United States Court of Appeals

For the First Circuit

Nos. 19-1787, 19-1900

MARK ANTHONY REID; ROBERT WILLIAMS, on behalf of himself and 

others similarly situated; LEO FELIX CHARLES, on behalf of 

himself and others similarly situated,

Petitioners, Appellants/Cross-Appellees,

v.

CHRISTOPHER J. DONELAN, Sheriff, Franklin County, Massachusetts; 

LORI STREETER, Superintendent, Franklin County Jail & House of 

Correction; THOMAS M. HODGSON, Sheriff, Bristol County, 

Massachusetts; JOSEPH D. MCDONALD, JR., Sheriff, Plymouth 

County, Massachusetts; STEVEN W. TOMPKINS, Sheriff, Suffolk 

County, Massachusetts; ALEJANDRO MAYORKAS*, Secretary of the 

Department of Homeland Security; DENIS C. RIORDAN, Director, 

Immigration and Customs Enforcement Boston Field Office; MERRICK 

B. GARLAND, Attorney General; JEAN KING, Acting Director of the 

Executive Office for Immigration Review; EXECUTIVE OFFICE FOR 

IMMIGRATION REVIEW; DAVID DUBOIS, Sheriff, Strafford County, New 

Hampshire; CHRISTOPHER BRACKETT, Superintendent, Strafford 

County House of Corrections; TAE D. JOHNSON, Acting Director, 

Immigration and Customs Enforcement,

Respondents, Appellees/Cross-Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Patti B. Saris, U.S. District Judge] 

* Pursuant to Fed. R. App. P. 43(c)(2), Secretary of Homeland 

Security Alejandro Mayorkas, Attorney General Merrick B. Garland, 

Acting Director Jean King, and Acting Director Tae D. Johnson have 

been substituted as respondents.
- 2 -

Before

Lynch, Lipez, and Kayatta,

Circuit Judges.

Anant K. Saraswat and Michael Tayag, with whom Michelle Nyein,

Wolf, Greenfield & Sacks, P.C., Grace Choi, Kayla Crowell, Aseem 

Mehta, Alden Pinkham, Bianca Rey, Marisol Orihuela, Michael 

Wishnie, Jerome N. Frank Legal Services Organization, Michael K.T. 

Tan, and ACLU Immigrants' Rights Project were on brief, for 

appellants/cross-appellees.

William Tong, Attorney General of the State of Connecticut, 

Clare Kindall, Solicitor General of the State of Connecticut, 

Joshua Perry, Special Counsel for Civil Rights, Kathleen Jennings, 

Attorney General of the State of Delaware, Keith Ellison, Attorney 

General of the State of Minnesota, Aaron D. Ford, Attorney General 

of the State of Nevada, Hector H. Balderas, Attorney General of 

the State of New Mexico, Letitia James, Attorney General of the 

State of New York, Ellen F. Rosenblum, Attorney General of the 

State of Oregon, Thomas J. Donovan, Jr., Attorney General of the 

State of Vermont, Maura Healey, Attorney General of the 

Commonwealth of Massachusetts, Mark R. Herring, Attorney General

of the Commonwealth of Virginia, and Karl A. Racine, Attorney 

General of the District of Columbia, on brief for the States of 

Connecticut, Delaware, Minnesota, Nevada, New Mexico, New York, 

Oregon, and Vermont, the Commonwealths of Massachusetts and 

Virginia, and the District of Columbia, amici curiae.

Alina Das, Rebecca Suldan, and Washington Square Legal 

Services, Immigrant Rights Clinic, on brief for Boston College 

Immigration Clinic, Boston University School of Law, Immigrants' 

Rights and Human Trafficking Program, Detention Watch Network, 

Families for Freedom, Greater Boston Legal Services, Harvard Law 

School Crimmigration Clinic, Immigrant Defense Project, Immigrant 

Legal Resource Center, Lawyers for Civil Rights, National 

Immigration Project of the National Lawyers Guild, and Suffolk 

University Law School Immigration Clinic, amici curiae.

Kevin P. Martin, Madelaine M. Cleghorn, and Goodwin Procter 

LLP, on brief for The American Immigration Lawyers Association, 

amicus curiae.

Sarah H. Paoletti and Transnational Legal Clinic, University 

of Pennsylvania Law School, on brief for International Law 

Professors and Human Rights Clinicians, amici curiae.

James J. Beha II and Morrison & Foerster LLP, on brief for 

Retired Immigration Judges and Board of Immigration Appeals 

Members, amici curiae.

Nina Rabin and Immigrant Family Legal Clinic, UCLA School of 
- 3 -

Law, on brief for 35 Scholars and Researchers in Sociology, 

Criminology, Anthropology, Psychology, Geography, Public Health, 

Medicine, Latin American Studies, and Law, Whose Work Relates to 

Incarceration, Detention, and the Effect of U.S. Immigration 

Detention and Removal Policies on Migrant Populations, amici 

curiae.

Jonathan D. Selbin, Jason L. Lichtman, Katherine I. McBride, 

Elizabeth J. Cabraser, Andrew R. Kaufman, and Lieff Cabraser 

Heimann & Bernstein, LLP, on brief for Civil Law Professors, amici 

curiae.

Lauren E. Fascett, Senior Litigation Counsel, Civil Division, 

Office of Immigration Litigation, with whom Joseph H. Hunt, 

Assistant Attorney General, Civil Division, William C. Peachey, 

Director, District Court Section, Office of Immigration 

Litigation, Elianis N. Perez, Assistant Director, Sarah S. Wilson, 

Senior Litigation Counsel, Appellate Counsel Section, Office of 

Immigration Litigation, and Catherine M. Reno, Trial Attorney, 

Civil Division, Office of Immigration Litigation, were on brief

for appellees/cross-appellants.

October 26, 2021
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KAYATTA, Circuit Judge. This class action, brought on 

behalf of noncitizen detainees held without possibility of release 

pending the completion of their removal proceedings, comes before 

this court for a second time. See Reid v. Donelan, 819 F.3d 486 

(1st Cir. 2016), cert. denied, 138 S. Ct. 1547 (2018), withdrawn, 

Nos. 14-1270, 14-1803, 14-1823, 2018 WL 4000993 (1st Cir. May 11, 

2018). On this occasion, we affirm the district court's ruling 

that there is no per se constitutional entitlement to a bond 

hearing after six months of detention. We otherwise vacate the 

district court's declaratory and injunctive relief as advisory and 

remand for entry of judgment. Our reasoning follows.

I.

Petitioners represent a certified class of noncitizens 

who have been detained by the Department of Homeland Security's 

(DHS) Immigration and Customs Enforcement (ICE) division in 

Massachusetts and New Hampshire pursuant to 8 U.S.C. § 1226(c) for 

more than six months without a bond hearing.1 Section 1226(c), 

often called the mandatory detention provision, "carves out a 

statutory category of aliens who may not be released" during 

removal proceedings, outside of certain limited circumstances. 

1 At the close of discovery in the district court case, 113 

individuals had vested into the class; of those, 104 had received 

bond hearings as a result of the district court's injunction in 

this case. By the time briefing was submitted in this appeal, the 

number of class members had risen to 158. 
- 5 -

Jennings v. Rodriguez, 138 S. Ct. 830, 837 (2018) (emphasis in 

original). Under section 1226(c), the government "shall take into 

custody" any noncitizen who is inadmissible or deportable based 

on, among other things, a conviction for certain crimes involving

moral turpitude, controlled substance offenses, aggravated 

felonies, certain firearm offenses, or certain acts associated 

with terrorism. 8 U.S.C. § 1226(c)(1). The statute allows release 

of a noncitizen properly subject to mandatory detention under 

section 1226(c) "only for witness protection purposes and only 

[then] if the alien shows he is not a danger to the community or 

a risk of flight." Reid v. Donelan, 390 F. Supp. 3d 201, 214 (D. 

Mass. 2019); see also 8 U.S.C. § 1226(c)(2).

The district court judge to whom the case was first 

assigned observed that the absence of any provision for release on 

bond from a prolonged detention might call the statute's 

constitutionality into question. The district court therefore 

read into section 1226(c) a requirement that detainees receive an 

individualized bond hearing once further detention becomes 

"unreasonable." Reid v. Donelan, 991 F. Supp. 2d 275, 277—78 (D. 

