. The Supreme Court had been advised

(incorrectly, it would appear)7 that section 1226(c) detention

6 Petitioners in Demore challenged the constitutionality of
detention pursuant to section 1226(c). The Court denied the
challenge, due in part to what the Court viewed as "the limited
time period necessary for . . . removal proceedings." Demore, 538
U.S. at 526.
7 In Jennings, the government informed the Court that the
statistics it provided in Demore had been incorrect, and that
"[d]etention normally lasts twice as long as the [g]overnment then
said it did." Jennings, 138 S. Ct. at 869 (Breyer, J.,
dissenting); see also id. at 860 (Breyer, J., dissenting) ("The
classes before us consist of people who were detained for at least
six months and on average one year.").
In the instant case, petitioners represent that the median
time class members spent in detention, prior to this appeal, is

- 13 -
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." Demore, 538 U.S. at 530.

Furthermore, in describing Kim's six-month detention, the Court

observed that some portion of that detention was likely the result

of Kim's own request for a continuance in his remand proceedings.

Id. at 531 n.15. While the Court's holding implicitly rejected an

across-the-board rule that some hearing must always be held within

six months, the opinion would seem to leave open the possibility

that in most individual cases, detentions of six months (or of

even less time) might necessitate some type of hearing to see if

continued detention is reasonably necessary to serve the statute's

purposes. Indeed, in the very case before us, the government has

conceded "that mandatory detention under [section] 1226(c) without

a bond hearing violates the Due Process Clause when it becomes

unreasonably prolonged in relation to its purpose in ensuring the

removal of deportable criminal noncitizens." Reid, 390 F. Supp.

3d at 215.

Petitioners argue that another Supreme Court decision,

Zadvydas v. Davis, 533 U.S. 678, 701 (2001), nevertheless calls

363 days, with 25% detained for fewer than eight and a half months
and 25% detained for more than a year and a half. The four longest
terms of detention prior to this appeal were 1,541, 1,291, 1,101,
and 1,048 days -- in other words, between almost three years and
more than four years.

- 14 -
for a per se six-month limit on detention without a bail hearing.

But Zadvydas was decided before Demore. And the petitioners in

Zadvydas challenged only their detention pending the execution of

their final orders of removal, see 533 U.S. at 682, which the Court

in Demore recognized as "materially different" from detention

under section 1226(c), see 538 U.S. at 527–28. So, too, is

petitioners' analogy to Sixth Amendment case law inapt, as the

district court explained. See Reid, 390 F. Supp. 3d at 218.

Petitioners also seek to analogize to Cheff v.

Schnackenberg, 384 U.S. 373, 380 (1966) (plurality opinion)

(ruling that "sentences exceeding six months for criminal contempt

may not be imposed by federal courts absent a jury trial or waiver

thereof"), United States v. Comstock, 560 U.S. 126, 131 (2010)

(describing a statute which, in contrast to section 1226(c),

requires "judicial hearings at the request of the confined person

at [six-]month intervals"), and Mathews v. Eldridge, 424 U.S. 319,

335 (1976) (describing general requirements for procedural due

process). But these analogies provide insufficient support for

rejecting the much more direct message strongly implied by Demore.

Petitioners alternatively contend that detention under

section 1226(c) beyond six months without an individualized

hearing violates the Excessive Bail Clause of the Eighth Amendment.

See U.S. Const. amend. VIII ("Excessive bail shall not be

required."). Some jurists have opined that "excessive" conditions

- 15 -
may include "refusal to hold any bail hearing at all." See

Jennings, 138 S. Ct. at 862 (Breyer, J., dissenting); Carlson v.

Landon, 342 U.S. 524, 569 (1952) (Burton, J., dissenting);

Castañeda v. Souza, 810 F.3d 15, 44 (1st Cir. 2015) (en banc)

(Torruella, J., concurring) (noting "the ongoing,

institutionalized infringement of the right to bail"). But

petitioners point to no court that has treated the prohibition on

excessive bail as categorically requiring an opportunity for

release within a specific amount of time. Nor do they provide any

convincing reason to think that the Excessive Bail Clause would

require a bond hearing when the Due Process Clause does not.

Nor, finally, does our recent opinion in Hernandez-Lara

v. Lyons, 10 F.4th 19 (1st Cir. 2021), call for a different result.

The petitioner in that case was detained under section 1226(a),

not section 1226(c). We were therefore able to distinguish Demore

fairly, id. at 35–36, citing the "quite different" circumstances,

id. at 36, and noting that detention under section 1226(a) (of

persons not convicted of crimes triggering 1226(c) detention)

often lasted longer than the "brief" detention at issue in Demore,

id. at 30.

IV.

Having correctly ruled that six months of detention did

not on its own necessarily trigger a constitutional right to a

reasonableness hearing or bond hearing for a person already

- 16 -
convicted of a crime that triggers detention under section 1226(c),

and that any such relief must be adjudicated on an individual

basis, the district court nevertheless proceeded to issue

declaratory and injunctive relief specifying how district courts

and immigration officials should adjudicate requests for bond.

Reid, 390 F. Supp. 3d at 227–28. The district court sought to

"provide guidance in determining the reasonableness of prolonged

mandatory detention under § 1226(c)." Id. at 219. That "guidance"

took the form of a binding declaration, holding that

mandatory detention without a bond hearing
under 8 U.S.C. § 1226(c) violates due process
when the detention becomes unreasonably
prolonged in relation to its purpose in
ensuring the removal of deportable criminal
aliens. The most important factor in
determining the reasonableness of a criminal
alien's mandatory detention is the length of
the detention. Mandatory detention without a
bond hearing is likely to be unreasonable if
it lasts for more than one year, excluding any
delays due to the alien's dilatory tactics. A
criminal alien subject to mandatory detention
without a bond hearing under § 1226(c) must
bring a habeas petition in federal court to
challenge his detention as unreasonably
prolonged. If the court agrees, the alien is
entitled to a bond hearing before an
immigration judge.

