Tijani

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MONSURU O. TIJANI, 

Petitioner-Appellant, v. No. 04-55285 D.C. No.

WAYNE K. WILLIS, INTERIM

DIRECTOR, INTERIOR IMMIGRATION  CV-03-01624-

ENFORCEMENT, UNITED STATES WQH/JFS

DEPARTMENT OF HOMELAND OPINION

SECURITY; CARYL THOMPSON, OIC,

Respondents-Appellees.  Appeal from the United States District Court for the Southern District of California William Q. Hayes, District Judge, Presiding

Argued and Submitted January 10, 2005—San Francisco, California

Filed December 13, 2005

Before: John T. Noonan, A. Wallace Tashima, and Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Noonan; Concurrence by Judge Tashima; Dissent by Judge Callahan

16263 TIJANI v. WILLIS 16265

COUNSEL

Steven A. Hirsch, San Francisco, California, Lucas Guttentag, Oakland, California, and Judy Rabinovitz, New York, New York, for the petitioner.

Tom Stahl, and Ernest Cordero, Jr., Assistant United States Attorneys, San Diego, California, for the respondents.

OPINION

NOONAN, Circuit Judge:

[1] As of today’s date,…

concurring:

I concur in Judge Noonan’s opinion reversing the denial of habeas relief and *1243 requiring the Immigration Court to grant Tijani a bail hearing. His opinion, however, barely alludes to the standards that should govern the conduct of such a hearing, or what facts must be established in order to warrant the grant or denial of release, or who has the burden of proving those facts, and by what standard of proof. I write separately because I believe that we have a duty to give more guidance to the agency and to the court below so that they can carry out their respective mandates.

Monsuru Tijani has now been imprisoned by the federal government for almost two and one-half years. His detention is not the result of a criminal conviction;' nor is it because he faces imminent removal. The only reason that Tijani is being detained is because the government may be able to prove he is subject to removal. Tijani contends that his indefinite detention for such a reason is not constitutionally permissible. Now, instead of deciding the issues squarely presented by this appeal, the majority opinion grants habeas relief, but without deciding the issues raised on the merits. I join…

As I find that the district court properly denied Monsuro Tijani’s habeas petition, I dissent from the remand of this case to the district court. I further disagree with the opinion’s suggestion that the result of a hearing must be Tijani’s release on bail, and with the concurring opinion’s argument that Tijani’s extended detention is necessarily unconstitutional.

A. Background

An appreciation of this case requires a brief review of how Tijani got himself into his present predicament. A native and citizen of Nigeria, Tijani arrived in the United States in 1980 and adjusted his status to legal permanent resident in 1985. Shortly thereafter, Tijani started having trouble with the law. Most recently on June 9, 1999, Tijani was convicted on twelve counts of providing false information on financial documents in violation of California Penal Code § 532a(l).

On April 9, 2003, when Tijani was scheduled to be paroled from state prison, he was charged with being deportable, served with a notice to appear before an Immigration Judge (“IJ”), and transferred into the custody of the U.S. Bureau of Immigration and Customs Enforcement (“BICE”). He was specifically charged with being removable-…

As of today’s date, Tijani has been deprived of his liberty by the government for a period of over two years and eight months. ' This deprivation has been inflicted not as the result of any adjudication of crime but as a bureaucratic application of the authority conferred on the Attorney General by 8 U.S.C. § 1226 (c). Despite the substantial powers that Congress may exercise in regard to aliens, it is constitutionally doubtful that Congress may authorize imprisonment of this duration for lawfully admitted resident aliens who are subject to removal. See Zadvydas v. Davis, 533 U.S. 678, 690 , 121 S.Ct. 2491 , 150 L.Ed.2d 653 (2001). The case is distinct from Demore v. Kim, 538 U.S. 510, 513-514 , 123 S.Ct. 1708 , 155 L.Ed.2d 724 (2003), where the alien conceded deporta-bility.

To avoid deciding the constitutional issue, we interpret the authority conferred by § 1226(c) as applying to expedited removal of criminal aliens. Two years and eight months of process is not expeditious; and the foreseeable process in this court, where the government’s brief in Tijani’s appeal of the removal was only filed last month after two extensions of time, is a year or more. ■ -

We remand to the…