             United States Court of Appeals
                         For the First Circuit
 
 

Nos. 14-1270, 14-1803,
     14-1823


                           MARK ANTHONY REID,

                 Petitioner, Appellee/Cross-Appellant,

                                   v.

       CHRISTOPHER DONELAN, Sheriff, Franklin County, Massachusetts;
     DAVID A. LANOIE, Superintendent, Franklin County Jail and House
         of Correction; THOMAS M. HODGSON, Sheriff, Bristol County,
          Massachusetts; JOSEPH D. MCDONALD, JR., Sheriff, Plymouth
        County, Massachusetts; STEVEN W. TOMPKINS, Sheriff, Suffolk
          County, Massachusetts; JEH CHARLES JOHNSON, United States
    Secretary of Homeland Security; DOROTHY HERRERA-NILES, Director,
          Immigration and Customs Enforcement, Boston Field Office;
    JOHN T. MORTON, Director of Immigration and Customs Enforcement;
      ERIC H. HOLDER, JR., Attorney General; JUAN OSUNA, Director of
                 the Executive Office for Immigration Review;
                   EXECUTIVE OFFICE FOR IMMIGRATION REVIEW,

                Respondents, Appellants/Cross-Appellees.
 

             APPEALS FROM THE UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF MASSACHUSETTS

             [Hon. Michael A. Ponsor, U.S. District Judge]
 

                                 Before

                          Howard, Chief Judge,
                    Selya and Stahl, Circuit Judges.
                                     
      Elianis N. Perez, Senior Litigation Counsel, with whom
Joyce Branda, Acting Assistant Attorney General, Civil Division,
William C. Peachey, Director, Office of Immigration Litigation,
District Court Section, Colin A. Kisor, Deputy Director, and
Regan    Hildebrand,  Senior  Litigation  Counsel,   Officer  of
Immigration Litigation, District Court Section, were on brief,
for appellant.
      Anant K. Saraswat and Swapna C. Reddy, Law Student Intern,
with whom Mark C. Fleming, Wilmer Cutler Pickering Hale and Dorr
LLP, Ahilan T. Arulanantham, Michael Tan, ACLU Immigrants'
Rights Project, Nicole Hallett, Supervising Attorney, Michael
Wishnie, Supervising Attorney, Conchita Cruz, Law Student
Intern, Grace Kao, Law Student Intern, Lunar Mai, Law Student
Intern, My Khanh Ngo, Law Student Intern, Ruth Swift, Law
Student Intern, and Jerome N. Frank Legal Services, were on
brief, for appellee.

                                 

                         April 13, 2016
                                 
            STAHL,     Circuit      Judge.         Under      8    U.S.C.     §       1226(c),

aliens who have committed certain criminal offenses are subject

to mandatory detention after serving their criminal sentence and

pending     their    removal        proceedings.              Petitioner,         a     lawful

permanent     resident,        committed          such     offenses,         served       his

sentence,    and     then     was     held    under       §       1226(c)    without       an

individualized showing that he posed a flight risk or danger to

society and without an opportunity to seek release on bond.

After     eight     months,     Petitioner          challenged        his      continuing

detention and filed a class action on behalf of himself and

similarly situated noncitizens held for over six months.

            The     district    court    held      that       detention      pursuant      to

§ 1226(c) for over six months was presumptively unreasonable and

granted summary judgment to the class, thereby entitling each

class member to a bond hearing.               With respect to Petitioner, the

court also held, in the alternative, that the individualized

circumstances of his case rendered his detention unreasonable.

Finally,    the     court     declined       to    mandate         certain     procedural

protections for the class members' bond hearings.                           We affirm the

judgment with respect to Petitioner, vacate the judgment with

respect to the class members, and remand the class action for

reconsideration of the district court's class certification.

                                        - 2 -
                               I.    Facts & Background

              The   U.S.       Department         of    Homeland       Security       ("DHS")

generally has the discretionary authority to detain an alien

during removal proceedings.                  8 U.S.C. § 1226(a).            An alien that

U.S.    Immigration      and        Customs    Enforcement          ("ICE")     decides   to

detain    under     §   1226(a)        may    seek      a    bond    hearing     before    an

immigration judge ("IJ") to show that he or she is not a flight

risk or a danger.          8 C.F.R. § 236.1(c)(8).                   For aliens who have

committed      certain      criminal         or     terrorist        offenses,     however,

Congress made detention during removal proceedings mandatory,

except for witness protection purposes.                       8 U.S.C. § 1226(c).

              Mark Anthony Reid ("Reid" or "Petitioner") came to the

United States in 1978 as a lawful permanent resident.                                 Between

1978    and   1986,     Reid     served      in   the       U.S.    Army,   pursued     post-

secondary education, was employed as a loan originator, worked

in     construction,       and      owned     and      rented       several     properties.

Following      a    conviction         for     narcotics           possession    in     1986,

however, Reid amassed an extensive criminal record, including

larceny, assault, drug and weapon possession, failure to appear,

interfering with an officer, driving on a suspended license,

selling drugs, violation of probation, and burglary.




                                             - 3 -
            After being released from criminal custody on November

13, 2012, Reid was detained by ICE under § 1226(c) without bond

pending   immigration          removal    proceedings.           Reid    conceded     the

factual   allegations          underlying     his      removability      charges,     but

sought    relief       from     removal     on    two     grounds:       (1) that     the

Convention Against Torture ("CAT") applied, and (2) that removal

was a disproportionate punishment for his crimes.

