THROUGH THE SEVENTH CIRCUIT LENS: CONFLICTING INTERESTS: AN EXAMINATION OF BASIC CIVIL RIGHTS FOR CRIMINAL ALIENS VERSUS CONGRESSIONAL DESIRE FOR SMOOTH REMOVAL PROCEEDINGS JULIE TEM PEST* INTRODUCTION M axi Sopo, father and husband, was granted asylum to live in the United States after he was arrested by the Cameroon police because of his positions in the Bali Catholic Youth Association and Southern Cameroons National Council.1 W hile in custody, the police took his clothes, starved him, beat him, hung him upside down shocking him through electrical nodes attached to his feet, and forced him to drink his own urine. Sopo came to the United States in 20042 accompanied by his pregnant wife who delivered their daughter soon after their arrival. In 2010, Sopo was arrested for bank fraud. In 2012, Sopo was provided3 4 notice that his bank fraud convictions subjected him to removal from the United States. Thereafter, in accordance with 8 U.S.C. § 1226(c), Sopo was detained.5 6 He was not given a bond hearing in order to assess whether he was either a flight risk or a danger to society. After sixteen months of civil detention, Sopo filed a7 pro se petition for a writ of habeas corpus. 8 After being denied basic rights in his home country of Cameroon, Sopo sought a better life in the United States for himself and his family. Unfortunately,9 the civics lesson he learned was that not all persons within the United States are treated equally. Nor are they all equally afforded due process of law. Circuits split on the question of when a bond hearing was required for these removable criminal aliens. W ith Sopo, the Eleventh Circuit joined three other circuits by10 adopting a reasonableness standard and rejected the six-month bright-line approach of the Second and Ninth Circuits. Five days after the Sopo decision11 * J.D. Candidate, 2018, Indiana University Robert H. McKinney School of Law; B.A., 2011, American Military University—Charles Town, West Virginia. I want to thank Professor Joel M. Schumm for his continued support and guidance throughout the Note-writing process—and in law school, generally. A special thanks, as well, to my husband, Nathaniel, my friends, and my family for their love, patience, and support. 1. Sopo v. U.S. Att’y Gen., 825 F.3d 1199, 1203 (11th Cir. 2016). 2. Id. 3. Id. 4. Id. at 1204. 5. Id. 6. Id. at 1203. 7. Id. at 1207. 8. Id. 9. Id. at 1203. 10. Id. at 1202. 11. Id. at 1215-16. http://doi.org/10.18060/4806.1205 854 INDIANA LAW REVIEW [Vol. 51:853 was issued, the U .S. Supreme Court accepted certiorari from the Ninth Circuit to address whether crim inal aliens are entitled to a bond hearing at all during their removal proceedings— and if so, whether the statute required that bond hearing at six months. No opinion issued during the 2016 term, so the Court reheard oral12 argum ents O ctober 3, 2017. During the arguments, there seemed to be a tacit13 agreement that this class of aliens is entitled to a bond hearing once the duration of detention becomes unreasonable: Justice Kagan likened arbitrary detention to torture; Justice Breyer expressed unease at the idea that the alien class had no14 rights not to be confined arbitrarily. Regarding when a bond hearing would be15 required, Justice Kennedy and Justice Sotomayor agreed that a bright-line rule would be easy to administer— aliens would not have to use the federal courts to file habeas petitions in order to be afforded bond hearings; rather, they would be automatically given a hearing by an immigration judge. Conversely, Justice16 Alito made the comparison to the Speedy Trial Act which incorporates a totality of the circumstances test and stated that the Constitution makes no mention of a six-month rule— a view shared by Justice Ginsburg. 17 In a surprise move, the Court issued its opinion on February 27, 2018, even18 though the opinion was not expected until June. Justice K agan took no part in19 the opinion. A s it pertains to criminal alien detention under 8 U.S.C. § 1226(c),20 the Court held that the Ninth Circuit improperly applied the canons of statutory construction to read a six-month bond requirement into the statute, resulting in an interpretation that “falls far short of a ‘plausible statutory construction.’” By21 so reading, according to the Court, the Ninth Circuit ignored Congress’s clear command: §1226(c) is not ‘silent’ as to the length of detention. It mandates detention ‘pending a decision on whether the alien is to be removed from the U nited States,’ . . . and it expressly prohibits release from detention except for narrow, witness-protection purposes. Even if courts were permitted to fashion 6-month time limits out of statutory silence, they certainly may not transmute existing statutory language into its polar 12. Jennings v. Rodriguez, 136 S. Ct. 2489 (Mem.) (2016). 13. See generally Transcript of Oral Argument, Jennings v. Rodriguez, 136 S. Ct. 2489 (2016) (No. 15-1204). 14. Id. at 17-18. 15. Id. at 20. 16. Id. at 23, 29-30. 17. Id. at 41-42. 18. Jennings v. Rodriguez, 138 S. Ct. 830 (2018). 19. Associated Press, US Supreme Court weighs case on detention of immigrants, IND. LAW. (Oct. 4, 2017), https://www.theindianalawyer.com/articles/45018-us-supreme-court-weighs-case- on-detention-of-immigrants?utm_source=il-daily&utm_medium=newsletter&utm_campaign=2017- 10-04 [perma.cc/T5NH-YREX]. 20. Rodriguez, 138 S. Ct. at 852. 21. Id. at 846. 2018] THROUGH THE SEVENTH CIRCUIT LENS 855 opposite. The constitutional-avoidance canon does not countenance such textual alchemy.22 T he Court ended its statutory analysis by holding that the only exception to Section 1226(c) mandatory detention, ending before removal proceedings conclude, is that specified by the statute: “for witness-protection purposes.” In23 closing, the Court remanded the case to the Ninth Circuit to “consider respondents’ constitutional arguments on their merits.”24 This Note analyzes, through an examination of U.S. Suprem e C ourt and circuit precedent, whether the Seventh Circuit should address the Due Process issue craftily avoided by the Supreme Court. And if so, how? Part I provides background on due process and criminal alien detention laws. Part II provides an overview of the inconsistency of the federal circuits in answering “when” a bond hearing must be provided. Part III analyzes Seventh Circuit precedent on matters such as alien treatment, criminal due process law, and the constitutionality of 8 U.S.C. § 1226(c). Lastly, Part IV argues that the Seventh Circuit should adopt the reasonableness approach. I. THE D UE PROCESS G UARANTEE OF THE FIFTH A M ENDM ENT A. Aliens Are Afforded Some Constitutional Protections The Due Process Clause of the Fifth A mendment reads: “No person shall be . . . deprived of life, liberty, or property, without due process of law . . . .” The25 protections of this clause apply to both citizens and aliens. “Alien” is the term26 chosen by the U.S. Legislature to describe “any person not a citizen or national of the U nited States.” A lthough this term carries with it a negative connotation,27 this Note will follow Congress’s choice of words for purposes of clarity. According to Zadvydas v. Davis, a Supreme Court case in which the alien adjudged removed was subject to indefinite detention, the Court held aliens are afforded constitutional Due Process protections. Thus, “[a] statute permitting28 22. Id. at 847. 23. Id. 24. Id. at 851. The Court also instructed the lower court to not only consider whether a class action was the appropriate mechanism for bringing a constitutional challenge, but also, whether the lower court would have jurisdiction under 8 U.S.C. § 1252(f)(1) which states: “no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of [§§ 1221-1232] other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated.” Id. (internal citations omitted. Emphasis added.) 25. U.S. CONST. amend. V. 26. See Zadvydas v. Davis, 533 U.S. 678, 690 (2001); see also Plyer v. Doe, 457 U.S. 202, 210 (1982) (“Aliens, even aliens whose presence in this country is unlawful, have long been recognized as ‘persons’ guaranteed due process of law by the Fifth and Fourteenth Amendments.”). 27. 8 U.S.C. § 1101(a)(3) (2012). 28. 533 U.S. at 690. 