United States Court of Appeals

For the Eighth Circuit

___________________________

No. 19-1244

___________________________

Farass Ali

lllllllllllllllllllllPetitioner - Appellee

v.

Joel L. Brott, Sheriff, Sherburne County

lllllllllllllllllllllRespondent - Appellant

William P. Barr, Attorney General; Kirstjen Nielsen, Secretary, Department of

Homeland Security; Ronald Vitiello, Acting Director, Immigration and Customs

Enforcement; Peter B. Berg, Director, St. Paul Field Office Immigration and

Customs Enforcement

lllllllllllllllllllllRespondents

____________

Appeal from United States District Court 

for the District of Minnesota

____________

Submitted: March 12, 2019

Filed: April 16, 2019

____________

Before GRUENDER, BENTON, and GRASZ, Circuit Judges.

____________
GRASZ, Circuit Judge.

Farass Ali, who immigrated to the United States in 2014, has been held in

custody under 8 U.S.C. § 1226(a) since May 2017 while he litigates the issue of

whether he is a removable alien. The district court granted relief on Ali’s petition for

a writ of habeas corpus after interpreting § 1226(a) to permit detention of an alien

only for a “period reasonably necessary to receive a removal decision” and

concluding Ali’s time in detention was not reasonable. Sherburne County Sheriff

Joel Brott appeals, arguing the district court wrongly applied a “reasonableness”

1

standard not included in the text of the statute. We agree with Sheriff Brott and

therefore reverse the order granting Ali’s petition and remand for the district court to

consider Ali’s constitutional arguments.

 

I. Background

Ali is a native and citizen of Iraq. In January 2014, Ali entered the United

States as a refugee. Hisimmigration status was adjusted to lawful permanent resident

in 2015. 

In November 2016, Ali was arrested in Minnesota for violation of Minnesota

laws. The arrest caused federal investigators to review Ali’s immigration status. The

Department of Homeland Security claims to have found significant inconsistencies

among Ali’s application for refugee status, his statementsto officers who interviewed

him on that application, and his application for adjustment of status to lawful

The district court dismissed certain federal officials asrespondents after noting 1

only Sheriff Brott was a proper respondent to Ali’s petition. See Rumsfeld v. Padilla,

542 U.S. 426, 434–35 (2003) (recognizing the proper respondent to a habeas petition

is “the person who has custody over [the petitioner] . . . . not the Attorney General or

some other remote supervisory official”) (alteration in original). 

-2-
permanent resident. Federal investigators also examined Ali’s social media platform

and found posts related to and purportedly in support of a terrorist organization.

In May 2017, FBI Special Agents interviewed Ali and questioned him

regarding his use of social media and his familial lineage. Agents asked for his

consent to search the electronic devices he used to accesssocial media. Ali consented

only to a search of his laptop. The day after the interview, federal immigration agents

took Ali into custody pursuant to an administrative warrant. Ali was served with a

Notice to Appear and charged with being a removable alien who, at the time of entry

or adjustment, procured admission into the United States by fraud or willful

misrepresentation, and as an alien who, at the time of entry or adjustment, was

inadmissible because he was not in possession of valid travel documents.

In June 2017, Ali was transferred to state custody for purposes of his pending

state charges. Shortly after, the FBI notified immigration officials Ali would be

considered a threat to national security if he was released from immigration custody.

In July 2017, Ali’s state criminal charges were dismissed and he wastransferred back

to federal immigration custody. 

Between July 2017 and August 2018, an Immigration Judge (“IJ”) presided

over a series of hearings on the merits of the removal charges and other matters. The

IJ granted multiple continuances, almost all of which were at Ali’s request. During

thistime, on September 19, 2017, the IJ presided over a bond hearing. Ali called two

witnesses and both parties submitted evidence. The IJ denied Ali’s request to be

released on bond, concluding Ali had failed to show he was not a danger to the

community. Ali did not appeal the IJ’s bond determination and has not sought a new

bond hearing.

On September 7, 2018, Ali filed a petition for habeas corpus under 28 U.S.C.

