Featured authority
Ortega v. Bonnar, 415 F.Supp.3d 963 (N.D. Cal. 2019)
Matter of Sugay, 17 I&N Dec. 637 (BIA 1981)
As I draft this, a flurry of new Executive Orders are raining down, and the Senate is scheduled to resume consideration on “S.5” (a.k.a. the Laken Riley Act). It’s a day of import, to say the least. And the first thing on my own mind is detention–specifically, potential attempts at re-detention, and/or new detention, of non-citizens who are already in the midst of removal proceedings.
In this blog, I’ll invoke what Judge Schmidt calls my “practical scholarship” skills to address the existing legal criteria for such re-detention, with a specific eye towards how it might be challenged. Here, we’re only considering the plight of non-citizens charged under section 236 of the Immigration and Nationality Act, which puts the authority and criteria for their detention at 8 U.S.C. § 1226(a)–(e). As a go-to introduction to this, and ICE detention in general, I highly recommend “A Guide to Obtaining Release from Immigration Detention,” which was published May 28, 2024 online by the National Immigration Project.[i]
As the NIP Guide so aptly explains, Immigration Court “removal” proceedings are instituted after an ICE-ERO officer decides whether to detain the individual and/or release them. Such release could be on bond, recognizance, or formal parole. According to the Vera Institute, immigration courts are facing a caseload of around 3.7 million—out of which around 18,500 are presently detained.[ii]
Statutory authority to detain is at INA section 236, which provides: “On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States…” 8 U.S.C.A. § 1226(a) (Westlaw 2025). Various criteria for mandatory detention are contained at § 236(c), but if that hurdle is cleared, release can (and does) happen for the remainder of proceedings.[iii]
The practice of re-detention, has so far, been rarely invoked. If that changes, the first argument that can be levied against it is that, unless DHS/ICE has demonstrated a material change of circumstances, re-detention violates binding legal precedent.[iv] On its face, the INA does provide that “[t]he Attorney General at any time may revoke a bond or parole authorized under subsection (a), rearrest the alien under the original warrant, and detain the alien. 8 U.S.C.A. § 1226(b) (Westlaw 2025); see also 8 CFR 236.1(c)(9).[v] However, as the district court noted in habeas proceedings in Ortega v. Bonnar, 415 F.Supp.3d 963, 968 (N.D. Cal. 2019), the BIA has placed “a limitation on this authority…In practice, the DHS re-arrests individuals only after a “material” change in circumstances.” Id., citing Matter of Sugay, 17 I&N Dec. 637 (BIA 1981) (other citations omitted).
The Sugay rule is this: “where a previous bond determination has been made by an immigration judge, no change should be made by a [deciding officer] absent a change of circumstance.” Matter of Sugay, 17 I&N Dec. 637, 640 (BIA 1981). This tenet is still (and repeatedly) recognized by the BIA and by federal courts.[vi] For instance, in Zabaleta v. Decker, 331 F.Supp.3d 67 (S.D.N.Y. 2018), the Southern District of New York granted a habeas petition, citing Sugay. The Court ordered remand to the Board for “legal error in the components of the BIA’s determination that the petitioner was a danger to the community and a risk of flight.”
Habeas, incidentally, is the means by which detention is challenged in federal court. BIA bond denials do not directly reach the Courts of Appeal due to INA § 236(e), which provides no court shall set aside the executive’s “discretionary judgment …regarding the detention or release of any” noncitizen. However, district court habeas jurisdiction falls under 28 U.S.C.A. § 2241(c)(3), which provides for the writ where a petitioner “is in custody in violation of the Constitution or laws or treaties of the United States.” Like the Southern District of New York in Zabaleta, other district courts have regularly asserted habeas jurisdiction in cases brought by detained non-citizens. A go-to, excellent practice advisory on habeas (linked in the end-notes) is the NILA/ABA Nuts and Bolts of Habeas Corpus Petitions Challenging Immigrant Detention (Jul. 31, 2021).[vii]
Whether challenged via habeas or directly before the IJ/BIA, on a basic level, detention must occur within the parameters of the executive branch’s delegated authority to detain. INA section 236(a) authorizes “detention pending a decision on whether the alien is to be removed” (emphasis added). In a handful of cases that should be reviewed by any practitioner seeking to challenge an individual detention, the Supreme Court has indicated the power to detain is tethered to the reasonable exercise of this authority. Zadvydas v. Davis, 533 U.S. 678 (2001); Demore v. Kim, 538 U.S. 510 (2003); Nielsen v. Preap, 139 S.Ct. 954 (2018); see also Jennings v. Rodriguez, 138 S.Ct. 830, 846 (2018) (indicating that mandatory detention under INA § 236(c) has a “definite termination point”).