Id. at 227.

The district court also issued a mandatory injunction

dictating the burdens of proof and the substantive factors that

would control in any future bond hearings in immigration court.

Specifically, it ordered that

- 17 -
 [f]or any bond hearing held for a class
member, . . . the immigration court [must]
require the [g]overnment to prove that the
alien is either dangerous by clear and
convincing evidence or a risk of flight by a
preponderance of the evidence. The
immigration court may not impose excessive
bail, must evaluate the alien's ability to pay
in setting bond, and must consider alternative
conditions of relief[,] such as GPS
monitoring[,] that reasonably assure the
safety of the community and the alien's future
appearances.

Id. at 228.

Both sides appeal from this declaratory and injunctive

relief. Petitioners complain about being ordered to bring their

requests for bond hearings before district courts rather than

immigration judges; they also assert that a detainee should be

presumptively entitled to a bond hearing well before the passage

of one year of detention. And they object to the ruling that they

can be denied bail if the government proves they are a flight risk

by a preponderance of the evidence, rather than by clear and

convincing evidence. The government marshals a more global assault

on the declaratory and injunctive relief. It argues, among other

things, that the district court's rulings are free-floating

advisory opinions untethered to any actual case or controversy

between any of the parties.

As the district court explained, the class was certified

as a Rule 23(b)(2) class, Reid, 297 F.R.D. at 194, on the basis of

a single common question that bound together its members: "whether

- 18 -
the Constitution . . . requires an individualized hearing for

those detained under § 1226(c) beyond six months," Reid, 2018 WL

5269992, at *4. That question satisfied the requirements of

Rule 23(a)(2) because its adjudication would "resolve an issue

that is central to the validity of each one of the claims in one

stroke." Id. at *5 (quoting Wal-Mart Stores, Inc. v. Dukes, 564

U.S. 338, 350 (2011)). In plain terms, the question could be

answered for all class members with nary an eye toward their

individual circumstances; if the answer were "yes," each

individual would get a hearing automatically, while a "no" would

leave each person as before. The need for an answer to the question

was also pressing: Petitioners had all been detained without a

bond hearing for more than six months, and were therefore already

due more process than they had received if they were correct that

a bond hearing must be provided in all instances after no more

than six months of detention.

When the district court answered the class's common

question by holding that there exists no per se entitlement to a

bond hearing after six months of detention under section 1226(c),

Reid, 390 F.3d at 216, every class member had a final answer to

the common question central to the claim that they shared. Both

the Supreme Court, see Jennings, 138 S. Ct. at 851–52, and a prior

panel of this court, see Reid, 819 F.3d at 501–02, had hinted that

the resolution of that common question against the class would

- 19 -
remove the justification for any further litigation on behalf of

a class in this action.

The district court disagreed, and issued the decrees

discussed above regarding issues that might or might not arise for

some but certainly not all class members and that had yet to be

considered by the tribunals in which the issues would arise if

they did arise. No class member is able to say with reasonable

assurance whether he or she will receive a hearing. Indeed, many

class members will likely not get a bond hearing. And without a

hearing, a class member has no legal interest in the procedures to

be followed in hearings held for others. We therefore cannot say

that the court's declaration and injunction, beyond rejecting the

per se six-month claim, resolves "an issue that is central to the

validity of each [person's] claims in one stroke." Wal-Mart, 564

U.S. at 350.

Although a class can be certified even if there are some

individual issues that can be efficiently and fairly adjudicated

individually, see In re Asacol Antitrust Litigation, 907 F.3d 42,

51—52(1st Cir. 2018), no precedent of which we are aware supports

using a properly certified class as a bootstrap to then adjudicate,

on a class-wide basis, claims that hinge on the individual

circumstances of each class member.

It does not matter that some class members'

circumstances suggested a more concrete and imminent need for a

- 20 -
ruling on the applicable burdens of proof at a bond hearing. A

Rule 23(b)(2) class, such as this one, may only be maintained if

"the party opposing the class has acted or refused to act on

grounds that apply generally to the class, so that final injunctive

relief or corresponding declaratory relief is appropriate

respecting the class as a whole." Fed. R. Civ. P. 23(b)(2); see

also Wal-Mart, 564 U.S. at 360 ("The key to the (b)(2) class is

'the indivisible nature of the injunctive or declaratory remedy

warranted -- the notion that the conduct is such that it can be

enjoined or declared unlawful only as to all of the class members

or as to none of them.'" (quoting Richard A. Nagareda, Class

Certification in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97,

132 (2009))); 7AA Charles Alan Wright et al., Federal Practice &

Procedure § 1784.1 (3d ed. 2021) ("[T]he common-question and

superiority standards of Rule 23(b)(3) are in some ways much less

demanding than that of either Rule 23(b)(1) or

Rule 23(b)(2) . . . ."); 1 McLaughlin on Class Actions: Law &

Practice § 5:15 (17th ed. 2020) ("Indeed, a Rule 23(b)(2) class

must actually have more cohesiveness than a Rule 23(b)(3) class."

(collecting cases)). A class consisting of some members who might

be entitled to a bond hearing and others who are not lacks

sufficient cohesiveness to obtain relief regarding the conduct of

those hearings under Rule 23(b)(2).

- 21 -
 With its resolution of the common class claim complete,

the district court was left with no plaintiff possessing any

current or imminent stake in the resolution of assorted issues

addressed in the court's declaratory and injunctive relief,

including the allocation of the burden of proof and bail terms.