§ 2241, seeking release from federal immigration custody pending resolution of his

-3-
immigration proceedings. Ali argued his continued detention was not authorized by

§ 1226(a), violated his Fifth Amendment right to due process, and was an

unauthorized seizure under the Fourth Amendment. The government argued Ali’s

continued detention was constitutional and that Ali was permitted to seek relief

through administrative procedures. The government also suggested Ali wasthe cause

of any undue delay in his removal proceedings.

The district court entered an order on January 7, 2019, granting Ali’s petition

and ordering Brott to release Ali from custody within thirty days. The district court

explained that Ali wassubject to pre-removal detention under § 1226(a) and observed

the statute did not explicitly limit the length of an alien’s pre-removal detention

period. The district court compared the situation to Zadvydas v. Davis, 533 U.S. 678

(2001). In Zadvydas, the Supreme Court analyzed 8 U.S.C. § 1231(a)(6), which

governs post-removal order detention, and employed the doctrine of constitutional

avoidance to read a “reasonableness limitation” into the length of time an alien could

be detained after he was ordered removed. 533 U.S. at 689–90. Applying the

rationale of Zadvydas to the facts of Ali’s case, the district court concluded that preremoval order detention under § 1226(a) is limited to “the period reasonably

necessary to receive a removal decision.” The district court then determined Ali’s

time in detention had exceeded this limitation and therefore ordered him released

within thirty days.

 

After the district court denied his motion for reconsideration, Sheriff Brott 2

appealed and sought an emergency motion to stay the district court order pending

The basis for Sheriff Brott’s motion for reconsideration was the fact that 2

during the time period between when Ali filed his petition for habeas corpus and

when the district court issued its order granting Ali’s petition, the IJ had issued an

order of removal ordering Ali’s deportation to Iraq. The district court denied Sheriff

Brott’s motion because the IJ’s order was provisional and not final until affirmed by

the Board of Immigration Appeals. The district court ordered Ali released within

thirty days from the date of the district court’s original grant of Ali’s petition. 

-4-
appeal. We granted a temporary stay until further order of the court, directed the

parties to file simultaneous briefs on the merits, and set the case for oral argument. 

II. Discussion

Whether we can affirm the district court’s grant of Ali’s habeas petition turns

on the language of 8 U.S.C. § 1226(a) and application of the Due Process Clause of

the Fifth Amendment in the context of the statute. For the reasons set forth below,

we vacate the order of the district court directing release of Ali and remand for further

proceedings.

We begin by reference to the applicable federal statute, which first provides,

“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. § 1226(a). The statute goes on to

“generally give[] the Secretary [of Homeland Security] the discretion either to detain

the alien or to release him on bond or parole.” Nielsen v. Preap, 139 S. Ct. 954, 959

(2019). “If the alien is detained, he may seek review of his detention by an officer at

the Department of Homeland Security and then by an immigration judge (both

exercising power delegated by the Secretary).” Id. at 959–60 (citing 8 C.F.R.

§§ 236.1(c)(8) and (d)(1), 1003.19, 1236.1(d)(1)). 

At issue here is whether, in order to avoid due process concerns, this court must

construe the statute as containing an implied “reasonableness” limit on pre-order

detention similar to that found by the Supreme Court in Zadvydas, 533 U.S. at 691,

699, with respect to the post-detention statute, 8 U.S.C. § 1231(a)(6). 

Application of the canon of constitutional avoidance to imply terms in a statute

that do not exist in its text is necessarily a serious matter implicating the proper role

of the judiciary. Although a matter of first impression in this circuit, we do not

approach this question with a blank slate. The Supreme Court recently re-

-5-
emphasized, in a case discussing the same statutory framework, that a court may not

resort to constitutional avoidance unless certain criteria are met. First, the canon

should only be used “[w]hen ‘a serious doubt’ is raised about the constitutionality of

an act of Congress.” Preap, 139 S. Ct. at 971 (alteration in original) (quoting

Jennings v. Rodriguez, 138 S. Ct. 830, 842 (2018)). Even then, a court may not resort

to constitutional avoidance unlessitfirst concludes the statute is “susceptible of more

than one construction.” Id. at 972 (quoting same). “The canon ‘has no application’

absent ‘ambiguity.’” Id. (quoting Warger v. Shauers, 574 U.S. 40, 50 (2014)). 

