FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

AMADOU LAMINE DIOUF, 

Petitioner-Appellee,

No. 07-55337

v.  D.C. No.

MICHAEL B. MUKASEY, Attorney CV-06-07452-TJH

General,

Respondent-Appellant. 

AMADOU LAMINE DIOUF, 

Petitioner-Appellee,

v.

MICHAEL B. MUKASEY, Attorney

General; MICHAEL CHERTOFF,

Secretary, Department of

Homeland Security; JULIE L. No. 08-55504

MYERS, Assistant Secretary, United

D.C. No. States Immigration and Customs  2:06-cv-07452- Enforcement; NORMA BONALESTJH-FMO GARIBAY Field Officer Director,

U.S. Immigration and Customs OPINION

Enforcement; GEORGE MOLINAR,

Chief of Detention and Removal

Operations, San Pedro Detention

Facility; STUART CORTEZ Officerin-Charge, San Pedro Detention

Facility,

Respondents-Appellants. 

Appeal from the United States District Court

for the Central District of California

Terry J. Hatter, District Judge, Presiding

13195
Argued and Submitted

January 7, 2008—Pasadena, California

Filed September 18, 2008

Before: Jerome Farris, Raymond C. Fisher, and

Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.

13196 DIOUF v. MUKASEY
COUNSEL

Gjon Juncaj, U.S. Department of Justice, Civil Division,

Office of Immigration Litigation, Washington, D.C.; Thomas

H. Dupree, Jr., U.S. Department of Justice, Washington, D.C.,

for the respondents-appellants. 

Cecillia D. Wang, ACLU Foundation, Immigrants’ Rights

Project, San Francisco, California; Ahilan T. Arulanantham,

ACLU Foundation of Southern California, Los Angeles, California, for the petitioner-appellee. 

OPINION

MILAN D. SMITH, JR., Circuit Judge: 

This consolidated appeal addresses whether the length of an

alien’s detention under the Immigration and Nationality Act

(INA), 8 U.S.C. § 1101 et seq., entitled him to the writ of

habeas corpus under 28 U.S.C. § 2241 and Zadvydas v. Davis,

533 U.S. 678 (2001). The appeal also addresses whether the

district court abused its discretion by preliminarily enjoining

an Immigration Judge (IJ) to conduct a bond hearing for the

alien, who at the time was in his twenty-third month of detention and awaiting judicial review of an order denying his

request to reopen his removal proceedings. We hold that the

district court erred by granting the writ of habeas corpus

because the alien’s detention was not “indefinite,” and that the

DIOUF v. MUKASEY 13199
preliminary injunction constituted an abuse of discretion

because it was issued on the erroneous premise that the detention was governed by § 236 of the INA, 8 U.S.C. § 1226,

rather than § 241, 8 U.S.C. § 1231. We therefore reverse the

grant of habeas relief, and vacate and remand with respect to

the preliminary injunction. 

FACTUAL AND PROCEDURAL BACKGROUND

Petitioner-Appellee Amadou Lamine Diouf was admitted to

the United States in 1996 on an F-1 non-immigrant student

visa. The visa expired in June 2002. In December 2002, Diouf

was found in possession of less than 30 grams of marijuana

and charged with a misdemeanor under Revised Code of

Washington § 69.50.401(e) (2002). Diouf pleaded guilty the

following month. 

The Government initiated removal proceedings against

Diouf in January 2003, alleging that he was removable

because he had (1) remained in the United States after the

expiration of his student visa in violation of 8 U.S.C.

§ 1227(a)(1)(B), (2) failed to maintain non-immigrant status

in violation of § 1227(a)(1)(C)(i), and (3) committed a

controlled-substance offense in violation of § 1227(a)(2)

(B)(i). The IJ determined that Diouf was subject to removal

due to these charges. However, at Diouf’s request, the IJ

ordered in lieu of removal that Diouf voluntarily depart from

the United States by June 24, 2003. The IJ further ordered that

Diouf would be removed to Senegal if he did not depart voluntarily by the specified date. Diouf waived appeal and posted

bond on March 3, 2003. 

Following his release, Diouf retained counsel to reopen the

removal proceedings and adjust his status from nonimmigrant alien to lawful permanent resident on the basis of

his planned marriage to Marie Campbell,1 a United States citi1The INA provides that an alien spouse of a United States citizen may

acquire the status of lawful permanent resident. 8 U.S.C.

