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 capacity as Philadelphia 

Field Office Director for United States Immigration 

and Customs Enforcement; JOHN T. MORTON, In his 

official capacity as Assistant Secretary of United States 

Immigration and Customs Enforcement; SECRETARY 

UNITED STATES DEPARTMENT OF HOMELAND 

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, 2014
2

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 Department of Justice

Civil Division, Room 3129

950 Pennsylvania Avenue, N.W.

Washington, DC 20530

Katherine 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

Washington, 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 Appellees

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 corpus. He contends

that the Government is violating his right to due process by 

detaining 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 deportable by reason of having committed any 
4

hearing since June 5, 2012. We will reverse the District 

Court’s order and remand with instruction to grant the writ of 

habeas corpus 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 is now divorced. He has two sons

who are United States citizens. In 2000, while serving in the 

United States Army in South Korea, a General Court-Martial

convicted him of giving false official statements (10 U.S.C. § 

907), sodomy (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 1227(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 nature 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 arrested 

Chavez-Alvarez on June 5, 2012, and served him with a 

Notice to Appear, charging him with being removable under 

8 U.S.C. § 1227(a)(2)(A)(iii) for his conviction on an 

aggravated felony. He was ordered detained without bond

under 8 U.S.C. §1226(c) and 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 this record has been significant to our 

deliberation about the constitutionality of Chavez-Alvarez’s 

detention. And so, we begin by summarizing what happened 

in the Immigration Court.

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. Roughly five weeks after he was arrested, 

on July 11, 2012, the Immigration Judge denied ChavezAlvarez’s request for a bail hearing—filed two days after his 

arrest on June 7, 2012—ruling that he was subject to 
6

mandatory detention under section 1226(c) in compliance 

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 removable on the new charge, and 

challenged the Government’s claim that his earlier conviction 

made him removable. Two issues emerged during these 

hearings: whether the Manual for Courts Marshal—which 

the Government used to categorize his crime—has the effect 

of law; and, whether Chavez-Alvarez’s eighteen month 

sentence arose from all of his crimes, or just the sodomy 

conviction. Chavez-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 on November 1, 2012, 

almost five months into Chavez-Alvarez’s detention. The 

Immigration Judge ruled that Chavez-Alvarez was removable. 

Specifically, he concluded that sodomy by force is a crime of 

violence 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 more 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 question 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 eligibility 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 that he was reserving his right to 

appeal.

On April 3, 2013, approximately 10 months after his 

arrest and detention, Chavez-Alvarez appealed to the Board

of Immigration Appeals (BIA). The Government filed a 

motion with the BIA for a summary affirmance, but the 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 longer 

considering marriage. 

4 On October 25, 2012, Chavez-Alvarez filed a petition for 

writ of habeas corpus. The District Court granted ChavezAlvarez’s order to show cause on October 31, 2012. It

referred the petition to the Magistrate Judge on December 7, 

2012. The Magistrate Judge held oral argument on May 29, 

2013 and issued a report and recommendation on December 

18, 2013, recommending the District Court deny the writ. 

Chavez-Alvarez objected to the report and recommendation 
8

III.

Chavez-Alvarez says that the Government is violating 

his due process rights by detaining 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 

applying to Chavez-Alvarez’s issue is well established. It 

was long ago decided that the Government 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 crimes 

were taking advantage of their release on bond as an 

opportunity to flee, avoid removal, and commit more crimes. 

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 

these aliens on bond. Id. at 521.

The Supreme Court left no doubt that the 

Government’s authority under section 1226(c) to detain aliens 

without an opportunity for bond complies with the 

 

on January 2, 2014. The District Court adopted the 

Magistrate 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 jurisdiction over this appeal under 28 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. Attorney 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 aliens 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 exercise 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 ‘“reasonable 

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). 

The Court, in essence, concluded that Congress 

lawfully required the Attorney General to make presumptions

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 These presumptions, 

 

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.)). 

However, the Supreme Court also considered data that was 
10

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 528 (“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 hearing complied 

with due process. Diop, 656 F.3d 221. Citing earlier 

decisions by the Supreme 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 court must use its independent judgment 

to decide whether a detention is ‘“reasonably necessary to

secure removal.”’ Diop, 656 F.3d at 234 (quoting Zadvydas, 

533 U.S. at 699). Although 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 

concurring 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 “ensur[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, we 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 reasonableness highly factspecific.7

In circumstances like those in Demore, it is not 

 

7 Chavez-Alvarez and the American Civil Liberties Union as 

amicus urge us to adopt a rebuttable presumption that all preremoval 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 preremoval detentions exceeding six months must be justified by 

the 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 and 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 [Immigration 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 factspecific nature of our balancing framework does not comport 

with a bright-line rule.
13

arbitrary or capricious to use a presumption 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 deprivation of liberty is 

outweighed by the need or benefit of detaining this whole 

group to achieve the goals 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 

recognize that, at a certain point—which may differ case by 

case8—the burden to an alien’s liberty outweighs 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 that it is arbitrary or capricious 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 inquiry 

into whether detention is still necessary 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, we weighed the 

goals of the statute 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 Government 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. 

