The Eleventh Circuit has ruled that the prolonged detention of non-citizens with criminal records without bond hearings raising serious due process concerns. Though the court declined to adopt a bright line rule requiring a bond hearing at any particular time period (i.e. after 6 months of detention), it did hold that a habeas petition could be filed when detention is no longer reasonable in light of the goals of the mandatory detention statute (preventing flight and future criminal acts). The court outlined several factors to be considered in this analysis: 1) the amount of time that the criminal alien has been in detention without a bond hearing; 2) why the removal proceedings have become protracted (i.e. did the non-citizen request repeated continuances or file frivolous applications); 3) whether it will be possible to remove the criminal alien after there is a final order of removal; 4) whether the alien’s civil immigration detention exceeds the time the alien spent in prison for the crime that rendered him removable; and 5) whether the facility for the civil immigration detention is meaningfully different from a penal institution for criminal detention.
The court noted there would be little chance that a non-citizen's detention would be unreasonable before the 6 month mark, but would probably become unreasonable by the 1 year mark. However, even at that time, the non-citizen will bear the burden of proving that he is not a flight risk or a danger to the community.
The full text of Sopo v. Attorney General can be found here: