Lora v. Shanahan

• Decision Date: 28 October 2015
• Docket Number: No. 14–2343–PR.,14–2343–PR.
• Citation: 804 F.3d 601
• Parties: Alexander LORA, Petitioner–Appellee, v. Christopher SHANAHAN, in his official capacity as New York Field Officer Director for U.S. Immigration and Customs Enforcement; Diane McConnell, in her official capacity as Assistant Field Office Director for U.S. Immigration and Customs Enforcement; Thomas S. Winkowski, in his official capacity as Principal Deputy Assistant Director of U.S. Immigration and Customs Enforcement ; Jeh Johnson, in his official capacity as Secretary of the U.S. Department of Homeland Security; Loretta E. Lynch, in her official capacity as the Attorney General of the United States;and the U.S. Department of Homeland Security,Respondents–Appellants.
• Court: U.S. Court of Appeals — Second Circuit

804 F.3d 601

Alexander LORA, Petitioner–Appellee

v.Christopher SHANAHAN, in his official capacity as New York Field Officer Director for U.S. Immigration and Customs Enforcement; Diane McConnell, in her official capacity as Assistant Field Office Director for U.S. Immigration and Customs Enforcement; Thomas S. Winkowski, in his official capacity as Principal Deputy Assistant Director of U.S. Immigration and Customs Enforcement ; Jeh Johnson, in his official capacity as Secretary of the U.S. Department of Homeland Security; Loretta E. Lynch, in her official capacity as the Attorney General of the United States;¹ and the U.S. Department of Homeland Security² Respondents–Appellants.

No. 14–2343–PR.

United States Court of Appeals, Second Circuit.

Argued: April 20, 2015.

Decided: Oct. 28, 2015.

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, N.Y.; Bridget Kessler, Brooklyn Defender Services, Brooklyn, N.Y., 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, N.Y.; Alexis Karteron and Jordan Wells, New York Civil Liberties Union Foundation, New York, N.Y., 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, N.Y., 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.

Before: KEARSE, PARKER, and WESLEY, Circuit Judges.

Opinion

BARRINGTON D. PARKER, Circuit Judge.

In 1996, with the passage of the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”), Congress significantly expanded the categories of non-citizens subject to mandatory detention pending their removal proceedings.⁴ Under section 1226(c) of the revised INA, the Department of Homeland Security (“DHS”) is required to detain aliens who have committed certain crimes “when [they are] released.” The section contains no explicit provision for bail.⁵ When the constitutionality of section 1226(c) was challenged in Demore v. Kim, 538 U.S. 510, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003), statistics showed that removal proceedings were completed within forty-seven days in eighty-five percent of cases in which aliens were mandatorily detained. Id. at 529, 123 S.Ct. 1708. Emphasizing the relative brevity of detention in most cases, the Court concluded that detention during removal proceedings was “constitutionally permissible.” Id. at 531, 123 S.Ct. 1708.

However, the passage of the IIRIRA, which, among other things, expanded the definition of criminal aliens and required states to provide notice of aliens who violate state criminal laws, combined with a simultaneous rise in immigration to the United States, has resulted in an enormous increase in the number of aliens taken into custody pending removal.⁶ By 2009, Immigration and Customs Enforcement (“ICE”) was imprisoning close to four hundred thousand aliens every year, two-thirds of whom were subject to mandatory detention under section 1226(c).⁷ Not surprisingly, the time that each immigrant spends in detention has also risen substantially. In 2001, the average time an alien was detained from the initiation of removal proceedings to release or entry of a final order of removal was approximately thirty-nine days.⁸ In 2003, the average detention time for most section 1226(c) detainees was approximately forty-seven days. See Demore, 538 U.S. at 529, 123 S.Ct. 1708. Since then, the situation has worsened considerably. ICE has not provided statistics regarding the length of time that mandatory detainees spend in detention. It is clear, however, that today, a non-citizen detained under section 1226(c) who contests his or her removal regularly spends many months and sometimes years in detention due to the enormous backlog in immigration proceedings.⁹ There are thousands of individuals in immigration detention within the jurisdiction of this Court who languish in county jails and in short-term and permanent ICE facilities.