13200 DIOUF v. MUKASEY
zen to whom Diouf had become engaged in 2002. Diouf and

Campbell married on June 17, 2003. The deadline for Diouf’s

voluntary departure passed one week later. On June 27,

Campbell filed an I-130 petition in light of their recent marriage. Although counsel also prepared a motion to reopen the

removal proceedings and a request for an extension of the voluntary departure period, he did not file those documents at

that time. 

Upon learning that Diouf remained in the country after the

June 24 departure deadline, Immigration and Customs

Enforcement (ICE) sent a notice requiring him to present himself for removal on September 4, 2003. Diouf failed to report

as instructed, so ICE cancelled his bond, apprehended him at

his home on March 29, 2005, and detained him pending execution of the removal order. ICE made arrangements for

Diouf to depart for Senegal on May 26, 2005, but, after Diouf

refused to leave on that date, continued to detain him. ICE

warned Diouf on July 20, 2005, that he would be fined or

imprisoned for up to four years under 8 U.S.C. § 1253(a) if

he continued to refuse to depart. 

Diouf subsequently undertook a series of legal maneuvers

to prevent his removal. On May 31, 2005, he filed a motion

to reopen the case before the IJ in light of his pending I-130

petition. On June 28, the IJ denied the motion as untimely.

Diouf did not appeal. 

After obtaining new counsel, Diouf filed a second motion

to reopen in September 2005, this time arguing that his first

attorney had provided ineffective assistance by (1) failing to

§ 1151(b)(2)(A)(i). For the change in status to occur, the citizen spouse

must file a Form I-130 Petition for Alien Relative pursuant to 8 U.S.C.

§ 1154(a)(1)(A)(i), see 8 C.F.R. § 204.1(a)(1), and the alien spouse must

file a Form I-485 application for adjustment of status pursuant to 8 U.S.C.

§ 1255. See Freeman v. Gonzales, 444 F.3d 1031, 1040 (9th Cir. 2006)

(describing this procedure). 

DIOUF v. MUKASEY 13201
timely file a motion to reopen after the marriage, (2) failing

to seek an extension of the voluntary departure date, and (3)

failing to appeal the grant of voluntary departure. The IJ

denied the motion on September 7, 2005, because it was not

accompanied by a certificate of service. 

Diouf refiled the second motion to reopen on December 8,

2005. The IJ denied the motion on the grounds that it was

untimely and that Diouf was ineligible for a status adjustment.

Diouf requested a stay of removal pending appeal, but the

Board of Immigration Appeals (BIA) denied that request on

May 26, 2006. 

Two months later, the BIA affirmed the IJ, holding that the

motions to reopen were untimely and that the ineffective

assistance claims lacked merit. With regard to the first claim,

the BIA found that Diouf’s original counsel could not have

timely filed a motion to reopen in connection with the application for adjustment of status because the filing deadline

occurred approximately three weeks before Diouf married

Campbell, and the marriage was the only asserted justification

for the adjustment. The BIA then found that the attorney’s

failure to request an extension of the voluntary departure

deadline was harmless because the IJ had already granted

Diouf the maximum period allowed for voluntary departure.

The BIA also found that the attorney’s decision not to appeal

the grant of voluntary departure was reasonable because

Diouf had expressly waived the appeal. 

On May 5, 2006, Diouf filed a pro se appeal of the IJ’s

original voluntary departure order. On June 8, 2006, the BIA

dismissed the appeal as untimely. 

While seeking relief before the IJ and BIA, Diouf also filed

a series of petitions with this court. On June 1, 2005, he filed

a pro se petition for review and a motion to stay his removal

pursuant to General Order 6.4(c). See Dkt. No. 05-73252. We

granted a temporary stay and on June 16, 2005, ordered Diouf

13202 DIOUF v. MUKASEY
to submit a copy of the BIA order that he sought to challenge.

Diouf subsequently filed a petition to proceed in forma

pauperis and obtain counsel, but failed to provide a copy of

a reviewable BIA order. We therefore dismissed the petition

for lack of jurisdiction on August 9, 2005, issuing the mandate on August 31, and lifting the temporary stay. 

On August 29, 2005, Diouf filed a second pro se petition

for review and another motion for a stay of removal. See Dkt.

