New opinion: Third Circuit recognizes constitutional right to challenge unreasonable immigration detention

Santos v. Warden, Pike County Correctional—immigration—reversal—Bibas

In an important victory for immigrants facing deportation, the Third Circuit today held that they may challenge unreasonably long detention without a bond hearing as a denial of due process.

The man who brought the challenge was a Dominican native who has been a lawful permanent resident since 2006 but pleaded guilty to possessing marijuana with intent to deliver. He was arrested pending deportation in 2017, over two-and-a-half years ago, and locked up ever since. The applicable statute, 8 USC § 1226(c), requires the government to detain certain people pending deportation, even if they are legal U.S. residents and without any chance to show low risk of flight or danger to the community if released on bond.

The Third Circuit held that immigrants in custody under § 1226(c) may bring as-applied due process reasonableness challenges to their detention. The court set out factors for courts to consider in assessing reasonableness, and it held that the 2.5-year-plus detention here was unreasonable. Directing that the mandate issue immediately,  the court remanded with orders for the district court to give the man a bond hearing, where the government bears the burden of justifying continued detention by clear and convincing evidence, within 10 days.

Joining Bibas were McKee and Nygaard. Arguing counsel were Rebecca Hufstader of the Nationalities Service Center for the immigrant, Sarah Wilson for the government, and Celso Perez of the ACLU Immigrants’ Rights Project for amici.