            At several IJ hearings held between February 13, 2013

and March 11, 2013, Reid presented evidence in support of his

application for relief from removal.                    On April 5, 2013, the IJ

denied Reid's application and ordered him removed to Jamaica.

Reid   filed     a    notice    of   appeal      to    the    Board     of    Immigration

Appeals ("BIA") on May 5, 2013.                   On October 23, 2013, nearly

half a year after the IJ's decision and nearly a full year after

Reid's detention began, the BIA reversed and remanded the case

for    further       proceedings     related      to    Reid's     CAT       claim.      On

December 17, 2013, the IJ again denied Reid's CAT claim.                              Reid

appealed again and, on December 29, 2014, the BIA found error

and remanded the case once more.

            Between his first appeal and the BIA's first remand,

Reid   filed     the    present      habeas   corpus         petition    along    with    a

class-action complaint in the United States District Court for

                                          - 4 -
the District of Massachusetts.            Reid contends that he and other

similarly situated noncitizens cannot be held under § 1226(c) in

prolonged detention without an individualized bond hearing to

ascertain individual flight or safety risk.                   Reid argues that

§ 1226(c) contains an implicit "reasonableness" requirement and

should be read to authorize mandatory detention only up to six

months,    at    which    time    the    government    must   provide    a    bond

hearing.      At the bond hearing, Reid argues, the government must

bear the burden of presenting clear and convincing evidence that

detention remains necessary.             What is more, Reid contends that

the government must employ the least restrictive means available

to prevent the alien's flight or danger to the community.

              On January 9, 2014, the district court granted Reid's

habeas     petition      and   held     that    §   1226(c)   only    authorizes

mandatory detention for a reasonable period of time.                    Reid v.

Donelan (Reid I), 991 F. Supp. 2d 275, 278-79 (D. Mass. 2014).

The   court     further    held   that    detention    over    six   months    was

presumptively unreasonable absent individualized justification.

Id. at 279-81.           The court also noted that even if no such

presumption applied, the individualized circumstances of Reid's

case rendered his continued detention unreasonable.                  Id. at 281-

82.   The court ordered the government to set a hearing and to

                                        - 5 -
determine whether conditions could be placed upon Reid's release

to reasonably account for any flight or safety risks.                      Id. at

282.     On February 25, 2014, Reid posted bond and was released

after    400     days    of    civil   detention,        subject   to   electronic

monitoring, monthly reporting, and other conditions.

               On May 27, 2014, the district court granted summary

judgment in the related class action and ordered bond hearings

for all class members.           Reid v. Donelan (Reid II), 22 F. Supp.

3d 84, 93-94 (D. Mass. 2014).              The court reiterated its holding

that § 1226(c) only justifies mandatory detention for a period

of six months, at which time the detention becomes presumptively

unreasonable absent an individualized showing at a bond hearing.

Id. at 88.        However, the court declined to adopt any specific

procedural protections for the bond hearings themselves.                   Id. at

92-93.    The court observed that aliens detained under § 1226(a)

bore     the    burden    of     proof     at    their     bond    hearings,   and

"individuals who committed a § 1226(c) predicate offense should

not receive more protections than § 1226(a) detainees."                    Id. at

92.

               The government appeals the lower court's determination

that § 1226(c) contains an implicit reasonableness requirement,

that any detention under § 1226(c) is presumptively unreasonable

                                         - 6 -
after six months, and that Reid's specific detention had become

unreasonable.           Reid    cross-appeals        the    lower     court's    class

determination that bond hearings for aliens held pursuant to

§ 1226(c) do not require specific procedural protections.

                                   II.    Analysis

               Until the late 1980s, the Attorney General had broad

authority      to   take   aliens       into   custody      during    their     removal

proceedings and to release those aliens in his discretion.                          See

Demore    v.    Kim,    538     U.S.    510,   519   (2003)     (citing     8    U.S.C.

§ 1252(a) (1982)).             Over time, Congress became concerned that

criminal aliens too often obtained release and were thereby able

to evade removal and continue committing crimes.                          See id. at

518-21.     In response, "Congress limited the Attorney General's

discretion       over      custody       determinations        with       respect    to

deportable aliens who had been convicted of aggravated felonies"

and then expanded the definition of "aggravated felonies" in

subsequent       legislation      to     subject     more     criminal     aliens    to

mandatory      detention.         Id.    at    520-21.       "At    the   same    time,

however, Congress . . . authorize[d] the Attorney General to

release     permanent      resident       aliens     during     their     deportation

proceedings where such aliens were found not to constitute a

flight risk or threat to the community."                   Id. at 521.

                                         - 7 -
                             The current take on this mandatory detention theme can

be found in 8 U.S.C. § 1226(c), which requires the Attorney

General1 to take criminal aliens into custody "when released"2

from              criminal                   custody               and   only   permits      the    release     of   such

aliens for limited witness protection purposes.                                                          See 8 U.S.C.

§ 1226(c).                            Whatever the merits of this approach may be as a

matter of policy, we must ensure that the statute falls within

constitutional limits.

                             The            constitutionality                   of   the     categorical       detention

scheme                embodied                     in          §   1226(c)   was     first    put   to   the    test   in

Demore.                     In Demore, the petitioner launched a broad attack on

the            statute,                      arguing               "that     his     detention      under      § 1226(c)

violated                     due            process                because   the     [government]        had   made    no

determination that he posed either a danger to society or a

                                                            
              1
       Although the relevant statutory sections refer to the
Attorney General, the Homeland Security Act of 2002, Pub. L. No.
107-296, 116 Stat. 2135 (2002), transferred all immigration
enforcement and administration functions vested in the Attorney
General, with few exceptions, to the Secretary of Homeland
Security.
              2
       The instant case asks what § 1226(c) requires after a
criminal alien has been brought into custody.   This case does
not touch upon what the statute requires at the commencement of
such detention. This circuit recently considered the meaning of
the statute’s "when . . . released" provision in Castañeda v.
Souza, 810 F.3d 15 (1st Cir. 2015) (en banc).


