Breaking: 11th Circuit Deepens Circuit Split on Prolonged Detention Bond Hearings


June 15, 2016

Today, the Eleventh Circuit Court of Appeals issued Sopo v. US Attorney General, No. 14-11421 (11th Cir. June 15, 2016), a case addressing the constitutional limits of the mandatory detention statute.  In a lengthy decision, it joined a number of other circuits holding that the mandatory detention of noncitizens with certain prior convictions under 8 USC sec. 1226(c)  is only constitutional for a "reasonable period of time," and that "at some point" those individuals "become entitled to an individualized bond hearing."  (Slip Op. at 3).  The Eleventh Circuit's decision deepened a circuit split on when and how such bond hearings should take place.  The Second and Ninth Circuit have adopted a bright-line rule, in which detention becomes presumptively unreasonable after six months, at which point the government provides an automatic bond hearing before an immigration judge.  But under the "case by case" approach adopted by the First, Third, and Sixth Circuits, the courts look to "whether detention... has become unreasonable, " depending "on the factual circumstances of the case." (Slip Op. at 31) Pursuant to this approach, as the Eleventh Circuit explains it,  noncitizens -- who have no right to government-appointed counsel -- should first file a habeas petition in federal district court to review the circumstances of the case and then, if the federal court finds that the individual facts warrant a finding that further detention would be unreasonable, to direct the government "to provide an opportunity for the alien to obtain bond" (Slip Op. at 33), through a bond hearing before an immigration judge.  Each of the circuits adopting the case-by-case approach seem to have slightly different requirements, but the point is that an automatic right to a bond hearing is not triggered by six months or more of immigration detention.  (Note:  as a practical matter, this blog post does not take a position on whether filing a habeas petition will be required in every case in those circuits, and this post -- as with any other Immprof blog post, or really any other blog post for that matter -- should not be relied upon as legal advice).  In Sopo, the Eleventh Circuit adopts the case-by-case approach.

In recognizing the constitutional problems associated with prolonged immigration detention, the majority opinion notes the "realities of immigration detention and how the entire process of removal proceedings has lengthened."  Citing Mark Noferi's law review article, Cascading Constitutional Deprivation:  The Right to Appointed Counsel for Mandatorily Detained Immigrants Pending Removal Proceedings, 18 Mich. J. Race & L. 63 (2012), the opinion states that "in 2012 the average amount of time an alien with a criminal conviction spent in removal proceedings (and likely in detention) was 455 days."  (Slip Op. at 28). 

Judge Jill Pryor issued a separate opinion, concurring on the existence of a constitutional limit on prolonged detention but dissenting with the majority - and agreeing with the Second and Ninth Circuits - on whether detention becomes unreasonable after six months.  Judge Pryor's opinion cites Farrin Anello's law review article addressing the emerging circuit split and arguing that courts should adopt a bright-line rule of providing bond hearings at the six month mark, Due Process and Temporal Limits on Mandatory Detention, 65 Hastings L. J. 363 (2014).  (Slip Op. at 57).

This post originally appeared on Law Professor Blogs © 2014-2016 by Law Professor Blogs, LLC. All rights reserved. Reprinted with permission.

About The Author

Jennifer Lee Koh. Jennifer Lee Koh Professor of Law, is an expert on immigration law and clinical teaching, and has devoted much of her career to promoting and protecting the rights of immigrants across the country. Professor Koh joined Western State in 2010 from Stanford Law School, where she was a Clinical Lecturer and Cooley Godward Kronish Fellow. At Stanford, she supervised students enrolled in the Immigrants' Rights Clinic on cases ranging from the representation of individual noncitizens in immigration matters to policy work, community-based advocacy and litigation on behalf of immigrants. Professor Koh teaches immigration law, administrative law, and directs the immigration law clinic. The Immigration Clinic offers second- and third-year law students the opportunity to develop lawyering skills by working firsthand on real-life cases and advocacy involving immigration issues.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.