856 INDIANA LAW REVIEW [Vol. 51:853 indefinite detention of an alien would raise a serious constitutional problem.”29 In Zadvydas, the Supreme Court recognized “government detention violates [the Due Process] Clause unless the detention is ordered in a criminal proceeding with adequate procedural protections . . . or, in certain special and ‘narrow’ non- punitive ‘circumstances’ . . . where a special justification . . . outweighs the ‘individual’s constitutionally protected interest in avoiding physical restraint.’”30 Removal proceedings, even if they are inspired by criminal convictions, are civil proceedings— not criminal. As such, these detentions must comport with31 Zadvydas’s command for special and narrow non-punitive circumstances. W ith Zadvydas, in the context of the detention of aliens already adjudged removed, the Court found that after six months, if the alien can “provide[] good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the Government must respond with evidence sufficient to rebut that showing.” Otherwise, continued detention would run the risk of being32 punitive in nature and therefore, barred by the Constitution.33 Notwithstanding the Court’s recognition that aliens have constitutional rights, throughout history, the Court has drawn clear distinctions between citizens and aliens. For example, the United States can exclude aliens from its territory even34 after giving an alien express permission to enter. Additionally, the Court has35 recognized that as noncitizens, aliens “remain subject to the power of Congress to expel them.” And, this power to expel could be accomplished by any means36 deemed necessary by the Congress. Thus, there was no constitutional bar to37 Congress requiring Chinese laborers prove their residency by one credible white witness since it is “within the acknowledged power of every legislature to prescribe the evidence which shall be received . . . in the courts of its own government.”38 As illustrated by Congress’s power to expel aliens even though aliens are afforded due process protections, Congress enjoys broad power in regulating immigration and naturalization. This is known as the Congressional plenary39 power, which gives the political branches free reign in regulating immigration 29. Id. 30. Id. (emphasis in original). 31. Id. 32. Id. at 701. 33. Id. 34. Chae Chan Ping v. United States (The Chinese Exclusion Case), 130 U.S. 581, 603 (1889). 35. Id. at 609. 36. Fong Yue Ting v. United States, 149 U.S. 698, 724 (1893). 37. Id. 38. Id. at 729. 39. Chae Chan Ping, 130 U.S. at 604. See Michael J. Wishnie, Laboratories of Bigotry? Devolution of the Immigration Power, Equal Protection, and Federalism, 76 N.Y.U. L. Rev. 493, 503 (2001) (arguing the plenary power doctrine is a “shameful and racist relic”). 2018] THROUGH THE SEVENTH CIRCUIT LENS 857 matters— so long as the procedures used are constitutional. In doing so,40 “Congress regularly makes rules that would be unacceptable if applied to citizens.” This is because alien policy is “intricately interwoven” with foreign41 relations, the war power, and maintaining a “republican form of government.”42 Therefore, because the justification for control is so great, the government interest in these cases need not be as strong as with Due Process cases involving U.S. citizens.43 B. M andatory Detention of Criminal Aliens Under 8 U.S.C. § 1226(c) Notwithstanding the Supreme Court’s recognition that aliens are afforded constitutional protections, the Court considered the constitutionality of mandatory detention under 8 U.S.C. § 1226(c) in Demore v. Hyung Joon Kim and allowed44 it to stand. This decision was made even though the detention mandated by Section 1226(c) falls squarely within the realm of what the D ue Process Clause seeks to protect. According to the Rodriguez Court, the distinction lies with the45 “definite termination point” found in the statute, i.e. the conclusion of the removal proceedings.46 8 U.S.C § 1226(c) provides: “[t]he Attorney General shall take into custody any alien who . . . is deportable by reason of having committed any offense.”47 Congress intended this statute to combat rising rates of alien criminal activity.48 According to the 1993 Congressional investigation cited by the Demore Court, the Immigration and Naturalization Service (INS) “could not even identify most deportable aliens, much less locate them and remove them from the country.”49 T he investigation also revealed after these criminal aliens were designated deportable, more than three quarters were arrested at least once, and almost half were arrested more than once before their deportation proceedings were started.50 Thus, the investigation concluded that detaining criminal aliens during their 40. Samantha M. Brock, Current Development: Demore v. Kim: A Divided Supreme Court Upholds Lesser Due Process, 10 New Eng. J. Int’l & Comp. L. 137, 145-46 (2004) (citing Chae Chan Ping, 130 U.S. at 604). 41. Demore v. Kim, 538 U.S. 510, 522 (2003) (quoting Fiallo v. Bell, 430 U.S. 787, 792 (1977)). 42. Harisiades v. Shaughnessy, 342 U.S. 580, 588-89 (1952). 43. See generally Demore, 538 U.S. 510. 44. See id. 45. Zadvydas v. Davis, 533 U.S. 678, 690 (2001). 46. Jennings v. Rodriguez, 138 S. Ct. 830, 846 (2018). 47. 8 U.S.C. § 1226(c) (2012). 48. Demore, 538 U.S. at 518. 49. Id. (emphasis in original) (citing Criminal Aliens in the United States: Hearings Before the Permanent Subcomm. on Investigations of the Senate Comm. on Governmental Affairs, 103d Cong., 1st Sess. (1993); S. Rep. No. 104-48, at 1 (1995)). 50. Id. (citing Hearing on H. R. 3333 Before the Subcomm. on Immigration, Refugees, and Int’l Law of the House Comm. on the Judiciary, 101st Cong., 1st Sess. 54, 52 (1989)). 858 INDIANA LAW REVIEW [Vol. 51:853 deportation proceedings would not only protect the public from these individuals but, as an added incentive, would increase the rate of successful criminal alien removals. 51 In Demore v. Kim, relying on use of the word “shall” in Section 1226(c), the Supreme Court interpreted the language of this statute to mandate detention of criminal aliens during the pendency of their removal proceedings. The Court52 relied on two of its previous cases: Carlson v. Landon and Reno v. Flores in upholding detention during removal. In Carlson, the Court held that aliens, who53 were members of the Communist Party, could be detained during the removal process even though they posed no risk of flight because “detention is necessarily a part of this deportation procedure.” 54 In Flores, detained juvenile aliens challenged their detentions resulting from the INS’ blanket policy of only releasing juveniles to parents, legal guardians, or other adult relatives. Here, the Court determined this generic rule— even though55 it was put in place by INS, rather than Congress— was perm issible in light of C ongress’s broad power to legislate with regard to immigration. The Demore56 Court relied heavily on these two cases, which illustrated Congress’s broad power to detain, and then distinguished Zadvydas, which dealt with detention after a final order of rem oval had already been issued. Having concluded from these57 two cases that not only was detention a part of the deportation process but also that C ongress enjoyed heightened power to legislate immigration, the Court considered, from the outset of detention, whether the mandatory Section 1226(c) detention was nevertheless appropriate given that no individual findings of risk, flight, or dangerousness were required— or indeed, permitted— by the language of the statute. 58 Congress’s interests under Section 1226(c) include: preventing flight of crim inal aliens prior to or during their removal proceedings and protecting the community from these deportable criminal aliens. In upholding the challenged59 detention, the Demore Court found these justifications satisfied Zadvydas’s command for “special” justification that outweighs an individual’s liberty interest— a necessary finding, given alien detention is a civil rather than criminal proceeding. Therefore, the Court held that individualized bond hearings at the60 outset of the removal process are not necessary because “when the Government 51. Id. at 519 (citing DEPARTMENT OF JUSTICE, OFFICE OF THE INSPECTOR GENERAL, IMMIGRATION AND NATURALIZATION SERVICE, DEPORTATION OF ALIENS AFTER FINAL ORDERS HAVE BEEN ISSUED, REP. NO. 1-96-03, App. 46 (Mar. 1996)). 52. See id. at 513. 53. Id. at 523-26. 54. Id. at 524 (citing Carlson v. Landon, 342 U.S. 524, 538 (1952)). 55. Reno v. Flores, 507 U.S. 292, 297 (1993). 56. Id. at 313-14. 57. Demore, 538 U.S. at 523-30. 58. See generally id. 59. Id. at 513. 60. Zadvydas v. Davis, 533 U.S. 678, 690 (2001). 2018] THROUGH THE SEVENTH CIRCUIT LENS 859 deals with deportable aliens, the Due Process Clause does not require it to employ the least burdensome means to accomplish its goal.” 61 Thus, due process protections are different for citizens and aliens. Having62 interpreted the statute to mandate detention during the pendency of the rem oval process, the Court held Congress’s interest in seamless removal proceedings must be balanced against the due process rights of the criminal aliens being detained.63 This balance, according to the Court, can ostensibly be found by recognizing an implicit temporal limitation in the statute. Consequently, the Court justified64 these Section 1226(c) criminal alien detentions by maintaining that such detentions generally last for less than ninety days or up to “five months in the minority of cases in which the alien chooses to appeal.” This allowed the Court65 to hold Section 1226(c) was not facially unconstitutional. 