To begin with, we are skeptical of Ali’s argument that his detention pending

a decision on whether he is to be removed under § 1226(a) is unconstitutional

considering he was given a bond hearing and still has available procedural avenues

to seek relief. See 8 C.F.R. §§ 236.1(c)(8) and (d), 1003.19, 1236.1(d). The Supreme

Court has never indicated the bond hearing process set forth in the statute and

accompanying regulations is constitutionally deficient. To the contrary, Supreme

Court precedent indicates such a framework is constitutionally permissible. See

Demore v. Kim, 538 U.S. 510, 523 (2003) (explaining “this Court has recognized

detention during deportation proceedings as a constitutionally valid aspect of the

deportation process”); United States v. Salerno, 481 U.S. 739, 748, 755 (1987)

(holding the Bail Reform Act of 1984 did not facially violate the Due Process Clause

of the Fifth Amendment and, noting in support of its conclusion, it had previously

“found no absolute constitutional barrier to detention of potentially dangerous

resident aliens pending deportation proceedings”). Indeed, we find it noteworthy that

aliens challenging the constitutionality of their detentions in Jennings and Demore

sought, as a remedy, a bond hearing similar to what Ali was given. See Jennings, 138

S. Ct. at 839; Demore, 538 U.S. at 517, 528.

 

Regardless, even if we assume that despite the safeguard of a bond hearing

there is a serious doubt as to the constitutionality of detention under § 1226(a), the

canon of constitutional avoidance is not proper here because the statute is not

-6-
susceptible to more than one construction as to the length of detention. In contrast

to the statute analyzed in Zadvydas, § 1226(a) limits the period of detention to the

period “pending a decision on whether the alien is to be removed from the United

States.” While this is not subject to precise calculation, it is, nonetheless, a defined

period that does have an end. Cf. Jennings, 138 S. Ct. at 846 (reasoning § 1226(c)

is not ambiguous or even silent regarding the length of detention because it mandates

detention pending a decision on whether the alien isto be removed fromthe country);

Demore, 538 U.S. at 528–29 (noting that unlike the detention at issue in Zadvydas,

which was indefinite and potentially permanent, detention under § 1226(c) has a

“definite termination point” and is of a “shorter duration”). 

It is significant the Supreme Court has found unambiguous the language of

§ 1226(c), which requires mandatory detention until a decision regarding removal is

reached, and therefore has refused to use constitutional avoidance to read an extratextual “reasonableness” limitation into the statute. We see no principled basis for

viewing § 1226(a)’s text regarding the length of detention any differently. The

primary difference between the two subsections of the statute is the availability of a

bond hearing for aliens held under subsection (a). And this difference, which gives

aliens like Ali more protection against prolonged detention than aliens detained under

§ 1226(c), militates against reading a reasonableness limitation into § 1226(a)

because it makes the statute less likely to violate their due process rights. 

In light of this precedent, we hold § 1226(a) is not susceptible of more than one

construction. As a result, the constitutional avoidance doctrine has no application

here. The district court therefore erred when it concluded pre-removal order

detention under § 1226(a) is limited to “the period reasonably necessary to receive

a removal decision.” We reverse the district court’s order on this basis.

The analysis does not end here, however. In his petition, Ali argued his

continued detention violated not only § 1226(a), but his constitutional rights under

-7-
the Fourth and Fifth Amendments. As in Jennings, 138 S. Ct. at 851, we conclude

this matter should be remanded to the district court to further consider Ali’s

constitutional arguments consistent with this decision and relevant Supreme Court

precedent.3

______________________________

Sheriff Brott filed a Motion to Strike Ali’s Rule 28(j) filing on the ground it

3

improperly provides argument and analysis rather than merely setting forth pertinent

and significant authorities which came to his attention after his brief was filed. Fed.

R. App. P. 28(j). Because our analysis made it unnecessary to consider the arguments

advanced in Ali’s filing, we deny the motion as moot.

-8-