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Morris v. Decker

United States District Court, S.D. New York

May 11, 2017

THOMAS DECKER, in his official capacity as Field Office Director, U.S. Immigration and Customs Enforcement; JOHN F. KELLY, in his official capacity as Secretary of the U.S. Department of Homeland Security; JEFFERSON B. SESSIONS, in his official capacity as Attorney General of the United States, Respondents.

          OPINION & ORDER

          VALERIE CAPRONI, United States District Judge:

         Cristal 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.


         The 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.

         After 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.

         At a 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.

         On 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.


         “It 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).

         Petitioner 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.[1] 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.

         Petitioner 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 Process Clause.

         I. Applicability of Lora to the detention of arriving aliens pursuant to section 1225(b)

         In 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 616.

         District 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 ...

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