Mass. 2014). The court then further considered whether 

"reasonableness" should be assessed for each detainee based on his 

or her individual circumstances or whether the statute shall be 

read as requiring a "bright-line rule" limiting detention without 

a bond hearing to six months for all persons detained under 
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section 1226(c). Id. at 279—80. The court concluded that the 

statute should be read as mandating an individualized bond hearing 

after no more than six months of detention. Id. at 279. In the 

alternative, the court found that even if no bright-line rule 

applied, Reid's own individual circumstances required an 

opportunity for a bond hearing, citing the length of his fourteenmonth detention, the uncertainty of his removal, and the absence 

of any dilatory tactics by Reid himself. Id. at 282.

On appeal, this court reversed the holding that 

section 1226(c) included a bright-line rule that all persons 

detained must receive an individualized bond hearing after six 

months of detention. Reid, 819 F.3d at 491, 496. We agreed, 

though, that the statute included "an implicit reasonableness 

limitation," the length of which would turn on the individual 

circumstances presented by each detainee. Id. at 494, 496, 502. 

At the same time, we reviewed and affirmed the district court's 

alternative holding that section 1226(c) required an 

individualized bond hearing in Reid's own case. Id. at 501.

Importantly for our present purposes, we observed that 

"the bright-line rule was an essential predicate to class 

certification." Id. In vacating the class certification order, 

we left it for the district court in the first instance to decide 

on remand whether "it is feasible to redefine the class." Id. at 

502.
- 7 -

The Supreme Court subsequently issued its decision in 

Jennings v. Rodriguez, rejecting the contention that 

section 1226(c) can be read as requiring bond hearings after six 

months of immigration detention. The Court found that 

section 1226(c) clearly precludes release on bond prior to the end 

of removal proceedings (except for witness protection purposes). 

138 S. Ct. at 846-47. The Court reasoned that the canon of 

constitutional avoidance had no role to play when the statute 

itself spoke clearly on the matter at hand. Id. at 847. Whether 

the statute for that reason might be unconstitutional under some 

circumstances, the Court did not decide. See id. at 851. 

Following Jennings, we withdrew our 2016 opinion and 

vacated the judgment. See Reid v. Donelan, Nos. 14-1270, 14-1803, 

14-1823, 2018 WL 4000993, at *1 (1st Cir. May 11, 2018). In so 

doing, we affirmed the district court's judgment as to named 

plaintiff Mark Reid himself,2 vacated the judgment as to the class 

members, and remanded the case to the district court for 

"reconsideration of the certification order." Id.

2 The district court made only one ruling specific to Reid: 

that even if there was no presumption that detention over six 

months was unreasonable, the individualized circumstances of 

Reid's case rendered his continued detention unreasonable. The 

district court ordered a hearing. After the hearing, Reid posted 

bond and was released, following 400 days of civil detention. 

Reid, 819 F.3d at 492.
- 8 -

Following remand, a second district court judge took 

over the case. After briefing and argument, the district court 

allowed the addition of two new named plaintiffs to replace Reid. 

Reid v. Donelan, No. 13-30125-PBS, 2018 WL 5269992, at *3 (D. Mass. 

Oct. 23, 2018). The court also allowed plaintiffs to pursue a new 

theory: that "the Due Process Clause or Excessive Bail Clause 

requires that they at least have the chance to plead their case 

after six months at an individualized bond or reasonableness 

hearing." Id. at *5. Based on this new constitutional version of 

a bright-line six-month rule, the district court allowed the case 

to proceed as a class action. Analogizing to the earlier ruling 

certifying a class to advocate for relief based on an implied 

statutory requirement of a bright-line six-month rule, the court 

reasoned that the new theory similarly posed a common question 

that could generate a right to relief as a matter of law without 

reference to varying individual circumstances. Id. at *5—6. "A 

holding that the Constitution provides a right to a reasonableness 

hearing during a prolonged detention would resolve all class 

members' claims at once." Id. at *6.3 The district court also

expanded the class slightly to include "[a]ll individuals who are 

or will be detained within the Commonwealth of Massachusetts or 

3 The "reasonableness hearing" sought by plaintiffs would 

take place before an immigration judge, who would determine 

"whether the continued denial of a bond hearing was reasonable." 
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the State of New Hampshire pursuant to 8 U.S.C. § 1226(c) for over 

six months and have not been afforded an individualized bond or 

reasonableness hearing." Id. at *8.4

After cross-motions for summary judgment "on whether 

mandatory detention of the class members under 8 U.S.C. § 1226(c) 

for over six months violates the Fifth Amendment Due Process Clause

or the Eighth Amendment Excessive Bail Clause," the district court 

partially granted and partially denied each side's motion and 

issued a declaratory order and a permanent injunction. Reid, 390 

F. Supp. 3d at 209–10, 227–28.

Most significantly for present purposes, the district 

court rejected petitioners' contention that every detainee must 

have the opportunity for a hearing after no more than six months 

of detention. Instead, the court reasoned, determining the length 

of time that might constitutionally pass without a bond hearing 

requires "a fact-specific analysis" that turns on each 

"noncitizen's individual circumstances." Id. at 209. 

Rather than stopping at that point, the district court 

also issued declaratory and injunctive relief in favor of all class 

members, irrespective of their individual circumstances. That 

4 The class was defined originally as "all individuals who 

are or will be detained within the Commonwealth of Massachusetts 

pursuant to § 1226(c) for over six months and are not provided an 

individualized bond hearing." Reid v. Donelan, 297 F.R.D. 185, 

187 (D. Mass. 2014).
- 10 -

relief established detailed substantive and procedural rules 

whereby individual detainees might pursue release. The court 

decreed that detention without a bond hearing "is likely to be 

unreasonable if it lasts for more than one year [during removal 

proceedings before the agency], excluding any delays due to the 

alien's dilatory tactics." Looking even further ahead to possible

bond hearings themselves, the district court also ordered the 

government to follow the "procedural rules mandated by due process 

at a bond hearing." Id. at 226. In the district court's view, 

those rules meant that in any bond hearing held for a class member

whose individual circumstances warranted such a hearing, the 

government must prove the noncitizen "either dangerous by clear 

and convincing evidence or a risk of flight by a preponderance of 

the evidence." Id. at 228. The immigration court would not be 

allowed "to impose excessive bail, must evaluate the alien's

ability to pay in setting bond, and must consider alternative 

conditions of release such as GPS monitoring that reasonably assure 

the safety of the community and the alien's future appearances." 

Id.

Both sides appeal. 

II.

We begin with a jurisdictional digression not raised by 

any party. In 2014, the district court ordered the government to 

conduct a bond hearing as to Mark Reid; after the hearing took 
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place, Reid posted bond and was released after 400 days of civil 

detention. Reid, 819 F.3d at 492. After detaining new class 

representative Leo Charles for more than a year, the government 

announced he was not properly subject to mandatory detention and 

released him the day before the government's brief in his case was 

due. And the government deported the last class representative,

Robert Williams, after eleven months of mandatory detention, but 

he then won his petition for review. Petitioners point to no facts 

at all showing that renewed detention is imminent, or even likely. 

The government in turn disavows any intent to detain them further. 

Their claims are therefore at this point moot. 

Nevertheless, post-certification mootness of the 

individual claims of a class representative regarding an actual 

prior detention does not necessarily moot either the claims of the 

class or the case as a whole. See Sosna v. Iowa, 419 U.S. 393, 

402 (1975) ("[While] there must be a live controversy at the time 

[a c]ourt reviews [a] case," "[t]he controversy may exist . . .

between a named defendant and a member of the class represented by 

the named plaintiff, even though the claim of the named plaintiff 

has become moot."); Genesis Healthcare Corp. v. Symczyk, 569 U.S. 

66, 74 (2013) (citing Sosna for the proposition that "a class 

action is not rendered moot when the named plaintiff's claim 

becomes moot after the class has been duly certified" (emphasis in 

original)). "The Court reasoned [in Sosna] that when a district 
- 12 -

court certifies a class, 'the class of unnamed persons described 

in the certification acquire[s] a legal status separate from the 

interest asserted by [the named plaintiff].'" Genesis Healthcare 

Corp., 569 U.S. at 74–75 (quoting Sosna, 419 U.S. at 399–402). We 

therefore proceed to the merits of the appeal.5

III.

We consider next petitioners' argument that the district 

court erred in refusing to hold that all persons detained under 

section 1226(c) have a constitutional right to a hearing 

concerning the reasonableness of their continued detention after 

they have been detained longer than six months. For the following 

reasons, we agree with the district court.

