Black v. Decker: The Second Circuit Sets a Clear-and-Convincing Floor for Prolonged § 1226(c) Detention
- Citation
- Black v. Decker, 103 F.4th 133 (2d Cir. 2024)
- Court
- U.S. Court of Appeals for the Second Circuit
- Decided
- May 31, 2024
- Statute
- 8 U.S.C. § 1226(c); Fifth Amendment Due Process Clause
- Holding
- Unreasonably prolonged § 1226(c) detention without a bond hearing violates due process; Mathews v. Eldridge supplies the framework; at any constitutionally required hearing, the government must justify continued detention by clear and convincing evidence.
The Second Circuit’s decision in Black v. Decker is the most significant post-Jennings appellate rule on prolonged § 1226(c) detention to issue in the period covered by this archive. Two consolidated petitioners — Black, a lawful permanent resident, and G.M., another LPR — had each spent more than a year in mandatory criminal-alien detention without a bond hearing while removal proceedings dragged on.
The doctrinal background
Section 1226(c) of the INA requires that certain noncitizens with covered criminal convictions be detained throughout their removal proceedings. The Supreme Court upheld the statute facially in Demore v. Kim (2003) on the strength of statistics suggesting such detention typically lasted only a month or so. Those statistics were later acknowledged to have been inaccurate. In Jennings v. Rodriguez (2018), the Court held that § 1226(c) does not, by its own force, require periodic bond hearings — but expressly remanded the as-applied constitutional questions to the Ninth Circuit. The post-Jennings docket in every circuit has been the slow articulation of when, exactly, prolonged detention crosses from constitutionally tolerable to constitutionally infirm.
The court’s framework
The Second Circuit adopted a fact-specific reasonableness test grounded in Mathews v. Eldridge. Length of detention; likelihood that detention will continue; the reasons for delay; the conditions of detention; and the strength of the petitioner’s defense to removal all factor into the analysis. There is no bright-line trigger. Black’s habeas grant was affirmed; G.M.’s denial was reversed.
The opinion’s most consequential holding was procedural. At any constitutionally required bond hearing, the government must bear the burden of justifying continued detention by clear and convincing evidence — the standard the Ninth Circuit had earlier adopted in Singh v. Holder. The court rejected the government’s argument that a preponderance standard sufficed, emphasizing the “profound liberty interest” at stake and the asymmetric institutional capacity of the parties to develop evidence about dangerousness and flight risk.
“The Constitution does not permit the indefinite confinement of a person on the speculative basis that he might prove dangerous. The Government must show, by clear and convincing evidence, that he actually is.”
The circuit split
Black v. Decker placed the Second Circuit in the camp of the First, Third, and Ninth Circuits, all of which apply some version of the prolonged-detention reasonableness inquiry with the burden on the government. The Eighth Circuit’s contrary holding in Banyee v. Garland, decided four months later, sharpened the split: the Eighth Circuit holds that “due process imposes no time limit on detention pending deportation.” The Eleventh Circuit places the burden of justifying release on the detainee. The Fifth Circuit, after the February 2026 ruling in Buenrostro-Mendez, has effectively narrowed the scope of bond hearings altogether by holding that interior-apprehended EWI noncitizens are detained under § 1225(b)(2) rather than § 1226 and are therefore statutorily ineligible for hearings to begin with.
Significance
For practitioners in the Second Circuit, Black v. Decker is the foundational case. It supplies the doctrinal architecture for prolonged-detention habeas petitions and assures petitioners of a meaningful evidentiary hearing if they prevail on the threshold reasonableness inquiry. The Second Circuit reaffirmed the framework in Black v. Almodovar in October 2025 over an attempted government walk-back. With the eventual Supreme Court review widely anticipated — either of the § 1226(c) prolonged-detention question, the § 1225(b)/§ 1226 classification question, or both — the Second Circuit’s position is the most thoroughly developed defense of meaningful procedural protection in the post-Jennings era.
Filed under Pre-Removal Detention. Published May 31, 2024.