PARTIES Petitioner Mr. Kargbo was born in Sierra Leone and lawfully immigrated to the United States as a refugee with his family when he was fifteen years old. (Declaration of Nelson Kargbo (“Kargbo Decl.”) ¶¶ 1, 22); Declaration of Nicholas Hittler (“Hittler Decl.”) Ex. A at 3.) Mr. Kargbo has been a Lawful Permanent Resident since September 24, 2003. (Hittler Decl. Ex. A at 3.) Immigration authorities have detained Mr. Kargbo since August 29, 2013, and he is currently being held at Sherburne County Jail in Elk River, Minnesota, while he challenges his immigration removal proceedings. (See id. at 4; Kargbo Decl. ¶ 50.) Respondents Respondent Joel Brott is named in his official capacity as the Sheriff of Sherburne County, Minnesota. In that capacity, Sheriff Brott is responsible for the Sherburne County Jail, a detention facility under contract with Immigration and Customs Enforcement (“ICE”) and the physical location where Mr. Kargbo has been in custody since on or about August 29, 2013. The address for Sherburne County Jail is 13880 Business Center Dr. NW, Elk River, MN 55330. Respondent Scott Baniecke is named in his official capacity as the Field Office Director for the St. Paul Field Office for ICE within the United States Department of Homeland Security (“DHS”) for St. Paul, Minnesota. In that capacity, Field Director Baniecke has supervisory authority over the ICE agents responsible for making the initial
due process protection.” Addington v. Texas, 441 U.S. 418, 425 (1979) (emphasis added). Additionally, the Court has long held that civil detention is unconstitutional absent a sufficient justification and strong procedural protections. See generally, e.g., Zadvydas, 533 U.S. at 690; Foucha v. Louisiana, 504 U.S. 71, 80–83 (1992); United States v. Salerno, 481 U.S. 739 (1987); Addington, 441 U.S. at 425–27, 433; Jackson v. Indiana, 406 U.S. 715 (1972). Moreover, as detention grows in length, the justification for the increasingly severe deprivation of individual liberty must also grow stronger. See, e.g., Kansas v. Hendricks, 521 U.S. 346, 363-64 (1997); see also Chavez-Alvarez, 783 F.3d at 474 (citing Diop, 656 F.3d at 232, 234); Casas-Castrillon v. Dep’t of Homeland Sec., 535 F.3d 942, 950 (9th Cir. 2008). The Supreme Court has applied the canon of constitutional avoidance to preclude prolonged categorical detention without individualized review in the context of period detention under 8 U.S.C. § 1231(a)(6). In Zadvydas v. Davis, the Supreme Court held that post-removal period detention under § 1231(a)(6), like other “nonpunitive” civil detention, is subject to due process limitations. 533 U.S. at 690-92, 696-700. Applying the canon of constitutional avoidance, the Supreme Court limited detention under § 1231(a)(6) without an individualized justification to a presumptively reasonable period of six months—the time “reasonably necessary” to ensure though § 1231(a)(6) is silent on the length of detention it authorizes. Id. at 689, After the six-month period has passed, noncitizens can demand that the government justify their continued detention on an individual basis. Id. at 689 (explaining that courts must construe statutes to avoid constitutional concerns where “fairly possible”).