First, we adhere to the notion that "the Due Process 

Clause imposes some form of 'reasonableness' limitation upon the 

duration of detention . . . under [section 1226(c)]," Reid, 819

F.3d at 494. We nevertheless also continue to view the Supreme 

Court's ruling in Demore v. Kim, 538 U.S. 510, 530–31 (2003), "as 

implicitly foreclosing our ability to adopt a firm six-month rule" 

5 The government does not argue that the failure to designate 

a new class representative should affect this appeal, nor does it 

challenge the adequacy of the currently named class 

representatives under Rule 23(a) of the Federal Rules of Civil 

Procedure. In the absence of prejudice to the defendant, courts 

have consistently granted plaintiffs leave to substitute named 

representatives when a class has already been certified and the 

certified representative becomes unavailable. 1 McLaughlin on 

Class Actions: Law & Practice § 4:36 (17th ed. 2020).
- 13 -

equally applicable to all section 1226(c) detainees, Reid, 819 

F.3d at 497.6 Jennings, which caused the withdrawal of our previous 

opinion in this case, did nothing to call that view into question. 

It requires no reading of tea leaves to see that Demore

is fatal to the claim here that every single person detained for 

six months must be entitled to a bond hearing. The detainee in 

Demore, Hyung Joon Kim, had already been detained for six months, 

yet the Court reversed the lower court's order requiring the 

government to hold a bond hearing. Demore, 538 U.S. at 531. It 

is simply not possible to read Demore as anticipating that the 

Court's opinion would have been different if Kim's detention had 

lasted one day more.

That is not to say that Demore categorically blessed 

six-month detentions. The Supreme Court had been advised 

(incorrectly, it would appear)7 that section 1226(c) detention 

6 Petitioners in Demore challenged the constitutionality of 

detention pursuant to section 1226(c). The Court denied the 

challenge, due in part to what the Court viewed as "the limited 

time period necessary for . . . removal proceedings." Demore, 538 

U.S. at 526.

7 In Jennings, the government informed the Court that the 

statistics it provided in Demore had been incorrect, and that 

"[d]etention normally lasts twice as long as the [g]overnment then 

said it did." Jennings, 138 S. Ct. at 869 (Breyer, J., 

dissenting); see also id. at 860 (Breyer, J., dissenting) ("The 

classes before us consist of people who were detained for at least 

six months and on average one year."). 

In the instant case, petitioners represent that the median 

time class members spent in detention, prior to this appeal, is 
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lasts "roughly a month and a half in the vast majority of cases in 

which it is invoked, and about five months in the minority of cases

in which the alien chooses to appeal." Demore, 538 U.S. at 530. 

Furthermore, in describing Kim's six-month detention, the Court 

observed that some portion of that detention was likely the result 

of Kim's own request for a continuance in his remand proceedings. 

Id. at 531 n.15. While the Court's holding implicitly rejected an 

across-the-board rule that some hearing must always be held within 

six months, the opinion would seem to leave open the possibility 

that in most individual cases, detentions of six months (or of 

even less time) might necessitate some type of hearing to see if 

continued detention is reasonably necessary to serve the statute's 

purposes. Indeed, in the very case before us, the government has 

conceded "that mandatory detention under [section] 1226(c) without 

a bond hearing violates the Due Process Clause when it becomes 

unreasonably prolonged in relation to its purpose in ensuring the 

removal of deportable criminal noncitizens." Reid, 390 F. Supp. 

3d at 215. 

Petitioners argue that another Supreme Court decision, 

Zadvydas v. Davis, 533 U.S. 678, 701 (2001), nevertheless calls 

363 days, with 25% detained for fewer than eight and a half months 

and 25% detained for more than a year and a half. The four longest 

terms of detention prior to this appeal were 1,541, 1,291, 1,101, 

and 1,048 days -- in other words, between almost three years and 

more than four years. 
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for a per se six-month limit on detention without a bail hearing. 

But Zadvydas was decided before Demore. And the petitioners in 

Zadvydas challenged only their detention pending the execution of 

their final orders of removal, see 533 U.S. at 682, which the Court 

in Demore recognized as "materially different" from detention 

under section 1226(c), see 538 U.S. at 527–28. So, too, is 

petitioners' analogy to Sixth Amendment case law inapt, as the 

district court explained. See Reid, 390 F. Supp. 3d at 218.

Petitioners also seek to analogize to Cheff v. 

Schnackenberg, 384 U.S. 373, 380 (1966) (plurality opinion) 

(ruling that "sentences exceeding six months for criminal contempt 

may not be imposed by federal courts absent a jury trial or waiver 

thereof"), United States v. Comstock, 560 U.S. 126, 131 (2010) 

(describing a statute which, in contrast to section 1226(c), 

requires "judicial hearings at the request of the confined person 

at [six-]month intervals"), and Mathews v. Eldridge, 424 U.S. 319, 

335 (1976) (describing general requirements for procedural due 

process). But these analogies provide insufficient support for 

rejecting the much more direct message strongly implied by Demore. 

Petitioners alternatively contend that detention under 

section 1226(c) beyond six months without an individualized 

hearing violates the Excessive Bail Clause of the Eighth Amendment. 

See U.S. Const. amend. VIII ("Excessive bail shall not be 

required."). Some jurists have opined that "excessive" conditions 
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may include "refusal to hold any bail hearing at all." See

Jennings, 138 S. Ct. at 862 (Breyer, J., dissenting); Carlson v. 

Landon, 342 U.S. 524, 569 (1952) (Burton, J., dissenting); 

Castañeda v. Souza, 810 F.3d 15, 44 (1st Cir. 2015) (en banc) 

(Torruella, J., concurring) (noting "the ongoing, 

institutionalized infringement of the right to bail"). But 

petitioners point to no court that has treated the prohibition on 

excessive bail as categorically requiring an opportunity for 

release within a specific amount of time. Nor do they provide any 

convincing reason to think that the Excessive Bail Clause would 

require a bond hearing when the Due Process Clause does not. 

Nor, finally, does our recent opinion in Hernandez-Lara

v. Lyons, 10 F.4th 19 (1st Cir. 2021), call for a different result. 

The petitioner in that case was detained under section 1226(a), 

not section 1226(c). We were therefore able to distinguish Demore

fairly, id. at 35–36, citing the "quite different" circumstances, 

id. at 36, and noting that detention under section 1226(a) (of 

persons not convicted of crimes triggering 1226(c) detention) 

often lasted longer than the "brief" detention at issue in Demore, 

id. at 30. 

IV.

Having correctly ruled that six months of detention did 

not on its own necessarily trigger a constitutional right to a 

reasonableness hearing or bond hearing for a person already 
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convicted of a crime that triggers detention under section 1226(c), 

and that any such relief must be adjudicated on an individual 

basis, the district court nevertheless proceeded to issue 

declaratory and injunctive relief specifying how district courts 

and immigration officials should adjudicate requests for bond. 

Reid, 390 F. Supp. 3d at 227–28. The district court sought to 

"provide guidance in determining the reasonableness of prolonged 

mandatory detention under § 1226(c)." Id. at 219. That "guidance"

took the form of a binding declaration, holding that 

mandatory detention without a bond hearing 

under 8 U.S.C. § 1226(c) violates due process 

when the detention becomes unreasonably 

prolonged in relation to its purpose in

ensuring the removal of deportable criminal 

aliens. The most important factor in 

determining the reasonableness of a criminal 

alien's mandatory detention is the length of 

the detention. Mandatory detention without a 

bond hearing is likely to be unreasonable if 

it lasts for more than one year, excluding any 

delays due to the alien's dilatory tactics. A 

criminal alien subject to mandatory detention 

without a bond hearing under § 1226(c) must 

bring a habeas petition in federal court to 

challenge his detention as unreasonably 

prolonged. If the court agrees, the alien is 

entitled to a bond hearing before an 

immigration judge.

Id. at 227.

The district court also issued a mandatory injunction 

dictating the burdens of proof and the substantive factors that 

would control in any future bond hearings in immigration court. 

