United States District Court, W.D. New York
LAWRENCE J. VILARDO UNITED STATES DISTRICT JUDGE
one of at least two cases before this Court in which a civil
immigration detainee held at the Buffalo Federal Detention
Facility has been denied his right to a bond hearing under
Lora v. Shanahan, 804 F.3d 601 (2d Cir. 2015).
Government officials in this district apparently have adopted
a paradoxical interpretation of Lora, which has
resulted in their providing aliens with serious criminal
records better opportunities to obtain bail than similarly
situated non-criminal aliens.
reasons set forth below, this Court holds-for a second
time-that Lora and the due process
concerns raised by indefinite detention require that 8 U.S.C.
§ 1226(a) detainees in prolonged detention (i.e., more
than six months) receive Lora bond hearings. At
those bond hearings, the burden is on the government to
establish by clear and convincing evidence that the alien
poses a risk of flight or danger to the community. Moreover,
due process requires those bond hearings to be
Court is mindful that Jennings v. Rodriguez, No.
15-1204-a case that concerns many of the same issues
addressed in Lora and herein-currently is pending
before the Supreme Court. That case was argued on November
30, 2016, and on December 15, 2016, the Court requested
further briefing on issues directly relevant to the case at
bar. It therefore is likely that the Supreme Court will soon
confirm, clarify, or perhaps even upend the law in this area.
But in the meantime, that is no reason to deny Nguti-a
non-criminal alien who has been detained for close to two
years-the relief to which he clearly is entitled under the
law in this circuit.
petitioner, Edwin Fru Nguti, is a civil immigration detainee
currently held at the Buffalo Federal Detention Facility. On
October 27, 2016, he filed a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241, arguing that he is
being detained in violation of the Constitution or laws of
the United States. Docket Item 1. On November 17, 2016, he
filed an amended petition. Docket Item 3. This Court (Hon.
David G. Larimer) ordered the government to respond, and the
government did so on December 22, 2016. Docket Items 6 &
7. On March 31, 2017, this case was transferred from Judge
Larimer to the undersigned. Docket Item 9.
salient facts are not in dispute and are set forth in the
record. Nguti is a “native and citizen of
Cameroon” who was “taken into ICE custody on
August 10, 2015, and has remained so continuously since that
date.” Docket Item 3 at ¶ 11. Thus, he has been in
custody for more than one year and eight months. According to
the government, Nguti's current detention is
discretionary, pursuant to 8 U.S.C. § 1226(a). Docket
Item 7 at 11, n. 9; see Docket Item 11 at 3-4.
Although Nguti has previous convictions for driving while
intoxicated, he has not been convicted of a crime that would
trigger the application of 8 U.S.C. § 1226(c) (mandatory
detention for aliens convicted of, among other things, an
offense punished by a year or more in prison or an offense
involving firearms, controlled substances, or moral
months after the government responded to Nguti's
petition, this Court issued its decision in in Enoh v.
Sessions, 16-CV-85(LJV), 2017 WL 1041597 (W.D.N.Y. Feb.
22, 2017), which granted a habeas petitioner's request
for a Lora bond hearing in circumstances very
similar to those here. On April 4, 2017, this Court therefore
ordered the government to show cause why Nguti should not
immediately be given a Lora bond hearing in light of
this Court's decision in Enoh. Docket Item 10.
This Court further ordered the government to explain certain
statements in its submissions that seemed to be flatly
contradicted by the record. Id.
THE PETITIONER'S ENTITLEMENT TO A LORA BOND
The Second Circuit's Decision in Lora v.
Lora v. Shanahan, the Second Circuit observed that a
civil immigration detainee “who contests his or her
removal regularly spends many months and sometimes years in
detention due to the enormous backlog in immigration
proceedings.” 804 F.3d 601, 605 (2d Cir. 2015). Because
of that worsening problem, there were-as of October
2015-“thousands of individuals in immigration detention
within the jurisdiction of [the Second Circuit] who languish
in county jails and in short-term and permanent ICE
Second Circuit recognized, “the Government may
constitutionally detain deportable aliens during the limited
period necessary for their removal proceedings.”
Id. at 606 (quoting Demore v. Kim, 538 U.S.
510, 526 (2003)). Indeed, Congress has been “quite
clear that it wanted” detainees with serious criminal
records and who “are dangerous or have no ties to a
community” to be detained pending deportation.
Lora, 804 F.3d at 605. But “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.'”
Id. at 606 (alterations in original) (quoting
Zadvydas v. Davis, 533 U.S. 678, 682, 690 (2001)).
And some detainees, “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.” Lora, 804 F.3d at 605.
on those considerations and principles of statutory
interpretation, 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)”-which provides for the
mandatory detention of criminal aliens pending removal
proceedings- “must be afforded a bail hearing before an
immigration judge within six months of his or her
detention.” Lora, 804 F.3d at 616. The Second
Circuit also “[f]ollow[ed] the Ninth Circuit” in
holding that at such a hearing, “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.”
Id. (citing Rodriguez v. Robbins, 715 F.3d
1127, 1131 (9th Cir. 2013)).
8 U.S.C. § 1226(a) and § 1226(c)
lower court's decision in Lora noted, there are
“two distinct provisions governing an alien's
detention while removal proceedings are pending.”
Lora v. Shanahan, 15 F.Supp.3d 478, 482 (S.D.N.Y.
2014) (quoting Straker v. Jones, 986 F.Supp.2d 345,
351 (S.D.N.Y. 2013)). “The first provision”-8
U.S.C. § 1226(a)- “provides for [discretionary]
detention during removal proceedings subject to an
individualized bond hearing.” Lora, 15
F.Supp.3d at 482. “Under the second provision”-8
U.S.C. § 1226(c)-which is “entitled
‘Detention of criminal aliens, ' aliens falling
within certain enumerated categories ‘shall' be
mandatorily detained without a hearing.” Lora,
15 F.Supp.3d at 482-83. Broadly speaking, then, the detention
of a criminal alien facing possible deportation is mandatory
under § 1226(c), while the detention of a non-criminal
alien facing possible deportation is discretionary under
term “individualized bond hearing, ” as quoted in
the above paragraph, refers to a procedural protection to
which non-criminal detainees are entitled under Department of
Homeland Security regulations. More specifically:
In connection with § 1226(a), the Department of Homeland
Security (“DHS”) promulgated regulations setting
out the process by which a non-criminal alien may obtain
release. The regulations provide that, in order to obtain
bond or conditional parole, the “alien must demonstrate
to the satisfaction of the [decision maker] that such release
would not pose a danger to property or persons, and that the
alien is likely to appear for any future proceeding.” 8
C.F.R. § 1236.1(c)(8). The District Director makes the