PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

__________

No. 14

- 1402

__________
JOSE JUAN CHAVEZ

- ALVAREZ, Appellant

v.

WARDEN YORK COUNTY PRISON; THOMAS DECKER, In his official capacit y as Philadelphia Field Office Director for United States Immigration and Customs E nforcement; JOHN T. MORTON, In his official capacity as Assistant Secretary of United States Immigration and Customs Enforcement; SECRETARY UNITED STATES DEPARTMENT OF HOME LAND SECURITY; ATTORNEY GENERAL UNITED STATES OF AMERICA

__________ On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 1

- 12

- cv

- 02130 ) District Judge: Honorable John E. Jones, III

ARGUED November 18, 20142 BEFORE: RENDELL

, JORDAN

, and NYGAARD

, Circuit Judges

(Filed : April 9, 2015 )

Valerie A. Burch, Esq. [Argued] The Shagin Law Group 120 South Street The Inns of St. Jude Harrisburg, PA 17101 Counsel for Appellant

Leon Fresco, Esq. [Argued] United States Departm ent of Justice Civil Division

, Room 3129 950 Pennsylvania Avenue, N.W. Washington, DC 20530

Ka therine E.M. Goettel, Esq. United States Department of Justice Office of Immigration Litigation P.O. Box 868 Ben Franklin Station Washington, DC 20001

Timothy S . Judge, Esq. Office of United States Attorney 235 North Washington Avenue P.O. Box 309, Suite 311 Scranton, PA 18503

Troy D. Liggett, Esq.3 United States Department of Justice Office of Immigration Litigation Room 6036 P. O. Box 868 Ben Franklin Station W ashington, DC 20001

Mark E. Morrison, Esq. Office of United States Attorney 228 Walnut Street, P.O. Box 11754 220 Federal Building and Courthouse Harrisburg, PA 17108 Counsel for Appellee s
Michael K.T. Tan, Esq. (Argued) American Civil Liberties Union Foundation 39 Drumm Street San Francisco, CA 94111 Counsel for Amicus Appellants

__________
OPINION OF THE COURT

__________ NYGAARD, Circuit Judge

.

Jose Juan Chavez

- Alvarez appeals the District Court’s denial of his petition for a writ of habeas c orpu s. He contends that the Government is violating his right to due process by detain ing him

, pursuant to 8 U.S.C. §1226(c), 1 without a bond

1 “ The Attorney General shall take into custody any alien who . . . (B) is deport able by reason of having committed any4 hearing since June 5, 2012

. We will reverse the District Court’s order and remand with instruction to gran t the writ of habeas c orpus and ensure that Chavez

- Alvarez is promptly afforded a bond hearing.

I.

Chavez

- Alvarez , a citizen of Mexico, entered the United States at a young age without inspection and later adjusted to lawful permanent resident status. He married a United States citizen, but i s now divorced. He has two sons who are United States citizens . In 2000, while serving in the Unit ed States Army in South Korea, a General Court

- Martial convicted him of giving false official statements (10 U.S.C. § 907), so domy (10 U .S.C. § 925), and violating the general article (10 U.S.C. § 934). 2 It sentenced him to eighteen months of imprisonment. He served thirteen months in prison and was released on February 4, 2002

.

offense covered in section 1 2 27 (a)(2)(A)(ii), (A)(iii ), (B), (C), or (D) of this title

. ” 8 U.S.C. § 1226(c)(1)(B) ; See also 8 C.F.R. § 241.3.

2 “ Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a n ature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special, or summary court

- martial, according to the nature and degree of the offense, and shall be punished at the discretion of that
court. ” 10 U.S.C. § 934.5 Immigration Customs and Enforcement agents ar rested Chavez

- Alvarez on June 5, 2012, and served him with a Notice to Appear

, charging him with being removable under 8 U.S.C. § 122 7 (a)(2)(A)(iii) for his conviction on an aggravate d felony

. He was ordered detained without bond under 8 U.S.C. § 1226(c) a nd sent to York County Prison.