Specifically, it ordered that 
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[f]or any bond hearing held for a class 

member, . . . the immigration court [must]

require the [g]overnment to prove that the 

alien is either dangerous by clear and 

convincing evidence or a risk of flight by a 

preponderance of the evidence. The 

immigration court may not impose excessive 

bail, must evaluate the alien's ability to pay 

in setting bond, and must consider alternative 

conditions of relief[,] such as GPS 

monitoring[,] that reasonably assure the 

safety of the community and the alien's future 

appearances.

Id. at 228.

Both sides appeal from this declaratory and injunctive 

relief. Petitioners complain about being ordered to bring their

requests for bond hearings before district courts rather than 

immigration judges; they also assert that a detainee should be 

presumptively entitled to a bond hearing well before the passage 

of one year of detention. And they object to the ruling that they 

can be denied bail if the government proves they are a flight risk 

by a preponderance of the evidence, rather than by clear and 

convincing evidence. The government marshals a more global assault

on the declaratory and injunctive relief. It argues, among other 

things, that the district court's rulings are free-floating 

advisory opinions untethered to any actual case or controversy 

between any of the parties. 

As the district court explained, the class was certified 

as a Rule 23(b)(2) class, Reid, 297 F.R.D. at 194, on the basis of 

a single common question that bound together its members: "whether 
- 19 -

the Constitution . . . requires an individualized hearing for 

those detained under § 1226(c) beyond six months," Reid, 2018 WL 

5269992, at *4. That question satisfied the requirements of 

Rule 23(a)(2) because its adjudication would "resolve an issue 

that is central to the validity of each one of the claims in one 

stroke." Id. at *5 (quoting Wal-Mart Stores, Inc. v. Dukes, 564 

U.S. 338, 350 (2011)). In plain terms, the question could be 

answered for all class members with nary an eye toward their 

individual circumstances; if the answer were "yes," each 

individual would get a hearing automatically, while a "no" would 

leave each person as before. The need for an answer to the question 

was also pressing: Petitioners had all been detained without a 

bond hearing for more than six months, and were therefore already 

due more process than they had received if they were correct that 

a bond hearing must be provided in all instances after no more 

than six months of detention.

When the district court answered the class's common 

question by holding that there exists no per se entitlement to a 

bond hearing after six months of detention under section 1226(c),

Reid, 390 F.3d at 216, every class member had a final answer to 

the common question central to the claim that they shared. Both 

the Supreme Court, see Jennings, 138 S. Ct. at 851–52, and a prior 

panel of this court, see Reid, 819 F.3d at 501–02, had hinted that 

the resolution of that common question against the class would 
- 20 -

remove the justification for any further litigation on behalf of 

a class in this action. 

The district court disagreed, and issued the decrees 

discussed above regarding issues that might or might not arise for 

some but certainly not all class members and that had yet to be 

considered by the tribunals in which the issues would arise if 

they did arise. No class member is able to say with reasonable 

assurance whether he or she will receive a hearing. Indeed, many 

class members will likely not get a bond hearing. And without a 

hearing, a class member has no legal interest in the procedures to 

be followed in hearings held for others. We therefore cannot say 

that the court's declaration and injunction, beyond rejecting the 

per se six-month claim, resolves "an issue that is central to the 

validity of each [person's] claims in one stroke." Wal-Mart, 564 

U.S. at 350.

Although a class can be certified even if there are some 

individual issues that can be efficiently and fairly adjudicated 

individually, see In re Asacol Antitrust Litigation, 907 F.3d 42, 

51—52(1st Cir. 2018), no precedent of which we are aware supports 

using a properly certified class as a bootstrap to then adjudicate,

on a class-wide basis, claims that hinge on the individual 

circumstances of each class member.

It does not matter that some class members' 

circumstances suggested a more concrete and imminent need for a 
- 21 -

ruling on the applicable burdens of proof at a bond hearing. A 

Rule 23(b)(2) class, such as this one, may only be maintained if 

"the party opposing the class has acted or refused to act on 

grounds that apply generally to the class, so that final injunctive 

relief or corresponding declaratory relief is appropriate 

respecting the class as a whole." Fed. R. Civ. P. 23(b)(2); see 

also Wal-Mart, 564 U.S. at 360 ("The key to the (b)(2) class is 

'the indivisible nature of the injunctive or declaratory remedy 

warranted -- the notion that the conduct is such that it can be 

enjoined or declared unlawful only as to all of the class members 

or as to none of them.'" (quoting Richard A. Nagareda, Class 

Certification in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97, 

132 (2009))); 7AA Charles Alan Wright et al., Federal Practice & 

Procedure § 1784.1 (3d ed. 2021) ("[T]he common-question and 

superiority standards of Rule 23(b)(3) are in some ways much less 

demanding than that of either Rule 23(b)(1) or 

Rule 23(b)(2) . . . ."); 1 McLaughlin on Class Actions: Law & 

Practice § 5:15 (17th ed. 2020) ("Indeed, a Rule 23(b)(2) class 

must actually have more cohesiveness than a Rule 23(b)(3) class." 

(collecting cases)). A class consisting of some members who might 

be entitled to a bond hearing and others who are not lacks 

sufficient cohesiveness to obtain relief regarding the conduct of 

those hearings under Rule 23(b)(2).
- 22 -

With its resolution of the common class claim complete, 

the district court was left with no plaintiff possessing any 

current or imminent stake in the resolution of assorted issues 

addressed in the court's declaratory and injunctive relief, 

including the allocation of the burden of proof and bail terms. 

Reid's claim was long ago mooted. And his class claim, as we have 

explained, did not encompass the remaining issues addressed by the 

court. Whether we call this a lack of standing, see, e.g. In re 

Asacol Antitrust Litigation, 907 F.3d at 48 ("In a class action 

suit with multiple claims, at least one named class representative 

must have standing with respect to each claim." (quoting 1 William 

B. Rubenstein, Newberg on Class Actions § 2:5 (5th ed. 2012))), or 

the absence of a case or controversy, see U.S. Const. art. III, 

§ 2, cl. 1; Carney v. Adams, 141 S. Ct. 493, 498 (2020) ("We have 

long understood that constitutional phrase to require that a case 

embody a genuine, live dispute between adverse parties, thereby 

preventing the federal courts from issuing advisory opinions."), 

the result is the same: The district court lacked the jurisdiction 

necessary to turn its considered guidance into binding equitable 

relief.

We recognize that having clear standards for determining 

whether and when a section 1226(c) detainee need be released 

pending the conclusion of the detainee's removal proceedings would 

make life simpler for all involved. Such standards might arise in 
- 23 -

the form of agency regulations. Or they might emerge like common 

law rules of precedential force, through case-by-case 

adjudication, as in our recent decision in Hernandez-Lara. We 

simply hold that this particular Rule 23(b)(2) class action does 

not provide a vehicle for preemptively announcing such rules. 

V.

For the foregoing reasons, we affirm the judgment 

against the class rejecting the claim that persons detained for 

six months under section 1226(c) are automatically entitled to a 

hearing before an IJ that might lead to their release on bond 

pending the conclusion of removal proceedings. We otherwise vacate

the district court's declaratory and injunctive orders, and remand

for the entry of final judgment in accord with this opinion. 

Nothing in this opinion precludes any class member from pursuing 

a claim that he or she is entitled to a bond hearing or to release 

based on his or her individual circumstances. Each party is to 

bear its own costs.

- Dissenting Opinion Follows -
- 24 -

LIPEZ, Circuit Judge, dissenting. My colleagues rely on 

a "message strongly implied by the Supreme Court" to conclude that 

certain noncitizens detained by the government for six months have 

no right to a bond hearing to determine the need for their 

continued detention. I disagree that the Supreme Court has tipped 

its hand on that issue and, perhaps more importantly, I disagree 

that it is appropriate to engage in such predictive analysis. 

Rather, we should address the novel constitutional question 

presented to us and determine through the familiar due process 

balancing test the procedural safeguards necessary to protect the 

liberty interest of noncitizens detained pursuant to 8 U.S.C. 

§ 1226(c). In my view, that balancing demonstrates that such 

individuals are entitled to a bond hearing when they have been 

detained for six months.8 I therefore dissent.9

8 Perhaps to offer an alternative as a compromise, petitioners 

propose that a "reasonableness" hearing be held at the six-month 

point of detention to determine detainees' entitlement to a bond 

hearing. As I shall explain, detention without a bond hearing for 

more than six months is a due process violation for all detainees. 

Accordingly, there would be no separate "reasonableness" question 

for the IJ to resolve. 

