United States District Court, S.D. New York
OPINION & ORDER
VALERIE CAPRONI, United States District Judge:
Morris (“Petitioner”), a lawful permanent
resident (“LPR”), petitions for a writ of habeas
corpus seeking an individualized bond hearing by the
Department of Homeland Security. Petitioner argues that the
rationale of Lora v. Shanahan, 804 F.3d 601 (2d Cir.
2015), which held that criminally convicted immigrants
awaiting removal cannot be detained for longer than six
months without a bond hearing, extends to LPRs such as
Petitioner, who are placed in removal proceedings. For the
following reasons, this Court agrees, and holds that
Petitioner, who has been detained for over seven months, must
be promptly given an individualized bond hearing.
material facts in this case are few and undisputed.
Petitioner, a Jamaican citizen, has resided in the United
States since she arrived as a 16-year-old in 2003. Petition
for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241
(hereafter, “Pet.”) ¶¶ 1, 20, Dkt. 1.
She became an LPR in June 2013. Pet. ¶¶ 1, 20. In
November 2014, Petitioner left for an approximately one-week
trip to Guyana. Pet. ¶ 24. Upon her return, she was
arrested at John F. Kennedy International Airport for
importation of cocaine. Pet. ¶ 24. Petitioner pled
guilty to one count of importation of cocaine, for which she
was sentenced to six months in federal prison. Pet. ¶
24. During at least a portion of the pendency of her criminal
case, she was released, and she self-surrendered to serve her
sentence. Declaration of Andrea Saenz, Ex. A (“Parole
Req.”) at 4, Dkt. 4.
completing her sentence, Petitioner was placed into the
custody of the U.S. Immigration and Customs Enforcement
(“ICE”) for removal proceedings pursuant to a
Notice to Appear. Pet. ¶¶ 2, 25. The Notice to
Appear alleges that Petitioner, as an “arriving
alien” pursuant to 8 U.S.C. § 1225(b)(2), is
subject to removal because of her cocaine-importation
conviction. Pet. ¶¶ 3, 25-26. Petitioner has been
detained in ICE custody since October 7, 2016. Pet. ¶ 2.
January 2017 master calendar hearing, Petitioner admitted the
factual allegations and charges of removability in the Notice
to Appear, and she filed an application for asylum,
withholding of removal and relief under the Convention
against Torture. Pet. ¶ 26; Declaration of Deportation
Officer Naeem T. Williams (hereafter, “Williams
Decl.”) ¶ 12, Dkt. 11. The Immigration Judge
scheduled her merits hearing for June 5, 2017. Williams Decl.
¶ 12. On January 25, 2017, Petitioner submitted to ICE a
request for humanitarian parole, Pet. ¶ 27, which has
been denied. May 10, 2017 Letter, Dkt. 17.
March 28, 2017, Petitioner filed this habeas petition,
arguing that her detention under section 1225(b) without a
bond hearing violates the Due Process Clause. The Supreme
Court is currently considering this precise legal issue in
Jennings v. Rodriguez, No. 15-1204, and the Second
Circuit has stayed cases pending before it that raise this
issue. See, e.g., Arias v. Aviles, No.
16-3186 (2d Cir. filed Sept. 12, 2016). Although this Court
might normally be inclined to stay the case pending the
Supreme Court and Second Circuit's consideration of the
very legal issue presented by the petition, the prolonged
deprivation of Petitioner's liberty without any
individualized assessment of the risk that she will flee,
counsels against that approach. For the reasons stated
herein, the Court orders that Petitioner be given an
individualized bond hearing.
is well established that the Fifth Amendment entitles aliens
to due process of law in deportation proceedings.”
Demore v. Kim, 538 U.S. 510, 523 (2003) (quoting
Reno v. Flores, 507 U.S. 292, 306 (1993)). To avoid
constitutional concerns, the detention of aliens following a
final order of removal must be subject to a
“‘reasonable time' limitation, ” and
six months has been held to be presumptively reasonable.
Zadvydas v. Davis, 533 U.S. 678, 682, 701 (2001)
(interpreting 8 U.S.C. § 1231); see also Clark v.
Martinez, 543 U.S. 371, 378 (2005) (applying
Zadvydas to all categories of aliens detained
pursuant to 8 U.S.C. § 1231). Two years later, in
interpreting 8 U.S.C. § 1226(c), which governs the
detention of aliens who have committed certain criminal
offenses, the Supreme Court held that the detention of an
alien for “the limited period of his removal
proceedings” was constitutionally permissible.
Demore, 538 U.S. at 530 (six-month detention was
constitutionally permissible). After reviewing
Zadvydas and Demore, the Second Circuit
concluded that mandatory detention pursuant to 8 U.S.C.
§ 1226(c) for longer than six months without a bond
hearing violates the Due Process Clause. Lora v.
Shanahan, 804 F.3d 601, 606 (2d Cir. 2015).
is being detained pursuant to 8 U.S.C. § 1225(b)(2)(A),
which governs the detention of an “arriving alien,
” i.e., a non-citizen (including an LPR)
seeking admission to the United States. Section 1225(b) does
not explicitly limit the length of such detention or
explicitly discuss the availability of bail or an
individualized bail hearing, but it does permit discretionary
parole by the Department of Homeland Security. 8 U.S.C. §
1182(d)(5)(A); 8 C.F.R. § 212.5. Neither the Supreme
Court nor the Second Circuit has grappled with whether
indefinite detention pursuant to section 1225(b) violates the
Due Process Clause, although, as noted above, this very issue
is currently pending before both courts.
argues that Lora should be extended to section
1225(b) and that section 1225(b), as applied to
Petitioner's case, violates due process because
Petitioner's detention has exceeded six months. The
Government responds that Lora is inapplicable
because Petitioner is not being detained pursuant to the
statute at issue in Lora. The Government contends
that the Court should not impose a six-month limitation on
the period of detention for non-citizens seeking admission
and that Petitioner's detention does not violate the Due
Applicability of Lora to the detention of
arriving aliens pursuant to section 1225(b)
Lora, the Second Circuit concluded that to avoid
constitutional concerns, 8 U.S.C. § 1226(c) must be
interpreted to include “an implicit temporal limitation
on the length of time a detainee can be held before being
afforded an opportunity to seek bail.” Lora,
804 F.3d at 603. Lora stressed that the Supreme
Court “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.'” Id. at 606
(alterations in original) (quoting Zadvydas, 533
U.S. at 682, 690). Agreeing with the Ninth Circuit's
opinion in Rodriguez v. Robbins
(“Rodriguez II”), 715 F.3d 1127 (9th
Cir. 2013), on the issue, Lora established a bright-
line rule that “mandatory detention for longer than six
months without a bond hearing affronts due process.”
Id. at 606. Lora further joined the Ninth
Circuit in holding that “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. at
courts in the Southern District of New York are split on
whether Lora, which concerns section 1226(c),
extends to section 1225(b). Now-retired Judge Scheindlin
concluded, without further analysis, that Lora was
not applicable to an LPR held pursuant to section 1225(b),
and she held that the LPR being held pursuant to section
1225(b) was not entitled to an individualized bond hearing,
regardless of the length of detention. Cardona v.
Nalls-Castillo, 177 F.Supp.3d 815, 816 (S.D.N.Y. 2016).
Judge Keenan similarly held that an LPR ...