Reid's claim was long ago mooted. And his class claim, as we have

explained, did not encompass the remaining issues addressed by the

court. Whether we call this a lack of standing, see, e.g. In re

Asacol Antitrust Litigation, 907 F.3d at 48 ("In a class action

suit with multiple claims, at least one named class representative

must have standing with respect to each claim." (quoting 1 William

B. Rubenstein, Newberg on Class Actions § 2:5 (5th ed. 2012))), or

the absence of a case or controversy, see U.S. Const. art. III,

§ 2, cl. 1; Carney v. Adams, 141 S. Ct. 493, 498 (2020) ("We have

long understood that constitutional phrase to require that a case

embody a genuine, live dispute between adverse parties, thereby

preventing the federal courts from issuing advisory opinions."),

the result is the same: The district court lacked the jurisdiction

necessary to turn its considered guidance into binding equitable

relief.

We recognize that having clear standards for determining

whether and when a section 1226(c) detainee need be released

pending the conclusion of the detainee's removal proceedings would

make life simpler for all involved. Such standards might arise in

- 22 -
the form of agency regulations. Or they might emerge like common

law rules of precedential force, through case-by-case

adjudication, as in our recent decision in Hernandez-Lara. We

simply hold that this particular Rule 23(b)(2) class action does

not provide a vehicle for preemptively announcing such rules.

V.

For the foregoing reasons, we affirm the judgment

against the class rejecting the claim that persons detained for

six months under section 1226(c) are automatically entitled to a

hearing before an IJ that might lead to their release on bond

pending the conclusion of removal proceedings. We otherwise vacate

the district court's declaratory and injunctive orders, and remand

for the entry of final judgment in accord with this opinion.

Nothing in this opinion precludes any class member from pursuing

a claim that he or she is entitled to a bond hearing or to release

based on his or her individual circumstances. Each party is to

bear its own costs.

- Dissenting Opinion Follows -

- 23 -
 LIPEZ, Circuit Judge, dissenting. My colleagues rely on

a "message strongly implied by the Supreme Court" to conclude that

certain noncitizens detained by the government for six months have

no right to a bond hearing to determine the need for their

continued detention. I disagree that the Supreme Court has tipped

its hand on that issue and, perhaps more importantly, I disagree

that it is appropriate to engage in such predictive analysis.

Rather, we should address the novel constitutional question

presented to us and determine through the familiar due process

balancing test the procedural safeguards necessary to protect the

liberty interest of noncitizens detained pursuant to 8 U.S.C.

§ 1226(c). In my view, that balancing demonstrates that such

individuals are entitled to a bond hearing when they have been

detained for six months.8 I therefore dissent.9

8 Perhaps to offer an alternative as a compromise, petitioners
propose that a "reasonableness" hearing be held at the six-month
point of detention to determine detainees' entitlement to a bond
hearing. As I shall explain, detention without a bond hearing for
more than six months is a due process violation for all detainees.
Accordingly, there would be no separate "reasonableness" question
for the IJ to resolve.
9Because my view is that a six-month rule should apply equally
to all class members, I do not confront the class certification
issues that lead the majority to vacate the declaratory and
injunctive relief ordered by the district court. I limit my
dissent to the core constitutional issue -- entitlement to a
hearing after six months.

- 24 -
 I.

The majority's rejection of a hearing requirement after

six months rests on its reading of Demore v. Kim, 538 U.S. 510

(2003), where the Supreme Court addressed a facial challenge to

§ 1226(c). The Court considered the question of whether it is

constitutional to detain noncitizens with certain criminal

convictions without a bond hearing. The Court answered in the

affirmative. Significantly, however, its analysis did not address

any specific timeframe. Here, we are faced with an as-applied

challenge to § 1226(c) that requires us to determine whether it is

constitutional to detain noncitizens with certain criminal

convictions without a bond hearing for more than six months. The

Supreme Court's answer to the question in Demore does not dictate

the answer to the question before us.

In other words, while Demore tells us that it is

constitutional to detain this category of noncitizens without a

bond hearing for some amount of time, Demore does not address the

constitutional status of detentions that are prolonged. To

illustrate the difference, I offer this example: Is it

constitutional to detain a citizen without an immediate judicial

determination of probable cause that she committed a crime? Yes.

See Cty. of Riverside v. McLaughlin, 500 U.S. 44, 58-59 (1991).

Is it constitutional to detain a citizen for more than 48 hours

without a judicial determination of probable cause? No. Id. Put

- 25 -
simply, the passage of time may make a difference when one's

liberty is in the balance. As the Third Circuit observed, the

benefit to the government of presuming that a class of noncitizens

should be detained to prevent flight or danger to the community

eventually will be outweighed by those individuals' loss of

liberty: "'At this tipping point' . . . due process requires the

[g]overnment to justify continued detention at a bond hearing."

Santos v. Warden Pike Cty. Corr. Facility, 965 F.3d 203, 209 (3rd

Cir. 2020) (quoting Chavez-Alvarez v. Warden York Cty. Prison, 783

F.3d 469, 475 (3d Cir. 2015)).

In reading rejection of a six-month rule into Demore, my

colleagues necessarily rely on the fact that the petitioner there,

Hyung Joon Kim, had been detained for more than six months by the

time the Supreme Court decided his case. But the six-month mark

was neither a factor in Kim's arguments to the Court nor a basis

for the Court's ruling. Rather, "the petitioner argued that his

detention was unconstitutional from the outset due to the

categorical nature of the mandatory detention regime." Reid v.

Donelan, 819 F.3d 486, 493 (1st Cir. 2016), withdrawn, Nos. 14-

1270, 14-1803, 14-1823, 2018 WL 4000993 (1st Cir. May 11, 2018).10

10 Our prior decision in this case, which concluded that
§ 1226(c) includes "an implicit reasonableness requirement," Reid,
819 F.3d at 502, was withdrawn following the Supreme Court's ruling
in Jennings v. Rodriguez, 138 S. Ct. 830 (2018). The Court in
Jennings held that the statute itself contains no time limit on
detention. See id. at 846-47.

