The text of GERMAN SANTOS, Appellant v. WARDEN PIKE
COUNTY CORRECTIONAL FACILITY. No. 19-2663. United States Court of Appeals,
Third Circuit. Argued: May 21, 2020, is here.
German-Santos involved a Legal Permanent Resident that had been incarcerated fighting his removal for two and a half years. German-Santos was held under 8 U.S.C. §1226(c) under the Immigration and Nationality Act (INA), which imposes mandatory detention of immigrants who have been convicted of aggravated felonies as defined under 8 U.S.C. §1101(a)(43). The court held that his detention has become unreasonable, he has a due process right to a bond hearing, at which the Government must justify his continued detention by clear and convincing evidence. The court held that the government bore the burden to prove by clear and convincing that an alien was a danger to society or a flight risk. The Court looked at four factors to consider when assessing whether a noncitizen’s detention has grown unreasonable. The Court found three of the four factors to be favorable to Santos, and therefore determined that the detention had become unreasonable.
- First, the Court looked at the duration of detention. Santos’ detention was already more than 2.5 years long, which was more than double the period that triggered a bond hearing in Chavez-Alvarez, thus making the length weigh strongly in Santos’ favor.
- Second, the Court looked at whether the detention is likely to continue. Santos is likely to stay in prison as long as it takes for the Board to issue its decision on his appeal on his application for cancellation of removal, which like his first two appeals, may take months. The Court found that the likelihood that the detention will continue strongly supports a finding of unreasonableness.
- Third, the Court looked at the reasons for the delay. The Court found that the reasons for delay do not cut one way or another.
- Fourth, the Court asked whether the noncitizen’s conditions of confinement are “meaningfully different” from criminal punishment. Chavez-Alvarez v. Attorney Gen. U.S., 783 F.3d 478 (3d Cir. 2015). As the length of detention grows, so does the weight that the Court gives this factor. Santos had been detained in prison alongside convicted criminals, making his detention indistinguishable from criminal punishment.
The Third Circuits decision in German-Santos dramatically increased the burden on the government to prove that detention is justified by clear and convincing evidence. This helps aliens avoid protracted detention that can continue for years, that in many cases is no different from criminal detention. Indeed in many cases, aliens are housed side by side in the exact same facilities with people serving criminal sentences.
The decision in German-Santos is more than a return to fundamental fairness at its core it presents a return to sanity. The alien in German-Santos had a minor state-level marijuana conviction that resulted in a probationary sentence, and his continued detention was justified for two and half years because he was viewed by the immigration court as a danger to society. To any reasoned individual holding a person to be a danger to society and justifying their detention for two and a half years because of a criminal conviction that did not involve any incarceration is clearly not logical.
The German-Santos lowered the burden for, and increases the access to bail for individuals fighting their immigration cases.
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