                                                                           - 8 -
flight risk."      538 U.S. at 514.            In other words, the petitioner

argued that his detention was unconstitutional from the outset

due to the categorical nature of the mandatory detention regime.

            The Supreme Court rejected the challenge and upheld

the statute in a narrowly framed ruling.                     The Court recognized

the     constitutional       pressures        at     play,    calling      it    "well

established     that   the    Fifth   Amendment        entitles      aliens     to   due

process of law in deportation proceedings."                   Id. at 523 (quoting

Reno v. Flores, 507 U.S. 292, 306 (1993)).                    Yet, the Court also

noted    that     "[d]etention      is    necessarily         a     part   of    [the]

deportation     procedure,"     id.      at    524   (alteration      in   original)

(quoting Carlson v. Landon, 342 U.S. 524, 538 (1952)), and that

Congress may employ "reasonable presumptions and generic rules"

when legislating with respect to aliens, id. at 526 (quoting

Flores, 507 U.S. at 313).           Accordingly, the Court left a limited

degree of constitutional space to Congress' categorical judgment

that, "even with individualized screening, releasing deportable

criminal aliens on bond would lead to an unacceptable rate of

flight."    Id. at 520.

            The    "limited"     scope        of   this     categorical    sanction,

however, was plainly evident.            The Court made the brevity of the

detention    central    to    its   holding:          "We    hold   that   Congress,

                                      - 9 -
justifiably concerned that deportable criminal aliens who are

not detained continue to engage in crime and fail to appear for

their    removal     hearings    in    large     numbers,     may     require    that

persons such as respondent be detained for the brief period

necessary for their removal proceedings."                   Id. at 513 (emphasis

added).    This was no passing remark.                See id. at 526 ("[T]he

Government may constitutionally detain deportable aliens during

the   limited    period     necessary     for    their     removal    proceedings."

(emphasis added)).          Indeed, the Court took pains to point out

the specific durations that it envisioned were encompassed by

its holding:         "[T]he detention at stake under § 1226(c) lasts

roughly a month and a half in the vast majority of cases in

which it is invoked, and about five months in the minority of

cases in which the alien chooses to appeal."                 Id. at 530.

            In   a      concurring    opinion,    Justice     Kennedy    drove    the

point of temporal limitations home, noting that an alien "could

be entitled to an individualized determination as to his risk of

flight    and    dangerousness       if   the    continued     detention     became

unreasonable       or     unjustified."         Id.   at     532     (Kennedy,    J.,

concurring).         "Were there to be an unreasonable delay by the

[government] in pursuing and completing deportation proceedings,

it could become necessary then to inquire whether the detention

                                       - 10 -
is not to facilitate deportation, or to protect against risk of

flight or dangerousness, but to incarcerate for other reasons."

Id. at 532-33.

           The case before us tests the assumption upon which

Demore    was    based,   and    asks    whether   Congress   may   employ

categorical, mandatory detention for "the period necessary for

removal proceedings" when that period turns out not to be so

"brief" after all.

           The     concept      of   a   categorical,   mandatory,     and

indeterminate detention raises severe constitutional concerns.

"Freedom from imprisonment--from government custody, detention,

or other forms of physical restraint--lies at the heart of the

liberty that [the Due Process] Clause protects."              Zadvydas v.

Davis, 533 U.S. 678, 690 (2001).          Because of the limited nature

of the holding in Demore, every federal court of appeals to

examine § 1226(c) has recognized that the Due Process Clause

imposes   some    form    of    "reasonableness"   limitation   upon   the

duration of detention that can be considered justifiable under

that statute.     See Lora v. Shanahan, 804 F.3d 601, 606 (2d Cir.

2015); Rodriguez v. Robbins (Rodriguez I), 715 F.3d 1127, 1138

(9th Cir. 2013); Diop v. ICE/Homeland Sec., 656 F.3d 221, 232-33

(3d Cir. 2011); Ly v. Hansen, 351 F.3d 263, 269-70 (6th Cir.

                                     - 11 -
2003).      And, each circuit has found it necessary to read an

implicit    reasonableness       requirement         into    the    statute      itself,

generally    based    on   the   doctrine       of    constitutional        avoidance.

See Lora, 804 F.3d at 614; Rodriguez I, 715 F.3d at 1138; Diop,

656 F.3d at 235; Ly, 351 F.3d at 270.

            This is not, as the government contends, contrary to

congressional      intent.       "[C]ourts      interpret      statutes       with   the

presumption        that     Congress      does         not     intend       to       pass

unconstitutional laws."          Diop, 656 F.3d at 231.               In this case,

"while Congress did express a desire to have certain criminal

aliens    incarcerated      during   removal         proceedings,     it    also     made

clear that such proceedings were to proceed quickly."                          Ly, 351

F.3d at 269; see also Diop, 656 F.3d at 235 ("We do not believe

that Congress intended to authorize prolonged, unreasonable[]

detention without a bond hearing.").                    This reading similarly

accords     with   Demore's      authorization         of    only    a     "brief"     or

"limited" detention, 538 U.S. at 513, 526, and Justice Kennedy's

stipulation that an individualized determination would become

necessary    "if    the    continued    detention       became      unreasonable       or

unjustified," id. at 532 (Kennedy, J., concurring).