No. 05-75026. We again entered a temporary stay and on September 19, 2005, ordered Diouf to pay a filing fee and provide

either a correct alien identification number or a copy of the

BIA order he sought to challenge. Diouf did not comply with

this order, so we issued another order on November 4, 2005,

directing him either to comply with the requirements of the

September 19 order or show cause why the petition should not

be dismissed for lack of jurisdiction. Diouf filed a response on

December 5, 2005. On January 31, 2006, we found that the

petition was not a timely challenge to a final order of removal,

and dismissed for lack of jurisdiction. We subsequently

granted a request from Diouf for an extension of time to file

a motion to reconsider, but Diouf ultimately did not file the

motion. The mandate issued on May 1, 2006, and the stay

lifted. Diouf filed a motion to reopen on May 4, but we construed the motion as one for reconsideration and denied it as

untimely on May 22. 

Diouf filed a third pro se petition for review and motion for

stay of removal on February 7, 2006. See Dkt. No. 06-70731.

We entered another temporary stay on March 10, 2006, and

again directed Diouf to pay the filing fee and provide either

a correct alien identification number or a copy of the BIA

order he sought to challenge. Diouf did not respond. On April

5, we dismissed the petition for failure to prosecute, and the

stay lifted. 

Diouf filed a fourth pro se petition for review and request

for a stay of removal eight days later. See Dkt. No. 06-71922.

DIOUF v. MUKASEY 13203
We again entered a temporary stay and ordered Diouf to provide his alien identification number and a copy of the BIA

order he sought to challenge. Diouf complied with this order

on May 15, 2006, clarifying that his petition challenged the

BIA’s July 2006 denial of his motions to reopen. We granted

the motion for a stay of removal on July 21, 2006, and

appointed pro bono counsel to represent Diouf on January 17,

2007. The case remains pending before another panel of this

court. 

Diouf filed a fifth and final pro se petition on August 15,

2006, again seeking review of the BIA’s July 2006 denial of

the motions to reopen. See Dkt. No. 06-73991. This petition

was consolidated with Diouf’s fourth petition on October 16,

2006, and remains pending before the other panel. See id. 

Diouf remained in detention while he pursued relief before

the IJ, BIA, and this court. To determine whether the detention remained justified, ICE conducted a post-order custody

review pursuant to 8 C.F.R. § 241.4 on July 25, 2006.2 ICE

determined that Diouf should remain in custody pending

removal because his “criminal history and lack of family support” suggest he might flee if released. The detention therefore continued. 

On November 21, 2006, Diouf filed a petition for the writ

of habeas corpus in the district court. He requested that the

court enter a preliminary injunction for immediate release on

the grounds that his lengthy detention violates § 236(a) of the

INA, 8 U.S.C. § 1226(a), and the Due Process Clause of the

Fifth Amendment. As an alternative to immediate release,

Diouf requested a preliminary injunction ordering the IJ to

hold a hearing at which the Government would have the burden of justifying the detention. 

2The record does not support the Government’s contention that Diouf

also received a post-order custody review on July 21, 2005. 

13204 DIOUF v. MUKASEY
The district court entered the following preliminary injunction on January 4, 2007:

Petitioner must be within thirty days afforded an

individual hearing before an immigration judge concerning whether his prolonged detention is justified.

At the hearing, the immigration judge shall order

Petitioner released on reasonable conditions unless

the government shows by clear and convincing evidence that Petitioner presents a sufficient danger or

risk of flight to justify his detention in light of how

long he has been detained already and the likelihood

of his case being finally resolved in favor of the government in the reasonably foreseeable future. 

Pursuant to the injunction, the IJ conducted a hearing on February 9, 2007, to determine whether Diouf’s prolonged detention remained justified. The IJ held, after receiving evidence

from both sides, that Diouf did not present a sufficient danger

to the community or risk of flight to justify the detention,

which by then had extended over twenty-two months. The IJ

accordingly released Diouf on bond the same day. The Government appeals the district court’s preliminary injunction. 

While the Government’s appeal of the preliminary injunction was pending before this panel, a magistrate judge issued

a report and recommendation concerning Diouf’s petition for

habeas corpus under 28 U.S.C. § 2241. The magistrate judge

recommended that the district court grant the petition because

the length of Diouf’s detention violates 8 U.S.C. § 1226(a).

The district court adopted this recommendation on February

6, 2008, granted the petition, and ordered Diouf released on

the conditions previously imposed by the IJ. The Government

also appeals this decision. We consolidated this appeal with

the Government’s earlier appeal of the preliminary injunction,

and now address them both. 

DIOUF v. MUKASEY 13205
JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction over the appeal of the preliminary

injunction pursuant to 28 U.S.C. § 1292(a)(1), and over the

appeal of the grant of the writ of habeas corpus pursuant to

28 U.S.C. § 2253(a). The entry of the preliminary injunction

is reviewed for an abuse of discretion, Earth Island Inst. v.

