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Media Alerts - Lora v. Shanahan - Second Circuit
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October 28, 2015
  Lora v. Shanahan - Second Circuit
Headline: Second Circuit Holds that Indefinite Detention Under §1226(c) of the Immigration and Nationality Act is Unconstitutional and Adopts a Bright Line Test Limiting Mandatory Detention to No More Than Six Months Prior to Permitting a Bail Application.

Area of Law: Immigration/Constitutional

Issue(s) Presented: Whether mandatory detention of non-citizens convicted of certain crimes under the Immigration and Nationality Act §1226(c) must be "immediate" upon their release to be mandatory. Whether §1226(c) applies if a non-citizen is not released from a custodial sentence. Whether indefinite detention under §1226(c) violates the Due Process Clause of the Fifth Amendment to the United States Constitution.

Brief Summary: Under section 1226(c) of the Immigration and Nationality Act, the Department of Homeland Security is required to detain non-citizens who are convicted of certain crimes pending removal and deportation proceedings. Non-citizens who contest their removal regularly spend months or years in detention, which includes dangerous criminals alongside those with significant family ties who pose no risk to the community. Alexander Lora was one of these later detainees. Mr. Lora was taken into custody by Immigration and Customs Enforcement agents after being convicted of a drug related offense and detained without bail for four months. Mr. Lora petitioned for a writ of habeas corpus and argued that he was eligible for bail because he had never served jail time and so had not "been released" as required under §1226(c). He also argued that indefinite detention without the opportunity for bail violated his right to due process.

The United States District Court for the Southern District of New York granted his petition on the statutory grounds and did not decide the constitutional issue. The government appealed, and the Second Circuit held that the district court should have deferred to the Board of Immigration Authority's interpretation of the statute, but also that indefinite detention violates the Due Process Clause of the Firth Amendment. Following the Ninth Circuit, the Second Circuit adopted a bright line test mandating that detentions be no longer than six months before a bail application is allowed. The court further held that, "the detainee must be admitted to bail unless the government establishes by clear and convincing evidence that the immigrant poses a risk of flight or a risk of danger to the community."

To read the full opinion please visit:

Significance: With this decision, the Second Circuit joins several circuits in holding that an implicit time limit must be read into §1226(c) to comply with the Fifth Amendment right to Due Process. The Second Circuit futrther adopts the standard articulated by the Ninth Circuit, that a six-month limit on detention before a bail hearing is presumptively reasonable but anything beyond six months is unreasonable and rejects a fact specific case-by-case approach followed by the Third and Sixth Circuits.

Extended Summary: Alexander Lora entered the United States from the Dominican Republic in 1990 as a lawful permanent resident. He attended school, built a family and created significant ties to the community. In 2009, while working at a grocery store, Lora and a co-worker were arrested and charged with numerous offenses related to cocaine possession. In July 2010, Lora plead guilty to criminal possession of cocaine with intent to sell, criminal possession of cocaine with an aggregate weight of one ounce or more, and criminal use of drug paraphernalia. Lora's conviction for these crimes rendered him removable under INA §237(a)(2)(B) and INA §237(a)(2)(A)(iii). Lora was sentenced to five years probation and did not violate and conditions of his probation.

On November 22, 2013, Lora was arrested by ICE agents and transferred to Hudson County Correctional Facility without bond, and Homeland Security maintained that under §1226(c) he was subject to mandatory detention and was not eligible for a bail hearing. During this time, Lora moved in New York state court to set aside his conviction. This motion was granted, and Lora then plead guilty to a lesser charge, a single count of third degree possession of a controlled substance and was resentenced to conditional discharge dating back to July 21, 2010. This new sentence gave Lora a strong argument for cancellation of removal, as the new crime he plead guilty to did not qualify as an aggravated felony. As a drug offense, however, it still rendered Lora subject to mandatory detention under 1226(c). In March, 2014, Lora requested permission to file an application for cancellation of removal and that he be granted a bail hearing. His request to file the application was granted, but Lora was denied a bail hearing.

At the same time, Lora filed a petition for a writ of habeas corpus. He argued, first, that §1226(c) requires that an alien be taken into custody "when the alien is released," and ICE did not take Lora into custody until several years after his conviction, and since he was never imprisoned, he was never "released" and thus could not be detained under the section. Second, Lora argued that continued and/or indefinite detention without a bail hearing is unconstitutional under the Due Process Clause of the Fifth Amendment, particularly in light of his defenses against removal. Finally, he argued that his continued detention was not in the public interest.

