Every year, U.S. Immigration and Customs Enforcement (ICE) detains tens of thousands of noncitizens while it pursues their removal from the country.1 Many of these noncitizens are held without access to bond hearings due to their criminal histories.2 Challenges to the mandatory bondless detention statute have been fought in the federal courts for decades,3 but the Supreme Court has so far refrained from definitively delineating the constitutional rights of this class of noncitizens.4 Against the backdrop of shocking reports concerning the conditions of migrant detention centers,5 federal courts continue to struggle with how to evaluate challenges from detainees. Recently, in Banyee v. Garland,6 the Eighth Circuit held that the Due Process Clause of the Fifth Amendment does not require a bond hearing for noncitizens subject to prolonged mandatory detention so long as their deportation remains a possibility.7 To reach its conclusion, the Eighth Circuit applied a broad reading of case law informed by an overly expansive understanding of the plenary power doctrine of immigration law. In so doing, the court severely discounted the liberty interests of noncitizens facing prolonged detention and greenlit a growing regime that subjects an entire class of individuals to detention without robust procedural protections.
Nyynkpao Banyee was admitted into the United States as a refugee from Côte d’Ivoire in 2004, when he was six years old.8 Mr. Banyee adjusted to lawful permanent resident status in 2005, but he remains a citizen of Côte d’Ivoire.9 From 2016 to 2018, Mr. Banyee was convicted of several crimes, including drug possession, theft, and “robbery — with a firearm, dangerous weapon, or destructive device.”10 For this final offense, Mr. Banyee was sentenced to prison for “five years with credit for time served.”11 On Mr. Banyee’s release date, March 31, 2021, ICE officers “were waiting for him at the prison” and subsequently “took him into custody.”12 ICE “charged [Mr. Banyee] as removable under the Immigration and Nationality Act”13 (INA) for his convictions.14 The nature of those convictions subjected him to the mandatory detention provision of the INA, codified at 8 U.S.C. § 1226(c)(1), which mandates that the “Attorney General ‘shall take into custody any alien who . . . is deportable by reason of having committed’ crimes of moral turpitude, aggravated felonies, controlled-substance crimes, and certain firearm offenses.”15 Detention under § 1226(c), unlike some other forms of immigration detention,16 deprives noncitizens of the possibility of release through a bond hearing for the duration of their removal proceedings.17
Mr. Banyee’s removal proceedings have taken “numerous twists and turns since” their initiation, including two trips up to the Board of Immigration Appeals (BIA), where his case remains pending.18 Parallel to his removal proceedings, Mr. Banyee filed a petition for a writ of habeas corpus in the United States District Court for the District of Minnesota, “challenging the constitutionality of his continued detention without a bond hearing.”19 The petition was first heard before Magistrate Judge Thorson.20 In her recommendation order, Judge Thorson acknowledged that the Fifth Amendment guarantees due process rights for noncitizens during removal proceedings21 and went on to explain that, “when the period of detention under [the INA] is no longer ‘brief,’” those “due process rights are implicated.”22 Applying a multifactor balancing test developed by the district court in Muse v. Sessions,23 Judge Thorson ultimately found the balance of interests to weigh in favor of granting a bond hearing for Mr. Banyee.24 Judge Wright accepted Judge Thorson’s recommendation,25 agreeing on virtually all points,26 but most pertinently “that the Muse factors largely weigh[ed] in favor of granting . . . habeas relief in the form of an individualized bond hearing.”27 Judge Wright subsequently ordered that a bond hearing be provided to Mr. Banyee within thirty days.28