The total number of days that Chavez

- Alvarez has been held in civil detention since his arrest , of itself, gives us reason for pause. However, we judge the reasonableness of a detention during the removal process by “tak [ing] into account a given individual detainee’s need for more or less time, as well as the exigencies of a particular case.” Diop v. ICE/Homeland Sec ., 656 F.3d 221, 234 (3d Cir. 2011). Our close review of th is record has been significant to our deliber ation about the constitutionality of Chavez

- Alvarez ’s detention. And so, we begin by su mmarizing what happened in the Immigration C ourt

.

II

. Shortly after his arrest, Chavez

- Alvarez obtained counsel and challenged the Government’s case for removal. The Immigration Judge accepted pleadings on June 19, 2012; Chavez

- Alvarez argued against removability. Ten days later, the Government

, pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii ), added a charge that Chavez

- Alvarez was removable on the ground of being convicted for two or more crimes involving moral turpitude

. R oughly five weeks after he was arrested,

o n July 11, 2012, the Immigration Judge denied Chavez

Alvarez ’s request for a bail hearing

— filed two days after his
arrest on June 7, 2012

— ruling that he was subj ect to6 mandatory detention under section 1226(c) in compl iance with Matter of Joseph , 22 I. & N. Dec. 799 (BIA 1999).

Between August and October of 2012, the Immigration Judge held two hearings. During this time, Chavez

- Alvarez denied that he was remo vable on the new charge

, and challeng ed the Government ’s claim that his earlier conviction made him removable. T wo issues emerged during these hearings : whether the Manual for Courts Marshal

— which the Government used to categorize hi s crime

— ha s the effec t of law; and, whether Chavez

- Alvarez ’s eighteen month sentence arose from all of his crimes, or just the sodomy conviction. Cha vez

- Alvarez said at the October hearing that, if necessary, he would request a 212(h) waiver of inadmissibility , pursuant to 8 U.S.C. § 1182(h)

. The fifth hearing was held o n November 1, 2012

, almost five months into Chavez

- Alvarez ’s detention. T he Immigration Judge ruled that Chavez

- Alvarez was removable. Specifically, h e concluded that sodomy by force is a crime of violenc e under 18 U.S.C. § 16(a) and (b), qualifying as an aggravated felony under 8 U.S.C. § 1101(a)(43)(F). But, the Immigration Judge also told Chavez

- Alvarez that he would consider a 212(h) waiver, and encouraged him to have a petition for an alien relative (Form I

- 130) filed on his behalf to accompany the waiver.

Over the next four months, the Immigration Judge held four m ore hearings. During this time, it became clear that Chavez

- Alvarez was seeking only a standalone waiver

. 3 This

3 The Immigration Judge acted on an apparent credible possibility that Chavez

- Alvarez would marry. Later, Chavez

-7 brought up a questio n of whether and when Chavez

- Alvarez had been admitted to the country. The Immigration Judge then requested briefing on the implications of the ruling in Matter of Sanchez

, 17 I

. & N

. Dec. 218 (BIA 1980), to Chavez

- Alvarez ’s elig ibility for the waiver.

On March 5, 2013, at the final hearing, nine months after he was arrested and detained, the Immigration Judge issued an oral decision denying Chavez

- Alvarez ’s application for a 212(h) waiver . This was the sole remaining issue. Chavez

- Alvarez stated tha t he was reserving his right to appeal.

On April 3, 2013, approximately 10 months after his arrest and detention, Chavez

- Alvarez appeal ed to the B oard of Immigration Appeals (B IA ) . The Government filed a motion with the BIA for a summa ry affirmance , but t he BIA affirmed the Immigration Judge’s decision in a precedential decision on March 14, 2014, over twenty

- one months after Chavez

- Alvarez ’s arrest and detention. Chavez

- Alvarez then petitioned this Court for review of the BIA’s decision. 4

Alvarez told the Immigration Judge that he was no long er considering marriage.

4 On October 25, 2012, Chavez

- Alvarez filed a petition for writ of habeas c orpus

. The District Court granted Chavez

Alvarez ’s order to show cause on October 31, 2012. It referred the petition to the Magistrate Judge on Decembe r 7, 2012. The Magistrate J udge held oral argumen t on May 29, 2013 and issued a r eport an d r ecommendation on December 18, 2013, recommending the District Court deny the writ. Chavez

- Alvarez objected to the report and r ecommendation8 II I

.

Chavez

- Alvarez sa ys that the G overnment is violating his due process rights by d etaining him for an unreasonable amount of time without conducting a hearing at which he would have the opportunity to be released on bond. 5 The law apply ing to Chavez

- Alvarez ’s iss ue is well establishe d. I t was long ago decided that the G overnment has authority to detain any alien during removal proceedings. Wong Wing v. United States, 163 U.S. 228, 235 (1896). Before 1996, significant numbers of aliens convicted of serious crime s were taking adv antage of their release on bond as an opportunity to flee , av oid removal, and commit more cri mes. Demore v. Kim

, 538 U.S. 510, 518

- 19 (2003) . Congress fixed this problem by enacting section 1226(c), expanding the range of serious crimes for which the Government was required to detain convicted aliens

. Notably, section 1226(c) does not give the Attorney General any authority to release the se aliens on bond. Id. at 521.

The Supreme Court left no doubt that the Government ’s authority u nder section 1226(c) to detain aliens without an opportunity for bond complies with the

o n January 2, 2014. T he District Court adopted the M agistrate Judge’s recommendation on January 22, 2014, almost twenty months after Chavez

- Alvarez was arrested and detained. Chavez

- Alvarez appealed to this court. His case was docketed on February 21, 2014.

5 We have juri sdiction over this appeal under 2 8 U.S.C. § 1291 and 28 U.S.C. § 2255

.9 Constitution. Id

. at 531

. However, as we discuss below, we read Demore as also recognizing that there are limits to this
power

. Diop

, 656 F.3d 221 ; Leslie v. Attorne y Gen. of the United States , 678 F.3d 265 (3d Cir. 2012).

When the Supreme Court upheld the constitutionality of the law in Demore , it also gave us insight into how , from a due process perspective, section 1226(c)’s allowance of detention without bail worked

. The Court reiterated the fundamental idea that a liens are protected by constitutional due process

. Demore , 538 U.S. at 523 ( citing Reno v. Flores, 507 U.S. 292 , 306 (1993)) . But, it put the alien’s issue in perspective , saying ‘ “[i]n the exercis e of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens.” ’ Id. at 521 (quoting Matthews v. Diaz , 426 U.S. 67, 79

- 80 (1976)) . The Court went on to say that applying ‘ “reaso nable presumptions and generic rules” ’ to groups of aliens

— for purposes of due process

— can be consistent with the idea that aliens can be treated differently. Id. at 526 (quoting Flores

, 507 at 313) ; see also Carlson v. Landon , 342 U.S. 524 (1952).

T h e Court, in essence, concluded that Congress lawfully required the Attorney General to make presumption s of flight and dangerousness about the alien solely because he belonged to the group of aliens convicted of the types of crimes defined in section 1226( c )

. 6 Th ese presumption s ,

6 Demore expresses the goal of the statute in terms of preventing flight (ensuring that aliens who are subject to a removal order will actually be removed ( 538 U.S. at 528.)). How ever, the Supreme Court also considered data that was10 Demore says, justified the alien’s detention and eliminated the need for an individualized bond hearing : they were the

reason the alien’s six

- month detention without a bond hearing was not an arbitrary deprivation of liberty

. Id

. at 5 28 (“Such detention necessarily serves the purpose of preventing deportable criminal aliens from fleeing prior to or during their removal proceedings, thus increasing the chance that, if ordered removed, the aliens will be successfully removed.”)