9 Because my view is that a six-month rule should apply equally 

to all class members, I do not confront the class certification 

issues that lead the majority to vacate the declaratory and 

injunctive relief ordered by the district court. I limit my 

dissent to the core constitutional issue -- entitlement to a 

hearing after six months.
- 25 -

I.

The majority's rejection of a hearing requirement after 

six months rests on its reading of Demore v. Kim, 538 U.S. 510 

(2003), where the Supreme Court addressed a facial challenge to 

§ 1226(c). The Court considered the question of whether it is 

constitutional to detain noncitizens with certain criminal 

convictions without a bond hearing. The Court answered in the 

affirmative. Significantly, however, its analysis did not address 

any specific timeframe. Here, we are faced with an as-applied 

challenge to § 1226(c) that requires us to determine whether it is 

constitutional to detain noncitizens with certain criminal 

convictions without a bond hearing for more than six months. The 

Supreme Court's answer to the question in Demore does not dictate 

the answer to the question before us.

In other words, while Demore tells us that it is 

constitutional to detain this category of noncitizens without a 

bond hearing for some amount of time, Demore does not address the 

constitutional status of detentions that are prolonged. To 

illustrate the difference, I offer this example: Is it 

constitutional to detain a citizen without an immediate judicial 

determination of probable cause that she committed a crime? Yes. 

See Cty. of Riverside v. McLaughlin, 500 U.S. 44, 58-59 (1991). 

Is it constitutional to detain a citizen for more than 48 hours 

without a judicial determination of probable cause? No. Id. Put 
- 26 -

simply, the passage of time may make a difference when one's 

liberty is in the balance. As the Third Circuit observed, the 

benefit to the government of presuming that a class of noncitizens 

should be detained to prevent flight or danger to the community 

eventually will be outweighed by those individuals' loss of 

liberty: "'At this tipping point' . . . due process requires the 

[g]overnment to justify continued detention at a bond hearing." 

Santos v. Warden Pike Cty. Corr. Facility, 965 F.3d 203, 209 (3rd 

Cir. 2020) (quoting Chavez-Alvarez v. Warden York Cty. Prison, 783 

F.3d 469, 475 (3d Cir. 2015)).

In reading rejection of a six-month rule into Demore, my 

colleagues necessarily rely on the fact that the petitioner there, 

Hyung Joon Kim, had been detained for more than six months by the 

time the Supreme Court decided his case. But the six-month mark 

was neither a factor in Kim's arguments to the Court nor a basis 

for the Court's ruling. Rather, "the petitioner argued that his 

detention was unconstitutional from the outset due to the 

categorical nature of the mandatory detention regime." Reid v. 

Donelan, 819 F.3d 486, 493 (1st Cir. 2016), withdrawn, Nos. 14-

1270, 14-1803, 14-1823, 2018 WL 4000993 (1st Cir. May 11, 2018).10

10 Our prior decision in this case, which concluded that 

§ 1226(c) includes "an implicit reasonableness requirement," Reid, 

819 F.3d at 502, was withdrawn following the Supreme Court's ruling 

in Jennings v. Rodriguez, 138 S. Ct. 830 (2018). The Court in 

Jennings held that the statute itself contains no time limit on 

detention. See id. at 846-47. 
- 27 -

The Court's silence on an issue that was not raised does 

not create precedent. We are bound by the precedential holdings 

and reasoning of the Supreme Court, not by "speculation about what 

the Supreme Court might or might not do in the future." Columbia 

Nat. Res., Inc. v. Tatum, 58 F.3d 1101, 1107 n.3 (6th Cir. 1995). 

Moreover, to the extent reading tea leaves is appropriate, the 

Court's decision in Demore appears to forecast different 

considerations -- with the possibility of a different outcome --

for prolonged detentions. As our prior decision in this case 

noted, "the brevity of the detention [was] central to" the Court's 

holding in Demore that § 1226(c) permissibly "'require[s] that 

persons such as respondent be detained for the brief period 

necessary for their removal proceedings.'" Reid, 819 F.3d at 493-

94 (quoting Demore, 538 U.S. at 513). The Supreme Court made 

repeated reference to the limited timeframe at issue. See Demore, 

538 U.S. at 513 ("brief period"), 523 (same), 526 ("limited 

period"), 529 n.12 ("[t]he very limited time of the detention"); 

531 ("limited period"). The Court also revealed what it meant by 

the "brief period" it was contemplating: "[T]he detention at stake 

under § 1226(c) lasts roughly a month and a half in the vast 

majority of cases in which it is invoked, and about five months in 
- 28 -

the minority of cases in which the alien chooses to appeal." Id.

at 530.11

We now know that the timing assumptions underlying the 

Court's analysis in Demore were wrong. As my colleagues note, the 

government informed the Court during the proceedings in another 

case involving § 1226(c), Jennings v. Rodriguez, 138 S. Ct. 830 

(2018), that "[d]etention normally lasts twice as long as the 

[g]overnment then said it did." Id. at 869 (Breyer, J., 

dissenting); see also id. at 860 (Breyer, J., dissenting) ("The 

classes before us consist of people who were detained for at least 

six months and on average one year."). And it is worth repeating 

the data reported by petitioners in this case, which my colleagues 

acknowledge in a footnote. The median time that class members 

spent in detention, before the appeal, was 363 days -- i.e., a 

year. Twenty-five percent of the class members were detained for 

more than a year-and-a-half, and only 25% were detained for less 

than eight-and-a-half months. These numbers are starkly different 

from the Supreme Court's understanding in Demore that five months 

was a long and uncommon period of detention under § 1226(c).

My colleagues also acknowledge that Demore seemingly 

left "open the possibility that in most individual cases, 

11 The Court noted that Kim's six-month detention was 

"somewhat longer than the average," but pointed out that he had 

requested a continuance of his removal hearing. Demore, 538 U.S. 

at 530-31.
- 29 -

detentions of six months (or of even less time) might necessitate 

some type of hearing to see if continued detention is reasonably 

necessary to serve the statute's purposes." The government, too, 

recognizes that mandatory detention without a bond hearing will 

violate the Due Process Clause "when it becomes unreasonably 

prolonged in relation to its purpose." See Reid v. Donelan, 390 

F. Supp. 3d 201, 215 (D. Mass. 2019). Nonetheless, my colleagues 

decline even to engage in a due process analysis to evaluate the 

petitioners' contention that, at least after six months, every 

noncitizen detained under § 1226(c) is entitled to a bond hearing

to determine if continued detention would be improper. See Demore, 

538 U.S. at 532-33 (Kennedy, J., concurring) ("Were there to be an 

unreasonable delay by the INS [Immigration and Naturalization 

Service] in pursuing and completing deportation proceedings, it 

could become necessary then 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.").

As I have explained, the rationale for this 

sidestepping -- a supposed message from the Supreme Court in Demore

-- simply does not withstand scrutiny. My colleagues' avoidance 

of the constitutional question posed here is thus unsupportable 

because the inference they draw from Demore lacks both legal and 

factual foundation and because reading tea leaves is not our proper 

role. See Sopo v. U.S. Att'y Gen., 825 F.3d 1199, 1212 (11th Cir. 
- 30 -

2016), vacated, 890 F.3d 952 (11th Cir. 2018) ("Outside of Justice 

Kennedy's Demore concurrence, the Supreme Court has never 

addressed how long under § 1226(c) the government can detain a 

criminal alien[.]"); Rodriguez v. Robbins, 715 F.3d 1127, 1137 

(9th Cir. 2013) ("[W]e have consistently held that Demore's holding 

is limited to detentions of brief duration.").12

I thus turn to the petitioners' contention that all 

noncitizens held pursuant to § 1226(c) are entitled to a bond 

hearing after six months of detention.

II.

The analysis in our recent decision in Hernandez-Lara v. 

Lyons, 10 F.4th 19 (1st Cir. 2021), exemplifies the proper 

doctrinal approach for determining what due process protections 

must be afforded to immigration detainees. There, we evaluated 

the proper allocation of the burden of proof at an immigration 

bond hearing by means of the three-part balancing test articulated 

in Mathews v. Eldridge, 424 U.S. 20 319, 335 (1976). As we 

explained,

The Mathews factors [to be balanced] are: (1) 

"the private interest that will be affected by 

12 Several of the cases I cite in this dissent were vacated 

or otherwise diminished as authority as a result of the Supreme 

Court's decision in Jennings holding, as a matter of statutory 

construction, that § 1226(c) does not provide for release on bond 

-- with limited exceptions -- while removal proceedings are 

ongoing. See 138 S. Ct. at 846-47. I rely on these cases solely 

for observations and principles unaffected by the holding in 

Jennings.
- 31 -

the official action"; (2) "the risk of an 

erroneous deprivation of such interest through 

the procedures used, and the probable value, 

if any, of additional or substitute procedural 

safeguards"; and (3) "the [g]overnment's 

interest, including the function involved and 

the fiscal and administrative burdens that the 

additional or substitute procedural 

requirement would entail."