            Yet, the courts of appeals have split on the method

for enforcing this statutory reasonableness requirement.                              The

                                       - 12 -
Third and Sixth Circuits have held that individualized review is

necessary in order to determine whether the detention has become

unreasonable.          See   Diop,     656       F.3d    at   233    (noting      that    the

inquiry    into      whether    detention        has     become     unreasonable      "will

necessarily be a fact-dependent inquiry that will vary depending

on    individual      circumstances"        and       "declin[ing]       to   establish    a

universal point at which detention will always be considered

unreasonable");        Ly,     351    F.3d       at     271   ("A    bright-line         time

limitation . . . would not be appropriate . . . . [C]ourts must

examine the facts of each case[] to determine whether there has

been unreasonable delay in concluding removal proceedings.").

"Under this approach, every detainee must file a habeas petition

challenging       detention,         and    the       district      courts     must      then

adjudicate the petition to determine whether the individual's

detention      has    crossed        the    'reasonableness'             threshold,      thus

entitling him to a bail hearing."                       Lora, 804 F.3d at 614; see

also Ly, 351 F.3d at 272.

              The Second and Ninth Circuits, on the other hand, have

"appl[ied] a bright-line rule to cases of mandatory detention"

and    have    held    that     "the       government's        'statutory         mandatory

detention authority under Section 1226(c) . . . [is] limited to

a    six-month    period,      subject      to    a     finding     of   flight    risk   or

                                           - 13 -
dangerousness.'"         Lora,    804   F.3d      at   614       (alterations      in

original) (quoting Rodriguez I, 715 F.3d at 1133).                     Under this

interpretation, every alien held pursuant to § 1226(c) must be

provided a bond hearing once his or her detention reaches the

six-month mark, because any categorical and mandatory detention

beyond that timeframe is presumptively unreasonable.                        Id. at

616.     The detainee may continue to be held if an IJ determines

that the individual does, in fact, pose a flight risk or danger

to society, but the categorical nature of the detention expires.

Id.

            In   this   circuit   split,     we   sense      a    tension   between

legal    justifications     and   practical       considerations.           From    a

strictly legal perspective, we think that the Third and Sixth

Circuits have the better of the argument.              This view is informed

by our analysis regarding the source of the six-month rule, the

nature     of    the    reasonableness       inquiry       itself,       and    the

circumstances surrounding the Supreme Court's Demore decision.

            To   justify    employing    a     six-month         presumption,      the

Second and Ninth Circuits point to the Supreme Court's decision

in Zadvydas.      There, the Court was faced with a particularly

thorny problem.        Aliens who had been deemed unlawfully present,

had completed removal proceedings, and had a final removal order

                                   - 14 -
entered against them were subject to detention during a 90-day

statutory "removal period" while the government secured their

physical removal from the country.               533 U.S. at 682.            If the

government failed to remove the alien from the country during

this time period, the government could continue to detain them

for successive periods so long as they posed a risk to the

community or were unlikely to comply with the order of removal

when such physical removal became possible.                Id.        The trouble

arose    when,   for   one   reason   or    another,    there    was    simply     no

country     willing     to   accept       the   alien    and     no     reasonably

foreseeable point at which the detained individual would ever be

released from this theoretically interim detention.                    Id. at 684-

86.     The question thus became "whether [the] post-removal-period

statute authorize[d] the Attorney General to detain a removable

alien    indefinitely     beyond    the    removal    period    or    only   for    a

period reasonably necessary to secure the alien's removal."                      Id.

at 682.

            There, as here, the solution was to read an implicit

reasonableness         limitation      into     the     statute        to     avoid

constitutional conflict.           Id. at 689.       The Court held that "if

removal     is   not     reasonably        foreseeable,"       then     "continued

detention . . . [is] no longer authorized by [the] statute."

                                      - 15 -
Id.    at    699-700.       The    Court     then    went      one    step     further   and

adopted a six-month presumption:                  "After [a] [six]–month period,

once the alien provides 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."            Id. at 701.

               Although it is tempting to transplant this presumption

into    § 1226(c)       based     on   the    superficial         similarities      of   the

problems posed, such a presumption has no place here.                               Unlike

the "post-removal-period detention" at issue in Zadvydas, which

had    "no    obvious     termination        point,"       a   "detention       pending    a

determination of removability" under § 1226(c) has "a definite

termination point."             Demore, 538 U.S. at 529 (quoting Zadvydas,

533    U.S.    at   697).         Just    because     the      conclusion      of   removal

proceedings may not be imminent does not mean the conclusion is

not reasonably foreseeable.                  Why does this distinction matter?

Because the six-month presumption developed in Zadvydas would

never be triggered under the circumstances found here.

               In adopting a bright-line six-month rule, the Second

and    Ninth    Circuits        have     looked     past    the      primary    lesson    of

Zadvydas and fixated on a secondary, backup rule.                            In Zadvydas,

the Court read an implicit reasonableness limitation into the

                                          - 16 -
statute and then noted that judges evaluating such cases "should

measure reasonableness primarily in terms of the statute's basic

purpose."         533 U.S. at 699.            When faced with a detention with no

reasonably         foreseeable         end,      the        statute's      purpose--"namely,

assuring the alien's presence at the moment of removal"--was

drawn into doubt, making continued detention "unreasonable and

no longer authorized by [the] statute."                         Id. at 699-700.