. Eight years after Demore
, we addressed the question of whether the Government’s use of section 1226(c) to detain an alien for almost three years without a bond hea ring complied with due process. Diop , 656 F.3d 221. Citing earlier decisions by the Sup reme Court

, we recognized the importance of judicial deference to the Executive Branch in immigration matters

, Negusie v. Holder , 555 U.S. 511 (2009)

, but also noted that a c ourt must use its independent judgment to decide whether a detention is ‘ “reasonab ly necessary to secure removal

. ” ’ Diop , 656 F.3d at 2 34 (quoting Zadvydas

, 533 U.S. at 699 ) . Alt h ough the Government cited to Demore and argued it had authority to detain Diop for as long as the removal process takes, we highlighted Justice Kennedy’s

con curring opinion in Demore
, which made it clear that balancing competing interests was implicit in the Supreme Court’s ruling that section 1226(c) was constitutional. He said:

examined by Congress on crime rates of aliens who had skipped bail. Id. at 518

- 19. Therefore, in Diop , we said that the purpose of the statute is to “e nsur [e] that an alien attends removal proceedings and that his release will not pose a danger to the community. ” Diop
, 656 F.3d at 231.11 [ S ] ince the Due Process Clause prohibits arbitrary deprivations of liberty, a lawful permanent resident alien such as respondent could be entitled to an individualized determination as to his risk of flight and dangerousness if the continued detention became unreasonable or unjustified.

Demore , 538 U.S. at 532 (citing Zadvydas v. Davis, 533 U.S. 678, 684

- 86 (2001))

. Importantly, he added:

Were there to be an unreasonable delay by the INS in pursuing and completing deportation proceedings, it could become necessary 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.

Id. at 532

- 33 (Kennedy, J., concurring). Considering this, along with the attention the Court gave to the average length of removal cases, w e concluded that the Court in Demore expected the detentions under section 1226(c) to be brief, and that this expectation was key to their conclusion that the law complied with due process

. Diop, 656 F.3d at 233

- 34 (citing Demore , 538 U.S. at 529)

. For all of these reasons, we said :12 “ [T] he constitutionality of this practice is a function of the length of the detention. . . . [T]he constitutional case for continued detention without inquiry into its necessity becomes more and more suspect as detention continues past [certain ] thresholds.” Diop , 656 F.3d at 232, 234

. By its very nature, the use of a balancing framework makes any determination on reaso nableness highly fact

specific. 7 In circumstances like those in Demore
, i t is not

7 Chavez

- Alvarez and the American Civil Liberties Union as amicus urge us to adopt a rebuttable presumption that all pre

removal detentions exceeding six months must be justified by the government at a bond hearing. See Appellant's Br. at 24 ("[T]his Court has thus far declined to declare that all pre

removal detentions exceeding six months must be justified by th e Government at a bond hearing . . . . Such a rule would provide much

- needed guidance to the district courts and ease the burden on detained noncitizens

- most of whom cannot afford to retain counsel to pursue a habeas petition." (internal quotation marks and citations omitted)); ACLU Br. at 14 ("[T]he surest an d simplest way to clarify the reasonableness standard is for the Court to establish a presumptively reasonable period, preferably six months, for which mandatory detention is authorized under § 1226(c), and after which a bond hearing before the [Immigratio n Judge] would usually be required."). We declined to adopt presumptive thresholds in both Diop and Leslie , and we decline to do so now. While we appreciate the merits of the presumption urged by Chavez

- Alvarez and the ACLU, the highly fact

specific natu re of our balancing framework does not c omport with a bright

- line rule.13 arbitrary or capricious to use a presump tion that the alien will flee or be dangerous in the case of every detainee for the
purpose of eliminating the need for bond hearings

, because the cost of their short

- term depriva tion of libert y is outweighed by the need or benefit of detai n ing this whole
group to achieve the goal s of the statute

. The relative weight of the competing interests in cases like these favor the Government’s position. Yet

