Second Circuit Confirms Constitutional Limit on Mandatory § 1226(c) Detention: Bond Hearing Required Once Detention Becomes Unreasonably Prolonged, With Government’s Clear-and-Convincing Burden

Second Circuit Confirms Constitutional Limit on Mandatory § 1226(c) Detention: Bond Hearing Required Once Detention Becomes Unreasonably Prolonged, With Government’s Clear-and-Convincing Burden

Introduction

In Black v. Almodovar and G.M. v. Almodovar, the United States Court of Appeals for the Second Circuit denied rehearing en banc of a panel decision that set an important constitutional limit on “mandatory” immigration detention under 8 U.S.C. § 1226(c). The panel held in Black v. Decker, 103 F.4th 133 (2d Cir. 2024), that due process prohibits unreasonably prolonged detention under § 1226(c) without an individualized bond hearing. At that hearing, the government must justify continued custody by clear and convincing evidence, and the immigration judge must consider the noncitizen’s ability to pay and alternatives to detention.

The en banc vote produced a sharply divided court. Judge Lohier (joined by six judges) concurred in denying rehearing, relying on a joint statement by the panel’s senior judges (Chin and Carney) defending the ruling. Two separate dissents (Judge Nardini, joined by the Chief Judge and three others; and Judge Menashi, joined by the Chief Judge and two others) urged en banc correction, arguing that the panel flattened meaningful statutory differences, misapplied due process, and effectively invalidated Congress’s mandatory detention scheme. The denial leaves the panel’s constitutional rule binding across the Second Circuit (New York, Connecticut, and Vermont).

The consolidated appeals involved two lawful permanent residents—Carol Williams Black and Keisy G.M.—detained under § 1226(c) for nearly eight and fourteen months respectively without bond hearings. Black won habeas relief and a bond hearing in district court (and was released on bond); G.M. was denied habeas (and later released, without a hearing, after 21 months in custody during the Covid period). On appeal, the panel recognized as-applied due process violations in both detentions.

Summary of the Opinion

The court denied rehearing en banc. As a result, the panel’s constitutional framework stands:

  • Unreasonably prolonged detention under § 1226(c) without an individualized bond hearing violates the Fifth Amendment’s Due Process Clause.
  • Due process requires a remedial bond hearing before an immigration judge once detention becomes unreasonably prolonged.
  • At that bond hearing, the government bears the burden to justify continued detention by clear and convincing evidence that the person is a danger to the community or a flight risk.
  • The immigration judge must consider the person’s ability to pay any bond and the availability of less-restrictive alternatives to detention.
  • While there is no rigid time limit, detention beyond six months without a bond hearing “raises serious due process concerns,” triggering intensive scrutiny under the Mathews v. Eldridge balancing test.

The en banc dissents would have either recalibrated the burden and standard at any hearing (placing the burden on the noncitizen and/or lowering the government’s proof to preponderance), or rejected Mathews balancing entirely in § 1226(c) cases so long as removal proceedings remain pending and removal is reasonably foreseeable.

Analysis

Precedents Cited and How They Shaped the Decision

  • Zadvydas v. Davis (533 U.S. 678 (2001)): Construed a different provision, § 1231(a)(6), to avoid indefinite post-removal-order detention by reading in a “reasonable time” limit (with a six-month benchmark). It emphasized that civil immigration detention must remain nonpunitive and reasonably related to permissible aims (ensuring appearance and protecting the community), and flagged concerns with procedures that effectively placed the burden on the detainee to prove lack of dangerousness. The Black panel and the Chin/Carney statement rely on Zadvydas as a due process lodestar: as confinement lengthens, additional procedures are constitutionally required to minimize erroneous deprivations of liberty.
  • Demore v. Kim (538 U.S. 510 (2003)): Upheld § 1226(c) against a facial challenge, stressing the “brief period” of detention then thought typical (using government-supplied statistics later revised by DOJ to be substantially longer). Demore did not decide whether due process places a temporal limit on § 1226(c) detention in individual cases; indeed, the government told the Court that “aberrational lengthy detention” could be addressed via as-applied challenges. The concurring statement leans heavily on this posture and the later DOJ letter correcting the statistics; Judge Menashi argues Demore supplies a bright-line rule so long as detention ends when proceedings end.
  • Jennings v. Rodriguez (583 U.S. 281 (2018)): A statutory decision rejecting the Ninth Circuit’s attempt to read periodic bond hearings or a six-month rule into §§ 1226(a) and (c) via constitutional avoidance. Jennings did not resolve the constitutional questions; it remanded them. The panel and concurring statement read Jennings as leaving intact as-applied due process challenges; Judge Menashi reads it, with Demore, as precluding court-crafted time limits or hearing requirements while proceedings remain pending.
  • Velasco Lopez v. Decker (978 F.3d 842 (2d Cir. 2020)): Under § 1226(a) (discretionary detention), the Second Circuit held that once detention becomes unreasonably prolonged, due process requires a new bond hearing at which the government bears the burden by clear and convincing evidence. Black extends that remedial structure to § 1226(c), reasoning that the due process problem is prolonged detention without individualized assessment, and the Mathews balancing produces the same procedural safeguards once that threshold is crossed.
  • United States v. Salerno (481 U.S. 739 (1987)); Foucha v. Louisiana (504 U.S. 71 (1992)); Kansas v. Hendricks (521 U.S. 346 (1997)); United States v. Comstock (560 U.S. 126 (2010)); Schall v. Martin (467 U.S. 253 (1984)): These civil detention cases establish that when the government seeks preventive detention, due process generally requires individualized hearings before a neutral decisionmaker and, in many contexts, proof by clear and convincing evidence. The panel invoked this body of law to set the government’s burden and standard and to require consideration of noncustodial alternatives and ability to pay.
  • Landon v. Plasencia (459 U.S. 21 (1982)); Reno v. Flores (507 U.S. 292 (1993)); Fiallo v. Bell (430 U.S. 787 (1977)); Mezei (345 U.S. 206 (1953)); Galvan v. Press (347 U.S. 522 (1954)): Establish Congress’s breadth of power over immigration but simultaneously recognize that due process applies to “persons” in the United States. Dissenters stress deference to Congress; the panel and concurring statement stress that deference does not erase core procedural guarantees where liberty is at stake.
  • Circuit cases revealing splits: German Santos v. Warden Pike County (3d Cir. 2020) aligns with Black for § 1226(c) (clear-and-convincing government burden after prolonged detention). Banyee v. Garland (8th Cir. 2024) conflicts, rejecting Mathews balancing for § 1226(c) as long as removal proceedings are pending. For § 1226(a) initial bond hearings, the First Circuit (Hernandez-Lara) places some burdens on the government; the Third, Fourth, and Ninth Circuits (Borbot, Miranda, Rodriguez Diaz) generally permit burden on the noncitizen at initial hearings; but none of those § 1226(a) cases squarely addressed the remedial hearing required after a due process violation for prolonged detention, as Black and Velasco Lopez did.
  • Immigration adjudication authorities: Matter of Joseph (22 I. & N. Dec. 799 (BIA 1999)) allows detainees to contest § 1226(c) applicability; Matter of Adeniji (22 I. & N. Dec. 1102 (BIA 1999)) and Matter of Guerra (24 I. & N. Dec. 38 (BIA 2006)) place burdens on detainees at § 1226(a) bond hearings. Black does not disturb these for initial § 1226(a) hearings; it governs the additional, constitutionally compelled hearing after prolonged detention under § 1226(c).

Legal Reasoning

The panel anchored its holding in Mathews v. Eldridge (424 U.S. 319 (1976)), applying the familiar three-factor test:

  • Private interest: Freedom from physical restraint is among the most fundamental liberty interests protected by due process. Noncitizens physically present in the United States—even when removable—are “persons” entitled to due process protections. As detention lengthens from months toward a year and beyond, the individual interest in an individualized necessity determination intensifies.
  • Risk of erroneous deprivation and value of additional safeguards: Section 1226(c) provides no bond hearing at all, other than a narrow Joseph hearing disputing statutory coverage. The absence of individualized assessment creates a substantial risk that continued detention is unnecessary, as Black’s own bond outcome demonstrated (once heard, the IJ found the government had not met its burden). Requiring the government to prove the need for detention (rather than forcing the detainee to prove a negative) and to address ability to pay and alternatives materially reduces the risk of error. The panel emphasized that proving “I am not dangerous” is uniquely difficult; allocating that proof to the party asserting continued confinement comports with ordinary due process design.
  • Government interests and administrative burdens: Preventing flight and protecting the community are substantial interests, especially given Congress’s concerns about certain criminal noncitizens. But allowing a bond hearing only after detention becomes unreasonably prolonged (and not at the outset, unlike many other civil detention contexts) substantially tempers the government’s burden; recognizing a clear-and-convincing standard aligns with settled civil detention jurisprudence and does not impose undue systemic costs compared to the liberty at stake.