                 This     primary      holding         was     then        buttressed        by     a

secondary bright-line six-month rule.                            The Court pointed out

that not every alien to be removed would be released after six

months.         "To the contrary, an alien may be held in confinement

until      it    has     been    determined        that       there     is    no        significant

likelihood        of     removal      in   the   reasonably          foreseeable          future."

Id.   at    701.          If    six   months      had       passed    and      the       alien    had

demonstrated            "no    significant       likelihood           of     removal       in     the

reasonably foreseeable future," then the government was required

to "respond with evidence sufficient to rebut that showing."

Id.         If     the        government      could          demonstrate           a     reasonably

foreseeable termination point, the detention continued.

                 Thus, the secondary six-month rule was predicated on

there being no foreseeable hope of removal.                                   Unlike in this

case,   the       confinement         at   issue       in    Zadvydas        was       "potentially

                                              - 17 -
permanent."         Id. at 691.          Because the detention in such cases

had to stop at some point, and there were simply no metrics by

which to judge just how much longer towards eternity could be

considered "reasonable," a bright-line rule was warranted.                           That

is    why    we    think   it      inappropriate      to    import       the   six-month

presumption from Zadvydas into a statute where individualized

reasonableness review remains feasible.

               This    brings        us      to      the        character      of        the

"reasonableness" inquiry itself.                  As the Diop court pointed out,

"[r]easonableness,         by      its    very    nature,       is   a   fact-dependent

inquiry requiring an assessment of all of the circumstances of

any    given      case."     656    F.3d    at    234.      The      reasonableness       of

continued detention under § 1226(c) must be measured "primarily

in terms of the statute's basic purpose."                       Zadvydas, 533 U.S. at

699.        Although   the   statute's       purpose       at    first   glance     is   to

protect public safety and ensure that aliens appear for their

removal proceedings, we think the purpose is a bit more nuanced

than that.          If an individualized determination of flight and

safety risk were sufficient, for example, there would be little

reason to pass § 1226(c) at all.

               Instead, the statute was passed "against a backdrop of

wholesale failure by the INS to deal with increasing rates of

                                          - 18 -
criminal activity by aliens" and "near-total inability to remove

deportable    criminal          aliens"      due   to    "the   agency's    failure       to

detain     [such]    aliens       during      their      deportation    proceedings."

Demore, 538 U.S. at 518-19.                   Thus, the animating force behind

§ 1226(c)     is     its   categorical         and      mandatory    treatment       of    a

certain class of criminal aliens.                       Measuring reasonableness by

this basic purpose requires a different inquiry than the flight-

and-safety-risk evaluation conducted in an individualized bond

hearing.     Therefore, arguing that aliens receive the equivalent

of   an    individualized         "reasonableness"          review    at    their    bond

hearings     entails       a     certain      judicial      sleight-of-hand.          See

Rodriguez I, 715 F.3d at 1139.                     It is a supposed finding of

"unreasonableness" under the implicit statutory limitation that

entitles the alien to a bond hearing in the first place.                                  In

other words, while the Second and Ninth Circuits claim to have

read an implicit "reasonableness limitation" into § 1226(c), we

think it more accurate to say that they have simply read an

implicit "six-month expiration" into § 1226(c).

             Finally, we view Demore as implicitly foreclosing our

ability to adopt a firm six-month rule.                      In Demore, the Supreme

Court     declined    to       state   any    specific      time    limit   in   a    case

involving a detainee who had already been held for approximately

                                           - 19 -
six months.           See 538 U.S. at 530-31 (noting that most removal

proceedings usually require one to five months, and that the

respondent      had     been    "detained       for    somewhat     longer       than      the

average    –    spending       six    months    in    INS   custody          prior    to   the

. . . habeas relief"); Ly, 351 F.3d at 271 (noting that Demore

"specifically         authorized      such     detention     in    the       circumstances

there").       The Demore Court also briefly discussed facts specific

to the detainee, such as his request for a continuance of his

removal hearing.            538 U.S. at 531 & n.15.                     Taken together,

Zadvydas,        Demore,        and      the      inherent         nature            of    the

"reasonableness" inquiry weigh heavily against adopting a six-

month presumption of unreasonableness.

               From     a   more      practical        standpoint,           however,      the

approach employed by the Third and Sixth Circuits has little to

recommend      it.       Reid   and    his     amici    point      to    a     plethora     of

problems raised by the method.                 First, the approach has resulted

in wildly inconsistent determinations.                      See Lora, 804 F.3d at

615   (collecting           cases      and     noting       that        "the     pervasive

inconsistency and confusion exhibited by district courts . . .

when asked to apply a reasonableness test on a case-by-case

basis weighs, in our view, in favor of adopting an approach that

affords more certainty and predictability").

                                         - 20 -
            Second, the failure to adopt a bright-line rule may

have the perverse effect of increasing detention times for those

least likely to actually be removed at the conclusion of their

proceedings.       See Rodriguez v. Robbins (Rodriguez II), 804 F.3d

1060, 1072 (9th Cir. 2015) ("Non-citizens who vigorously pursue

claims    for     relief    from     removal        face     substantially         longer

detention       periods    than     those     who     concede        removability.").

Moreover, federal habeas litigation itself is both complicated

and   time-consuming,           especially    for     aliens       who    may   not    be

represented by counsel.             See Lora, 804 F.3d at 615 ("[A six-

month] rule avoids the random outcomes resulting from individual

habeas litigation in which some detainees are represented by

counsel     and    some    are     not,     and    some     habeas       petitions    are

adjudicated       in    months     and    others     are     not     adjudicated      for

years.").