, due process requires us to

rec ognize that , at a certain point

— which may differ case by

case 8

— t he burden to an alien’s liberty outweigh s a mere presumption that the alien will flee and/or is dangerous. At this tipping point, the Government can no longer defend the detention against claims tha t it is arbitrary or cap ricious by presuming flight and dangerousness : more is needed to justify the detention as necessary to achieve the goals of the
statute. As we said in Diop
, section 1226(c) “implicitly authorizes detention for a reasonable amount of time, after which the authorities must make an individualized inqu iry into whether detention is still n ecessary to fulfill the statute’ s purposes of ensuring that an alien attends removal proceedings and that his release will not pose a danger to the community.” Id. at 231. In Diop’s case, w e weighed the goals of the s tatute against the personal costs to his liberty resulting from his detention of roughly two years, eleven months, and concluded that Diop’s detention was unconstitutional. Id. In Diop
, however, our balancing also took into account our finding that the G overnment was responsible for creating unreasonable delays

. Id. at 234. In contrast, Chavez

- Alvarez does not accuse the Government of creating unreasonable delays. He attributes the length of his case to complex issues.

8 Diop, 656 F.3d at 234.14 T he Government uses Chavez

- Alvar ez ’s position to defend the reasonableness of the detention here

, pointing to our statement in Diop that every case is unique and requir es different amounts of time. See i d

. Building on this idea, the Government says where its handling of the case is rea sonable, and the length of the case is due mostly to issues raised by the alien, we have no authority to rule that the length of the detention is unreasonable.

T he flaw in the Government’s argument is that it too closely ties the reasonableness of the detention to the way it
act ed during the removal process

. T he primary point of reference for justifying the alien’s confinement must be whether the civil detention is necessary to achieve the statute’s goal s: ensuring participation in the removal process

, and protecting the community from the danger that he or she
poses. See Demore , 538 U.S. at 528. Therefore, it is possible that a detention may be unreasonable even though the Government has handled the removal case in a reasonable
way

. Diop , 656 F.3d at 223 (“[I] ndividual actions by various actors in the immigration system, each of which takes only a reasonable amount of time to accomplish, can nevertheless result in the detention of a removable alien for an unreasonable, and ultimately unconstitution al, period of time .”).

T he Government next wants us to judge the reasonableness of the detention based upon Chavez

- Alvarez ’s handling of the case

. It argues that Chavez

- Alvarez creat ed the circumstances that resulted in his long detention and he is not, therefore, deserving of any relief

. It tak es care, however, to alter its position from the one it took in a case we decided in 2012. Leslie , 678 F.3d 265. There, it asserted

—15 unsuccessfully

— that the petitioner’s decision to appeal his removal order was the reason for a lengthy detention, undermin ing his claim that the detention was unconstitutional . We granted Leslie’s petition, ruling that the Government’s position would ‘ “effectively punish [Leslie] for pur suing applicable legal remedies. ’ ” Id. at 27 1 (alteration in original) (quoting Oyedeji v. Ashcroft, 332 F

. Supp.2d 747, 753 (M.D. Pa.2004))

. In this case, the Government acknowledges that Chavez

- Alvarez raised complicated issues that required time to argue and decide , but it want s us to focus on t he fact that, thus far, his challenge has been unsuccessful. It argues that Chavez

- Alvarez has been merely delaying his inevitable removal.

Although

, as we will explain

, we are not persuaded that Chavez

- Alvarez ’s case is little more than a delay tact ic

, we get the point that the G overnment is trying to make :

c ertain cases might be distinguishable from our holding in Leslie. An argument could be made that aliens who are merely gaming the system to delay their removal should not be rewarded with a bon d hearing that they would not otherwise get under the statute. 9 Requiring a bond hearing in such cases might return us to the very situation that Congress was trying to fix.