U.S. Forest Serv., 442 F.3d 1147, 1156 (9th Cir. 2006), and

the grant of habeas relief is reviewed de novo, Bowen v.

Hood, 202 F.3d 1211, 1218 (9th Cir. 2000). 

DISCUSSION

I.

The first step in evaluating the Government’s appeals is to

determine whether Diouf was detained under § 236 or § 241

of the INA, 8 U.S.C. §§ 1226 and 1231, at the time the district

court entered the preliminary injunction and granted habeas

relief. As we recently explained in Prieto-Romero v. Clark,

534 F.3d 1053 (9th Cir. 2008), these statutes apply at different

stages of an alien’s detention. Section 1226(a) provides the

Attorney General with discretionary authority to release aliens

on bond or conditional parole prior to the removal period. See

id. at 1059-60. Section 1231(a)(2), by contrast, mandates

detention “during” the removal period established in

§ 1231(a)(1). Id. at 1059. Lastly, § 1231(a)(6) provides the

Attorney General with discretionary authority to detain certain classes of aliens “beyond” the removal period, or to

release them subject to the terms of supervision in

§ 1231(a)(3). Id.; see also Zadvydas v. Davis, 533 U.S. 678,

683 (2001) (describing these differences); Casas-Castrillon v.

Dep’t of Homeland Sec., ___ F.3d ___, 2008 WL 2902026, at

*2 (9th Cir. July 25, 2008) (same). 

The Government argues that the district court abused its

discretion by entering the preliminary injunction and granting

habeas relief on the erroneous premise that Diouf was at the

13206 DIOUF v. MUKASEY
time being detained prior to the removal period and, thus,

under § 1226(a). Specifically, the Government contends that

Diouf was being detained under § 1231(a)(2) because (1)

Diouf’s order of removal became administratively final on

June 25, 2003, when he failed to depart within the voluntary

departure period, (2) the administrative finalization of the

order of removal initiated the 90-day removal period of

§ 1231(a)(1)(A), and (3) Diouf’s filing of multiple unsuccessful petitions for review with this court extended the removal

period pursuant to § 1231(a)(1)(C)3 to mandate the entire portion of the detention that followed the first 90 days. Diouf

argues in response that he was being detained prior to the

removal period, and thus under § 1226, because he had a petition for review pending before this court and a judicial stay

of removal in place when the district court granted injunctive

and habeas relief. He claims that § 1231 did not apply because

§ 1231(a)(1)(B)(ii) dictates that his removal period begins

only once this court enters a final order on his pending petitions for review—an event that has not yet occurred. For the

reasons set forth below, we hold that Diouf was being

detained under § 1231(a)(6) when the district court granted

the writ of habeas corpus, and when it entered the preliminary

injunction. 

A.

[1] We begin by noting that Diouf’s order of removal is

administratively final. Because the IJ issued an alternate order

of removal in connection with the grant of voluntary departure, and Diouf did not timely appeal to the BIA, Diouf’s

order of removal became administratively final “upon over3This statute provides: “The removal period shall be extended beyond

a period of 90 days and the alien may remain in detention during such

extended period if the alien fails or refuses to make timely application in

good faith for travel or other documents necessary to the alien’s departure

or conspires or acts to prevent the alien’s removal subject to an order of

removal.” 8 U.S.C. § 1231(a)(1)(C). 

DIOUF v. MUKASEY 13207
stay of the voluntary departure period.” 8 C.F.R. § 1241.1(f).

Diouf’s voluntary departure period ended on June 24, 2003.

Thus, the order of removal became administratively final on

June 25, the first day of his overstay. 

B.

[2] We further conclude that Diouf’s detention was authorized under § 1231, rather than § 1226. Section 1231(a)(1)(B)

provides that the removal period begins on the latest of the

following:

(i) The date the order of removal becomes administratively final. 

(ii) If the removal order is judicially reviewed and if

a court orders a stay of the removal of the alien, the

date of the court’s final order. 

(iii) If the alien is detained or confined (except under

an immigration process), the date the alien is

released from detention or confinement. 

Diouf’s removal period thus began on June 25, 2003—the

date his removal order became administratively final—unless

§§ 1231(a)(1)(B)(ii) or (iii) dictate a later date. See 8 U.S.C.