- 26 -
 The Court's silence on an issue that was not raised does

not create precedent. We are bound by the precedential holdings

and reasoning of the Supreme Court, not by "speculation about what

the Supreme Court might or might not do in the future." Columbia

Nat. Res., Inc. v. Tatum, 58 F.3d 1101, 1107 n.3 (6th Cir. 1995).

Moreover, to the extent reading tea leaves is appropriate, the

Court's decision in Demore appears to forecast different

considerations -- with the possibility of a different outcome --

for prolonged detentions. As our prior decision in this case

noted, "the brevity of the detention [was] central to" the Court's

holding in Demore that § 1226(c) permissibly "'require[s] that

persons such as respondent be detained for the brief period

necessary for their removal proceedings.'" Reid, 819 F.3d at 493-

94 (quoting Demore, 538 U.S. at 513). The Supreme Court made

repeated reference to the limited timeframe at issue. See Demore,

538 U.S. at 513 ("brief period"), 523 (same), 526 ("limited

period"), 529 n.12 ("[t]he very limited time of the detention");

531 ("limited period"). The Court also revealed what it meant by

the "brief period" it was contemplating: "[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

- 27 -
the minority of cases in which the alien chooses to appeal." Id.

at 530.11

We now know that the timing assumptions underlying the

Court's analysis in Demore were wrong. As my colleagues note, the

government informed the Court during the proceedings in another

case involving § 1226(c), Jennings v. Rodriguez, 138 S. Ct. 830

(2018), that "[d]etention normally lasts twice as long as the

[g]overnment then said it did." Id. at 869 (Breyer, J.,

dissenting); see also id. at 860 (Breyer, J., dissenting) ("The

classes before us consist of people who were detained for at least

six months and on average one year."). And it is worth repeating

the data reported by petitioners in this case, which my colleagues

acknowledge in a footnote. The median time that class members

spent in detention, before the appeal, was 363 days -- i.e., a

year. Twenty-five percent of the class members were detained for

more than a year-and-a-half, and only 25% were detained for less

than eight-and-a-half months. These numbers are starkly different

from the Supreme Court's understanding in Demore that five months

was a long and uncommon period of detention under § 1226(c).

My colleagues also acknowledge that Demore seemingly

left "open the possibility that in most individual cases,

The Court noted that Kim's six-month detention was
11

"somewhat longer than the average," but pointed out that he had
requested a continuance of his removal hearing. Demore, 538 U.S.
at 530-31.

- 28 -
detentions of six months (or of even less time) might necessitate

some type of hearing to see if continued detention is reasonably

necessary to serve the statute's purposes." The government, too,

recognizes that mandatory detention without a bond hearing will

violate the Due Process Clause "when it becomes unreasonably

prolonged in relation to its purpose." See Reid v. Donelan, 390

F. Supp. 3d 201, 215 (D. Mass. 2019). Nonetheless, my colleagues

decline even to engage in a due process analysis to evaluate the

petitioners' contention that, at least after six months, every

noncitizen detained under § 1226(c) is entitled to a bond hearing

to determine if continued detention would be improper. See Demore,

538 U.S. at 532-33 (Kennedy, J., concurring) ("Were there to be an

unreasonable delay by the INS [Immigration and Naturalization

Service] in pursuing and completing deportation proceedings, it

could become necessary then 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.").

As I have explained, the rationale for this

sidestepping -- a supposed message from the Supreme Court in Demore

-- simply does not withstand scrutiny. My colleagues' avoidance

of the constitutional question posed here is thus unsupportable

because the inference they draw from Demore lacks both legal and

factual foundation and because reading tea leaves is not our proper

role. See Sopo v. U.S. Att'y Gen., 825 F.3d 1199, 1212 (11th Cir.

- 29 -
2016), vacated, 890 F.3d 952 (11th Cir. 2018) ("Outside of Justice

Kennedy's Demore concurrence, the Supreme Court has never

addressed how long under § 1226(c) the government can detain a

criminal alien[.]"); Rodriguez v. Robbins, 715 F.3d 1127, 1137

(9th Cir. 2013) ("[W]e have consistently held that Demore's holding

is limited to detentions of brief duration.").12

I thus turn to the petitioners' contention that all

noncitizens held pursuant to § 1226(c) are entitled to a bond

hearing after six months of detention.

II.

The analysis in our recent decision in Hernandez-Lara v.

Lyons, 10 F.4th 19 (1st Cir. 2021), exemplifies the proper

doctrinal approach for determining what due process protections

must be afforded to immigration detainees. There, we evaluated

the proper allocation of the burden of proof at an immigration

bond hearing by means of the three-part balancing test articulated

in Mathews v. Eldridge, 424 U.S. 20 319, 335 (1976). As we

explained,

The Mathews factors [to be balanced] are: (1)
"the private interest that will be affected by

12Several of the cases I cite in this dissent were vacated
or otherwise diminished as authority as a result of the Supreme
Court's decision in Jennings holding, as a matter of statutory
construction, that § 1226(c) does not provide for release on bond
-- with limited exceptions -- while removal proceedings are
ongoing. See 138 S. Ct. at 846-47. I rely on these cases solely
for observations and principles unaffected by the holding in
Jennings.

- 30 -
 the official action"; (2) "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 (3) "the [g]overnment's
interest, including the function involved and
the fiscal and administrative burdens that the
additional or substitute procedural
requirement would entail."

Hernandez-Lara, 10 F.4th at 28 (quoting Mathews, 424 U.S. at 335).

