The Second Circuit Issues an Important Decision on Immigration Detention

Introduction: Lora v. Shanahan

On October 28, 2015, the United States Court of Appeals for the Second Circuit decided Lora v. Shanahan [PDF version], an important case concerning mandatory detention for pending removal proceedings found in section 236(c) [PDF version]¹ of the Immigration and Nationality Act (INA) for aliens who were inadmissible or deportable for certain offenses listed in sections 212(a) [PDF version] and 237(a) [PDF version] of the INA.²

The decision addressed primarily two questions:

Whether the language “when released” in section 236(c) of the INA requires that an alien have actually been in custody and whether the detention must start immediately after the alien was in custody or released upon a conviction for a crime listed in 236(c).
Whether the alien in this case could be detained indefinitely without a bond hearing.

On the first question, the Second Circuit held that an alien need not be have been imprisoned or in custody due to his or her underlying conviction in order to be subject to detention. Furthermore, the Second Circuit deferred to Board of Immigration Appeals (BIA) guidance on the matter in determining that immigration authorities need not detain an alien immediately upon his release from state custody in order to properly detain an alien.

On the second question, Second Circuit held that the alien in this case had been entitled to a bail hearing. Second Circuit adopted the standard that after six months of detention, an alien is entitled to a bond hearing wherein the government must provide compelling reasons that further detention is warranted.

In this blog, I will explain the background of the case, Second Circuit's reasoning for its decision, and what the decision means going forward.

Facts of the Case

The petitioner (Alexander Lora) in this case entered the United States as a lawful permanent resident (LPR) in 1990. Lora lived in New York continuously until 2009. In July of 2010, he pled guilty to criminal possession of cocaine with an aggregate weight of one ounce or more, and criminal use of drug paraphernalia under New York law.³ He was sentenced to five years of probation, and he did not violate any of the terms of his probation.

On November 22, 2013, Lora was arrested by Immigration and Customs Enforcement (ICE) and taken into ICE custody where he was held without bond. He was charged with removability under section 237(a)(2)(B) of the INA (for having been convicted of a crime involving a controlled substance), and under section 237(a)(2)(A)(iii) (for having been convicted of an aggravated felony [see article], in this case trafficking in a controlled substance). The Department of Homeland Security (DHS) decided that the removal charges subjected him to mandatory detention.

During removal proceedings, Lora's motion to have his original conviction set aside was granted, and he was permitted to plead to a minor offense (third degree possession of a controlled substance) was granted. He was re-sentenced to a conditional discharge imposed retroactively to July 21, 2010. Because the new sentence is not an aggravated felony in immigration law, Lora had a strong case for LPR cancellation of removal [see article]. However, because his conviction was for a crime involving a controlled substance, he was still technically subject to mandatory detention under section 236(c) of the INA. The Immigration Judge hearing the case granted Lora's request to file for cancellation of removal, but denied his request for a bail hearing.

Lora filed a petition for a writ of habeas corpus to challenge his continued detention. Firstly, he argued that the detention was invalid because he was not taken into custody at the time he was released on his underlying convictions, but instead over three years later.⁴ He also argued that since he had never been incarcerated or kept in physical custody following the conviction, he was never subject to detention. Secondly, he argued that his continued detention without a bail hearing violated the Due Process Clause of the Fifth Amendment of the United States Constitution due to his substantial defenses against removal and the possibility that his detention would continue indefinitely (due to immigration processing delays).⁵

The District Court agreed with Lora on both counts, and ordered the government to provide Lora with an individualized bail hearing. Lora was granted bail and released after posting bond. The government appealed the decision to Second Circuit on both counts. First, the government argued that Lora was still subject to mandatory detention due to his conviction under law relating to a controlled substance. Secondly, the government argued that while it could not simply detain aliens indefinitely, that Due Process requires a “fact dependent inquiry” based upon the case rather than definite “bright line” after which detention is no longer presumptively reasonable.

Decision

The Second Circuit held that section 236(c) of the INA is unambiguous in mandating detention for certain crimes. The Second Circuit relied primarily upon the statute itself, which states “when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense.” This holding, in favor of the government's position, is consistent with multiple BIA decisions.⁶ Furthermore, the Second Circuit noted in its opinion that had Congress intended to explicitly limit detention to cases where the alien was sentenced to imprisonment, it would have done so as it has in other immigration statutes.⁷

The Second Circuit also agreed with the government that the District Court was erroneous in its interpretation of the word “when” in “when the alien is released.” The BIA considered this question in Matter of Rojas [PDF version] in 2001, where it determined that “when … released” did not impose a limit on the authority to detain an alien under section 236(c). Given the ambiguity of the statute, and that the Second Circuit did not find the BIA's decision in Matter of Rojas [PDF version] to be “arbitrary or capricious,” the Second Circuit followed the BIA precedent. Furthermore, the Second Circuit noted that the BIA's reasoning accounts for practical considerations pertaining to immigration detention, that it is unrealistic to assume that DHS will be aware of the exact timing of an alien's release from custody and to expect DHS to have the resources to appear at every location where an alien who is subject to mandatory detention is being released.