§ 1231(a)(1)(B)(i). We hold that neither of them does. Section

1231(a)(1)(B)(ii) is inapplicable because, although Diouf’s

appeals to this court resulted in several stays of removal,

those appeals did not entail judicial review of a removal

order, as the plain text of the statute requires. Diouf never

identified the order he sought to challenge in his first three

appeals, and the fourth and fifth appeals challenged only the

BIA’s July 2006 denial of his motions to reopen. Diouf does

not contend that § 1231(a)(1)(B)(iii) applies. Accordingly,

Diouf’s removal period began on June 25, 2003, pursuant to

§ 1231(a)(1)(B)(i). 

13208 DIOUF v. MUKASEY
Our recent decisions in Prieto-Romero and CasasCastrillon support this conclusion. In Prieto-Romero, the petitioner had obtained a stay of removal from this court in an

appeal that both remained pending and challenged the BIA’s

affirmance of his removal order. 534 F.3d at 1057. We held

in part that the petitioner was detained under § 1226(a), rather

than § 1231, because § 1231(a)(1)(B)(ii) dictated that the

removal period had not commenced. See id. at 1059-61. However, we made clear that the statutory basis for the petitioner’s

detention would have been different if the pending petition for

review had not challenged an administratively final order of

removal, explaining that the “beginning of the removal period

is not delayed by every judicially entered stay,” id. at 1060 n.6

(emphasis in original), and that the “entry of a stay of removal

for any . . . reason [other than review of a removal order]—for

example, a stay entered while a court reviews an alien’s

§ 2241 habeas petition or petition for review of the BIA’s

denial of a motion to reopen—does not prevent the removal

period from beginning,” id. (emphasis added). CasasCastrillon followed this construction of § 1231(a)(1)(B)(ii).

See 2008 WL 2902026, at *3 (holding that the petitioner was

detained under § 1226 rather than § 1231 at the time he filed

his habeas petition because he had obtained a stay of removal

and was awaiting judicial review of his petition for review of

a final order of removal). 

C.

Having determined that Diouf’s removal period began on

June 25, 2003, we now locate within § 1231(a) the specific

basis for Diouf’s detention on January 4, 2007, the date of the

preliminary injunction, and on February 6, 2008, the date of

the grant of habeas relief. 

[3] Unsurprisingly, the rather lengthy procedural history of

this case does not present a straightforward application of

§ 1231(a). The standard removal period should have ended on

September 23, 2003—90 days after Diouf’s order of removal

DIOUF v. MUKASEY 13209
became final. See 8 U.S.C. § 1231(a)(1). ICE attempted to

ensure Diouf’s removal within this period by instructing him

to appear for deportation on September 4, 2003. Diouf, however, refused to cooperate, and ICE was unable to apprehend

him until March 29, 2005. Diouf again refused to leave the

United States on May 26, 2005. His refusal to depart continued until at least July 20, when ICE warned him that such

conduct could result in fines and imprisonment. We conclude

that by frustrating ICE’s efforts to effect removal in this manner, Diouf “conspire[d] or act[ed] to prevent [his] removal,”

and thereby extended his removal period. Id. § 1231(a)(1)(C).

Similar acts of obstruction have previously warranted extensions. See Lema v. INS, 341 F.3d 853, 856 (9th Cir. 2003)

(alien refused to “cooperate fully and honestly with officials

to secure travel documents”); Pelich v. INS, 329 F.3d 1057,

1059 (9th Cir. 2003) (alien refused to fill out a passport application). 

[4] Given that § 1231(a)(1)(C) applies, we must determine

the effect of Diouf’s obstructionism on the calculation of the

removal period. In Lema and Pelich, we held that

§ 1231(a)(1)(C) extended the removal period for the duration

of the obstruction. Lema, 341 F.3d at 856; Pelich, 329 F.3d

at 1059. However, the conduct at issue in those cases was

ongoing at the time the cases were decided. See Lema, 341

F.3d at 856; Pelich, 329 F.3d at 1059. As a result, neither

Lema nor Pelich decided the effect of § 1231(a)(1)(C) in circumstances, such as Diouf’s, that involve a closed period of

obstruction. Because the latest evidence of Diouf’s obstruction is the July 20, 2005 warning for failure to depart, we

must decide how much of the removal period remained after

that date.4

4We decline to find in the absence of positive evidence that Diouf continued to refuse to cooperate after July 20. Though an inference of subsequent obstruction may not be unreasonable, it is the burden of the

government to document the conduct that extends the removal period

under § 1231(a)(1)(C). Given what is at stake for the alien, we believe it

inappropriate to allow the Government to satisfy its burden on inferences

alone. Cf. United States v. Salerno, 481 U.S. 739, 755 (1987) (“In our

society liberty is the norm, and detention . . . is the carefully limited

exception.”). 

