PRACTICE ADVISORY
April 21, 2011
Prolonged Immigration Detention and Bond Eligibility: Diouf v. Napolitano
This advisory concerns the Ninth Circuit’s recent decision in Diouf v. Napolitano,
634 F.3d 1081 (9th Cir. 2011). Diouf is the latest in a series of Ninth Circuit decisions
addressing whether the government may subject individuals to immigration detention for
a prolonged period of time without a bond hearing where the government must show that
continued detention is justified. Diouf extends the Ninth Circuit’s previous decision in
Casas-Castrillon v. Department of Homeland Security, 535 F.3d 942 (9th Cir. 2008),
which held that individuals initially subject to detention under 8 U.S.C. 1226(c) are
entitled to bond hearings if their removal is stayed pending direct judicial review of their
removal orders or their removal cases have been remanded for further administrative
proceedings.1 As a result of Diouf, non-citizens who have been detained for six
months or longer after entry of a final order of removal under § 1231 are also now
entitled to a bond hearing where the government bears the burden of justifying
continued detention. Furthermore, under the reasoning of another Ninth Circuit
decision, Vijendra Singh v. Holder, --- F.3d ---, 2011 WL 1226379 (9th Cir. 2011), the
government should be required to show by clear and convincing evidence that detention
is necessary to prevent flight and danger. This practice advisory discusses how certain
detainees can use Diouf to obtain bond hearings before immigration judges (“IJs”).2
The ACLU will be monitoring the implementation of Diouf on an ongoing basis. Should
you have questions or require technical assistance regarding a detention challenge under
Diouf, please contact Michael Kaufman at the ACLU Foundation of Southern California,
MKaufman@aclu-sc.org / 213-977-9500 x 232.
Background on Diouf
Amadou Lamine Diouf, a citizen of Senegal, lawfully entered the United States as a
student in 1996. In 2003, the government initiated removal proceedings against him for
overstaying his visa, and the IJ ordered voluntary departure. Before his voluntary
1

The court held that the detention of such individuals is governed by 8 U.S.C. § 1226(a).
Likewise, under the reasoning of Casas, an individual initially detained under § 1226(a)
whose removal is stayed pending direct review of their removal order is still detained
under § 1226(a). For more information on Casas, see the ACLU Practice Advisory dated
Sept. 9, 2008, available at http://lawprofessors.typepad.com/immigration/2008/09/acluissues-pra.html.
2

Diouf is not binding outside the Ninth Circuit, but may serve as persuasive authority.

1

departure deadline passed, Mr. Diouf retained an immigration attorney to reopen his
removal proceedings and adjust his status based on his planned marriage to his long-time
U.S. citizen fiancée. The attorney, however, never filed the motion to reopen. As a
result, Mr. Diouf unwittingly violated his voluntary departure order, which automatically
converted into an order of removal. In late 2005, Mr. Diouf moved to reopen his removal
proceedings, arguing that his former attorney provided ineffective assistance of counsel.
The IJ denied the motion to reopen, and the Board of Immigration Appeals (“BIA”)
affirmed. Diouf petitioned for review in the Ninth Circuit, which granted a stay of
removal.
Meanwhile, U.S. Immigration and Customs Enforcement (“ICE”) arrested Mr. Diouf in
March 2005 (after he was convicted for possession of less than 30 grams of marijuana)
and detained him for nearly two years pending completion of his removal case under the
post-final order detention statute, 8 U.S.C. § 1231. In the Ninth Circuit, § 1231 governs
the detention of individuals with final orders of removal that have not been stayed
pending direct judicial review.3 Section 1231 requires detention during the 90-day
removal period after entry of a final order of removal. 8 U.S.C. § 1231(a)(2). If the noncitizen is not removed during the removal period, § 1231(a)(6)—the provision at issue in
Mr. Diouf’s case—authorizes continued detention at the discretion of the Attorney
General. By regulation, individuals detained under § 1231 do not receive a bond hearing
before an IJ, but rather only periodic post-order custody reviews (“POCRs”) by ICE.
See 8 C.F.R. § 241.4.4 Accordingly, the only process Mr. Diouf received during his
prolonged imprisonment was two file reviews in which ICE summarily continued his
detention.
In November 2006, Diouf filed a petition for writ of habeas corpus under 28 U.S.C.
§ 2241 arguing that his prolonged detention violated the statute and the Due Process
Clause of the Fifth Amendment. The district court granted a preliminary injunction
3

