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Case Name Diouf v. Napolitano IM-CA-0136
Docket / Court 2:06-cv-07452-TJH ( C.D. Cal. )
State/Territory California
Case Type(s) Immigration and/or the Border
Attorney Organization ACLU Immigrants' Rights Project
ACLU of Southern California
Case Summary
On November 21, 2006, a Senegalese immigrant** detained in the custody of Immigration and Customs Enforcement (ICE) petitioned the U.S. District Court for the Central District of California for a writ of habeas corpus. Represented by the ACLU of California and its Immigrants' Rights Project as well ... read more >
On November 21, 2006, a Senegalese immigrant** detained in the custody of Immigration and Customs Enforcement (ICE) petitioned the U.S. District Court for the Central District of California for a writ of habeas corpus. Represented by the ACLU of California and its Immigrants' Rights Project as well as Stanford Law School's Immigration Clinic, he sought a preliminary injunction ordering his immediate release on the grounds that his lengthy detention violated 8 U.S.C. § 1226(a) and the Due Process Clause of the Fifth Amendment. As an alternative to immediate release, the plaintiff requested a preliminary injunction ordering an immigration judge to hold a hearing at which the government would have the burden of justifying his detention. This habeas petition was filed pursuant to 28 U.S.C. § 2241. The case was assigned to Judge Terry J. Hatter, Jr. and Magistrate Judge Fernando M. Olguin.

At the time this complaint was filed in November 2006, the plaintiff had been detained in ICE custody for 18 months without a bond hearing. He has a long and complex immigration history, beginning from his entry on a student visa which he overstayed. In January 2003, Immigration and Naturalization Services (INS) whose functions were transferred to the Department of Homeland Security (DHS) in March 2003, initiated removal proceedings against him. Several months later, an Immigration Judge (IJ) ordered him to voluntarily depart the United States by June 24, 2003 or be subject to deportation to Senegal. Because he failed to depart by that date, the IJ's alternative order, a removal order to Senegal, took effect. In March 2005, ICE apprehended the plaintiff and detained him pending execution of his removal order. He moved to reopen those proceedings based on his marriage to a U.S. citizen and ineffective assistance of counsel in his initial IJ proceedings. The IJ denied his motion to reopen, and that decision was affirmed by the Board of Immigration Appeals (BIA). In July 2005 and July 2006, ICE conducted post custody reviews in which they concluded that the plaintiff's ongoing detention remained justified because he was allegedly a flight risk.

On January 4, 2007, the district court granted a preliminary injunction requiring a bond hearing before an IJ. Pursuant to the injunction, the IJ conducted a hearing on February 9, 2007 to determine whether the plaintiff’s prolonged detention remained justified. After receiving evidence from both sides, the IJ ruled that the plaintiff did not present a sufficient danger to the community or risk of flight to justify the detention, which by then had extended over 22 months. Accordingly, on the same date, the IJ ordered that he be released on bond.

The government appealed the preliminary injunction order to the Ninth Circuit, while the habeas petition remained pending in the district court.

Meanwhile, the parties appeared for oral argument before the Magistrate Judge on November 14, 2007. On December 19, 2007, Magistrate Judge Olguin issued a Report and Recommendation that the plaintiff's continued detention (up until his release in February 2007) was not authorized by statute and that he was, in fact, entitled to release, disagreeing with the government's arguments that the plaintiff was a flight risk. On February 6, 2008, Judge Hatter adopted the magistrate judge's findings, conclusions, and recommendations, and issued a judgment granting the plaintiff's habeas petition under the conditions already imposed by the Immigration Judge. The government also appealed this decision to the Ninth Circuit.

In September 2008, the Ninth Circuit vacated the preliminary injunction and remanded the case to the district court. Diouf v. Mukasey, 542 F.3d 1222 (9th Cir. 2008), also known as Diouf I. First, they held that at the time the plaintiff filed his habeas petition, he was detained under 8 U.S.C. § 1231(a)(6), not § 1226(a), as the plaintiff and the district court had erroneously assumed. Second, they held that the plaintiff's detention was authorized by statute because, although it was prolonged, it was not indefinite. Detention is indefinite only if there is “good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future.” Third, they held that the injunction constituted an abuse of discretion because it relied on the erroneous premise that the plaintiff was being detained under § 1226(a).

