Banyee v. Garland: The Eighth Circuit Says “No Time Limit”
- Citation
- Banyee v. Garland, 115 F.4th 928 (8th Cir. 2024)
- Court
- U.S. Court of Appeals for the Eighth Circuit
- Decided
- September 17, 2024
- Statute
- 8 U.S.C. § 1226(c); Fifth Amendment Due Process Clause
- Holding
- Due Process Clause does not require a bond hearing for noncitizens subject to § 1226(c) mandatory detention regardless of duration, so long as removal remains a possibility.
Aser Banyee arrived in the United States from Côte d’Ivoire as a refugee at age six. He became a lawful permanent resident, lived in Minnesota, and accumulated a series of convictions for petty theft and robbery in his late teens. By the time DHS placed him in removal proceedings on those convictions, those convictions were old. He was nonetheless held in mandatory detention under § 1226(c) at the Kandiyohi County Jail. His habeas petition succeeded in the District of Minnesota; the Eighth Circuit reversed.
The court’s holding
The two-judge panel majority took the broadest position any circuit has staked out in the prolonged-detention debate. The Due Process Clause, the court wrote, “imposes no time limit on detention pending deportation” under § 1226(c) so long as removal remains a possibility. The court read Demore and Jennings as foreclosing the kind of as-applied constitutional analysis the Second, Third, and Ninth Circuits have adopted. Mandatory detention, on this reading, is mandatory: not subject to durational ceiling, not subject to government burden of justification, not subject to periodic re-examination.
The dissenting judge would have applied the same kind of reasonableness analysis as the Second Circuit. The dissent emphasized the gap between the average detention period the Demore Court relied on (forty-seven days) and the petitioner’s actual detention (well over a year), and noted the Supreme Court’s express invitation in Jennings for as-applied constitutional development.
“Due process imposes no time limit on detention pending deportation under § 1226(c) so long as removal remains a possibility.”
The post-decision posture
Petitioner’s immigration attorneys filed for rehearing en banc, which was denied in March 2025. With the case still pending, custody shifted from § 1226(c) to § 1231 once a final order issued, complicating the cert posture. ACLU eventually moved to vacate as moot. A cert petition extension was filed in May 2025, but as of this writing the case has not been taken up.
Significance
Whatever Banyee’s ultimate fate, it is the leading adverse authority in the prolonged-detention canon. The government cites it routinely in briefing nationwide as evidence that the Second Circuit’s clear-and-convincing-evidence framework is not the only credible reading of the statute and constitution. Its weight, however, is undermined by the panel’s refusal to engage seriously with Jennings’s remand instructions and by the dissent’s thorough explication of the as-applied path the majority refused to walk.
For Eighth Circuit practitioners, Banyee closes off the pure due-process route. Prolonged-detention claims in the Eighth Circuit now proceed almost exclusively on statutory grounds — arguments about whether the petitioner is properly detained under § 1226(c) at all, or whether the detention has stretched beyond what the statute itself authorizes. For the prolonged-detention docket as a whole, Banyee is the case that makes Supreme Court review eventually unavoidable.
Filed under Pre-Removal Detention. Published September 17, 2024.