No. 22-2252 ___________________________

Nyynkpao Banyee

Petitioner - Appellee

v.

Merrick B. Garland, U.S. Attorney General; Alejandro Mayorkas, Secretary, Department of Homeland Security; Tae D. Johnson, Acting Director, Immigration and Customs Enforcement; Marcos Charles, Director, St. Paul Field Office Immigration and Customs Enforcement

Respondents - Appellants

Eric Holien, Sheriff, Kandiyohi County

Respondent

------------------------------ Constitutional Accountability Center; State of Minnesota; American Immigration Council; National Immigration Project of the National Lawyers Guild; Retired Immigration Judges and Board of Immigration Appeal Members

Amici on Behalf of Appellee(s) ____________

Appeal from United States District Court for the District of Minnesota ____________

Submitted: February 15, 2024 Filed: September 17, 2024 ____________ Before BENTON, GRASZ, and STRAS, Circuit Judges. ____________ STRAS, Circuit Judge.

Nyynkpao Banyee was released after the district court determined that a year spent in custody waiting for “a decision on whether” he was “to be removed from the United States” was too long. 8 U.S.C. § 1226(a). Due process imposes no time limit on detention pending deportation, however, so we reverse.

I.

A citizen of Ivory Coast, Banyee grew up in the United States as a lawful permanent resident and began committing crimes after becoming an adult. Included among them were theft, lying to the police, and possessing marijuana and drug paraphernalia. The last straw was robbery with a dangerous weapon, which prompted federal authorities to begin deportation proceedings. See 8 U.S.C. § 1227(a)(2)(A)(ii)–(iii), (B)(i) (making aliens “deportable” if they commit an aggravated felony, a drug crime, or multiple crimes involving moral turpitude).

There have been numerous twists and turns since then. At first, the immigration judge agreed with the government that the robbery conviction was a “crime of violence,” a type of “aggravated felony” that disqualified him from certain forms of discretionary relief. 8 U.S.C. §§ 1101(a)(43)(F), 1229b(a)(3). Doubts crept in, however, after the Supreme Court adopted a narrow reading of a provision of the Armed Career Criminal Act that uses similar wording. See Borden v. United States, 593 U.S. 420, 429 (2021); see also 18 U.S.C. § 924(e)(2)(B)(i). At that point, the government pivoted to another theory: the robbery conviction counted because it was an attempted “theft offense.” 8 U.S.C. § 1101(a)(43)(G), (U). Unconvinced, the immigration judge cancelled Banyee’s removal from the country. See id. § 1229b(a). Then came a successful government appeal, followed by a ruling that

-2- the conviction did count. Banyee, now unhappy with the latest turn, has filed an appeal that remains pending.

The entire time, Banyee was in custody because a federal statute required it. See id. § 1226(c)(1)(B) (“The Attorney General shall take into custody any alien who . . . is deportable by reason of having committed any offense covered in section 1227(a)(2)(A)(ii), (A)(iii), [or] (B) . . . .” (emphasis added)); Jennings v. Rodriguez, 583 U.S. 281, 303–04 (2018) (explaining that aliens “who fall[] into one of [several] enumerated categories involving criminal offenses and terrorist activities” must be detained “pending removal proceedin