66 Justice Kennedy concurred giving the Court its crucial fifth vote. However, in his concurrence, Justice Kennedy considered a scenario where the continued detention of someone bearing the status of a lawful permanent resident became unreasonable or unjustified and stated that in such a case, the alien “could be entitled to an individualized determination as to his risk of flight and dangerousness.” Thus, the Demore Court assumed the liberty interest at stake67 was only minimally affected because of the short time period of the detention. This left open the question of what would happen when the detention exceeded the length of time recognized by the Court as acceptable. C. Criminal Alien Defined 8 U.S.C. § 1226(c) distinguishes between detention of aliens, generally, and detention of criminal aliens. For the former, the U .S. A ttorney General has68 discretion to release the alien on bond. W ith the latter, the Attorney General has69 no such discretion. Congress made detention of criminal aliens mandatory.70 71 8 U.S.C. § 1226(c) codifies what crimes subject an alien to removal (deportation)— thereby allowing them to be classified as criminal aliens.72 According to the statute, a criminal alien is one who is deportable because of 61. Demore, 538 U.S. at 528 (emphasis in original). 62. See generally Chae Chan Ping v. United States, 130 U.S. 581 (1889). 63. Demore, 538 U.S. at 523. 64. Id. at 529. 65. Id. at 530. 66. Id. at 531. 67. Id. at 532 (Kennedy, J., concurring). 68. See 8 U.S.C. § 1226 (2012). 69. See id. § 1226(a). 70. See id. § 1226(c). 71. Demore, 538 U.S. at 518 (Congress mandated detention of criminal aliens in response to increasing rates of criminal activity by aliens). The Court makes no distinction between violent and non-violent crimes. Id. 72. See 8 U.S.C. § 1226(c). 860 INDIANA LAW REVIEW [Vol. 51:853 comm itting a specified offense (conviction of at least two crimes of moral turpitude, use of drugs or conviction for violating any law related to controlled substances, firearm offenses, conspiracy or espionage, or most commonly: aggravated felony which includes murder, rape, and drug trafficking, as well as fraud and failure to appear); is deportable because of having been sentenced to73 imprisonment for at least one year; or is deportable for having taken part in74 terrorist activities. 75 D. Convenience Under Fire The Court’s decision in Demore has been attacked. Demore raised both76 substantive and procedural due process concerns. Substantive due process77 protects individuals from government action that “shocks the conscience.”78 Procedural due process guarantees that any deprivation by the government is done in a manner that is fair. Although the former is out of the reach of the79 Court— through its own doing— the Court has retained the power over the latter to consider the constitutionality of immigration procedures. 80 W ith Demore, the alien detained had not had the final removal order present in Zadvydas. Rather, the alien was simply detained so the removal procedure81 would be more convenient for the government. This desire for convenience fails82 to recognize there is a huge individual liberty at stake, particularly today where the average amount of time a criminal alien is detained during removal proceedings is 455 days. The Demore Court backed away from its Zadvydas83 holding— indicating that aliens who have received a final order of deportation have more protection than aliens not yet found deportable. This inconsistent84 decision undermines the status enjoyed by lawful permanent residents in the 73. See INA § 101(a)(43)(A-U) (2011); see also 8 U.S.C. § 1226(c)(1)(B). These specified offenses can be found in 8 U.S.C. § 1227(a)(2)(A)(ii) (2008) (conviction of at least two crimes of moral turpitude), (A)(iii) (aggravated felony), (B) (use of drugs or conviction for violating any law related to controlled substances), (C) (firearm offenses), or (D) (conspiracy and espionage). 74. 8 U.S.C. § 1226(c)(1)(C). The requirements here can be found in 8 U.S.C. § 1227(a)(2)(A)(i) (conviction for crime of moral turpitude within a specified time period of admission where the possible sentence is one year or longer). 75. See 8 U.S.C. § 1227(a)(4)(B) (terrorist activities). 76. Brock, supra note 33, at 143-44. 77. See generally Demore v. Kim, 538 U.S. 510 (2003). 78. United States v. Salerno, 481 U.S. 739, 746 (1987). 79. Id. 80. See Fiallo v. Bell, 430 U.S. 787, 792 n.4 (1977). 81. See generally Demore, 538 U.S. at 510-79. 82. Id. 83. Sopo v. U.S. Att’y Gen., 825 F.3d 1199, 1213 (11th Cir. 2016). 84. See Jennifer Korte Doucleff, Supreme Court Review: Demore v. Kim: Upholding the Unnecessary Detainment of Legal Permanent Residents, 94 J. Crim L. & Criminology 625, 644 (2004). 2018] THROUGH THE SEVENTH CIRCUIT LENS 861 United States. Additionally, the Court accepted at face value Congress’s85 assertion that detention was necessary to effectuate removals, and failed to consider whether less restrictive means of ensuring appearance at removals could be used.86 Legal scholars also call attention to Congress’s requirement that the Department of Homeland Security (DHS) maintain a certain number of detention beds. This requirement was put in place to guarantee there be an adequate87 number of beds to accommodate the increase in detainees. Corresponding with the expansion of crim es resulting in mandatory detention pending removal, the daily detainee population “quadrupled between fiscal years 1995 and 2011, from 7,475 to 33,330.” Commensurate with this increase in the number of detainees,88 the length of time an alien is detained has increased. W ith these numbers as89 support, scholars question the practicability of mandatory detention given the “high fiscal costs of detention.” Other criticism is centered on the condition of90 detention, given these immigration detentions are plagued with inadequate health care, instances of rape, and treatment generally reserved for criminal corrections rather than civil detention; for instance: solitary confinement. 91 Other scholars take this disapproval one step further by asserting the policy behind Congress’s plenary power (which formed the basis for upholding the constitutionality of Section 1226(c)) is less relevant now than when it was created and have called for limitations to the doctrine. Some scholars argue for outright92 rejection of the Congress’s plenary power. Their arguments are based on the93 belief that adherence to the plenary power doctrine reduces predictability in judicial decisions and undermines equal protection rights afforded to aliens.94 Notwithstanding those concerns, Demore is the law. Thus, this Note will now proceed to examine how the lower courts have applied the case. 85. Id. 86. Id.; see also Demore, 538 U.S. at 528 (“[W]hen the Government deals with deportable aliens, the Due Process Clause does not require it to employ the least burdensome means to accomplish its goal.”). 87. Stephen H. Legomsky & Cristina M. Rodriguez, Immigration and Refugee Law and Policy 842 (6th ed. 2015). 88. Id. 89. Id. 90. Id. at 834. 91. Id. at 843. 92. See generally Due Process- Immigration Detention- Third Circuit Holds that the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 Authorizes Immigration Detention Only for a “Reasonable Period of Time.”, 125 Harv. L. Rev. 1522 (2012). 93. See Cornelia T. L. Pillard & T. Alexander Aleinikoff, Skeptical Scrutiny of Plenary Power: Judicial and Executive Branch Decision Making in Miller v. Albright, 1998 Sup. Ct. Rev. 1, 4. 94. See T. Alexander Aleinikoff, Detaining Plenary Power: The Meaning and Impact of Zadvydas v. Davis, 16 Geo. Immigr. L.J. 365, 386-87 (2002); see also Wishnie, supra note 32, at 503 (arguing the plenary power doctrine is a “shameful and racist relic”). 862 INDIANA LAW REVIEW [Vol. 51:853 II. INCONSISTENCY IN THE FEDERAL C OURTS A. The Reasonableness Approach As of June 2016 when Sopo was handed down by the Eleventh Circuit, six of the thirteen circuit courts had considered as-applied challenges to Section 1226(c). In each case, the alien detained was held for significantly longer than95 the five months recognized by the Demore Court as the outside limit to detention. Recognizing the length of time for removal proceedings has increased96 since Demore, each circuit considering the issue relied on Justice Kennedy’s Demore concurrence and the Supreme Court’s Zadvydas decision to hold there is an implicit tem poral limitation to detention under Section 1226(c). Finding otherwise would require the courts to declare the statute unconstitutional. This,97 courts are loath to do. They therefore bolster their decisions recognizing an98 implicit temporal limitation to the statute by professing to adhere to the doctrine of constitutional avoidance.99 [W ]here an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problem s unless such construction is plainly contrary to the intent of Congress . . . . ‘The elementary rule is that every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.’ This approach not only reflects the prudential concern that constitutional issues not be needlessly confronted, but also recognizes that Congress, like this Court, is bound by and swears an oath to uphold the Constitution.100 The Sixth Circuit was the first to consider the issue of when a bond hearing was required. The court considered the alien’s challenge that Section 1226(c)101 violated substantive and procedural Due Process since aliens detained under the statute were held without any individualized bond hearings to determine their risk of flight or dangerousness to the community. The court held removable aliens102 may only be detained “for a time reasonably required to complete removal proceedings in a timely manner.” The Sixth Circuit was quickly joined by the103 Third and First Circuits, which adopted the reasonableness approach and forewent 95. Sopo v. U.S. Att’y Gen., 825 F.3d 1199, 1212 (11th Cir. 2016). 