Access to Justice

M.S.G. v. Neal

In M.S.G. v. Neal, the Southern District of New York is considering whether a detained noncitizen can use the Administrative Procedure Act (APA) to vindicate his right to a constitutionally adequate bond hearing.

Case Summary

For nearly two years, the federal government has confined M.S.G., a twenty-six-year-old asylum-seeker, in correctional facilities around the country. Because of this incarceration, M.S.G. has been separated from his two children and experienced a mental health crisis so severe that he cannot sleep for more than four hours a night. Yet the government has never been required to demonstrate why M.S.G must be detained, even though the Fifth Amendment’s Due Process Clause entitles an individual in removal proceedings to a bond hearing before a judge when that individual’s detention has become prolonged.

All M.S.G. seeks is that hearing. Yet when he invoked the Second Circuit precedent guaranteeing his access to a hearing almost one year ago, an immigration judge refused to comply with that case’s constitutional holding. M.S.G. turned to the federal court to vindicate his constitutional right to due process in a claim under the Administrative Procedure Act (APA). The government may argue that M.S.G. cannot not bring an APA claim because § 704 of the APA only allows courts to review “final agency action for which there is no other adequate remedy in a court,” and M.S.G. has an adequate remedy because he can file a habeas corpus petition challenging his detention. CAC filed an amicus brief in the Southern District of New York explaining that § 704 does not bar APA review simply because habeas corpus relief might also be available.

Our brief makes two principal points. First, our brief argues that the text and history of the APA show that Congress included the “no other adequate remedy in a court” language to avoid duplicating specific statutory procedures for reviewing particular types of agency actions. The affirmative wording of the APA’s judicial review provisions and the history of the APA indicate Congress only intended to limit judicial review in narrow circumstances where a statute already set out a special review process. And the “no other adequate remedy in court” language was not included to foreclose APA review where any other avenue of redress might be available, such as habeas corpus review.

Second, our brief explains that the Second Circuit requires clear and convincing evidence of congressional intent to override the APA’s strong presumption in favor of judicial review. Since the enactment of the APA, Congress has amended immigration laws and detention review procedures in numerous significant ways, but it has never designated habeas as the exclusive form of review over agency procedures regarding detention and release, illustrating that Congress did not plan for APA review to be foreclosed in a case like M.S.G.’s.

Case Timeline

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