On appeal, the Eighth Circuit reversed and remanded.29 Writing for the panel, Judge Stras30 held that “[d]ue process imposes no time limit on detention pending deportation.”31 To reach this conclusion, the court began by looking to the Supreme Court’s decision in Demore v. Kim,32 which held that mandatory bondless detention under § 1226(c) was not facially unconstitutional.33 The Eighth Circuit understood Demore as affirming the “longstanding view that the [g]overnment may constitutionally detain deportable aliens during the limited period necessary for their removal proceedings.”34 The doctrinal underpinning of this proposition, the court explained, is that the government is allowed to “make rules as to aliens that would be unacceptable if applied to citizens”35 and “has more flexibility when dealing with immigration.”36 The court then emphasized that the validity of bondless detention pending deportation was not a novel claim.37 To illustrate, it pointed to two other Supreme Court cases, Carlson v. Landon38 and Reno v. Flores,39 which upheld the constitutionality of bondless detention pending deportation for communists and minors respectively.40 “The overall point,” the court continued, “is that ‘[d]etention during removal proceedings is a constitutionally permissible part of th[e] process.’”41
The Eighth Circuit acknowledged that the Demore Court “described detention pending deportation as ‘brief,’ ‘limited,’ and ‘short[],’” but insisted “nothing suggests that length determines legality.”42 Instead, according to the court, whether bondless detention is constitutional depends on it having a defined endpoint: either deportation or release.43 To support this claim, the court pointed to the early case Wong Wing v. United States,44 which held that the government cannot detain noncitizens for purposes other than deportation without a criminal trial,45 and the more recent case Zadvydas v. Davis,46 which expressed constitutional concern for potentially indefinite detention of noncitizens after it becomes apparent that deportation is no longer a viable option.47 For the Eighth Circuit, “[t]hese cases le[ft] no room for” the Muse test.48 Instead, “Zadvydas and Demore ha[d] already done whatever balancing is necessary,”49 replacing traditional due process balancing with a “bright-line rule”: If deportation is still on the table, a noncitizen can be detained for the duration of removal proceedings.50
The court then turned to analyzing Mr. Banyee’s petition. It held that Mr. Banyee’s removal proceedings were still, indeed, pending, pointing to his active appeal in the BIA.51 It then dismissed the argument that the length of Mr. Banyee’s detention should trigger the protections he sought, reiterating that “[w]hat is important is . . . deportation remains a possibility,” and that for Mr. Banyee, who remains a citizen of Côte d’Ivoire, it still is.52 As such, the court “reverse[d] the judgment of the district court and remande[d]” the petition for entry of a denial order.53
The Eighth Circuit’s decision in Banyee represents an unnecessarily broad application of the law on mandatory bondless detention for noncitizens. In its zeal to dismiss Mr. Banyee’s challenge, the Eighth Circuit read Supreme Court precedent as foreclosing due process protections for this class of detained noncitizens, a move supported by an implicit reliance on the plenary power doctrine of immigration law. Yet the Eighth Circuit’s approach glossed over serious and unsettled questions that cannot be answered adequately by plenary power principles. This reliance led the Banyee court to summarily dismiss the liberty interests of Mr. Banyee and other similarly situated noncitizens, a choice likely to produce tragic consequences in an expanding immigration detention regime prone to civil rights violations.