            Third,        even      courts         that      have        adopted      the

individualized         habeas     approach    have        questioned      the   federal

courts' "institutional competence" to adjudicate these issues

and the consequences of such an interpretation.                            See Ly, 351

F.3d at 272 (noting that the habeas approach raises "a question

of institutional competence" since "federal courts are obviously

less well situated to know how much time is required to bring a

                                          - 21 -
removal proceeding to conclusion").                     As the Third Circuit has

lamented, federal courts are faced with a "moving target" in

such cases because petitioners presumably cannot challenge their

detention     until     it    becomes       unreasonable,           but,   even     if     the

petitioner    prematurely          lodges      a    challenge,      the    detention      may

become unreasonable during the pendency of the claim.                             See Diop,

656 F.3d at 227.

             Moreover,        the        federal       courts'        involvement           is

wastefully duplicative.              Not only may "the underlying removal

proceedings justifying detention . . . be nearing resolution by

the time a federal court of appeals is prepared to consider

them,"   id.,    but     it    is       also   likely        that    the   evidence        and

arguments     presented       in    a    "reasonableness"           hearing       before    a

federal court are likely to overlap at the margins with the

evidence and arguments presented at a bond hearing before an

immigration court.            This inefficient use of time, effort, and

resources could be especially burdensome in jurisdictions with

large immigration dockets.              See Lora, 804 F.3d at 615-16.

             Finally, Reid and his amici stress the harms suffered

by   detainees    and    their      families         when    detainees      are    held     in

prolonged     detention.            While          perhaps     beyond      our     judicial

cognizance,      we    do     not    mean      to     diminish       the    real,        human

                                          - 22 -
consequences of being held for prolonged periods of time in

civil confinement away from family, friends, and loved ones.

                             Despite                   the      practical   advantages       of   the   Second   and

Ninth Circuits' approach, however, we have surveyed the legal

landscape and consider ourselves duty-bound to follow the trail

set out by the Third and Sixth Circuits.                                               A bright-line rule may

offer                   significant                            benefits,    but      these        are   persuasive

justifications for legislative or administrative3 intervention,

not judicial decree.                                           In the end, we think the Third and Sixth

Circuits' individualized approach adheres more closely to legal

precedent                       than               the         extraordinary      intervention      requested    by

Petitioner.

                             In            conducting               this    individualized          reasonableness

inquiry, the district court must evaluate whether the alien's

continued detention sufficiently serves the categorical purpose

of the statute.                                    This is not, as the government contends, simply
                                                            
              3
       To be clear, it is quite possible that the government is
less captive to § 1226(c)'s categorical command than it
believes. Because we read an implicit reasonableness limitation
into the statute itself, the statute authorizes a bond hearing
as soon as continued, mandatory detention has reached the point
of being constitutionally unreasonable.   Whether (and how) the
government may rely upon this implicit component of the statute
to streamline its detention procedures for aliens who have been
detained under § 1226(c) for a prolonged period of time poses a
question for another day.


                                                                      - 23 -
a     question    of   asking       "whether       there     are    significant,

unjustifiable      delays     in     the     proceedings      ordered     at    the

government's request or other evidence demonstrating that the

government is not actively engaged in prosecution of the removal

case."

            The government's view of reasonableness fails for two

reasons.     First,    while       the   Demore    Court     did   not   find    any

specific duration dispositive, the holding was premised on the

notion that proceedings would be resolved within a matter of

months, including any time taken for appeal by the detainee.

See 538 U.S. at 529.          The majority emphasized that "[t]he very

limited time of the detention at stake under § 1226(c) [was] not

missed by the dissent," which referred to proceedings taking

"several months."      Id. at 529 n.12.           The majority then employed

a "but see" citation with respect to the dissent's warning that

§ 1226(c) could result in a "potentially lengthy detention."

Id.     Thus, the Demore majority disclaimed any suggestion that

its   decision    somehow    sanctioned      categorical      custody    beyond   a

matter of months.

            The   Third     Circuit's      Diop   decision    provides    a    clear

example of why the government's reading must fail.                        In that

case, "[t]he Government doggedly pursued Diop's detention and

                                     - 24 -
removal     for    three     years."          Diop,       656       F.3d    at    228.          The

government did not "delay" proceedings, and yet the detention

still reached an unreasonable duration.                          As that court noted,

"individual actions by various actors in the immigration system,

each   of    which      takes    only     a    reasonable            amount      of   time      to

accomplish,       can   nevertheless          result      in        the    detention       of    a

removable alien for an unreasonable . . . period of time."                                    Id.

at   223.      Total    duration      matters        to    a    person       held     in   civil

confinement, and due process demands a better answer than "we

haven't gotten around to it yet."

             The    second      problem       with    the       government's          suggested

reading is its failure to focus on the categorical nature of the

detention.        While detention under § 1226(c) undoubtedly prevents

flight and protects the public, this argument involves the same

stratagem used by the Ninth Circuit in finding bond hearings

sufficient to satisfy the implicit reasonableness requirement.

The basic purpose of § 1226(c) is not merely flight and danger

prevention.        After all, an alien who, at a bond hearing, is

found likely to abscond or harm society could clearly remain in

detention.           The     specific         purpose          of     § 1226(c)          is      to

categorically deny bond hearings to a class of aliens who may

pose   these      threats.       An   inquiry        into       the       reasonableness         of

                                        - 25 -
categorical detention must, therefore, be measured by reference

to Congress' use of "reasonable presumptions and generic rules"

about danger and flight risk.          Demore, 538 U.S. at 526 (quoting

Flores, 507 U.S. at 313).