In a previous decision, the Ninth Circuit held that, whereas 8 U.S.C. § 1226(a)
governs detention of individuals whose removal orders are stayed pending direct
review, § 1231 governs the detention of individuals like Mr. Diouf who seek
judicial review of a denied motion to reopen, even when a stay has issued.
Diouf v. Mukasey, 542 F.3d 1222, 1230 (9th Cir. 2008); see also 8 C.F.R. § 241.4
(defining final order of removal).
4

Under the regulations, ICE must conduct an initial custody review before the 90-day
removal period expires if the individual’s removal cannot be accomplished during the
removal period (“the 90-day review”). See 8 C.F.R. § 241.4(k)(1)(i). If the non-citizen is
not released or removed at the time of the 90-day review, he or she will receive a second
review three months later—180 days from the date the removal period began (“the 180day review”). See id. § 241.4(k)(2)(ii). If the non-citizen is not released, a subsequent
review will occur within approximately one year after the 180-day review. See id.
§ 241.4(k)(2)(iii).

2

requiring a bond hearing before an IJ. Upon conducting a hearing, the IJ found that Mr.
Diouf did not present a flight risk or danger sufficient to justify detention and ordered his
release on bond.
In September 2008, the Ninth Circuit vacated the preliminary injunction. The court
clarified that, at the time Mr. Diouf filed his habeas petition, he was detained under the
post-final order detention statute, § 1231(a)(6), and not the pre-final order detention
statute, § 1226(a), as the district court had erroneously held. See Diouf v. Mukasey,
542 F.3d 1222, 1228-32 (9th Cir. 2008). The court remanded for the district court to
determine in the first instance “whether aliens such as Diouf, who are detained under
§ 1231(a)(6), are entitled to receive bond hearings and to obtain release on bond unless
the Government proves that they are a danger or a flight risk.” Id. at 1234. On remand,
the district court concluded that individuals facing prolonged detention under
§ 1231(a)(6) are not entitled to a bond hearing and denied Mr. Diouf’s motion for a
preliminary injunction.
What did the Ninth Circuit hold?
Relying on its prior decision in Casas-Castrillon v. Department of Homeland Security,
535 F.3d 942 (9th Cir. 2008), the Ninth Circuit held that prolonged detention under
§ 1231(a)(6) is prohibited without an individualized hearing to determine whether the
person is a flight risk or a danger to the community. The court reaffirmed that prolonged
detention without adequate procedural protections would present serious constitutional
concerns. However, as in Casas, the court did not reach the constitutional question.
Instead, it construed § 1231(a)(6) to require that an immigration detainee be
afforded a bond hearing before an IJ once detention becomes prolonged, and that
the detainee be released on bond unless the government establishes at that hearing
that the person is a flight risk or a danger to the community. Diouf, 634 F.3d at
1086.
Moreover, the court held the POCR process to be inadequate to safeguard the liberty
interests threatened by prolonged detention. As the court explained, “[t]he regulations do
not afford adequate procedural safeguards because they do not provide for an in-person
hearing, they place the burden on the alien rather than the government and they do not
provide for a decision by a neutral arbiter such as an immigration judge.” Id. at 1091.
When does detention become “prolonged?”
Significantly, Diouf clarified when detention under § 1231(a)(6) becomes prolonged:
“[a]s a general matter, detention is prolonged when it has lasted six months and is
expected to continue more than minimally beyond six months.” However, if, at six