No doubt an appreciable number of these detainees have criminal records that subject them to mandatory deportation. Many in this group are dangerous or have no ties to a community. Congress was quite clear that it wanted such individuals detained pending deportation. On the other hand, this group includes non-citizens who, for a variety of individualized reasons, are not dangerous, have strong family and community ties, are not flight risks and may have meritorious defenses to deportation at such time as they are able to present them.

One such detainee is Alexander Lora, a lawful permanent resident (“LPR”) and citizen of the Dominican Republic, who was convicted of drug related offenses, sentenced to probation, and taken into custody by ICE agents pursuant to section 1226(c), over three years into his five-year probation term. After four months in immigration custody, Lora petitioned for a writ of habeas corpus. He contended, among other things, that he was eligible to apply for bail because the mandatory detention provision of section 1226(c) did not apply to him because he had not been taken into custody “when released” and that indefinite incarceration without an opportunity to apply for bail violated his right to due process.

His petition was granted by the District Court (Peck, M.J. ). Magistrate Judge Peck agreed with Lora's statutory argument, did not reach his constitutional argument, and ordered that Lora be afforded a bail hearing. At that hearing, the government did not contest his eligibility for bail. Following the parties' stipulation that Lora, who was gainfully employed and had substantial family ties to his community, was not dangerous and posed no risk of flight, the immigration judge (“IJ”) ordered Lora's release conditioned on his posting a $5000 bond. This appeal followed.

The main issue of statutory construction driving this appeal is whether, as Lora argues and the District Court ruled, the “when released” provision of section 1226(c) applies only if the government takes an alien into immigration custody immediately following his release from a custodial sentence or whether, as the government argues, an alien is subject to mandatory detention even if DHS does not detain him immediately upon release. On this issue we agree with the government and conclude that Lora was subject to mandatory detention under section 1226(c).

However, we agree with Lora's constitutional argument. While the Supreme Court has held “that the Government may constitutionally detain deportable aliens during the limited period necessary for their removal proceedings,” Demore, 538 U.S. at 526, 123 S.Ct. 1708, it has made clear that the indefinite detention of a non-citizen “raise[s] serious constitutional concerns” in that “[f]reedom from imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty that [the Due Process] Clause protects,” Zadvydas v. Davis, 533 U.S. 678, 682, 690, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). Following this guidance, we hold that, in order to avoid significant constitutional concerns surrounding the application of section 1226(c), it must be read to contain an implicit temporal limitation. In reaching this result, we join every other circuit to have considered this issue.¹⁰ Specifically, we join the Ninth Circuit in holding that mandatory detention for longer than six months without a bond hearing affronts due process. See Rodriguez v. Robbins, 715 F.3d 1127 (9th Cir.2013).¹¹ Accordingly, we affirm the District Court's decision to grant the petition.

BACKGROUND

Lora entered the United States as a lawful permanent resident (“LPR”) from the Dominican Republic in 1990 when he was seven years old. For the next nineteen years, Lora lived continuously in Brooklyn, New York where he has a large family network, including his U.S. citizen fiancée, chronically-ill U.S. citizen mother, LPR father, and U.S. citizen brother and sister. Lora has two sons whom he supports: a two-year-old son who is a U.S. citizen and lives in the United States and an eight-year-old son who lives in the Dominican Republic. During the nearly two decades that Lora has spent in this country, he attended school and worked in grocery stores to support himself and his family.

In July 2009, while working at a grocery store, Lora was arrested with one of his co-workers and charged with several New York state offenses relating to cocaine possession. In July 2010, Lora pled 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 in violation of New York Penal Law §§ 220.16, 220.50. Lora was sentenced to five years of probation. He was not sentenced to any period of incarceration and he did not violate any of the conditions of his probation.

On November 22, 2013, over three years into his probation term, ICE agents arrested Lora in an early morning raid in the Brooklyn neighborhood where he...