13210 DIOUF v. MUKASEY
[5] The text of § 1231(a) permits two different approaches.

First, the 90-day clock could toll for the duration of the activity that triggered § 1231(a)(1)(C), and, following the latest

date of documented obstruction, Diouf’s mandatory detention

under § 1231(a)(2) could continue for the unexpended portion

of the clock. Under this approach, Diouf’s removal period and

mandatory detention would have terminated on August 8,

2005—19 days after the July 20 warning letter—because 71

days of the removal period had already lapsed between the

finalization of his order of removal and his failure to appear

for removal on September 4, 2003. Alternatively, the 90-day

clock could restart following the latest date of documented

obstruction. This would mean that Diouf’s removal period

and mandatory detention under § 1231(a)(2) lasted until October 18, 2005—90 days after the July 20 warning letter. 

We find the latter approach more appropriate. The purpose

of the 90-day period is to afford the government a reasonable

amount of time within which to make the travel, consular, and

various other administrative arrangements that are necessary

to secure removal. See Khotesouvan v. Morones, 386 F.3d

1298, 1300 (9th Cir. 2004). Using a single 90-day clock prior

to and following a lengthy period of obstruction would, in

many cases, frustrate that purpose by substantially truncating

the amount of time within which the removal arrangements

must be made. In Diouf’s case, the passage of over twentytwo months between the original removal date of September

4, 2003, and the latest date of documented obstruction

required the government to restart the process of executing his

removal. Without a new 90-day clock, the government would

have had only 17 days to complete its work, after which the

statutory basis for Diouf’s detention would have shifted from

§ 1231(a)(2) to § 1231(a)(6).5

5The question of whether to toll the original 90-day clock or start a new

clock following a period of obstruction may carry more significant consequences in cases involving the removal of aliens to whom § 1231(a)(6)

does not apply. It is possible that the government would have to release

such aliens upon the expiration of the 90-day clock because § 1231(a)

does not appear to otherwise provide for detention beyond the removal

period. 

DIOUF v. MUKASEY 13211
The Government argues that Diouf extended the removal

period under § 1231(a)(1)(C) even beyond October 18, 2005,

by repeatedly and unsuccessfully petitioning for relief before

this court. We reject this argument. Diouf’s appeals to this

court plainly did not constitute a “fail[ure] or refus[al] to

make timely application in good faith for travel or other documents necessary to . . . departure.” 8 U.S.C. § 1231(a)(1)(C).

Nor were they a “conspir[acy] or act[ ] to prevent . . . removal.” Id. As we explained in Prieto-Romero, § 1231(a)(1)(C)

pertains only to intentionally obstructionist, bad faith tactics

that are designed to frustrate the government’s attempts to

effectuate a removal order, not to an alien’s good faith

attempt to make use of legally available judicial review and

remedies. 534 F.3d at 1060-61. Diouf’s appeals fell within

this latter category. His first three petitions were each dismissed for non-compliance with routine appellate procedures,

but we attribute those results to Diouf’s status at the time as

a pro se litigant who was unfamiliar with the appellate process, not to bad faith. Moreover, the final two petitions

resulted in a stay of removal. The entry of the stay signifies

that, at the very least, the petitions have presented a “serious

legal question[ ]” or have some “probability of success on the

merits.” See Abbassi v. INS, 143 F.3d 513, 514 (9th Cir. 1998)

(“We evaluate stay requests under the same standards

employed by district courts in evaluating motions for preliminary injunctive relief.”). 

[6] Because Diouf’s removal period ended on October 18,

2005, the statutory basis for his subsequent detention was

§ 1231(a)(6). The statute provides:

An alien ordered removed who is inadmissible under

section 1182 of this title, removable under section

1227(a)(1)(C), 1227(a)(2), or 1227(a)(4) of this title

or who has been determined by the Attorney General

to be a risk to the community or unlikely to comply

with the order of removal, may be detained beyond

13212 DIOUF v. MUKASEY
the removal period and, if released, shall be subject

to the terms of supervision in paragraph (3). 

Section 1231(a)(6) governed at the time of the preliminary

injunction and the grant of habeas relief because Diouf’s

detention on those dates occurred “beyond” the removal

period. Diouf, moreover, falls within the class of aliens to

whom the statute applies because he was ordered removed

and is “inadmissible under section 1182” of Title 8. Id.

§ 1231(a)(6).6

II.