Because we conclude that Chavez

- Alvarez did not act in bad faith, w e do not need to decide here whether an alie n’s delay tactics should preclude a bond hearing. However, the

9 We note that we referred to Leslie’s challenges as bona fide, leaving the door open to this distinction. Leslie , 678 F.3d at 271.16 Government’s argument require s us to consider how we are to distinguish arguments made in good faith from those that are
not. T he issue of good faith is nec essari ly decided on the individual circumstanc es, but the analysis is more complex than the method posed by the G overnment: counting wins and losses. The most important consideration for us is whether an alien challenges aspects of the G overnment’s case that present real issues , for example : a genuine factual dispute; poor legal reasoning; reliance on a contested legal theory; or the presence of a new legal issue. W here questions

are legitimately raised, the wisdom of our ruling in Leslie is plainly rel evant: we cannot “effectively punish” these aliens for choosing to exercise thei r legal right to challenge the G overnment’s case against them by rendering “the corresponding increase in time of detention [as] reasonable.” Leslie , 678 F.3d at 271.

Th e case for Chavez

- Alvarez ’s removal is grounded in his crimes that happened many years before Immigration and Customs Enforcement detained him. Before the Immigration Judge , Chavez

- Alvarez questioned whether the Government correctly alleged that he was co nvicted of an aggravated felony under 8 U.S.C. §1101(a)(43)(F). This, in turn, made it necessary to study whether the Manual for Courts Marshal had the effect of law. He later argued tha t he was eligible for

a 212(h) waiv er , and this created a number of unique questions centering on the issue of whether Chavez

- Alvarez ha s been legally admitted to the country for purposes of the waiver . We cannot find any evidence that Chavez

- Alvarez raised any of these issues, nor requested any continuance, for the purpo se of delay. As everyone agrees, t he legal questions were complex and unusual, and there is no evidence in the record that the Immigration Judge viewed Chavez

- Alvarez as17 stalling or wasting the court’s time with frivolous arguments. In fact, the Immigrat ion Judge said the following before issuing the removal order:

Ms. Burch, I want to thank you and also Mr. Shagin, as well as the Government for the arguments that each of you have made. They have been very learned and they have referenced some decisio ns that actually haven’t been u sed in a number of years, so I’ m grateful to you for your willingness to argue the points both orally and in writing by both parties.

Supp. App. 234. We are confident that Chavez

- Alvarez raised a good faith challenge to t he G overnment’s case to remove him. 10 For this reason, our decision in Leslie controls the outcome here

. Chavez

- Alvarez undoubtedly is responsible for choosing to challenge his removal by raising complicated issues that have taken a lot of time to argue a nd decide, but this does not undermine his ability to claim that his detention is unreasonable.

For these reasons, we reject the Government’s general
pos ition that the conduct of either part y here dictates a

10 This same confidenc e extends to the appeals he raised before the BIA and this Court. We make no comment on the merits of his appeal, but we do see the issues as worthy of appeal.18 conclusion that the detenti on is reasonable. However

, as we will explain, the reasonableness of the Government’s conduct, and the bona fides of Chavez

- Alvarez’s challenge d id matter when we began to weigh the various aspects of this case to determine whether, and when, a tipping point had been

reac hed on the reasonableness of this detention

. 11

We are confident that much, if not all, of Chavez

Alvarez’s detention during the proceedings before the Immigration Judge w as ‘ “ reasonably necessary to secure [Chavez

- Alvarez ’s] removal. ’ ” Diop , 656 F.3d at 2 34 (quoting Zadvydas , 533 U.S. at 699). T he record shows that the Immigration Judge scheduled hearings promptly to examine issues relating both to Chavez

- Alvarez ’s removal and his waiver ; neither the Government n or Chavez

- Alvarez caused any extraordinary delays during this time ; and the parties were acting in good faith

. Therefore

, after the detention went beyond the length considered by the Court in Demore

— six months

— the overall progress of the case still provided the Government with a credible argument that the resolution of all the issues was reasonably within reach

,

11 We said earlier that the total number of days that Chavez

Alvarez has been detained, of it self, gives us reason for pause. E ven at the time the District Court made its decision, when Chavez