The majority dismisses Mathews as having little

relevance to this case. They do so, however, as part of their

deference to the message they draw from Demore and, hence, neglect

to give due consideration to the appropriate analysis for the

distinct constitutional question raised in this case. Indeed, the

long-established Mathews framework is well suited to the

constitutional due process question here, just as it served as an

appropriate guide for our assessment of the due process claim in

Hernandez-Lara.13 See, e.g., Hamdi v. Rumsfeld, 542 U.S. 507, 528–

29 (2004) ("The ordinary mechanism that we use for balancing such

serious competing interests, and for determining the procedures

that are necessary to ensure that a citizen is not 'deprived of

life, liberty, or property, without due process of law,' . . . is

13In Hernandez-Lara, we held that the Due Process Clause of
the Fifth Amendment requires that the government bear the burden
of proving at a bond hearing that a noncitizen detained pursuant
to 8 U.S.C. § 1226(a) is a danger or flight risk and thus not
entitled to release. See 10 F.4th at 23-24. Although this case
involves a different statutory provision, the due process
principles we applied in Hernandez-Lara are equally applicable
here.

- 31 -
the test that we articulated in Mathews[.]"); Velasco Lopez v.

Decker, 978 F.3d 842, 851 (2d Cir. 2020) (applying the Mathews

test to determine the procedural protections required for

immigration detention pursuant to § 1226(a)); Diouf v. Napolitano,

634 F.3d 1081, 1090 (9th Cir. 2011) (applying the Mathews test to

determine the procedural protections required for immigration

detention pursuant to § 1231(a)(6)).

The analysis here should proceed in the same fashion as

in Hernandez-Lara, with consideration of the three factors as they

pertain to prolonged detention under § 1226(c). I therefore

proceed with that analysis.

A. Liberty Interest

In Hernandez-Lara, we summarized the first Mathews

factor, the private interest at stake, as follows:

"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, 695 (2001)
(citing Foucha v. Louisiana, 504 U.S. 71, 80
(1992)). The Supreme Court has repeatedly
affirmed that "[i]n our society liberty is the
norm, and detention prior to trial or without
trial is the carefully limited exception."
United States v. Salerno, 481 U.S. 739, 755
(1987); see also Foucha, 504 U.S. at 80 ("We
have always been careful not to minimize the
importance and fundamental nature of the
individual's right to liberty."). For this
reason, "civil commitment for any purpose
constitutes a significant deprivation of
liberty that requires due process

- 32 -
 protections." Addington [v. Texas, 441 U.S.
[418,] 425 [(1979)] (emphasis added).

10 F.4th at 28. We stated that there was "no question" that

immigration detention constituted a "substantial deprivation of

liberty," and emphasized that a lack of citizenship does not

preclude an interest in freedom from detention. Id. ("[T]he fact

that some detention is permissible does not change the fact that

a detainee suffers significant liberty deprivations."). We thus

concluded that the first Mathews factor "weigh[ed] heavily in

Hernandez's favor." Id. at 30.

Here, importantly, we have the additional factor that

each of the Reid class members was detained under § 1226(c) without

a hearing for at least six months.14 Hence, we must take into

account the costs that accrue with prolonged detention.15 While

detention of any length implicates a liberty interest, prolonged

detention inevitably has greater consequences for the individual

14As noted above, in many cases, the detention was far longer.
Petitioners report that, among the 113 Reid class members, the
average length of detention was nearly a full year. The class
includes individuals who were detained for 1,541 days
(approximately 4.2 years), 1,291 days (3.5 years), 1,101 days (3
years), and 1,048 days (2.8 years).
15 In Hernandez-Lara, we expressly chose not to address the
petitioner's prolonged detention argument and instead considered
the "potential length of detention" as a factor in the liberty
interest analysis. See 10 F.4th at 25 n.2, 30 n.4. This case
differs in that we address the claims of individuals who have
already been detained for six months, and the length of their
detention is central to their due process claim.

- 33 -
than short-term detention. See Zadvydas, 533 U.S. at 701 (stating

that, "as the period of . . . confinement grows," the government

must provide stronger justifications for detention); Gerstein v.

Pugh, 420 U.S. 103, 114 (1975) ("The consequences of prolonged

detention may be more serious than the interference occasioned by

arrest. Pretrial confinement may imperil the suspect's job,

interrupt his source of income, and impair his family

relationships."); Hernandez-Lara, 10 F.4th at 29 (noting that

"prolonged detention" may create a weightier liberty interest);

Diop v. ICE/Homeland Sec., 656 F.3d 221, 234 (3d Cir. 2011) ("[T]he

constitutional case for continued detention without inquiry into

its necessity becomes more and more suspect as detention

continues[.]"); Diouf, 634 F.3d at 1091–92 ("When detention

crosses the six-month threshold and release or removal is not

imminent, the private interests at stake are profound."). Extended

detention can cause unique harms "that differ in degree and kind

from those suffered by short-term detainees." Br. of Amici Curiae

35 Scholars, at 4-22 (describing harms specific to prolonged

detention, including physical harm caused by insufficient medical

care, psychological harm to detainees and their families, and

economic harms stemming from loss of employment).

Giving significance to detentions that reach six months'

duration is not a novel idea. In Zadvydas, the Supreme Court

recognized the six-month mark as a constitutional tipping point.

- 34 -
See 533 U.S. at 701. When detention reaches that length, the due

process calculus shifts. See id. Six months has also been

identified as consequential outside the immigration context. In

multiple cases, the Supreme Court has endorsed a jury-trial

requirement for crimes punishable with incarceration of more than

six months. See Muniz v. Hoffman, 422 U.S. 454, 477 (1975);

Baldwin v. New York, 399 U.S. 66, 73-74 (1970); Duncan v. State of

La., 391 U.S. 145, 161 (1968); Cheff v. Schnackenberg, 384 U.S.