3

months, the individual’s release or removal is “imminent,” the government is not required
to provide a bond hearing before the IJ. Diouf, 634 F.3d at 1092 n.13 (emphasis added).5
The court also made clear that the government should not presumptively detain
individuals for six months without a hearing. Rather, the government “should be
encouraged to afford an alien a hearing before an immigration judge before the 180-day
threshold has been reached if it is practical to do so and it has already become clear that
the alien is facing prolonged detention.” Diouf, 634 F.3d at 1092 n.13. Moreover, the
court specifically indicated that individuals, like Mr. Diouf, who have obtained a stay of
removal pending a petition for review of a denied motion to reopen, are generally entitled
to such a hearing before the six-month mark. In such cases, “the alien’s prolonged
detention becomes a near certainty.” Id.
What types of cases does Diouf apply to?
Diouf specifically applies to prolonged detention pursuant to § 1231(a)(6). A detainee
held under that statute is clearly entitled to a bond hearing if he or she has been detained
for more than six months.
Thus, Diouf clearly requires a bond hearing for the following classes of detained
immigrants if they have been detained for six months, or if it is otherwise clear that they
will face prolonged detention:
1. Individuals petitioning for review of a denied motion to reopen, regardless of
whether they have a stay of removal.
2. Individuals who have a final order of removal and remain detained pending
administrative adjudication of a motion to reopen, whether before the IJ or BIA,
and regardless of whether they have obtained an administrative stay of removal.
3. Individuals petitioning for direct review of a removal order and for whom no stay
of removal has been issued.
4. Other individuals with final orders of removal who have no pending challenges to
removal and no stay of removal.
The reasoning of Diouf—including its presumption that detention becomes prolonged at
six months—arguably also applies to the following types of cases:
5

See also Diouf, 634 F.3d, at 1091-92 (explaining that “[w]hen detention crosses the sixmonth threshold and release or removal is not imminent, the private interests at stake are
profound”). The Ninth Circuit previously suggested that immigration detention beyond
six months is prolonged in nature. See Nadarajah v. Gonzales, 443 F.3d 1069, 1079-80
(9th Cir. 2006).

4

1. Individuals detained pursuant to 8 U.S.C. § 1225(b) who have been detained for
six months or longer while litigating their cases before the IJ or the BIA.
Section 1225 applies to individuals, including some lawful permanent residents
(“LPRs”), who are detained while seeking admission to the United States.6 The Ninth
Circuit has previously held that § 1225 must be construed to authorize only “brief and
reasonable” detention.7
Notably, the only process the government presently makes available to § 1225 detainees
is a form of discretionary parole, which, like the POCR procedures, lack an in-person
hearing and neutral arbiter such as an IJ, and place the burden of proof on the non-citizen
rather than the government.8 Under Diouf, such procedures are inadequate to safeguard
the liberty interests threatened by prolonged detention.
2. Individuals subject to mandatory detention under 8 U.S.C. § 1226(c) who have
been detained six months or longer but whose immigration proceedings before the
IJ or BIA have not been completed.
Section 1226(c) requires the detention of individuals with a qualifying criminal
conviction, such as an alleged aggravated felony or two crimes involving moral turpitude,
pending administrative removal proceedings. In Casas-Castrillon, the Court made clear
that individuals who would otherwise be subject to § 1226(c), but who have a stay of
removal pending a petition for review of their removal order, or whose cases have been
remanded from the Court of Appeals for further administrative proceedings, are entitled
to an individualized bond hearing after their detention has become prolonged, in part on
the theory that § 1226(c) does not govern in cases of prolonged detention.
Casas-Castrillon followed the Ninth Circuit’s earlier holding in Tijani v. Willis, 430 F.3d
1241, 1242 (9th Cir. 2005), that 1226(c) only authorizes mandatory detention where
removal proceedings are “expeditious.”9

6

See Nadarajah, 443 F.3d at 1077 n.3 (noting that some individuals who are ultimately
found admissible may be detained pursuant to § 1225(b) because of the statutory
requirement that persons be detained unless admissibility is “clear[] and beyond [] doubt”
to the inspecting officer).
7

Nadarajah, 443 F.3d at 1076-79.

8

See 8 U.S.C. § 1182(d)(5).