 

8Diop, 656 F.3d at 234.
14

The Government uses Chavez-Alvarez’s position to defend

the reasonableness of the detention here, pointing to our 

statement in Diop that every case is unique and requires

different amounts of time. See id. Building on this idea, the 

Government says where its handling of the case is reasonable, 

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. 

The flaw in the Government’s argument is that it too 

closely ties the reasonableness of the detention to the way it

acted during the removal process. The primary point of 

reference for justifying the alien’s confinement must be 

whether the civil detention is necessary to achieve the 

statute’s goals: 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 unconstitutional, period of 

time.”).

The 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 created

the circumstances that resulted in his long detention and he is

not, therefore, deserving of any relief. It takes 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, 

undermining his claim that the detention was 

unconstitutional. We granted Leslie’s petition, ruling that the 

Government’s position would ‘“effectively punish [Leslie] 

for pursuing applicable legal remedies.’” Id. at 271 

(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 wants us to focus on the 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 tactic, 

we get the point that the Government is trying to make: 

certain 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 bond 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, we do not need to decide here whether an alien’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 requires us to consider how we are to 

distinguish arguments made in good faith from those that are 

not. The issue of good faith is necessarily decided on the 

individual circumstances, but the analysis is more complex 

than the method posed by the Government: counting wins 

and losses. The most important consideration for us is 

whether an alien challenges aspects of the Government’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. Where questions 

are legitimately raised, the wisdom of our ruling in Leslie is 

plainly relevant: we cannot “effectively punish” these aliens 

for choosing to exercise their legal right to challenge the 

Government’s case against them by rendering “the 

corresponding increase in time of detention [as] reasonable.” 

Leslie, 678 F.3d at 271. 

The 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 convicted 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 that he was eligible for 

a 212(h) waiver, and this created a number of unique 

questions centering on the issue of whether Chavez-Alvarez

has 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 purpose of delay. As everyone agrees, the legal questions 

were complex and unusual, and there is no evidence in the 

record that the Immigration Judge viewed Chavez-Alvarez as 
17

stalling or wasting the court’s time with frivolous arguments. 

In fact, the Immigration 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 decisions 

that actually haven’t been used 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 the Government’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 and 

decide, but this does not undermine his ability to claim that 

his detention is unreasonable. 

For these reasons, we reject the Government’s general 

position that the conduct of either party here dictates a 

 

10 This same confidence 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 detention is reasonable. However, as we 

will explain, the reasonableness of the Government’s conduct, 

and the bona fides of Chavez-Alvarez’s challenge did matter 

when we began to weigh the various aspects of this case to 

determine whether, and when, a tipping point had been 

reached on the reasonableness of this detention.

11

We are confident that much, if not all, of ChavezAlvarez’s detention during the proceedings before the 

Immigration Judge was ‘“reasonably necessary to secure 

[Chavez-Alvarez’s] removal.’” Diop, 656 F.3d at 234 

(quoting Zadvydas, 533 U.S. at 699). The 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 nor 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 ChavezAlvarez has been detained, of itself, gives us reason for pause. 

Even 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 of 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 

goals and the burdens to Chavez-Alvarez’s liberty. 
19

neutralizing any concerns that the detention was no longer 

limited or brief. The balance of interests at that point still

favored the Government’s position that the detention was 

reasonably necessary. However, for many of the same 

reasons we are convinced that, over the six months that 

followed, the balance of interests at stake tipped in favor of 

Chavez-Alvarez’s liberty interests. 

By the time the Immigration Judge issued his final 

order, 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 exposure to Chavez-Alvarez, and sufficient 

time to examine information about him to assess whether he 

truly posed a flight risk or presented any danger to the 

community. Therefore, reviewing Chavez-Alvarez’s 

detention would not have put the Government in a 

disadvantaged 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-Alvarez’s appeal would take a substantial amount of 

time, making his already lengthy detention considerably 

longer. We are aware that the Government filed a motion 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. As 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 purpose 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 concerns 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); see also 

Application of Gault, 387 U.S. 1, 27 (1967). As the length of 

the detention grows, the weight given to this aspect of his

detention increases.

For all of these reasons, we are convinced that, 

beginning sometime after the six-month timeframe 

considered by Demore, and certainly by the time ChavezAlvarez had been detained for one year, the burdens to 

Chavez-Alvarez’s liberties outweighed any justification for 

using presumptions to detain him without bond to further the 

goals of the statute. We conclude 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 continued 
21

detention was or is necessary.

13

 We will reverse the District 

Court’s order, and remand with instruction to enter an order 

granting the writ of habeas corpus and ensure that ChavezAlvarez 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 To the extent that it relevant, any additional 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.