In 2004, Nyynkpao Banyee, then six years old, came to the United States as a refugee from the Ivory Coast. In 2018, he was convicted of a felony and sentenced to confinement. After Banyee’s release from state prison, Immigration and Customs Enforcement (ICE) arrested him and subjected him to mandatory detention in a county jail in Minnesota.

Banyee sought a bond hearing before an immigration judge, arguing that his prolonged detention without a bond hearing violated the Fifth Amendment’s Due Process Clause. In April 2022, after the government had detained Banyee for over a year, the United States District Court for the District of Minnesota ruled in Banyee’s favor, ordering a hearing that resulted in his release on bond.

The government appealed the case to the Eighth Circuit Court of Appeals, arguing that 8 U.S.C. § 1226(c) authorizes it to detain noncitizens without a hearing as long as removal proceedings are ongoing. In May 2023, CAC filed an amicus curiae brief in support of Banyee. Our brief makes three main points.

First, we explain that under the Due Process Clause, noncitizens have the same liberty interest as citizens in freedom from arbitrary imprisonment. The Framers established in the Fifth Amendment of the Constitution that no “person” (not just “citizen”) may be deprived of life, liberty, or property without due process of law. Because, as the Supreme Court once put it, the Framers “employed words in their natural sense” and “intended what they have said,” the protections of the Due Process Clause “are universal in their application.”

Second, we explain that in immigration proceedings as elsewhere, preventive detention may not be excessive in duration. For a court to determine that preventive detention is constitutional, the detention must be a proportional—not excessive—response to a legitimate state objective. Accordingly, the Supreme Court has upheld preventive detention only where the detention was not “excessively prolonged . . . in relation to [its] regulatory goal.” A lack of proportionality between the government’s purpose and the means used to achieve it can make prolonged detention excessive—and hence a violation of due process.

Preventive detention also generally requires the government to follow certain procedural safeguards, as our brief explains. Even when detention is supported by a valid goal, the Supreme Court has typically upheld it only where the government bears the burden of persuading an impartial decisionmaker of the need to detain a particular individual. In this case, the government argues that detention during removal proceedings need not comply with these requirements, but this is wrong. Both inside and outside the immigration context, the Supreme Court has held that due process requires a fair hearing before an independent decisionmaker, with a heightened burden on the government, before depriving a person of any significant liberty interest. The same burden must be met to incarcerate someone while removal proceedings are pending.

In sum, Banyee’s prolonged preventive detention was a violation of due process because the government did not meet the heightened burden of proof necessary to justify confinement and because its purpose was not proportional to the means used to achieve the detention.