            Categorical detention is only permitted for a short

time   as   "a    constitutionally    valid   aspect    of    the   deportation

process."        Id. at 523 (emphasis added).           As Justice Kennedy

noted in his Demore concurrence, the government's categorical

denial of bond hearings is premised upon the alien's presumed

deportability and the government's presumed ability to reach the

removal decision within a brief period of time.                See id. at 531

(Kennedy, J., concurring) ("While the justification for 8 U.S.C.

§ 1226(c) is based upon the Government's concerns over the risks

of flight and danger to the community, the ultimate purpose

behind      the     detention    is     premised       upon     the     alien's

deportability." (citation omitted)); see also Ly, 351 F.3d at

271-72 ("The actual removability of a criminal alien . . . has

bearing on the reasonableness of his detention prior to removal

proceedings.").       In other words, there is a difference between

the      "foreseeability"       of    proceedings       ending        and    the

"foreseeability"      of   proceedings    ending    adversely.          As   the




                                     - 26 -
likelihood of an imminent removal order diminishes, so too does

the government's interest in detention without a bond hearing.

                             Thus, a court looking to measure the reasonableness of

continued categorical detention must examine the presumptions

upon which that categorical treatment was based (such as brevity

and removability).                                             As the actualization of these presumptions

grows weaker or more attenuated, the categorical nature of the

detention will become increasingly unreasonable.                                                For example, a

court               might                examine,                inter    alia,   the   total   length   of   the

detention; the foreseeability of proceedings concluding in the

near future (or the likely duration of future detention); the

period of the detention compared to the criminal sentence; the

promptness                        (or           delay)           of   the   immigration   authorities    or   the

detainee; and the likelihood that the proceedings will culminate

in a final removal order.4

                                                            
              4
       These non-exhaustive factors are similar to those advanced
by the Ly court. See Flores-Powell v. Chadbourne, 677 F. Supp.
2d 455, 471 (D. Mass. 2010) (summarizing the factors from Ly,
351 F.3d at 271-72, that are suggestive of unreasonable delay:
"(1) the overall length of detention; (2) whether the civil
detention is for a longer period than the criminal sentence for
the crimes resulting in the deportable status; (3) whether
actual removal is reasonably foreseeable; (4) whether the
immigration authority acted promptly to advance its interests;
and (5) whether the petitioner engaged in dilatory tactics in
the Immigration Court").
 

                                                                         - 27 -
                                                                                                                                                                                                
     Two clarifications are worth noting here. First, there is
a difference between "dilatory tactics" and the exercise of an
alien’s rights to appeal. As the Ly court noted:
                             [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.
351 F.3d at 272.       In Demore, the Supreme Court held that
detention for a number of months remains appropriate "in the
minority of cases in which the alien chooses to appeal."     538
U.S. at 530 (emphasis added).    When an alien appeals, and the
appeal occurs within this limited timeframe, a presumption of
removability remains and a presumption of promptness remains.
Although there may come a time when promptness lapses, aliens
may be detained for "several months" before this point is
reached. Id. at 529 n.12. Of course, the same logic would not
apply if a detainee prevails before an IJ and the government
appeals.     In   such   cases,  the  presumption  of   ultimate
removability is weakened, rendering the alien’s continued
categorical detention far less reasonable.    (Of course, an IJ
might still find such an alien too risky to release at an
individualized bond hearing.)
     Second, we think it worth noting that the Ninth Circuit, in
Rodriguez II, recently rejected a proposal that an IJ consider
"the likely duration of future detention and the likelihood of
eventual removal" at bond hearings because consideration of
 

                                                                                      - 28 -
                             There                 may             be           other                 factors                     that               bear               on            the

reasonableness of categorical detention, but we need not strain

to develop an exhaustive taxonomy here.                                                                                       We note these factors

only             to          help              resolve                    the            case              before                  us          and            to          provide

guideposts                        for           other              courts                 conducting                         such            a       reasonableness

review.

                             Applying the rule we have adopted today to the case at

bar, we affirm the district court's individualized holding with

respect                    to            Reid's                   particular                          habeas                   petition.                                In            its

alternative holding, the district court weighed "the length of

detention;                        the           period                 of         detention                      compared                     to         the           criminal

sentence; the foreseeability of removal; the prompt action of

immigration authorities; and whether the petitioner engaged in

any dilatory tactics."                                                     Reid I, 991 F. Supp. 2d at 281.                                                                            The

court               also             noted               that              Reid             had           been              detained                     for           fourteen

months, which was "well beyond the brief detainment contemplated

in          Demore."                           Id.                   These                factors                   aptly                anticipated                            those

                                                                                                                                                                                                
those factors "would require legal and political analyses beyond
what would otherwise be considered at a bond hearing." 804 F.3d
at 1089. While we agree that these factors are not relevant at
a bond hearing, where the focus is on the alien’s flight and
safety risk, these factors are relevant when a federal court is
conducting a reasonableness inquiry and determining whether a
bond hearing needs to be held in the first place.


                                                                                      - 29 -
articulated       above,        and    we    agree       with        the    district     court's

holding    that     Reid's       detention         had    become           unreasonable    under

§ 1226(c).

             Moreover,          Reid's      case   had     already          been   through    one

round of appeals and was pending another round at the time of

the lower court's decision, making final resolution "certainly

far enough out to implicate due process concerns."                                 Id. at 282.

None of these appeals involved "dilatory tactics."                                 Id.   Rather,

Reid "raised a colorable claim against deportation and . . .

vigorously contest[ed] removal."                       Id.       Finally, it should be

noted that although the IJ's initial order was adverse to Reid,

the BIA's first decision, rendered almost a year after detention

began,    reversed        and    remanded        the     IJ's    determination,          drawing

into question Reid's presumed deportability.