96. Id. at 1211. 97. Reid v. Donelan, 819 F.3d 486, 494 (1st Cir. 2016). 98. Id. 99. Id. 100. DeBartolo Corp. v. Florida Gulf Coast Trades Council, 485 U.S. 568, 575 (1988) (quoting Hooper v. California, 155 U.S. 648, 657 (1895)). 101. See Ly v. Hansen, 351 F.3d 263, 268 (6th Cir. 2003). 102. See id. 103. Id. 2018] THROUGH THE SEVENTH CIRCUIT LENS 863 adoption of a bright-line rule. These circuits recognized that determining whether detention was unreasonable, and therefore unconstitutional, was necessarily a “fact-dependent inquiry that will vary depending on individual circumstances.”104 W ith Sopo, the Eleventh Circuit was the last to consider the issue, and likewise, adopted the reasonableness approach since “[a] bright-line approach strips away the essence of a reasonableness standard.”105 The benefit of the reasonableness, or case-by-case approach, is that it takes into account the specific facts of an individual case. Further, a case-by-case106 approach prevents aliens from deliberately prolonging their removal proceedings to meet the statutory limit. Lower courts are capable of applying reasonableness107 standards— within and outside of the scope of Section 1226(c). “[C]ourts are108 familiar with and regularly assess reasonableness as a legal standard.”109 B. Six M onths: The Unacceptable Bright-Line Rule On the other hand, the courts that adopted the six-month bright-line rule, recently struck down by the Rodriguez Court, recognized the inconsistency that can result from a reasonableness standard. They feared that employing the110 reasonableness standard would increase detention tim e “for those least likely to actually be removed at the conclusion of their proceedings” and, additionally, doubted the federal court system’s competence to adjudicate complicated immigration issues.111 The Ninth Circuit was the first to take this approach, holding the “government’s statutory mandatory detention authority . . . [is] limited to a six- month period, subject to a finding of flight risk or dangerousness.” Although112 104. Diop v. ICE/Homeland Sec., 656 F.3d 221, 233 (3rd Cir. 2011). 105. Sopo v. U.S. Att’y Gen., 825 F.3d 1199, 1215 (11th Cir. 2016). 106. Id. 107. Id. at 1216. 108. Id. at 1217. 109. Ly v. Hansen, 351 F.3d 263, 273 (6th Cir. 2003). 110. Reid v. Donelan, 819 F.3d 486, 497 (1st Cir. 2016). 111. Id. at 497-98. 112. Rodriguez v. Robbins (Rodriguez II), 715 F.3d 1127, 1133 (9th Cir. 2013). This was the second time this case came before the Ninth Circuit. See generally id. In Rodriguez I, the court held that the trial court impermissibly denied class certification of the plaintiffs, all of whom were non- citizens detained longer than six months without a bond hearing. See generally Rodriguez v. Hayes (Rodriguez I), 591 F.3d 1105 (9th Cir. 2010). Here, in Rodriguez II, the Ninth Circuit upheld the trial court’s grant of a preliminary injunction requiring the government to provide each class member with an individualized bond hearing, and only continue to detain the individual class member if the government shows by clear and convincing evidence continued detention is necessary to protect the community or prevent flight. Rodriguez, 715 F.3d at 1133. In Rodriguez III, the Ninth Circuit upheld the trial court’s grant of a permanent injunction requiring automatic bond hearings after six months. See generally Rodriguez v. Robbins (Rodriguez III), 804 F.3d 1060 (9th Cir. 2015), cert. granted, sub nom. Jennings v. Rodriguez, 136 S. Ct. 2489 (2016). On June 864 INDIANA LAW REVIEW [Vol. 51:853 this is categorized as a bright-line rule, this holding does not m ean that every criminal alien detained under Section 1226(c) will be instantly released after the six-month mark since this would increase the likelihood that aliens detained would intentionally prolong their proceedings in order to reach this point.113 Rather, the six-month rule simply requires the alien be provided an individualized bond hearing— with the presumption that detention is prolonged once it reaches the six-month mark.114 The Second Circuit quickly agreed with the Ninth Circuit’s bright-line approach, holding “mandatory detention for longer than six months without a bond hearing affronts due process.” T he Second Circuit reached this decision115 after considering “the pervasive confusion over what constitutes a ‘reasonable’ length of time that an immigrant can be detained without a bail hearing, the current immigration backlog and the disastrous impact of mandatory detention on the lives of immigrants who are neither a flight risk nor dangerous.”116 The Ninth and Second Circuits recognized the benefits of the bright-line rule: that it is an easy standard to apply, that it ensures “similarly situated detainees117 receive similar treatment,” and that it does not require each alien detained under118 Section 1226(c) to file a habeas petition to receive a bond hearing.119 Although the Supreme Court struck down the six-month rule as an impermissible interpretation of the statute, the constitutional issue remains. H ow long is too long for a criminal alien to be detained— living in conditions substantially similar to criminal imprisonment— after having already served a sentence for the underlying qualifying crime? At what point does the length of the civil detention offend the Due Process Clause? C. Not All Removable Aliens Are in Fact Removed The bright-line rule seemed more inclined to take into account that detention time increases for those least likely to be actually removed. As the Sixth Circuit120 noted, the goal of detention while removal proceedings are pending is to ensure the government’s ability to deport the alien once the proceedings have 20, 2016, the U.S. Supreme Court granted the government’s petition for writ of certiorari and held oral arguments on November 30, 2016. Jennings, 136 S. Ct. 2489. No opinion issued, but the Supreme Court reheard oral arguments on the issue on October 3, 2017. Transcript of Oral Argument, Jennings, 136 S. Ct. 2489 (No. 15-1204). The opinion issued February 27, 2018. Jennings v. Rodriguez, 138 S. Ct. 830 (2018). 113. See generally Rodriguez v. Robbins (Rodriguez II), 715 F.3d 1127 (9th Cir. 2013). 114. Id. at 1139. 115. Lora v. Shanahan, 804 F.3d 601, 606 (2nd Cir. 2015), cert. denied, 136 S. Ct. 2494 (2016). 116. Id. at 614. 117. Sopo v. U.S. Att’y Gen., 825 F.3d 1199, 1214 (11th Cir. 2016). 118. Lora, 804 F.3d at 615. 119. Id. at 614. 120. Rodriguez v. Robbins (Rodriguez II), 715 F.3d 1127, 1139 (9th Cir. 2013). 2018] THROUGH THE SEVENTH CIRCUIT LENS 865 concluded. W ith that as the goal, the actual removability of the alien has121 bearing on the reasonableness of the detention. However, without discouraging122 aliens from seeking relief from deportability, the courts can consider whether applications for relief are likely to succeed and made in good faith or whether the aliens pursued the applications for the mere purpose of delaying the proceedings. In this regard, the reasonableness standard is more appropriate:123 [A]ppeals and petitions for relief are to be expected as a natural part of the process. An alien who would not normally be subject to indefinite detention cannot be so detained merely because he seeks to explore avenues of relief that the law makes available to him. Further, although an alien may be responsible for seeking relief, he is not responsible for the amount of time that such determinations may take. The mere fact that an alien has sought relief from deportation does not authorize the INS to drag its heels indefinitely in making a decision. The entire process, not merely the original deportation hearing, is subject to the constitutional requirement of reasonability.124 Having noted that good faith applications for relief should not increase the length of time an alien is detained, it is important to note the availability of relief for aliens detained under Section 1226(c). Relief from deportation is an125 affirmative defense whereby the alien bears the burden of proof. The126 availability for relief depends on several factors. Relevant to this Note is the127 factor based on the grounds for deportability— namely, conviction of a crim e.128 Especially relevant is the aggravated felon’s limited forms of relief as the aggravated felon is precluded from obtaining discretionary relief. However, not129 all criminal aliens detained under Section 1226(c) are aggravated felons, so it is important to still consider these discretionary forms of relief.130 The available relief from deportability for aliens includes cancellation of removal part A (for lawful permanent residents); cancellation of removal part131 B for non-lawful permanent residents); registry; legalization; and132 133 134 121. Ly v. Hansen, 351 F.3d 263, 271 (6th Cir. 2003). 122. Id. 123. Id. at 272. 124. Id. 125. See generally LEGOMSKY & RODRIGUEZ, supra note 79, at 626-47. 126. Id. at 625. 127. Id. 128. Id. 129. Id. at 626. 130. See 8 U.S.C. § 1226(c) (2012). 