On burden and standard, the court drew on Salerno and related cases to require the government to prove danger by clear and convincing evidence and flight risk by no less than clear and convincing evidence once the due process violation exists. The court explained that a remedy must be commensurate with the violation: where imprisonment has been prolonged without individualized justification, more robust process is required than at an initial § 1226(a) bond hearing created by regulation.

The panel also rejected two central objections. First, it clarified that the ruling is not a facial invalidation of § 1226(c); it is an as-applied constitutional limit that triggers only when detention has become “unreasonably prolonged,” a fact-specific inquiry. Second, the panel rejected the proposition that Demore and Jennings foreclose all as-applied relief. Demore addressed a facial challenge premised on brief typical detention; Jennings decided only statutory interpretation, expressly leaving constitutional questions open for lower courts to resolve.

Counterarguments in the Dissents

  • Judge Nardini agreed that prolonged detention can require a hearing but argued that the panel wrongly equated § 1226(c) with § 1226(a) by importing the clear-and-convincing government burden. He emphasized Congress’s distinct judgment that § 1226(c) detainees, as a class, pose heightened risks of flight and recidivism. He would have required the detainee to bear the burden of proof—at least by a preponderance—at any remedial hearing, cautioning that the panel set an unnecessary “constitutional floor” that binds Congress.
  • He also highlighted an “intercircuit incoherence,” contrasting the First/Third/Fourth/Ninth approaches to § 1226(a) initial hearings with German Santos on § 1226(c), warning that Black plus Velasco Lopez create the same remedy for both subsections despite material statutory differences. He urged en banc review to calibrate the burden appropriately for § 1226(c) detainees.
  • Judge Menashi argued that the panel effectively invalidated the mandatory detention requirement of § 1226(c) by replacing Congress’s scheme with judge-ordered individualized hearings premised on a case-by-case “unreasonably prolonged” test. He relied on the Eighth Circuit’s Banyee decision to insist that Demore and Jennings leave “no room” for Mathews balancing during pending removal proceedings because the detention has a “definite termination point” (the end of proceedings), distinguishing the indefinite detention problem in Zadvydas.
  • He questioned whether aliens concededly removable have a protectable liberty interest in release into the United States, given that they can end detention by forgoing relief and departing (“keys in his pocket”). He further contended that many forms of immigration relief are discretionary (e.g., asylum), which cannot ground a due process entitlement to release pending adjudication.

The Panel’s and Senior Judges’ Responses

In a detailed statement, Senior Judges Chin and Carney (the panel majority) responded that:

  • Black is an as-applied decision and does not invalidate § 1226(c). It simply recognizes that prolonged civil confinement without individualized assessment becomes constitutionally suspect. The Supreme Court and the government itself have repeatedly contemplated as-applied challenges in this space.
  • Demore relied on an assumption of “brief” detention that later proved inaccurate, and Jennings left constitutional questions open. Neither case forecloses Mathews balancing.
  • Section 1226(c) is an outlier among civil detention schemes because it provides no initial bond hearing at all. That structural absence heightens the risk of error and supports the clear-and-convincing governmental burden once detention has become unreasonably prolonged.
  • The asserted ability to “self-deport” cannot justify prolonged detention without a hearing; due process protects the right to pursue relief and to be free from arbitrary bodily restraint while doing so.
  • The supposed circuit “split” over remedial burden allocations is overstated. The only post-Jennings circuit to squarely address procedures after unreasonably prolonged § 1226(c) detention—German Santos—adopted the same clear-and-convincing burden for the government. The § 1226(a) cases the dissents cite mostly involve initial, not remedial, hearings and did not find underlying due process violations.