373, 379–380 (1966) (plurality opinion). As the Supreme Court has

put it, "It is not difficult to grasp the proposition that six

months in jail is a serious matter for any individual." Muniz,

422 U.S. at 477. And, as we recognized in Hernandez-Lara,

immigration "detention" can be indistinguishable from

"imprisonment"; the petitioner there "was incarcerated alongside

criminal inmates . . . for over ten months." 10 F.4th at 28.

Accordingly, we should be readily concluding that

detention in excess of six months creates a heightened liberty

interest and should be afforded more weight in the Mathews

balancing formula than the liberty interest in freedom from any

detention -- a distinction whose importance is reflected in the

Supreme Court's focus in Demore on the brevity of the detention it

considered there. See 538 U.S. at 513, 523, 526, 529 n.12, 531.

Thus, the first Mathews factor weighs strongly in favor of

petitioners -- even more so than in our Hernandez-Lara analysis.

- 35 -
B. Risk of Erroneous Deprivation and Probable Value of Safeguards

In Hernandez-Lara, we concluded that the misallocation

of the burden of proof at a bond hearing -- requiring the detainee

to prove that she is not a flight risk or a danger to the community,

rather than requiring the government to prove that she is --

created a high risk of erroneous deprivation of liberty. 10 F.4th

at 30-32. Section 1226(c) makes no provision for a bond hearing

at all. In that respect, the risk of erroneously detaining a

person who is not a danger or flight risk looms larger than in

Hernandez-Lara.

However, mandatory detention under § 1226(c) is premised

on Congress's findings that so-called "criminal aliens"

categorically present a higher risk of flight and danger to the

community. See Demore, 538 U.S. at 518-20. In Demore, the Supreme

Court recognized that this presumption has a solid evidentiary

foundation. See id. at 528 ("The evidence Congress had before it

certainly supports the approach it selected[.]"). Thus, the risk

of error is offset to some degree by the fact that § 1226(c)

detainees, as a class, may be more likely to present a flight risk

or a danger to the community than other noncitizen detainees.

Still, Congress's categorical presumption of

dangerousness and flight risk for "criminal aliens" inevitably

will affect many individuals to whom the presumption should not

apply. Section 1226(c) sweeps broadly, encompassing not only those

- 36 -
who have committed violent felonies, but also those who have

committed nonviolent crimes and simple drug offenses. The

difference between a § 1226(a) discretionary detainee and a

§ 1226(c) mandatorily detained "criminal alien" may be a

conviction or two for shoplifting or marijuana possession.16 While

Congress's presumption of flight risk and dangerousness for

§ 1226(c) detainees is important in the due process analysis, the

only method for identifying those who are not properly detained

based on that presumption is through individualized assessments.

See Lora v. Shanahan, 804 F.3d 601, 605 (2d Cir. 2015), cert.

granted, judgment vacated, 138 S. Ct. 1260 (2018) ("[T]his group

includes non-citizens who, for a variety of individualized

reasons, are not dangerous, have strong family and community ties,

are not flight risks and may have meritorious defenses to

deportation at such time as they are able to present them.").

The detainees in this case are illustrative. The record

indicates that 50 of the 104 Reid class members who eventually

received bond hearings were released from immigration detention

16See, e.g., Vallejo v. Decker, No. 18-CV-5649 (JMF), 2018
WL 3738947, at *2 (S.D.N.Y. Aug. 7, 2018) (noncitizen subject to
§ 1226(c) because of one shoplifting conviction and one receipt of
stolen property conviction); Vazquez v. Green, Civil Action No.
16-3451 (JMV), 2016 WL 6542833, at *4 (D.N.J. Nov. 3, 2016)
(noncitizen subject to § 1226(c) because of two marijuana
possession convictions).

- 37 -
because they were found not to pose a danger or a flight risk.17

In other words, the data shows that nearly half of the individuals

in this class were detained erroneously. Whether or not that

percentage is typical, it is some indication that a significant

number of individuals may be unnecessarily -- and, hence,

improperly -- detained for extended periods of time. Hence, the

risk of the erroneous deprivation of liberty inherent in mandatory

detention is substantial, and the probable value of the procedural

safeguard of a bond hearing is high.

The majority does leave open an avenue for a noncitizen

detained under § 1226(c) to receive a bond hearing by seeking a

writ of habeas corpus in federal court on the ground that, in her

individual circumstances, detention is unreasonable. For multiple

reasons, however, a federal habeas claim is an inadequate

substitute for an automatic bond hearing at six months. Most

importantly, habeas litigation is simply not a viable option for

most detainees. As we observed in Hernandez-Lara, detainees "very

often cannot obtain counsel," "will likely experience difficulty

in gathering evidence on their own behalf," and "often lack full

proficiency in English." 10 F.4th at 30. In addition, as we have

17Bond hearings were held for some class members pursuant to
the district court's decision in this case. See Reid v. Donelan,
22 F. Supp. 3d 84, 93 (D. Mass. 2014). The district court's
judgment with respect to the hearing requirement was subsequently
vacated by this court. See Reid, 819 F.3d at 502-03.

- 38 -
previously recognized, habeas litigation is particularly

"complicated and time-consuming, especially for aliens who may not

be represented by counsel." Reid, 819 F.3d at 498. Hence, for

most detainees, the possibility of habeas relief -- a procedure

outside the normal course of immigration proceedings -- is simply

illusory. See Doe v. Gallinot, 657 F.2d 1017, 1023 (9th Cir. 1981)

(stating that "[t]he bare existence of optional habeas corpus

review does not, of itself, alleviate due process concerns"

regarding involuntary civil commitment).