131. LEGOMSKY & RODRIGUEZ , supra note 79, at 626-27. 132. Id. at 633. 133. Id. at 646. 134. Id. at 647. 866 INDIANA LAW REVIEW [Vol. 51:853 adjustment of status. These five forms of relief are the preferred forms of relief135 since success on the merits allows the alien to achieve lawful permanent resident status. Other forms of relief include deferred action; voluntary departure;136 137 138 objections to destination; stays of removal; the Convention against Torture;139 140 141 and in some cases, asylum. Because the focus of this Note is crim inal aliens,142 this relief portion will focus on cancellation of removal and asylum. Cancellation of removal is granted at the U .S. Attorney General’s discretion. It is available for criminal aliens but excludes aggravated felons.143 144 In order to qualify for cancellation part A, the alien must be deportable, must be a lawful permanent resident, must have resided continuously post-admission for seven years, and cannot be an aggravated felon. In making a decision to award145 relief, the A ttorney General will consider the alien’s ties to the U nited States, the alien’s positive qualities, the seriousness of the crimes, and whether the alien has since been rehabilitated. Cancellation part B, on the other hand, applies to non-146 permanent residents. As with part A , under part B, the Attorney General has147 discretion to award relief from removal. However, under part B, cancellation148 will result in an award of status. Thus, the requirements are stricter: the alien149 must have resided in the United States for ten years, must have good moral character, cannot have committed a crime of inadmissibility or falsified documents, and removal must result in extreme and exceptionally unusual hardship to the alien’s U.S. citizen or lawful permanent resident spouse, parent, or child.150 For illustrative purposes, Sopo applied for two forms of relief: withholding of removal (“an asylum application is automatically treated as an application for withholding of rem oval in the event asylum is denied”) and relief under the151 Convention against Torture. Success under either of these forms of relief would152 135. Id. 136. See generally id. at 626. 137. Id. at 649. 138. Id. at 662. 139. Id. at 666. 140. Id. at 672. 141. Id. at 1120. 142. Id. at 1055. 143. INA § 240A(a) (2011). 144. Legomsky & RODRIGUEZ , supra note 79, at 631. 145. INA § 240A(a). 146. Legomsky & RODRIGUEZ , supra note 79, 627-33. 147. Id. at 633. 148. INA § 240A(b)(1). 149. Legomsky & RODRIGUEZ , supra note 79, at 639. 150. INA § 240A(b). 151. Legomsky & RODRIGUEZ , supra note 79, at 1060. 152. Sopo v. U.S. Att’y Gen., 825 F.3d 1199, 1204 (11th Cir. 2016). 2018] THROUGH THE SEVENTH CIRCUIT LENS 867 have allowed Sopo to remain in the U nited States. Under W ithholding of153 Removal (Asylum), a non-discretionary form of relief, Sopo would have to show that conditions in his native country are so bad that he would be persecuted. In154 order to make this showing, Sopo must have a legitimate fear against returning.155 Additionally, in order to qualify for asylum, Sopo would have to show that he filed his application within one year of arriving in the United States. 156 In order to succeed under the Convention against Torture, Sopo must show that he would be tortured: “No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” Given157 Sopo’s abhorrent treatment in Cameroon, it seems likely that the Convention against Torture relief will be granted— even though his request for relief under withholding of removal will likely fail since his crime qualifies as an aggravated felony. This likelihood of success casts doubt on the reasonableness of Sopo’s158 four-year detention, especially when factoring in his individualized risk of flight and danger to the community. The Rodriguez Court held reading a requirement of a bond hearing within six months into Section 1226(c) was an im permissible use of statutory interpretation. C uriously, the Court made no mention of the split amongst the159 circuits, so it is unclear whether reading “detainees must be given a bond hearing to assess their flight risk and dangerousness when the length of their detention becomes unreasonable” would likewise be an impermissible use of statutory interpretation. Nevertheless, the Court invited the Ninth Circuit to consider the160 constitutional implications of prolonged detention. Thus, bearing this in mind,161 this Note next turns to Seventh Circuit jurisprudence in order to make an informed decision regarding which approach would provide the best fit. III. THE SEVENTH C IRCUIT A PPROACH Although “[s]tare decisis is not an inexorable command,” it is “the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Thus,162 153. Legomsky & RODRIGUEZ , supra note 79, at 1055, 1120. 154. Id. at 927. 155. Id. at 1083. 156. 8 U.S.C. § 1158(a)(2)(B) (2008). 157. Legomsky & RODRIGUEZ , supra note 79, at 1120-21 (quoting Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment art. 3.1, Dec. 10, 1984, 1465 U.N.T.S. 85). 158. 8 C.F.R. 208.16(d) (2017). 159. Jennings v. Rodriguez, 138 S. Ct. 830, 847 (2018). 160. See generally Id. 161. Id. at 851. 162. Payne v. Tennessee, 501 U.S. 808, 827-28 (1991) (emphasis removed). 868 INDIANA LAW REVIEW [Vol. 51:853 Seventh Circuit precedent concerning the constitutionality of Section 1226(c), alien rights, and criminal due process provides the necessary groundwork for determining when a bond hearing is required for crim inal aliens detained in the Seventh Circuit. A. Alien Detention: Pre-Demore Before the Supreme Court decided Demore, the Seventh Circuit considered the constitutionality of 8 U.S.C. § 1226(c) in Parra v. Perryman. The court held that since persons detained under the statute have “little hope” to rem ain in the United States and “[a] criminal alien who insists on postponing the inevitable has no constitutional right to remain at large during the ensuing delay,” detention was proper. M oreover, according to the court, “the United States has a powerful163 interest in maintaining the detention in order to ensure that removal actually occurs.” 164 The court balanced the due process interests involved, finding the private interest at stake was negligible since it involved the liberty of a person “no longer entitled to remain in this country.” W hen the alien admits all the elements165 required for removal, “the probability of error is zero.” And, the public interest166 in detention is substantial in order to carry out the removal order.167 The Seventh Circuit was guided by the Supreme Court’s decision in United States v. Salerno, which upheld pretrial detentions in criminal prosecutions. In168 Salerno, the Supreme Court considered the constitutionality of the Bail Reform Act of 1984 which allowed judicial officers to detain persons charged with crimes pending trial if there is clear and convincing evidence that “no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community.” According to169 the Seventh Circuit, because the private interest in criminal cases is higher (citizens may be involved), and fewer persons skip out on their criminal trials than aliens skip out on removal proceedings, Section 1226(c), like the Bail R eform Act, was constitutional— especially given Congress’s plenary power to regulate immigration.170 Thus, pre-Demore, the Seventh Circuit recognized no temporal limitation for detaining criminal aliens under Section 1226(c).171 163. Parra v. Perryman, 172 F.3d 954, 958 (7th Cir. 1999). 164. Id. 165. Id. 166. Id. 167. Id. 168. Id. (citing United States v. Salerno, 481 U.S. 739 (1987)). 169. 18 U.S.C. § 3142(e)(1) (2012). 170. Parra, 172 F.3d at 958. 171. See id. at 955. 2018] THROUGH THE SEVENTH CIRCUIT LENS 869 B. Alien Detention: Post-Demore Post-Demore, the Seventh Circuit’s consideration of Section 1226(c) did not involve the issue of whether the statute had an implicit temporal limitation.172 Rather, the Seventh C ircuit considered a challenge by a detained alien in Gonzalez v. O’Connell that his detention under Section 1226(c) was improper since his probationary disposition did not amount to the conviction required by the statute. Thus, the alien argued his mandatory detention violated Due173 Process since “he raised a good-faith argument that he would not in fact be deported.”174 The court noted that its earlier Parra decision was on par with the Supreme Court’s holding in Demore. But, regarding disciplinary dispositions, the175 Seventh Circuit drew a distinction between P arra and Demore and found that where the detainees conceded they were deportable, they could not find relief under the statute.176 The case was ultimately decided on the merit-based claim— a probationary disposition is a conviction for Section 1226(c) purposes. Therefore, the alien177 was properly detained under the statute. Here, the court was not confronted178 with a temporal challenge to Section 1226(c) and, therefore, did not address it.179 By this point, only the Sixth Circuit had considered such a challenge.180 The Seventh Circuit next considered whether immigration status had any bearing on who could be mandatorily detained when a lawful permanent resident was convicted of a drug-related offense and was therefore, removable. In Velez-181 Lotero v. Achim, the alien challenged his detention under Section 1226(c) because the statute did not distinguish between lawful permanent residents and other aliens. The court found the only relief from this mandatory detention was found182 in the witness protection exception included in the statute. Thus, the alien was183 not entitled to a bond hearing. Here again, the Seventh Circuit was not184 presented with, nor did it consider the implicit temporal limitation recognized in Demore. Still, by the date of this decision, only the Sixth Circuit had185 172. See generally United States v. Zamudio, 718 F.3d 989 (7th Cir. 2013); Velez-Lotero v. Achim, 414 F.3d 776 (7th Cir. 2005); Gonzalez v. O’Connell, 355 F.3d 1010 (7th Cir. 2004). 