neither indefinite nor prolonged. 538 U.S. at 530-31; id. at 529–30 (relying on evidence that, at that time, removal proceedings were completed in an average time of forty-seven days and a median time of thirty days in 85% of cases, and that the remaining 15% of cases, in which an there is an appeal, were completed in an average of four months). Indeed, although the Demore Court upheld a narrow exception to the general civil detention rule that “liberty is the norm” absent procedural protections to ensure that detention is justified, Salerno, 481 U.S. at 755, this exception was narrowly tailored to the relatively brief period at issue in Demore. Id. at 513, 523, 527–29; see also Lora, 804 F.3d at 614 (“[I]n Demore v. Kim, [the Supreme Court] emphasized that, for detention under the statute to be reasonable, it must be for a brief period of time.”); Ly, 351 F.3d at 276–77 (Judge Haynes, concurring in part and dissenting in part). As the crucial fifth vote in Demore, Justice Kennedy acknowledged in his concurrence that “if continued detention bec[omes] unreasonable or unjustified,” a noncitizen could be “entitled to an individualized determination as to his risk of flight and dangerousness.” 538 U.S. at 532 (Kennedy, J., concurring); see also id. at 532-33 (“Were there to be an unreasonable delay by the INS 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.”); Lora, 804 F.3d at 614; Rodriguez II, 715 F.3d at 1137. Demore, “the time that each immigrant spends in detention has . . . risen substantially.” Lora, 804 F.3d at 604-05. Circuit courts now rely on the six months of detention at issue in Demore as a touchstone for determining whether no-bond detention
BECAUSE MR. KARGBO HAS A SUBSTANTIAL CHALLENGE TO REMOVABILITY, HIS MANDATORY DETENTION VIOLATES THE DUE PROCESS CLAUSE Placing a lawful permanent resident like Mr. Kargbo in mandatory detention violates his due process rights because, unlike the detained noncitizen in Demore who conceded removability, Mr. Kargbo has substantial challenges to all alleged grounds of removability. See 538 U.S. at 513-14; Hittler Decl. Exs. G at 4, EE (discussing challenges to both grounds of removability). In Demore, Justices expressed concern that detaining noncitizens with substantial claims against removability violates due process. See Demore, 538 U.S. at 532 (Kennedy, J., concurring); id. at 577 (Breyer, J., concurring in part and dissenting in part); id. at 561 (Souter, J., dissenting) (“Some individual aliens covered by § 1226(c) have meritorious challenges to removability or claims for relief from removal. . . . As to such aliens, as with Zadvydas . . . the Government has only a weak reason the immigration laws for detaining them.”). Several federal courts agree that “when a detainee who has a good-faith challenge to his deportability is mandatorily detained under § 1226(c),” his due process rights can be violated. Gonzalez v. O’Connell, 355 F.3d 1010, 1019-21 (7th Cir. 2004); see also Lora, 804 F.3d at 616 (noting, in a decision affirming a district court grant of habeas relief after prolonged detention under § 1226(c), that the petitioner was “an excellent candidate for cancellation of removal” and therefore he was a good candidate for bond); Papazoglou v. Napolitano, No. 1:12-cv-00892, 2012 WL 1570778, at *5 (N.D. Ill. May 3, 2012) (holding that a noncitizen’s due process rights were violated when he was “mandatorily detained despite the fact that he ha[d] demonstrated substantial likelihood
that he w[ould] be allowed to remain in the United States and w[ould] be released from custody”); Bourguignon, 667 F. Supp. 2d at 183 & n.10 (granting habeas relief in part because, unlike in Demore, the noncitizen in Bourguignon “vigorously contest[ed] the issue of his deportability,” arguing he was eligible for deferral of removal under CAT); see generally Rodriguez III, 804 F.3d at 1072 (noting that “[n]on-citizens who vigorously pursue claims for relief from removal face substantially longer detention periods than those who concede removability” and that individuals “who persevere through this lengthy process are often successful”). In Mr. Kargbo’s case, the BIA agreed that he may not have been convicted of an aggravated felony and that his challenge to the CIMT charge merited reopening his case. See infra at 18-19. Upon reopening, even if the government succeeds in meeting its burden to establish his removability, Mr. Kargbo can seek protection in the form of asylum, withholding of removal, or relief under the Convention Against Torture. 8 U.S.C. § 1229a (c)(3)(A) (placing burden on the government to establish removability); Hittler Decl. Ex. EE. Applying mandatory detention in his case violates due process because “the ultimate purpose behind [§ 1226(c)] detention is premised upon the alien’s deportability,” and there is a reasonable likelihood that he will never be deported. Demore, 538 U.S. at 531 (Kennedy, J., concurring). CLAIMS FOR RELIEF FIRST CAUSE OF ACTION PROLONGED DETENTION VIOLATES 8 U.S.C. § 1226(c)