United States District Court, S.D. New York
MEMORANDUM OPINION AND ORDER
GREGORY H. WOODS United States District Judge
March 8, 2017, Petitioner, Mr. Franklin Salvador Gomez, filed
a petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2241 (the “Petition”). ECF No. 1.
Petitioner has been detained by the U.S. Immigration and
Customs Enforcement (“ICE”) without bond for
approximately four months, and seeks a bond hearing in light
of his detention. Because Mr. Salvador Gomez does not present
a basis for the Court to conclude that his current detention
violates the law, the Petition is DENIED without prejudice.
is a citizen of El Salvador. Pet. ¶ 14. He fled his home
country in February 2014 after allegedly being targeted for
death by the “Mara 18, ” a Salvadorian criminal
gang. Pet. ¶ 2. After fleeing El Salvador, he spent
approximately 18 months in Mexico before attempting to enter
the United States. Pet. ¶ 3. On November 1, 2016,
Petitioner presented himself to the U.S. Customs and Border
Patrol in San Ysidro, California and requested asylum. Pet.
¶ 29. Petitioner was taken into custody and placed in
removal proceedings. Pet. ¶¶ 4, 30.
November 29, 2016, an asylum officer determined that
Petitioner had established a credible fear of persecution and
referred his case to an immigration judge (“IJ”)
for full consideration of his asylum claim. Pet. ¶ 30
& Exs. 1-2. On March 8, 2017―the same date on which
he filed this Petition―Petitioner also submitted his
application for asylum in immigration court. Pet. ¶ 31.
The IJ has scheduled a hearing for April 18, 2017, at which
time Petitioner expects the IJ to schedule a final hearing on
the merits of his asylum claim. Pet. ¶ 31. On March 8,
2017, Petitioner's counsel also filed a humanitarian
parole request with ICE. Pet. ¶ 23 & Ex. 3.
Petitioner is currently detained in New York awaiting the
April 18, 2017 hearing, which will take place at the
immigration court located at 201 Varick Street, New York, New
York. Pet. ¶ 24.
Petition advances three “claims for relief.” Pet.
¶ 33-62. At bottom, however, all three of those claims
rely on the Second Circuit's decision in Lora v.
Shanahan, 804 F.3d 601 (2d Cir. 2015). The gravamen of
Petitioner's claims is that his due process rights have
been violated because his “detention will
certainly last longer than six months and may very well last
much, much longer.” Pet. ¶ 32 (emphasis added).
The Petition suggests no other basis to justify the requested
Lora, the Second Circuit held that “in order
to avoid the constitutional concerns raised by indefinite
detention, an immigrant detained pursuant to [8 U.S.C.
§] 1226(c) must be afforded a bail hearing before an
immigration judge within six months of his or her
detention.” 804 F.3d at 616. The Second Circuit elected
to adopt this “bright-line rule . . . in order to avoid
the constitutional concerns raised by indefinite
detention.” Id. The holding of Lora
is limited to 8 U.S.C. § 1226(c). By its terms, the
decision extends neither to § 1225(b)(1)(B)(IV) nor to 8
U.S.C. § 1226(a)―the two statutes described in the
Petition as potentially governing Petitioner's detention.
The Court need not assess whether § 1226(a) or §
1225(b) governs Petitioner's detention, nor is it
necessary for the Court to determine whether the holding of
Lora should be expanded to apply to those statutory
provisions. For purposes of this decision only, the
Court assumes, without holding, that Lora applies
with equal force to both of those provisions.
that the six-month limitation on detentions without a bond
hearing established in Lora applies here, Petitioner
has not demonstrated that he is entitled to relief. His
detention has not yet exceeded six months-he is nearly two
months shy of that mark. His April 18, 2017 hearing also
falls before the six-month mark. Therefore, as of the date of
the Petition-and this order- Petitioner has not presented the
Court with a basis for relief. The Court recognizes that
Petitioner's final hearing on the merits may take place
on a date that exceeds the six-month mark, but the
possibility of future harm does not make this matter ripe for
adjudication. The Court will not assume that the IJ will
refuse to consider bond either at the April 18, 2017 hearing
or at some other point before Petitioner has been in
detention for six months. Nor will the Court assume that
Petitioner's application for asylum will be denied,
giving rise to an extensive appeal process. Accordingly,
Petitioner has not established that his detention will
“certainly” last longer than six months without a
bond hearing. See Raju v. Shanahan, No. 15-CV-7499
(RA), 2015 WL 7567455, at *4 (S.D.N.Y. Nov. 23, 2015)
(denying leave to amend a petition for a writ of habeas
corpus where petitioner had been detained for less than six
months, and stating that “Petitioner's speculation
that he will not receive a bail hearing before [the
expiration of the six-month period] is just
that-speculation”); see also Chen v. Decker,
148 F.Supp.3d 325, 327 (S.D.N.Y. 2015) (denying a petition
for a writ of habeas corpus where the petitioner had been
detained pursuant to § 1226(c) for less than six
months); see also Texas v. United States, 523 U.S.
296, 300 (1998) (“A claim is not ripe for adjudication
if it rests upon ‘contingent future events that may not
occur as anticipated, or indeed may not occur at
all.'” (quoting Thomas v. Union Carbide
Agricultural Prods. Co., 473 U.S. 568, 580-81 (1985))).
Petitioner's detention period has not exceeded the
six-month period established in Lora, and he has not
asserted any other basis for the relief sought, the Petition
for a writ of habeas corpus is DENIED without prejudice.
Clerk of Court is directed to close this case.