173. See generally Gonzalez, 355 F.3d 1010. 174. Id. at 1012. 175. Id. at 1019. 176. Id. 177. Id. at 1020. 178. Id. at 1021. 179. See generally id. 180. Ly v. Hansen, 351 F.3d 263, 268 (6th Cir. 2003). 181. Velez-Lotero v. Achim, 414 F.3d 776, 777 (7th Cir. 2005). 182. Id. at 782. 183. Id. 184. Id. 185. See generally id. 870 INDIANA LAW REVIEW [Vol. 51:853 considered a temporal challenge to Section 1226(c).186 The Seventh Circuit’s next foray into Section 1226(c) was in United States v. Zamudio when the alien detained under the statute was an aggravated felon under 8 U.S.C § 1227(a)(2)(A )(iii) based on a robbery conviction. Here, the187 district judge, during the criminal sentencing, ordered the alien to report to the Department of Homeland Security (DHS) to determine the alien’s removability.188 The alien challenged this on grounds that it was an additional imprisonment term. The court agreed there was no need for this added measure because under189 Section 1226(c)(1)(B ), the alien was removable anyway and already required to report to the immigration authorities. 190 Thus, if the removal proceedings are not complete before the end of his sentence, the alien must be detained anyway until the removal process is completed. This “must be detained” language indicates the Seventh C ircuit’s191 recognition that Section 1226(c) mandates detention. Again, the court was192 neither presented with, nor considered the temporal limitation of this mandatory detention. By the date of this decision, the Sixth, Third, and Ninth Circuits have193 all considered temporal challenges to Section 1226(c).194 C. Due Process Requirements in Criminal Law New crimes are constantly being added to the list of aggravated felonies,195 likely in response to “[n]ational security fears and econom ic instability [which] have increased demands for more aggressive enforcement of immigration laws.” Additionally, the Illegal Immigration Reform and Im migrant196 Responsibility Act of 1996 (IIRIRA) enlarged the definition of aggravated felony to include crimes punishable by one year or more; actual punishment, therefore, is rendered irrelevant. Previously, placement within the aggravated felon197 category required crimes with sentences of five years or more. 198 186. Ly v. Hansen, 351 F.3d 263, 268 (6th Cir. 2003). 187. U.S. v. Zamudio, 718 F.3d 989, 991 (7th Cir. 2013). 188. Id. at 989. 189. Id. 190. Id. at 991. 191. Id. 192. Id. 193. Id. 194. See Rodriguez v. Robbins, 715 F.3d 1127, 1133 (9th Cir. 2013); Diop v. ICE/Homeland Sec., 656 F.3d 221, 223 (3rd Cir. 2011); Ly v. Hansen, 351 F.3d 263, 268 (6th Cir. 2003). 195. INA § 101 (2011); 8 U.S.C. § 1101(a)(43) (2012). 196. Barbara A. Frey & X. Kevin Zhao, The Criminalization of Immigration and the International Norm of Non-Discrimination: Deportation and Detention in U.S. Immigration Law, 299 Law & Ineq. 279, 280 (2011). 197. Brock, supra note 33, at 143 (citing DAVID WEISSBRODT ET AL., IMMIGRATION LAW AND PROCEDURE IN A NUTSHELL 44-47, § 1-8 (4th ed. 1998)). 198. Id. 2018] THROUGH THE SEVENTH CIRCUIT LENS 871 Even absent the enlargement of criminal offenses rendering an alien deportable, deportation itself is a punishment— and, a rather harsh one. It is the199 equivalent of exile, which is almost never permitted for U.S. citizens, and not as punishment for a crime. Rather, when it applies to a U .S. citizen, loss of U.S.200 citizenship is limited to two circumstances: revocation of naturalization and expatriation. Revocation of naturalization is a unilateral decision by the U.S.201 government, which necessarily, cannot apply to someone born a citizen. It takes202 effect when there are defects in the naturalization. Expatriation can apply to203 both born and naturalized citizens, but unlike revocation of naturalization, requires consent on the part of the citizen being expatriated. 204 Unlike revocation of citizenship, which is severely limited and never allowed as punishment for a crime, the detention mandated by Section 1226(c) is punitive in nature, since the majority of detained aliens are housed in either state prisons or local jails. This enlargement of criminal offenses rendering an alien205 deportable illustrates the blending of criminal and immigration law, making an exam ination of Seventh Circuit criminal law crucial to understanding how the court will decide the question of when a bond hearing becomes necessary for criminal aliens detained under Section 1226(c).206 1. The Seventh Circuit Finds a Similarity Between Immigration Detention and Criminal Custody.— In United States v. Estrada-M ederos, an alien appealed his federal criminal sentence, asserting the government delayed in charging him, thereby preventing him from having his federal sentence run concurrently with his state sentence and “failed to give him credit for time spent in immigration detention[.]” By the time the alien had been taken into federal criminal207 detention, he had been in immigration detention for more than six months.208 Although the court found a similarity between state criminal custody and immigration detention, the court ultimately distinguished between the two; finding that although neither immigration detention nor state incarceration could be credited toward his federal sentence, the lower court should have considered whether the delay deprived the alien “of the opportunity to serve a partially concurrent sentence.”209 The Seventh Circuit explicitly recognized the similarities between state 199. Frey & Zhao, supra note 184, at 285. 200. Legomsky & RODRIGUEZ, supra note 79, at 1311. 201. Id. at 1311-29. 202. Id. at 1311. 203. Id. 204. Id. at 1329. 205. See Frey & Zhao, supra note 184, at 306. 206. See generally id. (arguing that the blending of immigration and criminal law leads to selective incorporation of protection afforded criminal defendants in the civil immigration proceedings). 207. 784 F.3d 1086, 1088 (7th Cir. 2015). 208. Id. at 1089. 209. Id. at 1093. 872 INDIANA LAW REVIEW [Vol. 51:853 incarceration and civil immigration detention were “too strong to ignore” even though immigration custody is classified as civil detention. This seems to210 indicate the loss of liberty is the sam e and, moreover, immigration detention closely parallels a criminal sentence. Based on this similarity, it is reasonable to think that certain procedural safeguards must be present for an immigration detention. 2. Due Process Limits to Pre-Trial Detentions.— The federal bail system, upheld by Salerno, is guided by 18 U.S.C. § 3142, which allows federal judicial officers to order that the person charged with a crime either be: released on his own recognizance; released on a condition; detained temporarily “to permit revocation of conditional release, deportation, or exclusion[;]” or detained pending trial. Although the burden of proof for a criminal conviction is beyond211 a reasonable doubt, the prosecution need only prove by clear and convincing evidence that an indicted person is a flight risk or danger to have them ordered detained. Justice M arshall’s Salerno dissent questioned the majority’s rationale,212 finding that denial of bail cuts against the presumption of innocence— particularly given the lesser burden. 213 Recognizing the importance of the presum ption of innocence, pre-Salerno, the Seventh Circuit held in Duran v. Elrod: “as a matter of due process, pre-trial detainees may suffer no more restrictions than are reasonably necessary to ensure their presence at trial.” The rationale for this is persons detained before trial214 have not yet been convicted of a crime. Thus, detention must be narrowly215 tailored to ensure presence at trial. Even though aliens are afforded lesser due216 process rights, that same rationale can be applied to Section 1226(c) detentions. The pre-trial detainees not yet convicted of a crime in Duran can be likened to criminal aliens not yet ordered removed— yet detained under Section 1226(c). W hen the Seventh Circuit entertained a challenge by criminal detainees in Jordan v. Wolke regarding the conditions of their detention where the jail was overcrowded and contact visitation was denied, the court found no Due Process violation. In this particular jail, only five percent of the inmates remained in the217 jail for over thirty days. In analyzing what the Due Process Clause requires, the218 court relied on B ell v. Wolfish. In Bell, the Seventh Circuit found that in219 balancing the individual’s liberty interest against the government interest, the appropriate question is whether the infringement is in place to punish or whether the effects on the individual are merely incidental to a legitimate government 210. Id. at 1091. 