Hernandez-Lara, 10 F.4th at 28 (quoting Mathews, 424 U.S. at 335).

The majority dismisses Mathews as having little 

relevance to this case. They do so, however, as part of their 

deference to the message they draw from Demore and, hence, neglect 

to give due consideration to the appropriate analysis for the 

distinct constitutional question raised in this case. Indeed, the 

long-established Mathews framework is well suited to the 

constitutional due process question here, just as it served as an 

appropriate guide for our assessment of the due process claim in 

Hernandez-Lara.13 See, e.g., Hamdi v. Rumsfeld, 542 U.S. 507, 528–

29 (2004) ("The ordinary mechanism that we use for balancing such 

serious competing interests, and for determining the procedures 

that are necessary to ensure that a citizen is not 'deprived of 

life, liberty, or property, without due process of law,' . . . is 

13 In Hernandez-Lara, we held that the Due Process Clause of 

the Fifth Amendment requires that the government bear the burden 

of proving at a bond hearing that a noncitizen detained pursuant 

to 8 U.S.C. § 1226(a) is a danger or flight risk and thus not 

entitled to release. See 10 F.4th at 23-24. Although this case 

involves a different statutory provision, the due process 

principles we applied in Hernandez-Lara are equally applicable 

here. 
- 32 -

the test that we articulated in Mathews[.]"); Velasco Lopez v. 

Decker, 978 F.3d 842, 851 (2d Cir. 2020) (applying the Mathews

test to determine the procedural protections required for 

immigration detention pursuant to § 1226(a)); Diouf v. Napolitano, 

634 F.3d 1081, 1090 (9th Cir. 2011) (applying the Mathews test to 

determine the procedural protections required for immigration 

detention pursuant to § 1231(a)(6)).

The analysis here should proceed in the same fashion as 

in Hernandez-Lara, with consideration of the three factors as they 

pertain to prolonged detention under § 1226(c). I therefore 

proceed with that analysis.

A. Liberty Interest

In Hernandez-Lara, we summarized the first Mathews

factor, the private interest at stake, as follows:

"Freedom from imprisonment -- from government 

custody, detention, or other forms of physical 

restraint -- lies at the heart of the liberty 

that [the Due Process] Clause protects."

Zadvydas v. Davis, 533 U.S. 678, 695 (2001) 

(citing Foucha v. Louisiana, 504 U.S. 71, 80

(1992)). The Supreme Court has repeatedly 

affirmed that "[i]n our society liberty is the 

norm, and detention prior to trial or without 

trial is the carefully limited exception."

United States v. Salerno, 481 U.S. 739, 755 

(1987); see also Foucha, 504 U.S. at 80 ("We 

have always been careful not to minimize the 

importance and fundamental nature of the 

individual's right to liberty."). For this

reason, "civil commitment for any purpose

constitutes a significant deprivation of 

liberty that requires due process 
- 33 -

protections." Addington [v. Texas, 441 U.S. 

[418,] 425 [(1979)] (emphasis added).

10 F.4th at 28. We stated that there was "no question" that 

immigration detention constituted a "substantial deprivation of 

liberty," and emphasized that a lack of citizenship does not 

preclude an interest in freedom from detention. Id. ("[T]he fact 

that some detention is permissible does not change the fact that 

a detainee suffers significant liberty deprivations."). We thus 

concluded that the first Mathews factor "weigh[ed] heavily in 

Hernandez's favor." Id. at 30.

Here, importantly, we have the additional factor that 

each of the Reid class members was detained under § 1226(c) without 

a hearing for at least six months.14 Hence, we must take into 

account the costs that accrue with prolonged detention.15 While 

detention of any length implicates a liberty interest, prolonged 

detention inevitably has greater consequences for the individual 

14 As noted above, in many cases, the detention was far longer. 

Petitioners report that, among the 113 Reid class members, the 

average length of detention was nearly a full year. The class 

includes individuals who were detained for 1,541 days 

(approximately 4.2 years), 1,291 days (3.5 years), 1,101 days (3 

years), and 1,048 days (2.8 years).

15 In Hernandez-Lara, we expressly chose not to address the 

petitioner's prolonged detention argument and instead considered 

the "potential length of detention" as a factor in the liberty 

interest analysis. See 10 F.4th at 25 n.2, 30 n.4. This case 

differs in that we address the claims of individuals who have 

already been detained for six months, and the length of their 

detention is central to their due process claim. 
- 34 -

than short-term detention. See Zadvydas, 533 U.S. at 701 (stating 

that, "as the period of . . . confinement grows," the government 

must provide stronger justifications for detention); Gerstein v. 

Pugh, 420 U.S. 103, 114 (1975) ("The consequences of prolonged 

detention may be more serious than the interference occasioned by 

arrest. Pretrial confinement may imperil the suspect's job, 

interrupt his source of income, and impair his family 

relationships."); Hernandez-Lara, 10 F.4th at 29 (noting that 

"prolonged detention" may create a weightier liberty interest); 

Diop v. ICE/Homeland Sec., 656 F.3d 221, 234 (3d Cir. 2011) ("[T]he 

constitutional case for continued detention without inquiry into 

its necessity becomes more and more suspect as detention 

continues[.]"); Diouf, 634 F.3d at 1091–92 ("When detention 

crosses the six-month threshold and release or removal is not 

imminent, the private interests at stake are profound."). Extended 

detention can cause unique harms "that differ in degree and kind 

from those suffered by short-term detainees." Br. of Amici Curiae 

35 Scholars, at 4-22 (describing harms specific to prolonged 

detention, including physical harm caused by insufficient medical 

care, psychological harm to detainees and their families, and 

economic harms stemming from loss of employment).

Giving significance to detentions that reach six months' 

duration is not a novel idea. In Zadvydas, the Supreme Court 

recognized the six-month mark as a constitutional tipping point. 
- 35 -

See 533 U.S. at 701. When detention reaches that length, the due 

process calculus shifts. See id. Six months has also been 

identified as consequential outside the immigration context. In 

multiple cases, the Supreme Court has endorsed a jury-trial 

requirement for crimes punishable with incarceration of more than 

six months. See Muniz v. Hoffman, 422 U.S. 454, 477 (1975); 

Baldwin v. New York, 399 U.S. 66, 73-74 (1970); Duncan v. State of 

La., 391 U.S. 145, 161 (1968); Cheff v. Schnackenberg, 384 U.S. 

373, 379–380 (1966) (plurality opinion). As the Supreme Court has 

put it, "It is not difficult to grasp the proposition that six 

months in jail is a serious matter for any individual." Muniz, 

422 U.S. at 477. And, as we recognized in Hernandez-Lara, 

immigration "detention" can be indistinguishable from 

"imprisonment"; the petitioner there "was incarcerated alongside 

criminal inmates . . . for over ten months." 10 F.4th at 28.

Accordingly, we should be readily concluding that 

detention in excess of six months creates a heightened liberty 

interest and should be afforded more weight in the Mathews

balancing formula than the liberty interest in freedom from any 

detention -- a distinction whose importance is reflected in the 

Supreme Court's focus in Demore on the brevity of the detention it 

considered there. See 538 U.S. at 513, 523, 526, 529 n.12, 531. 

Thus, the first Mathews factor weighs strongly in favor of 

petitioners -- even more so than in our Hernandez-Lara analysis. 
- 36 -

B. Risk of Erroneous Deprivation and Probable Value of Safeguards

In Hernandez-Lara, we concluded that the misallocation 

of the burden of proof at a bond hearing -- requiring the detainee 

to prove that she is not a flight risk or a danger to the community, 

rather than requiring the government to prove that she is --

created a high risk of erroneous deprivation of liberty. 10 F.4th 

at 30-32. Section 1226(c) makes no provision for a bond hearing 

at all. In that respect, the risk of erroneously detaining a 

person who is not a danger or flight risk looms larger than in 

Hernandez-Lara.