9

Casas-Castrillon, 535 F.3d at 948 (holding that “alien whose case is being adjudicated
before the agency for a second time—after having fought his case in this court and won .
. . has not received expeditious process”). The court also held that § 1226(c) did not
govern Casas-Castrillon’s detention because § 1226(c) governs detention only “pending .
5

The reasoning of Casas, coupled with the holding of Diouf establishing the six month
benchmark, likely requires that mandatory detainees whose cases have been pending
before the IJ or BIA for more than six months are entitled to an individualized bond
hearing, even if their criminal history would otherwise subject them to mandatory
detention under § 1226(c). Significantly, in Casas, as in Tijani, the court construed
§ 1226(c) to apply “only to the ‘expedited removal of criminal aliens.’”10 Moreover,
detainees held for prolonged time periods under § 1226(c) receive no procedure—not
even an administrative custody review—to determine if their continued detention is
justified. Thus, the reasoning of Diouf should apply equally, if not more, to prolonged
mandatory detention under § 1226(c).
3. Individuals detained pursuant to reinstated removal orders for six months or
longer while seeking relief either before the immigration courts or review before
the Courts of Appeal.
Individuals detained pursuant to reinstated removal orders are likely held pursuant to
§ 1231 and thus entitled to a hearing under Diouf after six months of detention.
However, because such detainees do not consistently receive POCRs, it is unclear
whether the government views them as detained under § 1231.
What should I do to obtain a bond hearing for my client under Diouf?
If Diouf applies, your client is entitled to receive a determination by an IJ on whether he
or she should be released. If your client has been detained for six months or longer, or is
clearly facing such prolonged detention under § 1231(a)(6), Diouf allows your client to
seek a bond hearing before an IJ directly.11
DHS should have an affirmative responsibility to notify individuals of their right to a
bond hearing. To request a hearing under Diouf, your client should file an administrative
request for a bond hearing in immigration court and attach the Diouf decision to the
request. The request for a bond hearing should be made in writing, but may also be made
orally or, at the IJ’s discretion, via telephone.12 A sample motion requesting a bond
. . removal proceedings,” and not after entry of a final order of removal. Id. (internal
quotation marks and emphasis omitted)
10

Casas-Castrillon, 535 F.3d at 947-48 (quoting Tijani, 430 F.3d at 1242). The court
specifically held that where detention is prolonged, the government’s authority to detain
“shifts” from § 1226(c) to § 1226(a), which authorizes discretionary detention “pending a
decision on whether the alien is to be removed from the United States.” Id.
11

See Diouf, 634 F.3d at 1086.

12

8 C.F.R. § 1003.19(b).
6

hearing is attached to this practice advisory. As they become available, your client
should also attach copies of filings by the government in similar cases where the
government has agreed that an individual subject to prolonged detention under
§ 1231(a)(6) must receive a bond hearing because of Diouf.
What should I do if my client is denied a bond hearing?
It is possible that the IJ will deny your client’s request for a bond hearing, either because
the IJ is not familiar with Diouf or for some other reason. If that occurs, your client
should appeal to the BIA within 30 days of the denial. If your client is in the Ninth
Circuit, you should also file a petition for a writ of habeas corpus under 28 U.S.C. § 2241
in federal district court to enforce Diouf. Section 2241(c)(3) provides district courts the
power to grant the writ of habeas corpus where a person is “in custody in violation of the
Constitution or laws or treaties of the United States.” Failure to provide a bond hearing
contravenes binding Ninth Circuit law and can be remedied through a habeas petition.
If my client obtains a bond hearing, what will the bond hearing entail?
If your client obtains a bond hearing, the hearing should largely resemble a bond
redetermination hearing under § 1226(a), except that the government bears the burden of
proof and must establish flight risk or danger by clear and convincing evidence.
At the bond hearing, the IJ should determine whether your client should be released
based on at least two factors: (1) whether your client is a flight risk, and (2) whether your
client is a danger to the community. 13 The IJ also has discretion to consider any
information that your client or the government presents.14 If the court finds that your
client is neither a flight risk nor a danger to the community, the court should set bond.
There are two main differences between an ordinary bond hearing and a bond hearing for
a client subject to prolonged detention. First, at this bond hearing, the government, and
not your client, must bear the burden of proof. 15 Second, the government must likely
prove by clear and convincing evidence that the detainee is a flight risk or danger to the
community to justify continued detention. Recently, in Vijendra Singh v. Holder,
--- F.3d ---, 2011 WL 1226379, at *4 (9th Cir. 2011), the Ninth Circuit clarified that the
clear and convincing evidence standard governs Casas hearings. Because the court has
recognized that detainees subject to prolonged detention under § 1231 have the same