The Second Circuit decided in Lora's favor on being entitled to a bail hearing. The Supreme Court upheld the mandatory detention statute in 2002 in Demore v. Kim [see article], but it stated that detention must be “for a brief period of time” in order to be reasonable without a bail hearing. Additionally, the Supreme Court has held in multiple cases that aliens are entitled to due process in deportation proceedings.⁸ Since Demore v. Kim [see article] was decided, multiple Circuit Courts have held that the statute must entail implicit temporal limitations on detention in order to avoid raising Constitutional concerns with indefinite detention.⁹ However, while multiple Circuit Courts have found that the mandatory detention statute has implicit temporal limitations, the Second Circuit notes that different Circuits established different criteria for determining whether detention remains “reasonable.”

Both the Third and Sixth Circuits adopted the position favored by the government in Lora v. Shanahan [PDF version], that a fact-dependent inquiry must be conducted in a given case in order to determine whether detention remains reasonable. However, in Rodriguez v. Robbins [PDF version], the Ninth Circuit adopted a “bright line approach,” that mandatory detention is only presumptively reasonable for six months, at which point the alien in detention is entitled to a bail hearing. If the government believes that the alien should remain in detention for the duration of proceedings, it must present evidence to that effect at the bail hearing.¹⁰

In addition to providing more uniformity to detention litigation than the government's preferred approach, the Second Circuit noted that both it and the Ninth Circuit have substantially larger immigration dockets than other Circuits, making the government's preferred approach impractical for detainees, district courts, and the government. Furthermore, the Second Circuit noted that wait time an alien was detained was approximately 47 days when the Supreme Court decided Demore v. Kim [see article], but is substantially longer now due to immigration processing delays.

Analysis

The Second Circuit's decision to adopt the position that detention is only presumptively reasonable for six months is a very significant decision for aliens in immigration detention in its jurisdiction, which covers the entirety of Connecticut, New York, and Vermont. This decision will help prevent many aliens in detention from facing effectively indefinite detention due to immigration processing delays on the part of the government.

However, it is important to note that this decision only applies to the Second Circuit and courts under its jurisdiction. For example, as the decision noted, the Third Circuit, which covers Delaware, New Jersey, and Pennsylvania, held that while indefinite detention is unreasonable, a fact-dependent inquiry must be conducted into a specific case to determine whether detention remains reasonable (as opposed to setting a specific duration for which detention is presumptively reasonable). Until and unless the Supreme Court addresses in more detail how “reasonableness” in terms of length of detention should be determined, the manner in which detention claims are adjudicated will vary depending on where the case is being heard. For this and other reasons, it is imperative for any alien who is contesting his or her immigration detention under section 236(c) of the INA to consult with an experienced immigration attorney who understands the judicial precedents regarding mandatory immigration detention in the given jurisdiction.

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1. Please note that the decision uses the corresponding sections in the U.S. Code. In the text of the decision, where this blog says “INA § 236(c)” is “8 U.S.C. § 1226(c).” Both refer to the same statute.
2. Lora v. Shanahan, No. 14-2343-pr (2d. Cir, 2015)
3. Under New York Penal Law §§ 220.16, 220.15
4. See the language of section 236(c) of the INA: “when the alien is released”
5. Lora also argued that his detention was not in the public interest.
6. See Matter of Kotliar, 24 I&N Dec. 124, 125 (2007); Matter of West, 22 I&N Dec. 1405, 1410 (2000)
7. The Second Circuit cited 8 U.S.C. § 1182(a)(2) as an example. The statute renders an alien ineligible for a visa or admission when he or she has been convicted of a crime of moral turpitude for which a sentence of at least six months has been imposed.
8. Zadvydas v. Davis, 533 U.S. 678, 682, 690 (2001); Reno v. Flores, 507 U.S. 292, 306 (1993)
9. The Second Circuit cited as examples Diop v. ICE/DHS., 656 F.3d 222, 231 (3d Cir. 2011); Ly v. Hansen, 351 F.3d 263, 267-68, 271 (6th Cir. 2003)
10. Rodriguez v. Robbins, 715 F.3d 1128 (9th Cir. 2013)