Considering this, litigators challenging detention have made direct constitutional arguments, rooted in the Fifth Amendment. The idea is that if the purported “reasons” for detention become too far-fetched from their legitimate (removal) goal, that detention violates procedural due process. In a post-Nielsen v. Preap Practice Advisory, the ACLU puts it this way: “Where an individual has lived peaceably in the community for years, and may well have strong family ties and a high likelihood of prevailing in her removal hearing, mandatory detention is no longer adequately linked to the government’s interest in preventing flight risk and danger.”[viii] This is because (the advisory cites), “Due process requires that immigration detention “‘bear[] a reasonable relation to the purpose for which the individual was committed.’” Demore v. Kim, 538 U.S. 510, 527 (2003), citing Zadvydas v. Davis, 533 U.S. at 690–91.
Similar arguments have been successful where detention was too prolonged to be considered reasonably tethered to the purpose of effecting removal. In 2020, the Northern District of Georgia directly utilized Mathews v. Eldridge, 424 U.S. 319 (1976), to hold that a habeas petitioner’s detention violated due process. J.G. v. Warden, Irwin County Detention Ctr., 501 F.Supp.3d 1331, 1336 (M.D. Ga. 2020). As part of the balancing test, the Court stated “prolonged immigration proceedings have stalled [the petitioner’s] removal case.” Both the NIP and the ACLU practice advisories contain numerous other examples of cases, both pre- and post Jennings v. Rodriguez, which ruled that detention was unconstitutional due to prolonged proceedings.
Importantly, many of these recent constitutional challenges have been successful despite directly contravening the “mandatory” detention requirements contained in the present version of 236(c). Demonstrably, then, the constitution—especially the Fifth Amendment and the celebrated liberty interest therein—has prevailed above the INA in cases of conflict. Should Laken Riley indeed come to pass, these cases can be invoked again—as can principals against retroactivity. It’s a bit of an aside, but I’m thinking here of the Fifth Circuit case of Lopez-Ventura v. Sessions, 907 F.3d 306, 313 (5th Cir. 2018), in which the Fifth Circuit refused to presume the INA’s definition of “controlled substance” applied retroactively, and stated that presumption against retroactivity was “a legal doctrine centuries older than our Republic.”
As I was preparing today’s blog, I remembered an old 2016 Federal Lawyer column that I wrote when home raids first entered the news. I found an e-interview I did with pro bono attorney Katie Shepherd, who was managing the “CARA” project at family detention centers. At the time, she stated, ICE was engaged in a wholesale policy shift from “a policy of deterrence through deportation to a policy of deterrence through detention.”[ix] Public rhetoric has, of course, shifted since that time, and now we are looking at a policy of terror and retribution, in which detention is but one tool. My hope is that everyone will remember that our constitution is still here; and that, even very recently, it’s been applied in the context of non-citizen detention. In the midst of this blog, I snuck in a primer on all the essential legal standards governing challenges to detention. I hope, though, that not everyone reading will have to use it.
End Notes
[i] https://nipnlg.org/sites/default/files/2024-05/2024_Guide-Obtaining-Release-Imm-Detention.pdf (accessed Jan. 20, 2025).
[ii] https://tinyurl.com/3sjb2u4j (accessed Jan. 20, 2025).
[iii] The general criteria for release is that “such release would not pose a danger to property or persons, and that the alien is likely to appear for any future proceeding.” 8 C.F.R. § 1236.1(c)(8) (ecfr.gov) (accessed Jan. 20, 2025).
[iv] As the Second Circuit puts it bluntly, “[t]he BIA is required to follow its own precedent.” Paucar v. Garland, 84 F.4th 71, 80 (2d Cir. 2023).
[v] “When an alien who, having been arrested and taken into custody, has been released, such release may be revoked at any time in the discretion of the district director, acting district director, deputy district director, assistant district director for investigations, assistant district director for detention and deportation, or officer in charge (except foreign), in which event the alien may be taken into physical custody and detained. If detained, unless a breach has occurred, any outstanding bond shall be revoked and canceled.”
[vi] See, e.g., Matter of Garvin-Noble, 21 I&N Dec. 672, 699 (BIA 1997) (applying Sugay, describing “the authority of the Service to revoke or redetermine a bond or terms of release when circumstances involving a threat to the community come[] to light even after the Immigration Judge or the Board has rendered a decision.”
[vii] https://cilacademy.org/wp-content/uploads/2021/08/Practice-Advisory-Nuts-and-Bolts-Imm-Detention-Habeas.pdf (accessed Jan. 20, 2025).
[viii] ACLU & Asian Americans Advancing Justice, Practice Advisory: Constitutional Challenges to Mandatory Detention after Nielsen v. Preap (Jul. 2019), https://www.aclu.org/sites/default/files/field_document/2019_07_06_preap_advisory.pdf (accessed Jan. 20, 2025).
[ix] Email interview with Katie Shepherd, CARA Pro Bono Project, Mar. 3, 2016. The “CARA” project was a coalition group of numerous agencies, including the Catholic Legal Immigration Network and the American Immigration Lawyers Association. https://wafmag.org/2016/06/cara-family-detention-pro-bono-project/ (accessed Jan. 20, 2025).