             With respect to the class claims, however, we must

vacate    the     district       court's      summary        judgment         decision.      The

district     court        certified          a     class        consisting          of    "[a]ll

individuals who are or will be detained within the Commonwealth

of Massachusetts pursuant to 8 U.S.C. § 1226(c) for over six

months     and     have    not        been    afforded          an    individualized         bond

hearing."        Reid v. Donelan, 297 F.R.D. 185, 194 (D. Mass. 2014).

The court subsequently granted summary judgment to this class on

                                             - 30 -
the    basis    of     its        previous     decisions     adopting        the     six-month

bright-line rule.             See Reid II, 22 F. Supp. 3d at 88-89.                            It

then examined the appropriate relief, which included a request

by Reid that the court mandate certain procedural protections at

bond      hearings--protections                 that      exceed        those        currently

contemplated by regulations implementing bond hearings under 8

U.S.C. § 1226(a).            The court declined to impose these additional

procedural      protections,             concluding      that   due     process       did    not

require    them.            See    id.    at    92-93.      Reid      cross-appeals         this

conclusion, offering a bevy of weighty constitutional arguments.

               Yet,        Reid's     personal       situation        does     not        warrant

adjudication of these constitutional questions.                          Reid received a

bond hearing pursuant to the district court's order and was

granted     bond.            He     has    thus     suffered       no   cognizable           harm

attributable          to     the     challenged         procedures,      and       the      claim

persists only with respect to the class that Reid represents.

The problem, however, is that the district court's adoption of

the    bright-line          rule     was       an   essential      predicate         to    class

certification.             Our ruling today, requiring an individualized

approach,       removes           that     predicate.           The     class        is     thus

substantially overbroad in light of our disposition.




                                               - 31 -
             When a class representative lacks a live claim, and

changes in the law--whether through legislative enactment, see

Kremens    v.   Bartley,   431   U.S.    119,    130   (1977),    or    judicial

decision, see Hartman v. Duffey, 19 F.3d 1459, 1470, 1474-75

(D.C. Cir. 1994)--cast substantial doubt on the composition of

the class, it is appropriate to remand for reconsideration of

the class certification.         This prudential procedure recognizes

that      serious   concerns     about        premature    adjudication         of

constitutional questions arise where the legitimacy of a class

is called into question by changes in the law.                See Kremens, 431

U.S. at 128, 136-37; Smook v. Minnehaha County, 457 F.3d 806,

815 (8th Cir. 2006). Those concerns are heightened where, as

here, we lack information about the status of the unnamed class

members,     including     whether    they      have   been     afforded      bond

hearings, whether any of them have been denied bond under the

challenged procedures, and the justification for those denials.

Remand    (rather   than   dismissal)    is     also   fairer    to    the   class

members, especially since the government has not appealed the

class certification order, and we have no briefing from the

parties about the impact our case-by-case rule has on the class

as a whole.




                                     - 32 -
               On remand, the district court may consider whether it

is feasible to redefine the class, excluding those class members

with    moot    claims     and     substituting         class     representatives           with

live claims as appropriate.                    See Fed. R. Civ. P. 23; Kremens,

431 U.S. at 134-35; Hartman, 19 F.3d at 1474.                               It may well be

that no suitable class can be formed, and that the due process

concerns presented by the bond procedures must be raised by an

individual        denied   bond        under    these    standards,         in    which     case

decertification of the present class is the appropriate course.

See Smook, 457 F.3d at 815.

                  In    concluding,        we    wish        to   emphasize        that      our

decision     to    read    an     implicit      reasonableness          requirement         into

§ 1226(c) cannot be read so broadly as to unwind § 1226(c)'s

mandatory      detention        requirement.            There     is   no    doubt     that    a

challenge like Demore's would still fail today.                             Categorical and

mandatory      detention        for    a   brief,   reasonable          duration       remains

constitutional,          and     any    challenge       to     such    detention       at    the

outset or early stages of categorical custody must be dismissed

without hesitation.              As long as the statute remains in effect,

Demore so requires.

               Yet, at a certain point the constitutional imperatives

of     the   Due       Process     Clause       begin     to      eclipse        the   claimed

                                           - 33 -
justifications                                for              such    bridling       custodial    power.      When    the

duration of this categorical custody exceeds reasonable bounds,

the           implicit                    terms                of     the    statute    disclaim    any     pretense    to

bolster the state's unconstitutional bidding.5

                                                                      III.   Conclusion

                             For the foregoing reasons, the judgment is AFFIRMED as

to Reid and VACATED as to the class members.                                                       Because we reject

the six-month presumption underlying the class certification and

judgment, the class action is REMANDED for reconsideration of

the            certification                               order        in    a   manner    consistent       with     this

decision.




                                                            
              5
       Because our affirmance in this case is limited to the
particular facts presented by Reid's petition, we have no
occasion to consider here whether another petitioner might be
able to challenge the individualized reasonableness of his
continued categorical detention before the immigration courts
rather than the federal courts.     The regulatory and statutory
regime does not explicitly address the propriety of such an
approach, and the parties before us have not fully briefed or
argued the issue. Given the shortcomings of case-by-case habeas
review identified above, however, it would be appropriate for
the executive (or the legislature, as the case may be) to
consider explicitly permitting detainees in the position of the
petitioner to seek a reasonableness review before a federal
court or before an IJ more familiar with the intricacies of the
case and the particulars of the underlying removal proceedings.


                                                                             - 34 -