However, mandatory detention under § 1226(c) is premised 

on Congress's findings that so-called "criminal aliens" 

categorically present a higher risk of flight and danger to the 

community. See Demore, 538 U.S. at 518-20. In Demore, the Supreme 

Court recognized that this presumption has a solid evidentiary 

foundation. See id. at 528 ("The evidence Congress had before it 

certainly supports the approach it selected[.]"). Thus, the risk 

of error is offset to some degree by the fact that § 1226(c) 

detainees, as a class, may be more likely to present a flight risk 

or a danger to the community than other noncitizen detainees. 

Still, Congress's categorical presumption of 

dangerousness and flight risk for "criminal aliens" inevitably 

will affect many individuals to whom the presumption should not 

apply. Section 1226(c) sweeps broadly, encompassing not only those 
- 37 -

who have committed violent felonies, but also those who have 

committed nonviolent crimes and simple drug offenses. The 

difference between a § 1226(a) discretionary detainee and a 

§ 1226(c) mandatorily detained "criminal alien" may be a 

conviction or two for shoplifting or marijuana possession.16 While 

Congress's presumption of flight risk and dangerousness for 

§ 1226(c) detainees is important in the due process analysis, the 

only method for identifying those who are not properly detained 

based on that presumption is through individualized assessments. 

See Lora v. Shanahan, 804 F.3d 601, 605 (2d Cir. 2015), cert. 

granted, judgment vacated, 138 S. Ct. 1260 (2018) ("[T]his group 

includes non-citizens who, for a variety of individualized 

reasons, are not dangerous, have strong family and community ties, 

are not flight risks and may have meritorious defenses to 

deportation at such time as they are able to present them.").

The detainees in this case are illustrative. The record 

indicates that 50 of the 104 Reid class members who eventually

received bond hearings were released from immigration detention 

16 See, e.g., Vallejo v. Decker, No. 18-CV-5649 (JMF), 2018 

WL 3738947, at *2 (S.D.N.Y. Aug. 7, 2018) (noncitizen subject to 

§ 1226(c) because of one shoplifting conviction and one receipt of 

stolen property conviction); Vazquez v. Green, Civil Action No. 

16-3451 (JMV), 2016 WL 6542833, at *4 (D.N.J. Nov. 3, 2016)

(noncitizen subject to § 1226(c) because of two marijuana 

possession convictions).
- 38 -

because they were found not to pose a danger or a flight risk.17 

In other words, the data shows that nearly half of the individuals 

in this class were detained erroneously. Whether or not that 

percentage is typical, it is some indication that a significant 

number of individuals may be unnecessarily -- and, hence, 

improperly -- detained for extended periods of time. Hence, the 

risk of the erroneous deprivation of liberty inherent in mandatory 

detention is substantial, and the probable value of the procedural 

safeguard of a bond hearing is high.

The majority does leave open an avenue for a noncitizen 

detained under § 1226(c) to receive a bond hearing by seeking a 

writ of habeas corpus in federal court on the ground that, in her 

individual circumstances, detention is unreasonable. For multiple 

reasons, however, a federal habeas claim is an inadequate 

substitute for an automatic bond hearing at six months. Most 

importantly, habeas litigation is simply not a viable option for 

most detainees. As we observed in Hernandez-Lara, detainees "very 

often cannot obtain counsel," "will likely experience difficulty 

in gathering evidence on their own behalf," and "often lack full 

proficiency in English." 10 F.4th at 30. In addition, as we have 

17 Bond hearings were held for some class members pursuant to 

the district court's decision in this case. See Reid v. Donelan, 

22 F. Supp. 3d 84, 93 (D. Mass. 2014). The district court's 

judgment with respect to the hearing requirement was subsequently 

vacated by this court. See Reid, 819 F.3d at 502-03. 
- 39 -

previously recognized, habeas litigation is particularly 

"complicated and time-consuming, especially for aliens who may not 

be represented by counsel." Reid, 819 F.3d at 498. Hence, for 

most detainees, the possibility of habeas relief -- a procedure 

outside the normal course of immigration proceedings -- is simply 

illusory. See Doe v. Gallinot, 657 F.2d 1017, 1023 (9th Cir. 1981) 

(stating that "[t]he bare existence of optional habeas corpus 

review does not, of itself, alleviate due process concerns" 

regarding involuntary civil commitment).

Moreover, for those detainees who have the wherewithal 

to file a habeas petition, the process will likely be so slow that 

their detentions will become significantly more prolonged as they 

await resolution in federal court. Even when a detainee is 

successful in the habeas process, the timeframe between filing a 

petition and receiving a bond hearing is likely to be at least 

several months.18 See Lora, 804 F.3d at 615 (noting "the random 

outcomes resulting from individual habeas litigation in which some 

detainees are represented by counsel and some are not, and some 

18 See Br. of Amici Curiae Boston College Immigration Clinic, 

et al., at 26 (citing a 2016 study of successful First Circuit 

habeas challenges to mandatory detention, which found that the 

litigation took over seven months on average); Br. of Amicus

Curiae American Immigration Lawyers Association, at 16 (collecting 

cases of successful habeas challenges to § 1226(c) detention and

noting that it took between four and eleven months for each case 

to resolve). 
- 40 -

habeas petitions are adjudicated in months and others are not 

adjudicated for years").

In short, there is currently no effective way for most 

individuals detained under § 1226(c) to challenge their 

unnecessary -- and therefore improper -- prolonged detentions. 

C. Government Interest 

The third Mathews factor considers "the [g]overnment's 

interest, including the function involved and the fiscal and 

administrative burdens that the additional or substitute 

procedural requirement would entail." Mathews, 424 U.S. at 335. 

As the Supreme Court has recognized, "[t]here is always a public 

interest in prompt execution of removal orders." Nken v. Holder, 

556 U.S. 418, 436 (2009). Undoubtedly, keeping noncitizens 

detained during their removal proceedings guarantees the 

government will be able to find them and promptly effectuate 

removal when it is ordered. The need to detain the class of 

individuals subject to § 1226(c) is supported by Congress's 

finding that individuals with criminal histories pose a heightened 

risk of flight or danger to the community. See Demore, 538 U.S. 

at 518-22. Thus, mandatory detention pending deportation, without 

considering its duration, serves the government's interest. See

id. at 528 ("[D]etention necessarily serves the purpose of 

preventing deportable criminal aliens from fleeing prior to or 
- 41 -

during their removal proceedings, thus increasing the chance that, 

if ordered removed, the aliens will be successfully removed.").

However, as we pointed out in Hernandez-Lara, framing 

the government interest in this way is somewhat misleading. The 

question is not whether the government has the power to detain 

noncitizens who may cause harm or flee while they await removal, 

but whether the Due Process Clause conditions the exercise of that 

power. In Hernandez-Lara, the issue was "who should bear the 

burden of proving noncitizens pose a danger or a flight risk." 10 

F.4th at 32. Here, the issue is whether "criminal aliens" in 

prolonged detention under § 1226(c) should receive a bond hearing 

after six months to determine whether the ongoing restraint on 

their liberty in fact serves the asserted government interest. 

See Rodriguez v. Robbins, 804 F.3d 1060, 1077 (9th Cir. 2015) 

("Bond hearings do not restrict the government's legitimate 

authority to detain inadmissible or deportable non-citizens; 

rather, they merely require the government to 'justify denial of 

bond[.]'" (quoting Singh v. Holder, 638 F.3d 1196, 1203 (9th Cir. 

2011))), rev'd sub nom. Jennings, 138 S. Ct. at 836.19 The only 

individuals released should be those who are not a danger or a 

19 As indicated above, see supra note 5, the Supreme Court's 

reversal of Rodriguez v. Robbins on statutory interpretation 

grounds does not undermine this observation within its analysis. 
- 42 -

flight risk -- that is, individuals the government has no reason 

to detain.