We next address whether Diouf was entitled to the writ of

habeas corpus. The Government contends that the district

court erred in granting the writ because the length of Diouf’s

detention fell within the limits of § 1231(a)(6) and was consistent with the implicit limitation that Zadvydas v. Davis, 533

U.S. 678 (2001), imposes on the Attorney General’s detention

authority. Diouf argues that his detention had become indefinite due to the absence of any certainty as to precisely when

it would conclude, and that it was therefore not authorized

under any immigration detention statute. See Zadvydas, 533

U.S. 678. 

[7] We agree with the Government. As we have explained,

see supra § I.C, Diouf’s detention was authorized by

§ 1231(a)(6) because he was ordered removed and was inadmissible under § 1182. An alien is entitled to habeas relief

after a presumptively reasonable six-month period of deten6Section 1182 provides that an alien convicted of “a violation of . . . any

law or regulation of a State, the United States, or a foreign country relating

to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. § 802)), is inadmissible.” 8 U.S.C. § 1182(a)(2)(A)

(i)(II). Diouf’s conviction for possession of marijuana under Washington

law falls within this provision because marijuana is a “controlled substance” within the meaning of 21 U.S.C. § 802(6). See 21 U.S.C. § 812

Schedule I(c)(10). 

DIOUF v. MUKASEY 13213
tion under § 1231(a)(6) only upon demonstration that the

detention is “indefinite”—i.e., that there is “good reason to

believe that there is no significant likelihood of removal in the

reasonably foreseeable future.” Zadvydas, 533 U.S. at 701;

see also Clark v. Suarez-Martinez, 543 U.S. 371, 377-78

(2005) (extending Zadvydas to aliens who are detained under

§ 1231(a)(6) and inadmissible under § 1182). Diouf’s detention undoubtedly extended beyond the presumptively reasonable period of six months. However, he fails to demonstrate

that there was “no significant likelihood of removal in the reasonably foreseeable future.” Zadvydas, 533 U.S. at 701. In

Prieto-Romero, we construed this language to require the

alien to show that he would be unremovable even if the government defeated his petition for review. 534 F.3d at 1063.

The record provides no reason to believe such would be the

case with Diouf. There is no evidence, for example, that Senegal would refuse to accept him, or that his removal is barred

by our own laws. See id. (citing Zadvydas, 533 U.S. at 697).

Indeed, ICE successfully completed the arrangements for

Diouf’s removal prior to the originally scheduled removal

date of September 4, 2003, and again on May 26, 2005; Diouf

was not removed at those times solely because of his own

refusal to cooperate. The government, therefore, could continue to have an interest in detaining Diouf to effect his

removal, and the detention remained authorized by

§ 1231(a)(6). Zadvydas, 533 U.S. at 699; Prieto-Romero, 534

F.3d at 1065. That the detention did not have a certain end

date does not change the analysis. Id. at 1063; see also CasasCastrillon, 2008 WL 2902026, at *5 (concluding that an

alien’s detention was not unauthorized by statute on the basis

of the length of his nearly seven-year detention because nothing would prevent his removal if he were ultimately unsuccessful in his then-pending petition for review). 

III.

The remaining question is whether the district court abused

its discretion by preliminarily enjoining the IJ to hold a bond

13214 DIOUF v. MUKASEY
hearing at which the Government was required to release

Diouf unless it could prove by clear and convincing evidence

that Diouf was a flight risk or a danger to the community. As

we noted in Casas-Castrillon, “[t]here is a difference between

detention being authorized and being necessary as to any particular person.” 2008 WL 2902026, at *5. The Government

contends that the injunction was an abuse of discretion

because Diouf was subject to mandatory detention under

§ 1231(a)(2) and was, therefore, ineligible for release on

bond. The Government also argues that even if bond were

potentially available, the injunction incorrectly required the IJ

to place on ICE the burden of proving Diouf’s ineligibility for

release, rather than place on Diouf the burden of proving his

eligibility. Diouf argues that he was entitled to the hearing as

a matter of due process, and that bond was properly granted.

[8] We hold that the injunction constituted an abuse of discretion insofar as it relied on the erroneous premise that Diouf

was being detained under § 1226. As we have explained, the

detention at the time of the injunction occurred under

§ 1231(a)(6), not § 1226. See Negrete v. Allianz Life Ins. Co.

of N. Am., 523 F.3d 1091, 1096 (9th Cir. 2008) (explaining

that a district court abuses its discretion if it enters preliminary injunctive relief because of a misapprehension of the law

governing the underlying issues in the litigation). 