The United States District Court for the Southern District of New York granted Lora's petition, finding Lora was not detained immediately upon his release from criminal custody and that since he served no custodial sentence (he was never imprisoned as a result of his conviction), he was never released from custody. A bail hearing was granted, and it was determined that Lora was neither a flight risk nor a danger to the community. Lora was released after posting $5000 bail. The district court did not consider or opine on the constitutional argument. The government appealed, arguing that the district court erred in interpreting §1226(c) to require that an alien be detained immediately after release from custody, as well as requiring a term of imprisonment as a condition to be subject to §1226(c). The government notably did not take the position that it should be permitted to detain immigrants indefinitely, but rather argued that a "fact-dependent inquiry" should be conducted in each and every case as to the allowable length of detention.

The Second Circuit agreed that the statute was interpreted improperly. Finding that, at best, the wording of the statute was ambiguous, the court explained that deference should be given to the government agency tasked with enforcing the law, providing the agency decisions are not arbitrary or capricious. The Second Circuit pointed to other sections of the INA where Congress explicitly required individuals to be incarcerated post-conviction to show that Congress did not intend to require an alien serve a term of imprisonment before §1226(c) applies. The Second Circuit also held the language in the statute that states "when...released" is a "duty-triggering" provision, not a "time-limiting" provision. In other words, when an alien is released is when ICE acquires the duty to detain them. However, it does not mean that they must be detained immediately upon release.

The Second Circuit then moved on to the constitutional argument. The Second Circuit stated that it is well-settled law that the Fifth Amendment grants due process rights to aliens during removal proceedings, and indefinite detention without a bail hearing so violates these rights that it is agreed upon by all parties that such conduct is unconstitutional. The court reasoned that earlier constitutional attacks on the statute had failed simply because at the time the average length of detention was brief but noted that this is no longer the case, with detention lasting months or even years in some cases due to heavy backlog, with thousands of non-citizens detained awaiting removal proceedings. Accordingly, the Second Circuit held that §1226(c) must be read to include a requirement that the detention only last a "reasonable" amount of time before a bail hearing should be granted.

The remaining question before the Second Circuit was what approach to utilize in analyzing what constitutes a "reasonable" time. The Second Circuit rejected the government's push to adopt the fact-specific case-by-case analysis applied by Third and Sixth Circuits. The court reasoned that such a case-by-case analysis of what is "reasonable" would lead to confusion and inconsistent rulings among the various district courts in the circuit and questioned the feasibility of such an approach given the Second Circuit's immense immigration docket. Instead, the Second Circuit adopted the bright-line rule followed by the Ninth Circuit that a six-month detention is reasonable, but anything over that time period is not. The court further announced that, after such time, a bail hearing must be held for the detainee, and if the detainee is not a flight risk or a danger to the community, bail must be granted.

To read the full opinion please visit:

Panel: Judges Kearse, Parker and Wesley

Argument Date: 4/20/2015

Date of Issued Opinion: 10/28/2015

Docket Number: 14-2343-pr

Decided: Affirmed

Case Alert Author: Gavin Michael Strube

Counsel: Christopher Connolly (Sarah S. Normand, on the brief), Assistant United States Attorneys for Preet Bharara, United States Attorney for the Southern District of New York, for Respondents-Appellants Rebecca A. Hufstader, Legal Intern, Luis Angel Reyes Savalza, Legal Intern, (Alina Das and Nancy Morawetz, on the brief), Washington Square Legal Services, Inc., NYU Law School, New York, NY; Bridget Kessler, Brooklyn Defender Services, Brooklyn, NY, on the brief, for Petitioner¿Appellee. Ahilan Arulanantham, ACLU Immigrants' Rights Project, Los Angeles, CA; Judy Rabinovitz and Anand Balakrishnan, ACLU Immigrants' Rights Project, New York, NY; Alexis Karteron and Jordan Wells, New York Civil Liberties Union Foundation, New York, NY, on the brief, for Amici Curiae American Civil Liberties Union; New York Civil Liberties Union. Andrea Saenz, Immigration Justice Clinic, Benjamin N. Cardozo School of Law, New York, NY, for Amici Curiae the Bronx Defenders; Detention Watch Network; Families for Freedom; Immigrant Defense Project; Immigrant Legal Resource Center; Kathryn O. Greenberg Immigration Justice Clinic; Make the Road New York; National Immigrant Justice Center; National Immigration Project of the National Lawyers Guild; Neighborhood Defender Service of Harlem; New Sanctuary Coalition of New York City; Northern Manhattan Coalition for Immigrant Rights. Farrin R. Anello, Immigrants' Rights/International Human Rights Clinic, Seton Hall University School of Law, Newark, NJ, for Amici Curiae Professors of Immigration and Constitutional Law.

Author of Opinion: Judge Parker

Case Alert Circuit Supervisor: Elyse Diamond Moskowitz

    Posted By: Elyse Diamond @ 10/28/2015 08:06 PM     2nd Circuit  

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