Further, as we discussed in Hernandez-Lara, unnecessary 

immigration detention in fact harms the public interest. We 

described the "substantial societal costs" as follows:

[N]oncitizens subject to immigration 

detention include spouses, children, and 

parents of U.S. citizens, caretakers of 

children and elderly relatives, and leaders in 

religious, cultural, and social groups. The 

needless detention of those individuals thus 

"separates families and removes from the 

community breadwinners, caregivers, parents, 

siblings and employees." Those ruptures in 

the fabric of communal life impact society in 

intangible ways that are difficult to 

calculate in dollars and cents. Even so, as 

twenty states report in an amicus brief to 

this court, the financial costs imposed by 

such widespread communal disruption are 

severe: "[States'] revenues drop because of 

reduced economic contributions and tax 

payments by detained immigrants, and their 

expenses rise because of increased social 

welfare payments in response to the harms 

caused by unnecessary detention."

10 F.4th at 33 (citation omitted).20 We also considered the direct 

fiscal cost of detention. Holding a person in immigration 

detention costs the government about $134 per person per day. Id. 

20 The label "criminal alien" may obscure the fact that many 

noncitizens subject to § 1226(c) are valued community members. 

See Saysana v. Gillen, 590 F.3d 7, 17 (1st Cir. 2009) 

(acknowledging that some noncitizens detained pursuant to 

§ 1226(c) may have "longstanding community ties"). They may be 

parents, spouses, caregivers, or community leaders, and may also 

work, contribute to the economy, and pay taxes. And, as noted 
- 43 -

These same countervailing government interests apply 

with even more force in the context of prolonged detention. Based 

on the $134 figure, at six months, the government will have spent 

about $24,120 on a noncitizen's detention. See also Hernandez v. 

Sessions, 872 F.3d 976, 996 (9th Cir. 2017) (describing the cost 

of immigration detention as "staggering" and considering these 

costs as part of "the general public's interest in the efficient 

allocation of the government's fiscal resources"). Both research 

and commonsense suggest that families and communities suffer 

greater harms from prolonged detention than from short-term 

detention.21 Bond hearings after six months would thus serve the 

public interest by providing a mechanism for the release of 

individuals who do not need to be detained, while continuing the 

detention of those who do pose a flight risk or danger to the 

community.

above, a person may be subject to § 1226(c) for relatively minor 

offenses. Certainly, there is a strong public interest in 

prolonged detention of noncitizens who have committed violent 

felonies. But individuals with violent histories will surely not 

be granted bond by IJs. 

21 For example, "[c]hildren of prolonged detainees are more 

likely to exhibit adverse changes in sleeping habits and behavior, 

including increased anger and withdrawal, as compared with 

children who are reunited with parents within a month of 

apprehension." Br. of Amici Curiae 35 Scholars, at 20-21. The 

prolonged absence of a caregiver also may lead to children being 

placed in foster care, or families turning to public benefits 

programs, at the expense of the state. See id. at 21. 
- 44 -

Providing a bond hearing for every noncitizen detained 

for six months or longer would of course impose an administrative 

burden on the government. Immigration courts already are 

challenged by heavy caseloads resulting from the asylum process 

and other immigration matters, and increased availability of bond 

hearings would add to their burden. On the other hand, because 

bond hearings are routine in immigration courts, mandating bond 

hearings after six months for § 1226(c) detainees would not require

new procedures and, thus, should not unduly increase the burden of

administration. Moreover, the alternative suggested by my 

colleagues -- habeas proceedings in federal court -- also comes 

with a cost to the government.

Unquestionably, the government has a strong interest in 

detaining a subclass of deportable noncitizens it has found to 

pose unique risks, and a categorical requirement for bond hearings 

after six months would produce some unavoidable administrative 

costs. However, the steep fiscal and societal costs of prolonged, 

improper detention of the many individuals who pose no risk must 

also be factored into our assessment of the government's interest. 

See Hernandez-Lara, 10 F.4th at 32 n.5 (noting that the government 

has not suggested that it "could detain a noncitizen who has shown 

he is not a danger or flight risk" because, "fundamentally, any 

detention must 'bear[] [a] reasonable relation to [its] purpose'" 

(alterations in original) (quoting Zadvydas, 533 U.S. at 690)). 
- 45 -

Thus, given the competing considerations, the third Mathews factor 

-- the government interest in detaining noncitizens under § 1226(c) 

without an automatic bond hearing after six months -- does not 

affect the balance one way or the other.

D. Balancing the Factors

Our assessment of the first factor in the Mathews

framework reveals that the hardship for detainees -- and, 

consequently, the burden on their liberty interest -- dramatically 

increases with the passage of time, while the government's interest 

in categorical detention remains unchanged. Also apparent is the 

substantial risk that many individuals will be erroneously 

deprived of their liberty -- the second factor -- unless bond 

hearings are held to test the government's presumption of 

dangerousness or likelihood of flight. The first two factors thus 

weigh heavily toward the detainees' right to a bond hearing. The 

third factor -- the government's interest -- does not favor either 

side. Hence, applying the Mathews framework unequivocally 

demonstrates that noncitizens subject to § 1226(c) detention for 

six months -- a duration long understood to elevate the need for 

procedural protections -- are entitled to a bond hearing as a 

matter of constitutional due process.

That conclusion does not minimize the government's

strong interest in the mandatory detention of certain noncitizens 

with criminal convictions. The government's interest can be met, 
- 46 -

however, without placing an unjustified burden on the liberty of 

noncitizens detained under § 1226(c) who present no risk of danger 

or flight. In Demore, it mattered that the possibility of improper 

detention was only for a "brief period." See, e.g., 538 U.S. at 

513. As described above, the individuals detained and society as 

a whole experience greater losses from prolonged detention, and we 

therefore must assign greater weight to the need for procedural 

protections than when detentions are brief.

To be sure, "Congress may make rules as to aliens that 

would be unacceptable if applied to citizens." Id. at 522. 

Nonetheless, the Supreme Court "has consistently held that due 

process 'applies to all "persons" within the United States, 

including aliens, whether their presence here is lawful, unlawful, 

temporary, or permanent.'" Hernandez-Lara, 10 F.4th at 43 (quoting 

Zadvydas, 533 U.S. at 693). Hence, despite Congress's substantial 

authority to regulate noncitizens, we cannot defer to legislative 

judgments that disregard the constitutional restraints on 

government actions burdening individual rights -- with the right 

to liberty arguably foremost among them. See id. ("[O]urs is a 

system in which even the most sensitive and critical exercises of 

power by the political branches can be constrained by the rights 

of the individual. In few instances are those constraints more 

necessary than when the government seeks to lock up individuals 

behind bars."); id. at 42-43 (stating that it is the judiciary's 
- 47 -

duty to "'say what the law is,' even in immigration and detention 

cases, and even where doing so requires setting aside Congressional 

enactments, executive actions, or state statutes" (citation 

omitted) (quoting Marbury v. Madison, 5 U.S. 137, 177 (1803)).

For the reasons I have identified, individualized 

adjudication via the habeas process will not adequately remove the 

impermissible burden on the right to liberty experienced by 

§ 1226(c) detainees. That option is simply not available, as a 

practical matter, to many -- if not most -- of those individuals. 

By contrast, a clear and categorical rule will be effective in 

protecting the right to liberty without undue burden on the 

government, and the six-month trigger for a bond hearing is the 

timeframe most consistent with precedent. See id. at 44-45 (noting 

that the Supreme Court has often announced categorical due process 

rules, and "[i]n none of these cases did the Court limit its 

holding to the specific individual before it or indicate that the 

requirements of due process would fluctuate based on the strength 

of any particular individual's case on the merits"). 

I regret that my colleagues have avoided the important 

issue in this case based on speculation about what the Supreme 

Court will say about a question that it has not yet confronted. 

Indeed, as I have explained, to the extent Demore conveys a message 

about prolonged detentions, it is that the interests at stake 

differ from those implicated by short-term detentions. See supra; 
- 48 -

see generally Salerno, 481 U.S. at 755 ("In our society liberty is 

the norm, and detention prior to trial or without trial is the 

carefully limited exception."); Addington, 441 U.S. at 425 ("This 

Court repeatedly has recognized that civil commitment for any 

purpose constitutes a significant deprivation of liberty that 

requires due process protection.").

Maintaining the status quo leaves untold numbers of 

noncitizens who pose no danger to the public or risk of flight to 

languish for months -- or even years -- with no meaningful ability 

to demonstrate their entitlement to release from detention. The 

Constitution does not allow the government to subject any person 

within our borders -- citizen or noncitizen -- to detention in 

excess of six months without a bond hearing. The Supreme Court 

has never said otherwise. We can and should take this opportunity 

to hold that six months is the constitutional endpoint for 

unexamined detention. Accordingly, I must dissent.