Diouf II After Jennings: Prolonged Post-Order Detention and the Constitutional Question

Read the official Ninth Circuit decision: Diouf II.

In Diouf v. Napolitano (Diouf II), the Ninth Circuit held that a person facing prolonged detention under 8 U.S.C. section 1231(a)(6) was entitled to a bond hearing. The rule cannot be applied today without addressing later Supreme Court and Ninth Circuit authority.

The 2011 decision

Diouf had remained detained while pursuing reopening and judicial remedies after a removal order. The Ninth Circuit extended its earlier detention cases and required an immigration-judge hearing after prolonged confinement, with the government bearing the burden to justify continued detention.

The statutory rule did not survive unchanged

In Jennings v. Rodriguez, the Supreme Court rejected reading an implied six-month bond-hearing rule into related detention provisions. In Johnson v. Arteaga-Martinez, No. 19-896 (U.S. June 13, 2022), the Supreme Court addressed section 1231(a)(6) itself. It held that the text does not require a hearing after six months with the government bearing the specified clear-and-convincing burden. That is a direct obstacle to treating Diouf II as a surviving statutory hearing entitlement. Arteaga-Martinez, slip op. at 6–8.

A present claim needs a current legal theory

A person challenging long detention must identify whether section 1226 or 1231 governs, whether removal is reasonably foreseeable, what custody reviews occurred, and whether the claim is statutory or constitutional. The burden, remedy, and forum cannot be carried forward from Diouf II without that analysis.

What the opinion still contributes

Diouf II documents the liberty concerns created by prolonged civil detention and the value of a neutral record. It remains useful background for constitutional analysis, but not a shortcut around later decisions defining the statutes. Arteaga-Martinez left the individual constitutional claims and the alternative Zadvydas foreseeability argument for the lower courts to consider first. It did not decide that every prolonged detention is constitutional. Arteaga-Martinez, slip op. at 8–10. A current article or petition should state that limitation explicitly.