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Detention, Challenging the Legality of Detention


This archived litigation issue page focuses on four areas of detention litigation:

  1. Challenging Matter of Rojas: does mandatory detention apply if ICE does not take custody “when the alien is released” from criminal custody?
  2. Matter of Garcia-Arreola: the BIA’s 2010 decision overturning Matter of Saysana, and holding that mandatory detention does not apply where the release from incarceration is unrelated to the ground that triggered mandatory detention
  3. Challenging prolonged mandatory detention pending a final decision on removal
  4. Post order prolonged mandatory detention for individuals deemed “specially dangerous”

For more information about challenging the legality of detention, see the Resources section.

Challenging Matter of Rojas: does mandatory detention apply if ICE does not take custody "when the alien is released" from criminal custody?

Section 236(c) of the INA provides that the government “shall take into custody” individuals who are inadmissible and deportable under various criminal and security related grounds “when the alien is released….” The government takes the position that the phrase “when the alien is released” does not limit who is subject to mandatory detention. Thus, the government argues, it may take noncitizens into custody days, months and even years after they are released from criminal custody, so long as the release occurred sometime after October 20, 1998 (the effective date of INA § 236(c)). The BIA agreed with ICE’s position in Matter of Rojas. However, numerous district courts have since rejected the government’s position and held that the “when released” language is a temporal requirement for mandatory detention. Below is a non-exhaustive list of cases that have addressed this issue.

Favorable Decisions 

  • Hosh v. Lucero, No. 11-464, 2011 U.S. Dist. LEXIS 52040 (E.D. Va. May 16, 2011)
  • Cummings v. Holder, No. 10-1114 (E.D. Va. Jan. 14, 2011)
  • Louisaire v. Muller, 758 F. Supp. 2d 229 (S.D.N.Y. 2010)
  • Gonzalez v. Dep’t of Homeland Sec., No. 10-0901, 2010 U.S. Dist. LEXIS 76108 (M.D.Pa. July 27, 2010) 
  • Bracamontes v. Desanti, No. 09-480, 2010 U.S. Dist. LEXIS 75977 (E.D. Va. June 16, 2010)
  • Burns v. Cicchi, 702 F. Supp. 2d 281 (D.N.J. 2010)
  • Khodr v. Adduci, 697 F. Supp. 2d 774 (E.D. Mich. 2010)
  • Dang v. Lowe, No. 10-0446, 2010 U.S. Dist. LEXIS 50108 (M.D. Pa. May 20, 2010) 
  • Scarlett v. U.S. Dep’t of Homeland Sec., 632 F. Supp. 2d 214 (W.D.N.Y. 2009)
  • Waffi v. Loiselle, 527 F. Supp. 2d 480 (E.D. Va. 2007)
  • Bromfield v. Clark, No. 06-757, 2007 U.S. Dist. LEXIS 10077 (W.D. Wash. Feb. 14, 2007)
  • Zabadi v. Chertoff, No. 05-0335, 2005 U.S. Dist. LEXIS 31914 (N.D. Cal. Nov. 22, 2005)
  • Quezada-Bucio v. Ridge, 317 F. Supp. 2d 1221 (W.D. Wash. 2004)
  • Boonkue v. Ridge, No. 04-566, 2004 U.S. Dist. LEXIS 9648 (D. Or. May 7, 2004)

Adverse Decisions

  • Sulayao v. Shanahan, No. 09-7347, 2009 U.S. Dist. LEXIS 86497 (S.D.N.Y. Sept. 14, 2009)
  • Serrano v. Estrada, 201 F. Supp. 2d 714 (N.D. Tex. Mar.6, 2002)
  • Matter of Rojas, 23 I&N Dec. 117 (BIA 2001)
  • Saucedo-Tellez v. Perryman, 55 F. Supp. 2d 882 (N.D. Ill. 1999)

Matter of Garcia-Arreola: the BIA's 2010 decision overturning Matter of Saysana, and holding that mandatory detention does not apply where the release from incarceration is unrelated to the ground that triggered mandatory detention

The effective date of the mandatory detention provision, INA § 236(c), is October 9, 1998. Therefore, mandatory detention is authorized only where the release from non-DHS custody occurred on or after that date. The Board confirmed this interpretation of § 236(c) in the precedent decision, Matter of Garcia-Arreola, 25 I&N Dec. 267 (BIA 2010).