13

See Diouf, 634 F.3d at 1086; see also Matter of Guerra, 24 I&N Dec. 37 (BIA 2006).

14

8 C.F.R. § 1003.19(d).

15

Diouf, 634 F.3d at 1086.

7

interest in freedom from detention as detainees entitled to Casas hearings, the same
framework likely applies to hearings under Diouf as well.16
Although the government bears the burden of proof, the IJ will likely expect your client
to present evidence showing that he or she is not a flight risk or danger to the community,
regardless of whether the government presents any evidence. Your client should be
prepared to present testimonial and documentary evidence about the following:
1. Criminal history: details regarding arrests and convictions; rehabilitation,
including programs during detention; reasons why your client will not engage in
criminal activity if released. 17
2. Likelihood of success in removal case: the merits of your client’s removal case
and why he or she is likely eventually to succeed on his or her claim to relief or
defense against removal.
3. Activities in detention: organized activities and positive activities that your client
participated in while detained (reading, exercise, attending church, participating in
skills programs, etc.); any disciplinary infractions.
4. Other information: family and community ties, education, work history, etc.
Your client should also make sure to put the length of his or her detention into the record
and explain that prolonged detention requires a heightened showing of dangerousness and
flight risk. Because individuals who obtain such hearings have already been detained for
a prolonged period of time, you should argue that the justification for detention must be
stronger than in typical bond cases. See Diouf, 634 F.3d at 1091 (holding that “[w]hen
the period of detention becomes prolonged, the private interest that will be affected by
the official action is more substantial; greater procedural safeguards are therefore
required” (internal quotation marks and citation omitted)).18
16

See Diouf, 634 F.3d at 1086 (finding “no basis for withholding from aliens detained
under § 1231(a)(6) the same procedural safeguards accorded to aliens detained under
§ 1226(a)”).
17

Significantly, Vijendra Singh held in the context of Casas hearings that “criminal
history alone will not always be sufficient to justify denial of bond on the basis of
dangerousness. Rather, the recency and severity of the offenses must be considered.”
Vijendra Singh, 2011 WL 1226379, at *6; see also id. (explaining that Casas requires
“individualized bond hearings to ensure that the government’s purported interest in
securing the alien’s presence at removal and protecting the community from danger is
actually served by detention in this case” (internal quotation marks, citation, and
alteration omitted)).
18

Cf. Zadvydas v. Davis, 533 U.S. 678, 701 (2001) (holding that post-final order
detention ceases to be authorized by statute where removal is not reasonably foreseeable
8

Finally, under the reasoning of Vijendra Singh, your client should be entitled to an audio
recording of the hearing in order to preserve the record for appeal. See Vijendra Singh,
2011 WL 1226379, at *8 (holding that “due process requires a contemporaneous record
of Casas hearings”). A sample request for such recording is attached to this practice
advisory.
My client is held in one state, but his or her immigration case is in another. Where
should my client apply for bond?
8 C.F.R. § 1003.19(c) states that applications for bond determinations should be made in
the following order:
(1) If the respondent is detained, to the Immigration Court having
jurisdiction over the place of detention;
(2) To the Immigration Court having administrative control over the case;
or
(3) To the Office of the Chief Immigration Judge for designation of an
appropriate Immigration Court.
Thus, the regulations establish a preference for filing a bond determination request where
you client is detained. However, because the regulations do not foreclose jurisdiction in
the court having administrative control, your client may arguably choose to file where his
or her removal case is taking place. Since IJs outside the Ninth Circuit are not bound by
Diouf, your client should file in an immigration court located in the Ninth Circuit where
appropriate.
What if my client is detained outside the Ninth Circuit?
Diouf is not binding outside the Ninth Circuit but may serve as persuasive authority. For
more information on filing a habeas petition and assistance in evaluating the merits of a
case outside the Ninth Circuit, please contact Michael Tan at the ACLU Immigrants’
Rights Project, mtan@aclu.org / 212-283-7303.

and holding that as the length of detention grows, what is “reasonably foreseeable . . .
conversely . . . shrink[s]”).

