Amicus Brief to the Second Circuit Arguing for Individualized Custody Determination After Prolonged Mandatory Detention

The brief argues that an individualized custody determination is necessary when detention becomes prolonged under the mandatory detention provision at 8 U.S.C. § 1226(c). It explains that Section 1226(c) is a broad statute that sweeps in minor criminal offenses and dispositions that do not amount to convictions under state law, undermining any generalized public safety concerns. It further illustrates that in the decades since Congress passed Section 1226(c) and the Supreme Court decided Demore v. Kim, the immigration detention landscape has changed dramatically. Recent data demonstrate that noncitizens have extraordinarily high rates of voluntary attendance throughout all stages of removal proceedings. As the government’s use of a wide range of alternatives to detention has skyrocketed, incarceration of noncitizens has become increasingly unnecessary to address safety and flight risk.