Prior to Matter of Garcia-Arreola, the BIA had followed the reasoning of Matter of Saysana, 24 I&N Dec. 602 (BIA 2008). Matter of Saysana held that any post-October 9, 1998 release authorized detention, even if that release was unrelated to the ground that triggered mandatory detention, so long as the person was convicted of or committed a crime triggering mandatory detention (even if before the October 9, 1998 effective date). Numerous district courts, as well as the First Circuit, Saysana v. Gillen, 590 F.3d 7 (1st Cir. 2009), disagreed with the Board’s reasoning in Matter of Saysana.

On June 23, 2010, the Board issued Matter of Garcia-Arreola and reversed Matter of Saysana, holding that § 236(c) requires mandatory detention only if a person released from non-DHS custody after October 9, 1998 and only when the release is directly tied to the basis for detention under INA §§ 236(c)(1)(A)–(D).

Challenging Prolonged Mandatory Detention Pending a Final Decision on Removal

Noncitizens detained under INA § 236(c) have brought individual and class actions challenging their prolonged detention without a custody hearing while they contest their deportation. Since the Supreme Court’s 2003 decision Demore v. Kim, 538 U.S. 510 (2003) -- upholding mandatory detention under INA § 236(c) where the person conceded deportability and for a brief period of time needed to conduct removal proceedings -- some lower courts have set limits on the government’s authority to detain a person without a bond hearing. A sampling of court of appeals and district court decisions are highlighted below. Class litigation is discussed at the end of this section.

This section does not include cases challenging prolonged detention when the noncitizen is being held pursuant to other provisions of the INA such as § 236(a). INA § 236(a)(2) (providing that a noncitizen may be released on bond or conditional parole if neither a danger to the community nor a flight risk); Casas-Castrillon v. DHS, 535 F.3d 942, 951 (9th Cir. 2008) (holding that INA § 236(a) requires an individualized bond hearing); Prieto-Romero v. Clark, 534 F.3d 1053 (9th Cir. 2008).

The ACLU Immigrants Rights Project would like to hear from lawyers who have cases that raise the issue of prolonged detention. You may contact the ACLU at to let them know about your case.

Favorable Decisions -- Courts of Appeals

  • Diop v. Ice/Homeland Sec., No. 10-1113 ___F.3d___, 2011 U.S. App. LEXIS 18202 (3d Cir. Pa. filed Sept. 1, 2011)
  • Tijani v. Willis, 430 F.3d 1241 (9th Cir 2005)
  • Ly v. Hansen, 351 F.3d 263 (6th Cir. 2003)

Favorable Decisions -- District Courts

  • Flores-Powell v. Chadbourne, 677 F. Supp. 2d 455 (D. Mass. 2010)
  • Monestime v. Reilly, No. 10-1374, 2010 U.S. Dist. LEXIS 35344 (S.D.N.Y. Apr. 9, 2010)
  • Alli v. Decker, 644 F. Supp. 2d 535 (M.D. Pa. 2009) (see description of class action case below)
  • Vongsa Sengkeo v. Horgan, 670 F. Supp. 2d 116 (D. Mass. 2009)
  • Bourguignon v. Macdonald, No. 09-30068, 2009 U.S. Dist. LEXIS 102298 (D. Mass. Oct. 30, 2009)
  • Duhaney v. Dep’t of Homeland Sec., No. 09-366, 2009 U.S. Dist. LEXIS 90348 (M.D. Pa. Sept. 30, 2009)
  • Occelin v. ICE, No. 09-164, 2009 U.S. Dist. LEXIS 51444 (M.D. Pa. June 17, 2009)
  • Judulang v. Chertoff, 535 F. Supp. 2d 1129 (S.D. Cal. 2008)
  • Aceves-Santos v. Sedlock, No. 08-4550, 2008 U.S. Dist. LEXIS 101717 (N.D. Ill. Dec. 2, 2008)
  • Victor v. Mukasey, No. 08-1914, 2008 U.S. Dist. LEXIS 96187 (M.D. Pa. Nov. 25, 2008)
  • Wilks v. U.S. Dep’t of Homeland Security, No. 07-2171, 2008 U.S. Dist. LEXIS 88587 (M.D. Pa. Nov. 3, 2008)
  • Nunez-Pimentel v. U.S. Dep’t of Homeland Security, No. 07-1915, 2008 U.S. Dist. LEXIS 49926 (M.D. Pa. June 27, 2008)
  • Martinez v. Gonzales, 504 F. Supp. 2d 887 (C.D. Cal. 2007)
  • Madrane v. Hogan, 520 F. Supp. 2d 654 (M.D. Pa. 2007)
  • Martinez-Herrera v. Crawford, No. 07-0267, 2007 U.S. Dist. LEXIS 53334 (D. Ariz. June 20, 2007)
  • Hyppolite v. Enzer, No. 07-729, 2007 U.S. Dist. LEXIS 44205 (D. Conn. June 19, 2007)
  • Moallin v. Cangemi, 427 F. Supp. 2d 908 (D. Minn. 2006)
  • Alafyouny v. Chertoff, No. 06-204, 2006 U.S. Dist. LEXIS 40854 (N.D. Tex. May 19, 2006)
  • Parlak v. Baker, 374 F. Supp. 2d 551 (E.D. Mich. 2005)
  • Diomande v. Wrona, No. 05-73290, 2005 U. S. Dist. LEXIS 33795 (E.D. Mich. Dec. 12, 2005)
  • Fuller v. Gonzales, No. 04-2039, 2005 U.S. Dist. LEXIS 5828 (D. Conn. Apr. 8, 2005)
  • Oyediji v. Ashcroft, 332 F. Supp. 2d 747 (M.D. Pa. 2004)
  • Lawson v. Gerlinski, 332 F. Supp. 2d 735 (M.D. Pa. 2004)
  • Uritsky v. Ridge, 286 F. Supp. 2d 842 (E.D. Mich. 2003)