- Alvarez had been detained for over a year and a half, we would have been hard

- pressed to conclude that such a detention is reasonable. But, for the sake o f providing clear guidance to the Attorney General, the Immigration Court and the District Court, we want to specify more closely when the shift in balance occurred between the benefits of using detentions based upon presumptions to achieve the statutory
g oals and the burdens to Chavez

- Alvarez’s liberty.19 neutralizing any concerns that the detention was no longer limited or brief. T

he balance of interests at that point still favor ed the Government’s position that the detention was reasonabl y necessary

. However

, for ma ny of the same

reasons we are con vinced that, over the six months that followed , the balance of interests at stake tipp ed in favor of Chavez

- Alvarez’s liberty interests

. By the time the Immigration Judge issued his final

or der, the length of Chavez

- Alvarez’s detention was , as we alluded above, straining any common

- sense definition of a limited or brief civil detention. Additionally , having held Chavez

- Alvarez for this amount of time , the Government had

, by then

, enough expo sure to Chavez

- Alvarez

, and sufficient time to examine information about him to assess whether he truly posed a flight risk or present ed any danger to the community. Therefore, r eview ing Chavez

- Alvarez ’s detention would not have put the Government in a di sadvantaged position to make its case. 12 Finally, we have little doubt that the parties had, by then, a good understanding of the credibility and complexity of Chavez

- Alvarez’s case

. Because of this, they could have reasonably predicted that Chavez

- Alvare z’s appeal would take a substantial amount of time, making his already lengthy detention considerably lo nger. We are aware that the Government filed a motio n for summary affirmance. This might have left the Government with at least some basis to justify a continued reliance on presumptions of flight and danger. But, certainly at the one

-

12 We read 8 C.F.R. § 1003.19(c) as giving the Immigration Judge jurisdiction to rule on the bond issue even though Chavez

- Alvarez filed an appeal to the BIA.20 year mark for Chavez

- Alvarez’s detention, we are convinced that any ground for credibly claiming that a final resolution was reasonably within reach would have vanished.

We have another concern as well. A s the Supreme Court said in Zadvydas regarding 8 U.S.C. § 1231(a)(6)

, dealing with post

- removal order detention: “The proceedings at issue here are civil, not criminal, and we assume that they are nonpunitive in purpo se and effect.” Zadvydas , 533 U.S. at 690. Yet, we cannot ignore the conditions of confinement. Chavez

- Alvarez is being held in detention at the York County Prison with those serving terms of imprisonment as a penalty for their crimes. Among our concer ns about deprivations to liberties brought about by section 1226(c) is the reality that merely calling a confinement “civil detention” does not, of itself, meaningfully differentiate it from penal measures. Kansas v. Hendricks, 521 U.S. 346, 361 (1997); s ee also Application of Gault , 387 U.S. 1, 27 (1967). As the length of the detention gr o w s , the weight given to this aspect of his detention increase s

.
For all of these reasons, w e are convinced that

, beginning sometime after the six

- month timeframe

cons idered by Demore
, and certainly by the time Chavez

Alvarez had been detained for one year

, the burdens to Chavez

- Alvarez ’s liberties outweigh ed any justification for using presumptions to detain him without bond to f urther the goals of the statute

. W e con clude that the underlying goals of the statute would not have been, and will not now be undermined by requiring the Government to produce individualized evidence that Chavez

- Alvarez ’s continued21 detention was or is necessary

. 13 W e will reverse the District Court’s order, and remand with instruction to enter an order granting t he writ of habeas c orpus and ensure that Chavez

Alvarez is afforded, within ten days of the entry of this order, a hearing to determine whether

, on evidence particular to Chavez

- Alvarez , it is necessary to continue to detain him to achieve the goals of the statute.

13 T o the extent that it relevant , any addit ional burden given to the Government here in this individual case is outweighed by the general interest in our society of protecting against an arbitrary deprivation of liberty.