Moreover, for those detainees who have the wherewithal

to file a habeas petition, the process will likely be so slow that

their detentions will become significantly more prolonged as they

await resolution in federal court. Even when a detainee is

successful in the habeas process, the timeframe between filing a

petition and receiving a bond hearing is likely to be at least

several months.18 See Lora, 804 F.3d at 615 (noting "the random

outcomes resulting from individual habeas litigation in which some

detainees are represented by counsel and some are not, and some

18See Br. of Amici Curiae Boston College Immigration Clinic,
et al., at 26 (citing a 2016 study of successful First Circuit
habeas challenges to mandatory detention, which found that the
litigation took over seven months on average); Br. of Amicus
Curiae American Immigration Lawyers Association, at 16 (collecting
cases of successful habeas challenges to § 1226(c) detention and
noting that it took between four and eleven months for each case
to resolve).

- 39 -
habeas petitions are adjudicated in months and others are not

adjudicated for years").

In short, there is currently no effective way for most

individuals detained under § 1226(c) to challenge their

unnecessary -- and therefore improper -- prolonged detentions.

C. Government Interest

The third Mathews factor considers "the [g]overnment's

interest, including the function involved and the fiscal and

administrative burdens that the additional or substitute

procedural requirement would entail." Mathews, 424 U.S. at 335.

As the Supreme Court has recognized, "[t]here is always a public

interest in prompt execution of removal orders." Nken v. Holder,

556 U.S. 418, 436 (2009). Undoubtedly, keeping noncitizens

detained during their removal proceedings guarantees the

government will be able to find them and promptly effectuate

removal when it is ordered. The need to detain the class of

individuals subject to § 1226(c) is supported by Congress's

finding that individuals with criminal histories pose a heightened

risk of flight or danger to the community. See Demore, 538 U.S.

at 518-22. Thus, mandatory detention pending deportation, without

considering its duration, serves the government's interest. See

id. at 528 ("[D]etention necessarily serves the purpose of

preventing deportable criminal aliens from fleeing prior to or

- 40 -
during their removal proceedings, thus increasing the chance that,

if ordered removed, the aliens will be successfully removed.").

However, as we pointed out in Hernandez-Lara, framing

the government interest in this way is somewhat misleading. The

question is not whether the government has the power to detain

noncitizens who may cause harm or flee while they await removal,

but whether the Due Process Clause conditions the exercise of that

power. In Hernandez-Lara, the issue was "who should bear the

burden of proving noncitizens pose a danger or a flight risk." 10

F.4th at 32. Here, the issue is whether "criminal aliens" in

prolonged detention under § 1226(c) should receive a bond hearing

after six months to determine whether the ongoing restraint on

their liberty in fact serves the asserted government interest.

See Rodriguez v. Robbins, 804 F.3d 1060, 1077 (9th Cir. 2015)

("Bond hearings do not restrict the government's legitimate

authority to detain inadmissible or deportable non-citizens;

rather, they merely require the government to 'justify denial of

bond[.]'" (quoting Singh v. Holder, 638 F.3d 1196, 1203 (9th Cir.

2011))), rev'd sub nom. Jennings, 138 S. Ct. at 836.19 The only

individuals released should be those who are not a danger or a

19As indicated above, see supra note 5, the Supreme Court's
reversal of Rodriguez v. Robbins on statutory interpretation
grounds does not undermine this observation within its analysis.

- 41 -
flight risk -- that is, individuals the government has no reason

to detain.

Further, as we discussed in Hernandez-Lara, unnecessary

immigration detention in fact harms the public interest. We

described the "substantial societal costs" as follows:

[N]oncitizens subject to immigration
detention include spouses, children, and
parents of U.S. citizens, caretakers of
children and elderly relatives, and leaders in
religious, cultural, and social groups. The
needless detention of those individuals thus
"separates families and removes from the
community breadwinners, caregivers, parents,
siblings and employees." Those ruptures in
the fabric of communal life impact society in
intangible ways that are difficult to
calculate in dollars and cents. Even so, as
twenty states report in an amicus brief to
this court, the financial costs imposed by
such widespread communal disruption are
severe: "[States'] revenues drop because of
reduced economic contributions and tax
payments by detained immigrants, and their
expenses rise because of increased social
welfare payments in response to the harms
caused by unnecessary detention."

10 F.4th at 33 (citation omitted).20 We also considered the direct

fiscal cost of detention. Holding a person in immigration

detention costs the government about $134 per person per day. Id.

20The label "criminal alien" may obscure the fact that many
noncitizens subject to § 1226(c) are valued community members.
See Saysana v. Gillen, 590 F.3d 7, 17 (1st Cir. 2009)
(acknowledging that some noncitizens detained pursuant to
§ 1226(c) may have "longstanding community ties"). They may be
parents, spouses, caregivers, or community leaders, and may also
work, contribute to the economy, and pay taxes. And, as noted

- 42 -
 These same countervailing government interests apply

with even more force in the context of prolonged detention. Based

on the $134 figure, at six months, the government will have spent

about $24,120 on a noncitizen's detention. See also Hernandez v.

Sessions, 872 F.3d 976, 996 (9th Cir. 2017) (describing the cost

of immigration detention as "staggering" and considering these

costs as part of "the general public's interest in the efficient

allocation of the government's fiscal resources"). Both research

and commonsense suggest that families and communities suffer

greater harms from prolonged detention than from short-term

detention.21 Bond hearings after six months would thus serve the

public interest by providing a mechanism for the release of

individuals who do not need to be detained, while continuing the

detention of those who do pose a flight risk or danger to the

community.

above, a person may be subject to § 1226(c) for relatively minor
offenses. Certainly, there is a strong public interest in
prolonged detention of noncitizens who have committed violent
felonies. But individuals with violent histories will surely not
be granted bond by IJs.
21For example, "[c]hildren of prolonged detainees are more
likely to exhibit adverse changes in sleeping habits and behavior,
including increased anger and withdrawal, as compared with
children who are reunited with parents within a month of
apprehension." Br. of Amici Curiae 35 Scholars, at 20-21. The
prolonged absence of a caregiver also may lead to children being
placed in foster care, or families turning to public benefits
programs, at the expense of the state. See id. at 21.