Adverse Decisions -- Courts of Appeals

  • Hussain v. Mukasey, 510 F.3d 739 (7th Cir. 2007) (finding habeas relief inappropriate because petitioner was in the “final stage” of removal proceedings, but citing favorable decision, Ly v. Hansen, 351 F.3d 263 (6th Cir. 2003), and acknowledging that inordinate delay before a final order of removal may justify habeas relief)

Adverse Decisions -- District Courts

  • Garcia v. Heron, No. 09-416, 2009 U.S. Dist. LEXIS 91157 (W.D.N.Y. Oct. 1, 2009)
  • Walton v. Sabol, No. 09-936, 2009 U.S. Dist. LEXIS 72161 (M.D. Pa. Aug. 17, 2009)
  • Prince v. Mukasey, 593 F. Supp. 2d 727 (M.D. Pa. 2008)
  • Chui v. Kane, No. 07-2519, 2008 U.S. Dist. LEXIS 99328 (D. Ariz. Aug. 11, 2008)
  • Matthias v. Hogan, No. 07-1987, 2008 U.S. Dist. LEXIS 112188 (M.D. Pa. Mar. 7, 2008)
  • Ali v. Achim, 342 F. Supp. 2d 769 (N.D. Ill. 2004)

Class Actions

Rodriguez v. Hayes, No. 07-3239 (C.D. Cal. filed May 16, 2007), rev’d and remanded, 578 F.3d 1105 (9th Cir. 2009)

The petitioner filed a class action on behalf of noncitizens in the Central District of California who are or will be detained for longer than six months pending completion of removal proceedings, including judicial review, and who have not been afforded a hearing to determine whether their prolonged detention is justified. The petition requests bond hearings for proposed class members. The district court denied the motion for class certification without any explanation.

On appeal, the Ninth Circuit held, inter alia, that INA § 242(f)(1) does not bar class certification. Section 242(f)(1) states that “no court shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of part IV of this subchapter… other than with respect to the application of such provisions to an individual alien against whom proceedings under such chapter have been initiated.” The court reasoned that § 242(f)(1) prohibits only injunction of “the operation of” the detention statutes, not injunction of violations of the statute. The Ninth Circuit also found that the class meets the requirement of FRCP 23. It remanded the case to the district court for consideration of whether formation of subclasses would be appropriate.

On November 23, 2010, the government filed a motion for judgment on the pleadings, alleging that petitioners failed to state a claim to which they are entitled to relief with respect to their constitutional and statutory claims.  The court denied the motion on January 27, 2011, finding that petitioners had stated a claim to which there is a remedy.  On March 8, 2011, the court granted petitioner’s motion to certify a class.  The class is defined as “all people within the Central District of California who 1) are or will be detained for longer than six months pursuant to the general immigration detention statutes pending completion of removal proceedings, including judicial review; 2) are not detained pursuant to one of the national security detention statutes at 8 U.S.C. § 1226a [INA § 236(a)] and 8 U.S.C. §§ 1531-37 [INA §§ 501-07]; and 3) have not been afforded a hearing to determine whether their prolonged detention is justified.”  The class is further divided into four subclasses, that are based on the detention statutes under which the government detained all of the class members, namely INA §§ 235(b), 236(a), 236(c), and 241(a).  The court referred the case to a magistrate judge for settlement proceedings on March 22, 2011.

See the ACLU’s website for additional court documents.


