On October 28, 2015, the United States Court of Appeals for the Second Circuit issued an important published decision in Lora v. Shanahan, 804 F.3d 601 (2d Cir. 2015) [PDF version]. In the decision, the Second Circuit held that aliens subject to mandatory detention under section 236(c) of the Immigration and Nationality Act (INA) must be afforded a bail hearing before an immigration judge within six months of his or her detention. Id. at 616. Significantly, the Second Circuit opted to adopt this bright line rule construing the statute as mandating bail hearings within six months of detention “in order to avoid the constitutional questions raised by indefinite detention…”

However, on February 27, 2018, the Supreme Court of the United States in Jennings v. Rodriguez, 138 S.Ct. 830 (2018) [PDF version], reversed the decision of the United States Court of Appeals for the Ninth Circuit in Rodriguez v. Robbins, 804 F.3d 1060 (9th Cir. 2015) [PDF version], which had applied a similar six-month bright line rule to section 236(c) in order to avoid the perceived constitutional questions that would arise from indefinite detention. In its decision, the Supreme Court faulted the Ninth Circuit for employing the doctrine of constitutional avoidance to section 236(c) after the Court concluding that the language of section 236(c) was unambiguous and, as such, foreclosed any requirement for bail hearings. Please see our comprehensive article on the decision [see article] and our index article for the case [see index] to learn more.

The Government sought Supreme Court review of Lora in 2016. On March 5, 2018, just a week after the decision in Rodriguez, the Supreme Court granted certiorari over the case in Shanahan v. Lora, 128 S.Ct. 1260, U.S., Mar. 05, 2018 [PDF version], vacated the Second Circuit’s decision, and remanded the case to the Second Circuit for further consideration in light of Rodriguez. In short, the Supreme Court vacated the Second Circuit decision, meaning that the decision no longer has precedential value. However, it remanded Lora for consideration in light of the intervening decision in Rodriguez. Notably, and as we discussed in our full article on Rodriguez, the Supreme Court remanded Rodriguez in order that the Ninth Circuit could address the constitutional questions directly instead of employing the doctrine of constitutional avoidance. Accordingly, the Second Circuit will be able to consider the constitutional concerns that it cited to in construing the statute to require bond hearings within six months of detention, and from that, determine whether the mandatory detention provision in section 236(c) violates the United States Constitution.

The Second Circuit encompasses appeals arising in New York, Connecticut, and Vermont. We will update the website with further information about this case and other cases that may be affected by the Supreme Court’s decision in Rodriguez. An individual subject to immigration detention and proceedings under any provision of the immigration laws should consult with an experienced immigration attorney immediately.