The plaintiff then filed a petition for rehearing en banc before the Ninth Circuit. On April 27, 2009, the Ninth Circuit issued an order denying that petition, because the justices had unanimously voted against rehearing. The Ninth Circuit remanded the case to the district court to determine whether § 1231(a)(6) requires that non-citizens detained pursuant to that authority be given a bond hearing, whether the Due Process Clause requires a bond hearing, and whether the ICE post-custody reviews the plaintiffs received satisfy the Due Process Clause. The plaintiff remained free on bond during this period, although ICE had the authority to detain him again.

On remand, Judge Hatter denied the habeas petition on May 18, 2009 to conform with the Ninth Circuit's decision. In August 2009, the parties each filed briefs regarding the plaintiff's preliminary injunction request. On September 9, 2009, Judge Hatter denied the preliminary injunction, concluding that procedural due process did not entitle individuals facing prolonged detention under § 1231(a)(6) to a bond hearing. He reasoned that the plaintiff had already received adequate due process via ICE's two post-order custody reviews and that the government's decision to detain the plaintiff for nearly two years was not in violation of due process because of the plaintiff's likelihood of his future deportation and other concerns. On October 19, 2009, Judge Hatter denied the plaintiff's motion for reconsideration.

On November 9, 2009, the plaintiff appealed the preliminary injunction denial to the Ninth Circuit. As of March 9, 2010, the parties completed briefing as ordered.

On September 20, 2010, the Ninth Circuit ordered the parties to submit supplemental briefing on whether the court had jurisdiction over the individualized bond hearing issue raised in the preliminary injunction claim. They noted that this was unclear since the plaintiff was no longer detained, nor had he been re-detained or denied a bond hearing since their 2008 decision in Diouf I. On September 27, 2010, the Court denied the plaintiff's motion to introduce two governmental reports regarding ICE's non-compliance with post order custody reviews, finding that this case did not merit an exception to the general rule that they not consider evidence that was not presented to the district court.

On March 7, 2011, the 9th Circuit reversed the district court's denial of the plaintiff's motion for a preliminary injunction. Diouf v. Napolitano, 634 F.3d 1081 (9th Cir. 2011), also known as Diouf II. In a published decision, the Court held that an individual facing prolonged immigration detention under 8 U.S.C. § 1231(a)(6) is entitled to release on bond unless the government establishes that he is a flight risk or a danger to the community. As such, the Court ordered that non-citizens detained for over 6 months pursuant to 8 U.S.C. § 1231(a)(6) are entitled to an individualized bond hearing. The Court held that prolonged detention without adequate procedural safeguards raised serious constitutional concerns. They adopted the following definition of prolonged detention: "When detention crosses the six-month threshold and release or removal is not imminent, the private interests at stake are profound. Furthermore, the risk of an erroneous deprivation of liberty in the absence of a hearing before a neutral decisionmaker is substantial. The burden imposed on the government by requiring hearings before an immigration judge at this stage of the proceedings is therefore a reasonable one."

The government filed a petition for rehearing en banc before the Ninth Circuit, which was denied on September 28, 2011, as no judge voted for rehearing.

On remand, the parties sought several postponements due to settlement negotiations. On March 23, 2012, the parties jointly moved for final judgment, agreeing that the plaintiff had achieved the remedy sought through his habeas petition. On April 18, 2012, Judge Hatter ordered that the plaintiff should remain released under the terms of the immigration judge's 2007 order absent changed circumstances. It also ordered that the government would have to provide the plaintiff with a bond hearing in accordance with Diouf II if they ever detained him again. On December 13, 2012, the parties informed the court that they had settled regarding the plaintiff's motion for attorney's fees.

As of February 25, 2013, the case is closed.