Alli v. Decker, 644 F. Supp. 2d 535 (M.D. Pa. 2009), rev’d in part and vacated in part, No. 10-2297, 2011 WL 2450967 (3d Cir. June 21, 2011). 

Two noncitizens detained under INA § 236(c) sought to represent a class of LPRs in Pennsylvania or the judicial district of the Middle District of Pennsylvania who are or will be subject to detention under INA § 236(c) for six months or more without an individualized hearing. Petitioners sought a declaration that the failure to provide all class members with individualized hearings violates the INA and due process. The court granted petitioners’ habeas petition in part, stating that prolonged detention “raises serious constitutional concerns,” and that § 236(c) only authorizes mandatory detention for the period of time reasonably necessary to promptly initiate and conclude removal proceedings. If a person detained under § 236(c) makes a showing that detention is no longer reasonable, the person must be afforded a hearing and the government must justify continued detention. The court set forth a case-specific reasonableness standard that allows for consideration of all relevant factors, including, but not limited to, the length of detention. However, it declined to adopt a rule that detention for six months or more is per se unreasonable.

Although it ruled favorably for the named plaintiffs, the district court denied the motion for class certification and dismissed the class complaint. It found , inter alia, that because the class-wide declaratory relief petitioners sought had the same practical effect as injunctive relief, the court lacked subject matter jurisdiction to grant the relief under INA § 242(f)(1). The court explained that class-wide certification would, in effect, “restrain” the operation of § 236(c) and would be a “prelude to later injunctions.”

On January 26, 2010, rather than proceed with bond hearings, the government released petitioners. On April 5, 2010, the court dismissed the matter with prejudice. Petitioners appealed the decision to the Third Circuit on May 7, 2010, arguing that the district court erred by (1) dismissing the Appellants' claims for class-wide relief and (2) denying the Appellants' motion to certify a class.

On June 24, 2011, the Third Circuit reversed the district court’s decision.  It held that the term “restrain” in §242(f)(1) refers to injunctive relief and thus this provision does not bar plaintiffs from pursuing class claims for declaratory relief.  Moreover, the court rejected the government’s contention that declaratory relief in this context is the functional equivalent of injunctive relief and that allowing the plaintiffs to move forward on their class claims would lead to an absurd result.  Accordingly, the court vacated the district court’s dismissal of the class claims and denial of class certification and remanded the case to the district court.  One judge dissented.

See the ACLU’s website for court documents.

Post Order Prolonged Mandatory Detention for Individuals Deemed "Specially Dangerous"

In Zadvydas v. Davis, 533 U.S. 678 (2001), the Supreme Court said that INA § 241(a)(6) authorizes post-order detention only for a period “reasonably necessary” to effectuate removal from the United States. Further, the Court said that six months is a presumptively reasonable period. In Clark v. Martinez, 543 U.S. 371 (2005), the Supreme Court went on to say that INA § 241(a)(6) cannot be construed differently for different categories of noncitizens; in that case, the petitioners were Mariel Cubans who were found inadmissible (as opposed to deportable). The government, however, maintains that Zadvydas permits exceptions where the person is deemed “specially dangerous” and has adopted regulations authorizing continued detention of certain individuals with mental conditions or personality disorders. See 8 C.F.R. § 241.14(f).

The following cases have considered whether INA § 241(a)(6) authorizes indefinite detention in the special circumstances set forth in 8 C.F.R. § 241.14(f):

Statute Does Not Authorize Continued Detention

  • Tran v. Mukasey, 515 F.3d 478 (5th Cir. 2008)
  • Thai v. Ashcroft, 366 F.3d 790 (9th Cir. 2004)

Statute Does Authorize Continued Detention

  • Hernandez-Carrera v. Carlson, 547 F.3d 1237 (10th Cir. 2008), petition for cert. denied, 130 S. Ct. 1011 (U.S. 2009) (note, however, that this case involved a Cuban national and the court did not address whether 8 C.F.R. § 241.14(f) properly governs given 8 C.F.R. § 212.12 which specifically addresses parole of Mariel Cubans)
  • Marquez-Coromina v. Hollingsworth, No. 06-3211, 2010 U.S. Dist. LEXIS 14333 (D. Md. Feb. 18, 2010) (case involved a Cuban national and court found that 8 C.F.R. § 241.14(f), not 8 C.F.R. § 212.12 (parole of Mariel Cubans), governs)

The ACLU Immigrants Rights Project would like to hear from lawyers who have cases that raise the issue of post order prolonged, mandatory detention for individuals deemed “specially dangerous.” You may contact the ACLU at to let them know about your case.