9

UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
OFFICE OF THE IMMIGRATION JUDGE
[CITY, STATE]
____________________________________
In the Matter of:
)
,
)
In Bond Proceedings
A#
)
)
Respondent
)
REQUEST FOR BOND HEARING PURSUANT TO DIOUF V. NAPOLITANO
I respectfully request that the Immigration Court schedule a bond redetermination
hearing for me. I have been detained for [INSERT PERIOD OF TIME] after entry of a
final order of removal. Because my detention under INA 241(a) has become prolonged
[OR: is clearly likely to become prolonged], I am entitled to a bond hearing under the
Ninth Circuit’s decision in Diouf v. Napolitano, 634 F.3d 1081 (9th Cir. 2011) (attached),
where the government must show that my continued detention is justified.
Pursuant to Diouf, the Immigration Judge may release me on bond or grant
conditional parole. At the solicited hearing, I am “entitled to be released from detention
unless the government establishes that [I] pose[] a risk of flight or a danger to the
community.” Id. at 1092 (emphasis added). In order to justify my continued detention,
the government must show by clear and convincing evidence that my detention is
necessary to prevent flight and danger. See Vijendra Singh v. Holder, --- F.3d ---,
2011 WL 1226379, at *4 (9th Cir. 2011) (imposing clear and convincing standard for
hearings conducted pursuant to Casas-Castrillon v. Department of Homeland Security,
535 F.3d 942 (9th Cir. 2008)) see also Diouf, 634 F.3d at 1086 (finding “no basis for
withholding from aliens detained under § 1231(a)(6) the same procedural safeguards
accorded to aliens [in Casas hearings]”). At the hearing, I urge the Immigration Court to

look to the In re Guerra, 24 I&N Dec. 37 (BIA 2006), factors to determine whether the
government meets its burden of overcoming my presumed “entitle[ment]” to release on
bond. Diouf, 634 F.3d at 1092.
Finally, I ask that the court grant conditional parole or set a bond amount that is
reasonable and proportional to my means and the cost of living because the Ninth Circuit
has correctly suggested that “serious questions may arise concerning the reasonableness
of the amount of the bond if it has the effect of preventing an alien’s release.”
Doan v. INS, 311 F.3d 1160, 1162 (9th Cir. 2002).
Respectfully submitted this _______ day of ______, 20___,

_____________________________
Respondent, pro se
ATTACHMENTS:

UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
OFFICE OF THE IMMIGRATION JUDGE
[CITY, STATE]
____________________________________
In the Matter of:
)
,
)
In Bond Proceedings
A#
)
)
Respondent
)
REQUEST FOR AUDIO RECORDING OF HEARING
I respectfully request that the Immigration Court audio record my bond
redetermination hearing. As recognized by the Ninth Circuit, due process requires a
“contemporaneous record” of my bond redetermination hearing to facilitate review by the
Board of Immigration Appeals should such review be necessary. Vijendra Singh v.
Holder, --- F.3d ---, 2011 WL 1226379, at *8 (9th Cir. 2011) (requiring audio recordings
for hearings conducted pursuant to Casas-Castrillon v. Department of Homeland
Security, 535 F.3d 942 (9th Cir. 2008)); see also Diouf v. Napolitano, 634 F.3d 1081,
1086 (9th Cir. 2011) (finding “no basis for withholding from aliens detained under INA
§ 241(a)(6) the same procedural safeguards accorded to aliens [in Casas hearings]”).

Respectfully submitted this _______ day of ______, 20___,

_____________________________
Respondent, pro se