The district court granted a writ of habeas corpus and ordered our client released from Immigration and Customs Enforcement (ICE) custody after over two-and-a-half years of detention at Golden State Annex, finding that his prolonged detention violated his substantive due process rights under the U.S. Constitution. Apart from COVID related habeas cases, our case is the first time that a Northern District of California judge has ordered the outright release (rather than only ordering another bond hearing before the immigration judge) of a person in immigration custody based on a substantive due process claim.
The Issue
ILD’s client, proceeding in this case as John Doe to protect his identity, was taken into ICE custody in September 2021, immediately after he finished serving 23 years in state prison. Mr. Doe has lived in the United States his entire life, his entire family lives in the United States, and he fears returning to Mexico. Thus, Mr. Doe has fought – and continues to fight – against removal in his immigration proceedings, raising both a pathway to adjustment of status to lawful permanent resident and a claim for protection under the Convention Against Torture. However, because of his prior conviction, Mr. Doe is subject to mandatory detention under 8 U.S.C. § 1226(c), which means that he has no access to a bond hearing or other means to argue that he should not have to be detained. In other words, so as long as he continues to fight his removal, ICE claims that they can continue holding Mr. Doe in detention, no matter how long it takes.
Any kind of detention for any amount of time is difficult to endure, and lengthy detention has extreme physical and mental health impacts on detained individuals. Forcing individuals like Mr. Doe to endure months and years of civil immigration detention raises its own set of difficulties. It is much more difficult for individuals to fight against removal from inside a detention center. Gathering evidence, finding and talking to potential witnesses and expert witnesses, and even being able to speak with an attorney in privacy can be extremely difficult while detained. Individuals in immigration detention also have no set end date to their detention, because their length of detention is usually tied to the end of their removal proceedings, which is unpredictable. This lack of certainty and the feeling of indefiniteness is particularly emotionally and mentally draining. Additionally, immigration detention was never designed for long-term detention, and so, many rehabilitative and education programs, medical services and resources, and health and occupational programming that are available in prisons are not available in immigration detention facilities. Deficiencies in programming, resources, and basic care are even more drastic in privately run detention facilities; in California, all immigration detention facilities, including Golden State Annex, are run by private contractor corporations.
Without any access to a pathway to release from detention while his removal proceedings are still ongoing, the only way Mr. Doe could be released prior to the end of his removal proceedings is by bringing a petition for a writ of habeas corpus in federal court. If a federal court finds that Mr. Doe’s detention violates the law, then it can order his release.
What ILD Is Doing About It
In September 2023, after spending almost two years in ICE detention and without an end to his removal proceedings in sight, Mr. Doe, represented by ILD, filed a petition for a writ of habeas corpus in the Northern District of California. Mr. Doe’s petition argued that his prolonged detention in civil immigration custody violated his constitutional due process rights. First, he argued that because he had never received any bond hearing or other hearing before a neutral arbiter to justify his continued detention, his continued detention violated procedural due process, a constitutional requirement that individuals receive certain procedural protections before being deprived of a liberty interest. To remedy this violation, Mr. Doe asked the federal district court to order a bond hearing, conducted either by an immigration judge or by the district court itself. And second, Mr. Doe argued that his prolonged detention violated substantive due process because, although the detention was civil detention, it had become so punitive that it amounted to punishment. Under the U.S. Constitution, punishment can only be imposed after someone is convicted in criminal proceedings, so if Mr. Doe’s civil detention in ICE custody had become punitive, that detention, imposed without access to criminal proceedings, would violate the Constitution. Mr. Doe asked that the federal district court order outright release from detention if the court found a substantive due process violation.
After holding a hearing in which he heard argument on both the procedural due process and the substantive due process claims, Judge P. Casey Pitts granted Mr. Doe a writ of habeas corpus on the procedural due process claim, ordering the immigration court to conduct a bond hearing.
As Judge Pitts stated in his order, “Liberty is the norm; every moment of detention should be justified. As one district court explained in the sentencing context, the difference between ten and fifteen years may determine whether a parent sees his young child graduate from high school; the difference between ten and fifteen months may determine whether a son sees his sick parent before that parent passes away; the difference between probation and fifteen days may determine whether the defendant is able to maintain his employment and support his family.”
Judge Pitts also held Mr. Doe’s substantive due process claim in abeyance, pending the outcome of the bond hearing. Because the bond hearing was based on a constitutional violation, the Department of Homeland Security (DHS) was required to justify Mr. Doe’s continued detention and carried the burden of proof. The immigration court held a bond hearing on December 12, 2023. ILD and Mr. Doe presented over 100 pages of evidence of Mr. Doe’s many family and community ties, of his competing his GED and his being selected to serve as a firefighter fighting CA wildfires while in prisons, and of the wrapround support services in place for Mr. Doe upon his release. Although DHS filed no evidence beyond Mr. Doe’s criminal history from decades ago, the immigration judge denied bond to Mr. Doe, finding that DHS had met its burden to prove that he is a current danger and a flight risk.
Because the immigration judge denied bond, the district court moved forward on Mr. Doe’s substantive due process claim. Judge Pitts held another hearing and on March 15, 2024, he issued a decision delineating the five-factor test that applies to the substantive due process claim in this case. ILD submitted numerous exhibits showing why Mr. Doe’s continued detention was unnecessary and punitive, that he was neither a danger nor a flight risk, and that government interests could be protected through the use of alternatives to detention, such as location monitoring.
Current Status
On May 2, 2024, Judge Pitts issued a decision holding that Mr. Doe’s continued detention violated his substantive due process rights. On May 15, 2024, Judge Pitts ordered Mr. Doe’s outright release. Mr. Doe is required to meet the ongoing conditions of release set by the court but no bond amount was required for his release to be possible. On May 29, 2024, after spending over two-and-a-half years in ICE custody and 23 years in prison, Mr. Doe was released from Golden State Annex.
ILD continues to represent Mr. Doe in his removal proceedings, fighting for his right to stay in the United States with his family.
Requests and Documents
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