211. 18 U.S.C. § 3142(a)(3) (2012). 212. Id. § 3142(f)(2)(B). 213. United States v. Salerno, 481 U.S. 739, 766 (1987) (Marshall, J., dissenting). 214. 542 F.2d 998, 999 (7th Cir. 1976). 215. Id. at 1000. 216. See generally id. 217. See generally 615 F.2d 749 (7th Cir. 1980). 218. Id. at 751. 219. Id. at 752. 2018] THROUGH THE SEVENTH CIRCUIT LENS 873 interest. 220 In applying Bell v. Wolfish to the facts of the case, the Seventh Circuit relied on the fact that the detention period was brief and found that no violation had occurred because the balance weighed in favor of security. Applying that221 rationale to detention of criminal aliens, who are detained pending a civil proceeding, these same interests must be balanced. Examining pre-trial criminal detention is important because it involves not only a loss of liberty but, also, an acknowledgement that certain conditions of confinement are allowed so long as the government has a legitimate interest and the period of detention is brief.222 W hen a pre-Salerno criminal detainee challenged the constitutionality of the Bail Reform Act of 1984 in United States v. Portes, the Seventh Circuit focused on the purpose of the detention and whether it was necessary. In Portes, a223 magistrate judge ordered pre-trial detention, finding the government met its burden of proving both the detainee was a danger to the community and a flight risk. The court held that although the right to bail is not a “basic human right,”224 the “eighth amendment necessarily implies that unreasonable denial of bail is prohibited.” Thus, under certain circumstances, a court has the power to deny225 bail.226 In determining whether detention is permissible and, therefore, not a punishment, the court looks to the purpose of the detention. Protection of the227 community and prevention of flight are legitimate legislative goals. The court228 recognized that “at some point, the length of delay may raise due process objections.” However, the detention in this case had not reached that tipping229 point. This case is important because it illustrates that citizens are afforded230 added protections. In this case, the individual was afforded a detention hearing231 and still, the court recognized that too long a detention would raise due process concerns. Notably, the court did not impose a bright-line rule here.232 233 3. Status Can Impact Due Process Protections.— In Faheem-El v. Klincar, the detainee challenged his detention, which resulted from an Illinois statute 220. Id. (citing Bell v. Wolfish, 441 U.S. 520, 537 (1979)). 221. Id. at 753. 222. Id. 223. 786 F.2d 758, 760 (7th Cir. 1985). 224. Id. at 764-65. 225. Id. at 766 (citing Hunt v. Roth, 648 F.2d 1148, 1157 (8th Cir. 1981)) (emphasis removed). 226. 18 U.S.C. § 3142 (2012). 227. Portes, 786 F.2d at 767. 228. Id. 229. Id. at 768. 230. Id. at 760, 768 (Defendant was ordered detained in July 1985, and the case was decided in December 1985. The Seventh Circuit therefore found the length of detention challenge premature). 231. See generally id. 232. See id. 233. Id. 874 INDIANA LAW REVIEW [Vol. 51:853 prohibiting bail for parolees who were arrested on new criminal charges.234 Parolees are entitled to due process before their parole is revoked. However,235 that process need not be a bail hearing. Rather, a parole revocation hearing236 would suffice. In this case, the Seventh Circuit found the right to a bail hearing237 (normally required by due process) was “outweighed by the state’s interest in regulating parole.”238 The Seventh Circuit’s focus in Klincar was on the plaintiff’s status as a parolee. This parolee status is similar to the status of a criminal alien. In both239 situations, the individual had already been convicted of a crime, causing their detention. Here, however, the defendant was still serving his sentence on240 conditional release, whereas criminal aliens can be detained even when they have already completed their criminal sentences. 4. Lengthy Detentions Affront Due Process.— In Armstrong v. Squadrito, the plaintiff filed a 42 U.S.C. § 1983 action after he was erroneously detained for fifty-seven days after being arrested pursuant to a warrant. The court found that241 this detention shocked the conscience (the standard for a substantive due process challenge). 242 In United States v. Warneke, the defendants were detained in excess of seventeen months pending trial. Rather than challenge on due process grounds,243 they raised a Double Jeopardy claim, asserting their lengthy detention was punishment. Here, the court recognized that the Due Process Clause protects244 individuals from excessively long pre-trial detentions. However, as these245 defendants did not assert Due Process claims, the court did not address them other than to express concern at the length of tim e the defendants were in custody pending trial. Again, the court declined to define a per se time limit at which246 point detention becomes unreasonable.247 5. Seventh Circuit Criminal Due Process Cases Can Guide the Court’s Examination of Alien Detention under 8 U.S.C. § 1226(c).— As explained above, an examination of due process rights afforded in criminal proceedings is necessary because of the apparent convergence of immigration and criminal 234. 841 F.2d 712, 714 (7th Cir. 1988). 235. Id. at 722. 236. Id. 237. Id. at 722-23. 238. Id. at 724. 239. See generally id. 240. See generally 8 U.S.C § 1226(c) (2012). 241. 152 F.3d 564, 567 (7th Cir. 1998). 242. Id. 243. 199 F.3d 906, 907 (7th Cir. 1999). 244. Id. 245. Id. at 908. 246. Id. 247. Id. 2018] THROUGH THE SEVENTH CIRCUIT LENS 875 law. W ith Estrada-M ederos, the Seventh Circuit expressly recognized the248 similarities between immigration detention and criminal incarceration, indicating both are punishment. This recognition provides the foundation for requiring249 procedural safeguards for aliens detained under Section 1226(c). At the very least, this would require balancing the purpose of the detention with the loss of liberty resulting from the detention. M oreover, based on the above Seventh Circuit criminal due process cases, there are clear trends toward recognizing due process is offended by prolonged pre-trial detentions and imposing no more restrictions than reasonably necessary to ensure presence at trial. 250 IV. THE SEVENTH C IRCUIT SHOULD A NSW ER THE SUPREM E C OURT’S INVITATION TO CONSIDER THE C ONSTITUTIONALITY OF PROLONGED M ANDATORY D ETENTION UNDER 8 U.S.C. § 1226(C) Fairness is the essence of Due Process. Although the purpose of 8 U.S.C.251 § 1226(c) m andating the detention of criminal aliens is to prevent flight and252 protect the community, no finding of individual propensities needs to be made at the outset of the detention. Reviewing courts have deferred to Congress’s desire253 for smooth removal proceedings, and the Supreme Court guidance merely recognizes the detention may not be indefinite; the Court backed off from254 addressing the constitutional issue. Lower courts split on exactly what that255 means— although they all recognize detention under Section 1226(c) is mandatory— at least initially. M oreover, each circuit court hearing challenges256 to detention without a bond hearing under Section 1226(c) relied on Justice Kennedy’s concurrence in Demore when finding an individualized bond hearing was required— at some point. 257 248. Frey & Zhao, supra note 184, at 280. 249. See generally United States v. Estrada-Mederos, 784 F.3d 1086 (7th Cir. 2015). 250. See Warneke, 199 F.3d at 908; see also United States v. Portes, 786 F.2d 758, 768 (7th Cir. 1985); Jordan v. Wolke, 615 F.2d 749, 751 (7th Cir. 1980) (some detentions are allowed if the period is brief); Duran v. Elrod, 542 F.2d 998, 999 (7th Cir. 1976) (least restrictive means to ensure presence at trial). 251. See United States v. Salerno, 481 U.S. 739, 746 (1987). 252. 8 U.S.C. § 1226(c) (2012). 253. See generally Demore v. Kim, 538 U.S. 510 (2003). 254. Id. 255. See Jennings v. Rodriguez, 138 S. Ct. 830 (2018). 256. See Reid v. Donelan, 819 F.3d 486, 497-98 (1st Cir. 2016); Sopo v. U.S. Att’y Gen., 825 F.3d 1199, 1215 (11th Cir. 2016); Lora v. Shanahan, 804 F.3d 601, 606 (2nd Cir. 2015), cert. denied, 136 S. Ct. 2494 (2016); Rodriguez v Robbins, 715 F.3d 1127, 1133 (9th Cir. 2013); Diop v. ICE/Homeland Sec., 656 F.3d 221, 223 (3rd Cir. 2011); Ly v. Hansen, 351 F.3d 263, 268 (6th Cir. 2003). 257. See Reid, 819 F.3d at 497-98; Sopo, 825 F.3d at 1215; Lora, 804 F.3d at 606; Rodriguez, 715 F.3d at 1133; Diop, 656 F.3d at 223; Ly, 351 F.3d at 268. 