- 43 -
 Providing a bond hearing for every noncitizen detained

for six months or longer would of course impose an administrative

burden on the government. Immigration courts already are

challenged by heavy caseloads resulting from the asylum process

and other immigration matters, and increased availability of bond

hearings would add to their burden. On the other hand, because

bond hearings are routine in immigration courts, mandating bond

hearings after six months for § 1226(c) detainees would not require

new procedures and, thus, should not unduly increase the burden of

administration. Moreover, the alternative suggested by my

colleagues -- habeas proceedings in federal court -- also comes

with a cost to the government.

Unquestionably, the government has a strong interest in

detaining a subclass of deportable noncitizens it has found to

pose unique risks, and a categorical requirement for bond hearings

after six months would produce some unavoidable administrative

costs. However, the steep fiscal and societal costs of prolonged,

improper detention of the many individuals who pose no risk must

also be factored into our assessment of the government's interest.

See Hernandez-Lara, 10 F.4th at 32 n.5 (noting that the government

has not suggested that it "could detain a noncitizen who has shown

he is not a danger or flight risk" because, "fundamentally, any

detention must 'bear[] [a] reasonable relation to [its] purpose'"

(alterations in original) (quoting Zadvydas, 533 U.S. at 690)).

- 44 -
Thus, given the competing considerations, the third Mathews factor

-- the government interest in detaining noncitizens under § 1226(c)

without an automatic bond hearing after six months -- does not

affect the balance one way or the other.

D. Balancing the Factors

Our assessment of the first factor in the Mathews

framework reveals that the hardship for detainees -- and,

consequently, the burden on their liberty interest -- dramatically

increases with the passage of time, while the government's interest

in categorical detention remains unchanged. Also apparent is the

substantial risk that many individuals will be erroneously

deprived of their liberty -- the second factor -- unless bond

hearings are held to test the government's presumption of

dangerousness or likelihood of flight. The first two factors thus

weigh heavily toward the detainees' right to a bond hearing. The

third factor -- the government's interest -- does not favor either

side. Hence, applying the Mathews framework unequivocally

demonstrates that noncitizens subject to § 1226(c) detention for

six months -- a duration long understood to elevate the need for

procedural protections -- are entitled to a bond hearing as a

matter of constitutional due process.

That conclusion does not minimize the government's

strong interest in the mandatory detention of certain noncitizens

with criminal convictions. The government's interest can be met,

- 45 -
however, without placing an unjustified burden on the liberty of

noncitizens detained under § 1226(c) who present no risk of danger

or flight. In Demore, it mattered that the possibility of improper

detention was only for a "brief period." See, e.g., 538 U.S. at

513. As described above, the individuals detained and society as

a whole experience greater losses from prolonged detention, and we

therefore must assign greater weight to the need for procedural

protections than when detentions are brief.

To be sure, "Congress may make rules as to aliens that

would be unacceptable if applied to citizens." Id. at 522.

Nonetheless, the Supreme Court "has consistently held that due

process 'applies to all "persons" within the United States,

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

temporary, or permanent.'" Hernandez-Lara, 10 F.4th at 43 (quoting

Zadvydas, 533 U.S. at 693). Hence, despite Congress's substantial

authority to regulate noncitizens, we cannot defer to legislative

judgments that disregard the constitutional restraints on

government actions burdening individual rights -- with the right

to liberty arguably foremost among them. See id. ("[O]urs is a

system in which even the most sensitive and critical exercises of

power by the political branches can be constrained by the rights

of the individual. In few instances are those constraints more

necessary than when the government seeks to lock up individuals

behind bars."); id. at 42-43 (stating that it is the judiciary's

- 46 -
duty to "'say what the law is,' even in immigration and detention

cases, and even where doing so requires setting aside Congressional

enactments, executive actions, or state statutes" (citation

omitted) (quoting Marbury v. Madison, 5 U.S. 137, 177 (1803)).

For the reasons I have identified, individualized

adjudication via the habeas process will not adequately remove the

impermissible burden on the right to liberty experienced by

§ 1226(c) detainees. That option is simply not available, as a

practical matter, to many -- if not most -- of those individuals.

By contrast, a clear and categorical rule will be effective in

protecting the right to liberty without undue burden on the

government, and the six-month trigger for a bond hearing is the

timeframe most consistent with precedent. See id. at 44-45 (noting

that the Supreme Court has often announced categorical due process

rules, and "[i]n none of these cases did the Court limit its

holding to the specific individual before it or indicate that the

requirements of due process would fluctuate based on the strength

of any particular individual's case on the merits").

I regret that my colleagues have avoided the important

issue in this case based on speculation about what the Supreme

Court will say about a question that it has not yet confronted.

Indeed, as I have explained, to the extent Demore conveys a message

about prolonged detentions, it is that the interests at stake

differ from those implicated by short-term detentions. See supra;

- 47 -
see generally Salerno, 481 U.S. at 755 ("In our society liberty is

the norm, and detention prior to trial or without trial is the

carefully limited exception."); Addington, 441 U.S. at 425 ("This

Court repeatedly has recognized that civil commitment for any

purpose constitutes a significant deprivation of liberty that

requires due process protection.").

Maintaining the status quo leaves untold numbers of

noncitizens who pose no danger to the public or risk of flight to

languish for months -- or even years -- with no meaningful ability

to demonstrate their entitlement to release from detention. The

Constitution does not allow the government to subject any person

within our borders -- citizen or noncitizen -- to detention in

excess of six months without a bond hearing. The Supreme Court

has never said otherwise. We can and should take this opportunity

to hold that six months is the constitutional endpoint for

unexamined detention. Accordingly, I must dissent.

- 48 -