The Banyee court’s opinion ignored the many nuances of Zadvydas and Demore. In Zadvydas, the Court considered a challenge to one of the INA’s post–removal order detention provisions54 brought by noncitizens who were effectively stateless and thus unlikely to be deported despite their removal orders.55 The Court identified “a serious constitutional problem”56 with permitting the government to detain a noncitizen “indefinite[ly] and potentially permanent[ly],”57 and deployed the canon of constitutional avoidance to restrict detention under the statute “once removal is no longer reasonably foreseeable.”58 By contrast, in Demore, the Court rejected a facial challenge to § 1226(c),59 holding that a noncitizen’s “det[ention] . . . during the limited period necessary for their removal proceedings” is constitutional.60 It distinguished Zadvydas in two key respects: First, the Court held that the deportation of the noncitizen challengers in Demore was still “practically attainable” and thus their detention rationally served immigration purposes.61 Second, the Court found the detentions at issue in Demore to be generally “of a much shorter duration” than the detentions at issue in Zadvydas, raising less cause for concern.62 Specifically, the Demore Court understood § 1226(c) detentions to last fewer than three months in the majority of cases,63 a conclusion that was based on faulty data64 and later undermined by countless challenges brought by noncitizens held for much longer.65 This latter temporal dimension was trivialized by the Banyee court.66
The Supreme Court’s most recent treatment of § 1226(c) reinforces the notion that complex due process questions remain unsettled. In Jennings v. Rodriguez,67 the Court rebuffed circuit courts’ attempts to use the constitutional avoidance canon to restrict the government’s detention power under § 1226(c), holding that the statutory language was too “clear” to be subject to the “textual alchemy” the petitioners and lower courts sought to impose via the canon.68 Importantly, this decision was entirely statutory; the Court refused to reach the merits of whether prolonged bondless detention violated due process, and it remanded the case to the lower courts to answer that question “in the first instance.”69 At least two features of Jennings and the legal landscape it produced substantially undercut the Eighth Circuit’s opinion. First, the Jennings dissenters flatly posited that a reading of the statute that did not include an implicit time limitation “would likely render [it] unconstitutional”70 — a view that remains unanswered by a majority of the Court.71 Second, after Jennings, other circuit courts have engaged with the constitutionality of prolonged detention directly, finding ample room for balancing.72 The resulting circuit split casts doubt on the Banyee court’s conclusion that “[t]he rule has been clear for decades.”73
The Eighth Circuit seemingly justified its lack of thorough engagement with the due process questions left open by the intersection of Demore, Zadvydas, and Jennings by relying on an expansive formulation of the plenary power doctrine of immigration law. That doctrine, announced in Chae Chan Ping v. United States (The Chinese Exclusion Case),74 asserts that the political branches of the federal government have the authority to regulate immigration as they see fit, subject to only limited judicial review.75 Although the Banyee court never explicitly referenced the doctrine, “[t]he shadow of plenary power” permeates the opinion.76 Most notably, the court extrapolated from precedent that “the government has more flexibility when dealing with immigration”77 and that it “could continue to hold [noncitizen] detainees simply ‘by reference to the legislative scheme,’”78 — two statements that strongly evoke canonical plenary power cases.79 For the Banyee court, this near-absolute conception of federal authority over noncitizens helped warrant virtually complete deference to established detention policies.
However, the Eighth Circuit’s formulation and deployment of the plenary power doctrine fails to justify its summary dismissal of Mr. Banyee’s petition. Even while issuing decisions flatly endorsing the plenary power doctrine, the Supreme Court has consistently insisted on a constitutional backstop.80 Pertinently, the Court has held that noncitizens present in the United States are entitled to the due process protections of the Fifth Amendment,81 and, in applying this holding, the Court has seen fit to use constitutional principles to limit the detention power of the government,82 with lower courts often following its lead.83 The foregoing has led some immigration scholars to observe that noncitizen detention is a potential soft spot in the otherwise robust plenary power doctrine,84 an observation that would be consistent with American courts’ longstanding recognition that “[f]reedom from bodily restraint”85 “is the most elemental of liberty interests.”86 That remains true in the § 1226(c) context even though the Supreme Court has upheld the facial validity of the statute, as the Court has teed up the resolution of as-applied challenges on particularized constitutional grounds.87 The Eighth Circuit’s aversion to individual due process weighing of Mr. Banyee’s petition thus contravenes the modern state of the doctrine.
The Banyee court’s holding may inflict significant harm. The decision subjects thousands of noncitizens to detention, in often substandard conditions,88 without the procedural safeguards traditionally afforded when liberty rights are so severely burdened.89 Worse still, the Eighth Circuit’s decision comes at a time when detentions under § 1226(c) are growing at a rapid rate90 and as additional crimes are folded into the statute’s ambit.91 In this context, the stakes of due process claims like Mr. Banyee’s only continue to rise. Unfortunately, approaches like the one taken by the Eighth Circuit fail to contend with that reality.