876 INDIANA LAW REVIEW [Vol. 51:853 A. Acceptance of an Implicit Temporal Limitation to 8 U.S.C. 1226(c) W ith that as a background, the Seventh Circuit will likely adhere to its Parra precedent and hold detention under Section 1226(c) is mandatory. This result258 is, further, clearly required by the Rodriguez opinion. To date, the Seventh259 C ircuit has not been presented with the question of how long is too long. However, if presented with the issue, the Seventh Circuit will likely agree there is an implicit temporal limitation. Not only because sister circuits have decided this way, but also, the Supreme Court in Zadvydas held indefinite detention unconstitutional absent exigent circumstances. M oreover, Justice Kennedy’s260 Demore concurrence is compelling in creating the possibility of individualized bond hearings for aliens detained for an unreasonable length of time under Section 1226(c). The Rodriguez dissent is similarly compelling in its support261 of individualized bond hearings: “[i]t is immaterial that detention here is not literally indefinite, because while the respondents’ removal proceeding must end eventually, they last an indeterminate period of at least six months and a year on average, thereby implicating the same constitutional right against prolonged arbitrary detention that we recognized.”262 Additionally, Seventh Circuit precedent requires this finding. Not only did263 the Seventh Circuit recognize the similarities between immigration detention and crim inal incarceration, the court has held criminal pre-trial detentions can raise due process concerns depending on the length of the detention.264 B. Reasonableness: The Proper Approach Having read an implicit temporal limitation into the statute, or failing that, having recognized prolonged detention under the statute offends due process, the Seventh Circuit has options for deciding the question of when a bond hearing is required. The court can require immediate bond hearings at the outset of detention— an approach not required by the Supreme Court in Demore, and therefore unlikely given Parra. Alternatively, can adopt a case-by-case265 approach as the Sixth, Third, First, and Eleventh Circuits did; or can adopt a266 258. Parra v. Perryman, 172 F.3d 954, 958 (7th Cir. 1999). 259. See Jennings v. Rodriguez, 138 S. Ct. 830 (2018). 260. Zadvydas v. Davis, 533 U.S. 678, 690 (2001). 261. Demore, 538 U.S. at 532 (Kennedy, J. concurring). 262. Jennings v. Rodriguez, 138 S. Ct. 830, 868 (2018) (Breyer, J. dissenting). 263. See United States v. Warneke, 199 F.3d 906, 908 (7th Cir. 1999); United States v. Portes, 786 F.2d 758, 768 (7th Cir. 1985); Jordan v. Wolke, 615 F.2d 749, 751 (7th Cir. 1980); Duran v. Elrod, 542 F.2d 998, 999 (7th Cir. 1976). 264. See Warneke, 199 F.3d at 908; Portes, 786 F.2d at 768; Jordan, 615 F.2d at 751; Duran, 542 F.2d at 999. 265. Demore, 538 U.S. at 528 (“when the Government deals with deportable aliens, the Due Process Clause does not require it to employ the least burdensome means to accomplish its goal.”). 266. See Sopo v. U.S. Att’y Gen., 825 F.3d 1199, 1215 (11th Cir. 2016); Reid v. Donelan, 819 2018] THROUGH THE SEVENTH CIRCUIT LENS 877 hybrid (for instance, case-by-case, but not to exceed a certain amount of time). The Seventh Circuit should adopt the case-by-case approach following the Sixth, Third, First, and Eleventh Circuits, as there are compelling reasons for doing so. Although all individuals detained under Section 1226(c) are sim ilarly situated, there are facts distinguishing them significantly in light of Congress’s purpose in passing the statute: effectuating removals, preventing flight, and protecting the community. The reasonableness of the detention can be267 determ ined by analyzing the alien’s risk of flight, whether the alien poses a danger to society, the cause of delay in the proceedings, and the likelihood of removal. 1. Threat of Flight.— For instance, regarding threat of flight, courts can ask: how tied is the alien to the community? How long has the alien been in the United States? Does the alien have a family? Are any of the alien’s family members U.S. citizens? Is the alien employed or enrolled in school? Does the alien own a home? All these factors will vary case-to-case. And all are relevant to determine whether the individual criminal alien is a flight risk.268 2. D anger to the Community.— Regarding the government’s interest in protecting the community, it is important to consider the nature of the alien’s offense. W as it a violent crime? W ere multiple victims involved? Is this a repeat offender? These are questions judges ask every day when imposing sentences. Thus, it is likely they would be able to do so in the context of a bond hearing for criminal aliens subject to civil detention under Section 1226(c). 3. Cause of Delay.— As the standard for mandatory detention under Section 1226(c) is reasonableness, in addition to these questions regarding flight risk and danger to the community, the Seventh Circuit should consider the cause for delay in the proceedings. W hich party is causing the protracted proceedings? W here the government is to blame, fairness weighs in favor of granting bond. On the other hand, where the alien is rightfully appealing any adverse decisions, the alien should not be punished by continued detention— absent other reasons for maintaining detention. O ne year of detention without an individualized bond hearing determining risk of flight and danger to the community should be presumptively unreasonable, absent other mitigating factors. 4. Likelihood of Relief.— M oreover, as the primary purpose of mandatory detention is to aid the government in actually removing aliens after a final order of removal is made, the Seventh Circuit should consider whether relief from deportation is a legitimate possibility. W here relief is likely to be granted, continued detention becom es unreasonable. As such, by adopting the reasonableness standard, the Seventh Circuit would allow its lower courts to make determinations based on these factors— and any others the court deems wise. F.3d 486, 497-98 (1st Cir. 2016); Diop v. ICE/Homeland Sec., 656 F.3d 221, 223 (3rd Cir. 2011); Ly v. Hansen, 351 F.3d 263, 268 (6th Cir. 2003). 267. See generally Demore, 538 U.S. 510. 268. See generally Sopo, 825 F.3d 1199; Reid, 819 F.3d 486; Lora, 804 F.3d 601; Rodriguez, 715 F.3d 1127; Diop, 656 F.3d 221; Ly, 351 F.3d 263. 878 INDIANA LAW REVIEW [Vol. 51:853 C ONCLUSION Although aliens are afforded lesser Due Process protections than citizens, they are afforded some. Because the Supreme Court upheld the269 constitutionality of mandatory detention for criminal aliens under 8 U.S.C. Section 1226(c), the only question left to be answered by the Seventh Circuit270 is when a bond hearing is required. The Seventh Circuit can find guidance for answering this question by following the lead of its sister circuits in understanding Justice Kennedy’s Demore concurrence to mean there is an implicit temporal limitation in the statute. Given the federal courts adherence271 to the doctrine of constitutional avoidance and that indefinite detention under Section 1226(c) would raise serious constitutional issues, the Seventh Circuit should not hesitate to likewise find an implicit temporal limitation in the statute. This reading, not considered by the Rodriguez Court, seems a viable272 option. Otherwise, the court should tackle the constitutional issue. In doing so, the court would, perhaps, invite Congress to draft a more palatable statute— one that recognizes aliens are afforded constitutional protection, but that also protects their interests in seamless removal proceedings. Seventh Circuit cases have recognized a similarity between immigration detention and criminal incarceration. This recognition should require273 heightened scrutiny for challenges to prolonged detention under the statute. M oreover, the Seventh Circuit has recognized in its criminal due process cases that due process is offended by too long a detention. Thus, the court should not274 hesitate to join its sister circuits in recognizing an implicit temporal limitation to Section 1226(c) detentions. 275 Presupposing the Seventh Circuit will recognize a temporal limit to detention under Section 1226(c), regarding when a bond hearing is required is another matter. The court likely will— and should— trust its judges to judge and adopt the reasonableness standard, and in doing so, recognize that each case is different. By adopting this flexible reasonableness standard, the lower courts can weigh the 269. Plyler v. Doe, 457 U.S. 202, 210 (1982). 270. See generally Demore, 538 U.S. 510. 271. Id. at 532 (Kennedy, J. concurring). 272. See Sopo, 825 F.3d 1199; Reid, 819 F.3d 486; Lora, 804 F.3d 601; Rodriguez, 715 F.3d 1127; Diop, 656 F.3d; Ly, 351 F.3d 263. 273. United States v. Estrada-Mederos, 784 F.3d 1086, 1088 (7th Cir. 2015). 274. See United States v. Warneke, 199 F.3d 906 (7th Cir. 1999); see also Armstrong v. Squadrito, 152 F.3d 564, 567 (7th Cir. 1998). 275. See Warneke, 199 F.3d at 908; United States v. Portes, 786 F.2d 758, 768 (7th Cir. 1985); Jordan v. Wolke, 615 F.2d 749, 751 (7th Cir. 1980); Duran v. Elrod, 542 F.2d 998, 999 (7th Cir. 1976). 2018] THROUGH THE SEVENTH CIRCUIT LENS 879 relevant factors to determine whether the detained alien is a flight risk or a danger to society. This standard is in line with Supreme Court and Seventh Circuit jurisprudence and, absent clearer guidance from the Supreme Court to the contrary, should be adopted by the Seventh Circuit.