Whether the injunction was also an abuse of discretion specifically because it ordered a bond hearing is another matter.

Contrary to the Government’s argument, Diouf’s detention

under § 1231(a)(6) did not render him categorically ineligible

for release on bond. Section 1231(a)(6) provides the Attorney

General with the authority either to detain an alien beyond the

removal period or to release him subject to the terms of supervision specified under § 1231(a)(3). We have specifically

construed § 1231(a)(6) to permit release on bond. See Doan

v. INS, 311 F.3d 1160, 1162 (9th Cir. 2002). The regulations

that implement the statute also expressly permit bond as a

condition of release. See 8 C.F.R. § 214.5(b). Therefore, we

DIOUF v. MUKASEY 13215
reject the Government’s suggestion that Diouf was statutorily

ineligible for release on bond. 

It does not necessarily follow, however, that the district

court was correct in ordering the Attorney General to conduct

a bond hearing, or that the Government was required to

release Diouf on bond unless the Government could prove by

clear and convincing evidence that Diouf was a danger to the

community or a flight risk. Section 1231(a)(6) creates no

express limit on the duration of post-removal period detention; nor does it specify that aliens are entitled to release

unless they receive a bond hearing such as the one ordered by

the district court. The statute states simply that the Attorney

General “may” detain certain classes of aliens beyond the

removal period. 

[9] We decline to decide in the first instance whether aliens

such as Diouf, who are detained under § 1231(a)(6), are entitled to receive bond hearings and to obtain release on bond

unless the Government proves that they are a danger or a

flight risk. The district court granted such relief under the

erroneous conclusion that Diouf was detained under

§ 1226(a), and therefore did not reach the question of what

process must be provided to aliens detained under

§ 1231(a)(6). We note, however, that we considered a somewhat similar question in Casas-Castrillon. There, the issue

was whether § 1226(a) authorizes the Attorney General to

subject lawful permanent residents to prolonged detention

pending judicial review of a final order of removal without

affording an opportunity for an individualized determination

on the necessity of the detention before a neutral decision

maker. 2008 WL 2902026, at *6. Because prolonged detention of a lawful permanent resident in such circumstances

would be “constitutionally doubtful,” we construed § 1226(a)

as “requiring the Attorney General to provide the alien with

. . . a [bond] hearing.” Id. at *7 (emphasis in original). 

13216 DIOUF v. MUKASEY
[10] Given the limited holding of Casas-Castrillon, it

remains unclear whether due process concerns would require

a similar construction of § 1231(a)(6) in a case involving an

alien, such as Diouf, who is not a legal permanent resident

and who, unlike the alien in Casas-Castrillon, has been

ordered removed by the BIA, has exhausted his opportunities

to challenge that final order of removal directly, and has previously been granted release on bond and had the bond cancelled for failure to timely depart. The district court did not

address the question of whether the post-order custody review

process that Diouf received satisfies the requirements of

§ 1231(a)(6) or the Due Process Clause, and neither does the

briefing provided by the parties. Because we do not believe

it prudent to decide the question under these circumstances,

we vacate the preliminary injunction and remand so that the

district court can decide in the first instance, with possible

additional fact-finding and more focused briefing from the

parties, whether Diouf is entitled to an individualized determination, before a neutral decision maker, of the necessity of his

detention under § 1231(a)(6).7

CONCLUSION

For the foregoing reasons, the grant of the writ of habeas

corpus is REVERSED, and the preliminary injunction is

VACATED and REMANDED for further proceedings consis7We note that the district court failed to support its original preliminary

injunction with findings of fact and conclusions of law, as it was required

to do. See Fed. R. Civ. P. 52(a) (providing that a district court that grants

a preliminary injunction “must find the facts specifically and state its conclusions of law separately”); see also Fed. R. Civ. P. 65(d). Findings of

fact and conclusions of law are important to help the parties understand

the reasons for the decision and to facilitate meaningful appellate review.

Hoechst Diafoil Co. v. Nan Ya Plastics Corp., 174 F.3d 411, 423 (4th Cir.

1999); see also Mayo v. Lakeland Highlands Canning Co., 309 U.S. 310,

316 (1940) (“It is of the highest importance to a proper review of the

action of a court in granting or refusing a preliminary injunction that there

should be fair compliance with Rule 52(a).”). 

DIOUF v. MUKASEY 13217
tent with this opinion. 

REVERSED in part; VACATED and REMANDED in part.

13218 DIOUF v. MUKASEY