Impact

The ruling is consequential for immigration detention in the Second Circuit:

  • Detention under § 1226(c) that extends much beyond six months without a bond hearing will face serious due process scrutiny. While there is no hard cap, district courts are now expected to apply Mathews and, where warranted, order bond hearings with the government’s clear-and-convincing burden.
  • Immigration judges presiding over these constitutionally compelled hearings must consider ability to pay and noncustodial alternatives (e.g., supervision, ankle monitors) instead of treating monetary bond as a binary gate.
  • The decision aligns the Second Circuit with the Third Circuit on § 1226(c), but it conflicts with the Eighth Circuit’s bright-line rejection of Mathews in Banyee. The nationwide divergence—especially after Congress’s 2025 amendments expanding § 1226(c) via the Laken Riley Act to include certain persons who are merely arrested, charged, or who admit to certain conduct—may invite Supreme Court review.
  • Practically, ICE and the immigration courts in the Second Circuit will need processes to identify detainees whose custody is approaching the “serious concern” zone (around six months) and to produce evidence addressing danger and flight risk under a clear-and-convincing standard. Detention resources may be reallocated toward those with the strongest public-safety justifications.
  • For detainees, habeas corpus in federal district court remains the vehicle to trigger a remedial hearing after prolonged detention. Evidence of community ties, rehabilitation, compliance history, and feasible supervision plans will be central, as will documentation bearing on ability to pay.

Complex Concepts Simplified

  • Facial vs. as-applied constitutional challenges:
    • Facial challenges claim a statute is unconstitutional in all or most applications. Demore rejected a facial challenge to § 1226(c).
    • As-applied challenges claim a statute’s application to particular facts violates the Constitution. Black recognizes an as-applied limit: once detention is unreasonably prolonged, due process requires individualized review.
  • Mathews v. Eldridge balancing:
    • A three-part test to decide what process is due: (1) the individual’s interest; (2) risk of error and value of added procedures; (3) governmental interests and burdens.
    • As confinement length increases, the individual interest and the risk-of-error concerns grow, often warranting more process.
  • § 1226(a) vs. § 1226(c):
    • § 1226(a) is the default, discretionary detention authority and—by regulation—provides an initial bond hearing (with the detainee typically bearing the burden at that initial hearing).
    • § 1226(c) mandates detention for specified categories and, on its face, provides no bond hearing (other than a Joseph hearing on statutory coverage). Black adds a constitutional backstop when detention drags on too long without individualized assessment.
  • Clear and convincing evidence vs. preponderance of the evidence:
    • Preponderance means “more likely than not” (just over 50%).
    • Clear and convincing is a higher standard requiring that the claim be highly probable. Courts often require this heightened standard before allowing civil confinement where liberty is at stake.
  • “Definite termination point” vs. “indefinite detention”:
    • Demore emphasized that § 1226(c) detention ends when removal proceedings conclude.
    • Black recognizes that even if detention is not indefinite, months-long confinement without individualized assessment can still be constitutionally problematic.
  • Joseph hearing:
    • A narrow BIA-created proceeding in which a detainee may argue that § 1226(c) does not apply to them at all (e.g., they do not have a qualifying conviction). It is not a bond hearing on risk or alternatives.

Practical Takeaways

  • Detainees held under § 1226(c) in the Second Circuit who have been confined for around six months without a bond hearing should consider filing a habeas petition asserting that their detention has become unreasonably prolonged under Mathews.
  • At any ordered bond hearing, the government must prove by clear and convincing evidence that continued detention is necessary due to danger or flight risk, and the IJ must weigh ability to pay and noncustodial alternatives.
  • Responsibility for delay matters but is not dispositive; courts will examine total duration, reasons for delay (including government-caused delay), the complexity of the case, and any evidence that detention has ceased to serve permissible purposes.
  • The decision does not guarantee release; it guarantees an individualized, meaningful hearing once detention becomes unreasonably prolonged.

Conclusion

The Second Circuit’s denial of rehearing en banc cements a significant constitutional rule for mandatory immigration detention in this circuit: § 1226(c) does not authorize unreviewable, months-long confinement. Once detention becomes unreasonably prolonged, due process requires what § 1226(c) omits—a real bond hearing. At that hearing, the government—not the detainee—must carry a clear-and-convincing burden to show that continued detention is needed, and the adjudicator must meaningfully consider ability to pay and less restrictive alternatives.

In reaching that result, the court situates mandatory immigration detention within the broader due process tradition governing civil confinement: liberty may be curtailed to serve compelling purposes, but as time passes the Constitution demands individualized justification. The majority’s as-applied posture carefully preserves Congress’s scheme while addressing constitutional risk at the margins. The sharp dissents preview a deepening circuit split, especially after the Eighth Circuit’s Banyee decision and Congress’s expansion of § 1226(c) in 2025. Until the Supreme Court speaks, however, the Second Circuit’s rule now supplies the governing standard for prolonged § 1226(c) detention in New York, Connecticut, and Vermont.

Case Details

Year: 2025
Court: Court of Appeals for the Second Circuit

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