**In a separate proceeding, the Ninth Circuit granted the plaintiff a stay of removal. Diouf v. Clement, No. 06-71922 (9th Cir. filed April 13, 2006). On June 19, 2007, the ACLU of Southern California brought a class action suit with the plaintiff in this case as the named plaintiff, seeking to stop ICE's practice of forcibly drugging people facing deportation. In January 2008, ICE changed its policy, issuing a memo that a court order is required before they may forcibly administer drugs on anyone in their custody. That case is available here in this Clearinghouse.

Veronica Portillo Heap - 11/11/2018

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Issues and Causes of Action
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Constitutional Clause
Due Process
Content of Injunction
Preliminary relief granted
Habeas Corpus
Over/Unlawful Detention
Deportation - procedure
Detention - criteria
Detention - procedures
Plaintiff Type
Private Plaintiff
Special Case Type
Type of Facility
Causes of Action Habeas Corpus, 28 U.S.C. §§ 2241-2253; 2254; 2255
Defendant(s) Department of Homeland Security
Immigration and Customs Enforcement
San Pedro
Plaintiff Description An immigrant detained in ICE custody who was subject to a removal order and was detained for over 18 months without a bond hearing before an Immigration Judge.
Indexed Lawyer Organizations ACLU Immigrants' Rights Project
ACLU of Southern California
Class action status sought No
Class action status outcome Not sought
Filed Pro Se No
Prevailing Party Plaintiff
Public Int. Lawyer Yes
Nature of Relief Preliminary injunction / Temp. restraining order
Habeas relief
Attorneys fees
Injunction / Injunctive-like Settlement
Source of Relief Litigation
Form of Settlement Voluntary Dismissal
Filed 11/21/2006
Case Closing Year 2013
Case Ongoing No
Case Listing IM-CA-0057 : Diouf v. Chertoff (C.D. Cal.)
Additional Resources
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  See this case at (May provide additional documents and, for active cases, real-time alerts)
  Diouf v. Napolitano
Date: April 21, 2011
[ Detail ] [ External Link ]

Court Docket(s)
C.D. Cal.
IM-CA-0136-9000.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
General Documents
C.D. Cal.
Order Granting Motion for Preliminary Injunction [ECF# 17]
IM-CA-0136-0001.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
C.D. Cal.
Report and Recommendation of United States Magistrate Judge [ECF# 46]
IM-CA-0136-0002.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
U.S. Court of Appeals
Opinion [Ct. of App. ECF# 6649497] (542 F.3d 1222)
IM-CA-0136-0004.pdf | WESTLAW| LEXIS | Detail
Source: PACER [Public Access to Court Electronic Records]
C.D. Cal.
Order [ECF# 74] (2009 WL 6331130)
IM-CA-0136-0003.pdf | WESTLAW | Detail
Source: PACER [Public Access to Court Electronic Records]
U.S. Court of Appeals
Opinion [Ct. of App. ECF# 7495619]
IM-CA-0136-0005.pdf | External Link | Detail
Source: ACLU
show all people docs
Judges Hatter, Terry J. Jr. (C.D. Cal.) show/hide docs
IM-CA-0136-0001 | IM-CA-0136-0003 | IM-CA-0136-9000
Olguin, Fernando Manzano (C.D. Cal.) [Magistrate] show/hide docs
IM-CA-0136-0002 | IM-CA-0136-9000
Plaintiff's Lawyers Almadani, Monica Marie-Ramirez (California) show/hide docs
Arulanantham, Ahilan T (California) show/hide docs
Bibring, Peter (California) show/hide docs
Eliasberg, Peter J. (California) show/hide docs
Kaufman, Michael Bryan (California) show/hide docs
Natarajan, Ranjana (Texas) show/hide docs
Rabinovitz, Judy (New York) show/hide docs
Srikantiah, Jayashri (California) show/hide docs
Wang, Cecillia D (California) show/hide docs
Defendant's Lawyers Atkinson, Theodore W (District of Columbia) show/hide docs
Juncaj, Gjon (District of Columbia) show/hide docs
Lester, Robert I (Arizona) show/hide docs
Prairie, Nicole Rogers (District of Columbia) show/hide docs

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