14‐2343 Lora v. Shanahan
1 In the 2 United States Court of Appeals 3 For the Second Circuit 4 ________ 5 6 August Term, 2014 7 No. 14‐2343‐pr 8 9 ALEXANDER LORA, 10 11 Petitioner‐Appellee, 12 13 v. 14 15 CHRISTOPHER SHANAHAN, in his official capacity as New York Field 16 Officer Director for U.S. Immigration and Customs Enforcement; 17 DIANE MCCONNELL, in her official capacity as Assistant Field Office 18 Director for U.S. Immigration and Customs Enforcement; THOMAS S. 19 WINKOWSKI, in his official capacity as Principal Deputy Assistant 20 Director of U.S. Immigration and Customs Enforcement; JEH 21 JOHNSON, in his official capacity as Secretary of the U.S. Department 22 of Homeland Security; LORETTA E. LYNCH, in her official capacity as 23 the Attorney General of the United States;1 and the U.S. DEPARTMENT 24 OF HOMELAND SECURITY,2 25 26 Respondents‐Appellants. 27 ______ 28 29 Appeal from the United States District Court 30 for the Southern District of New York. 31 No. 14 Civ. 2140(AJP) ― Andrew J. Peck, Magistrate Judge.
1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Loretta E. Lynch is automatically substituted for former Attorney General Eric H. Holder, Jr. 2 The Clerk of the Court is directed to amend the caption as set forth above. 1 ________ 2 3 Argued: April 20, 2015 4 Decided: October 28, 2015 5 ________ 6 Before: KEARSE, PARKER, and WESLEY, Circuit Judges. 7 ________ 8 The government appeals from a judgment of the United States 9 District Court for the Southern District of New York (Peck, Andrew 10 J., M.J.)3 granting Alexander Lora’s petition for a writ of habeas 11 corpus. Lora was detained pursuant to section 1226(c) of the 12 Immigration and Nationality Act (“INA”), 8 U.S.C. § 1226(c), which 13 mandates detention, while their removal proceedings are pending, 14 of non‐citizens who have committed certain criminal offenses. 15 Because section 1226(c) is ambiguous, we defer to the Board of 16 Immigration Authority’s (“BIA’s”) interpretation that detention need 17 not be immediate in order to be mandatory. We also find that the 18 statute applies even if the non‐citizen is not released from a custodial 19 sentence. However, we hold that reading section 1226(c) to permit 20 indefinite detention raises significant constitutional concerns, and to 21 avoid them, we construe the statute to contain an implicit temporal 22 limitation on the length of time a detainee can be held before being 23 afforded an opportunity to seek bail. Affirmed.
24 ________
25 CHRISTOPHER CONNOLLY (Sarah S. Normand, on 26 the brief), Assistant United States Attorneys for 27 Preet Bharara, United States Attorney for the 28 Southern District of New York, for Respondents‐ 29 Appellants.
3 The parties consented to Magistrate Judge Andrew Peck’s jurisdiction over the case under 28 U.S.C. § 636(c). (Dkt. Entry No. 9.)
2 1 REBECCA A. HUFSTADER, Legal Intern, LUIS ANGEL 2 REYES SAVALZA, Legal Intern, (Alina Das and 3 Nancy Morawetz, on the brief), Washington Square 4 Legal Services, Inc., NYU Law School, New York, 5 NY; Bridget Kessler, Brooklyn Defender Services, 6 Brooklyn, NY, on the brief, for Petitioner‐Appelleee.
7 AHILAN ARULANANTHAM, ACLU Immigrants’ 8 Rights Project, Los Angeles, CA; Judy Rabinovitz 9 and Anand Balakrishnan, ACLU Immigrants’ 10 Rights Project, New York, NY; Alexis Karteron 11 and Jordan Wells, New York Civil Liberties 12 Union Foundation, New York, NY, on the brief, for 13 Amici Curiae American Civil Liberties Union; New 14 York Civil Liberties Union.
15 Andrea Saenz, Immigration Justice Clinic, 16 Benjamin N. Cardozo School of Law, New York, 17 NY, for Amici Curiae the Bronx Defenders; Detention 18 Watch Network; Families for Freedom; Immigrant 19 Defense Project; Immigrant Legal Resource Center; 20 Kathryn O. Greenberg Immigration Justice Clinic; 21 Make the Road New York; National Immigrant Justice 22 Center; National Immigration Project of the National 23 Lawyers Guild; Neighborhood Defender Service of 24 Harlem; New Sanctuary Coalition of New York City; 25 Northern Manhattan Coalition for Immigrant Rights.
26 Farrin R. Anello, Immigrants’ Rights/International 27 Human Rights Clinic, Seton Hall University 28 School of Law, Newark, NJ, for Amici Curiae 29 Professors of Immigration and Constitutional Law.
30 ________
3 1 BARRINGTON D. PARKER, Circuit Judge
2 ________
3 In 1996, with the passage of the Illegal Immigration Reform 4 and Immigrant Responsibility Act (“IIRIRA”), Congress significantly 5 expanded the categories of non‐citizens subject to mandatory 6 detention pending their removal proceedings.4 Under section 7 1226(c) of the revised INA, the Department of Homeland Security 8 (“DHS”) is required to detain aliens who have committed certain 9 crimes “when [they are] released.” The section contains no explicit 10 provision for bail.5 When the constitutionality of section 1226(c) was 11 challenged in Demore v. Kim, 538 U.S. 510 (2003), statistics showed 12 that removal proceedings were completed within forty‐seven days in 13 eighty‐five percent of cases in which aliens were mandatorily 14 detained. Id. at 529. Emphasizing the relative brevity of detention in 15 most cases, the Court concluded that detention during removal 16 proceedings was “constitutionally permissible.” Id. at 531.
17 However, the passage of the IIRIRA, which, among other 18 things, expanded the definition of criminal aliens and required states 19 to provide notice of aliens who violate state criminal laws, combined 20 with a simultaneous rise in immigration to the United States, has 21 resulted in an enormous increase in the number of aliens taken into 22 custody pending removal.6 By 2009, Immigration and Customs
4 Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Div. C, §§ 303, 305, 110 Stat. 3009–585, 3009–598 to 3009–599; 8 U.S.C. § 1226(c),1231(a) (1994 ed., Supp. V). 5 Congress adopted section 1226(c) in an effort to strengthen and streamline the process of removing deportable criminal aliens “against a backdrop of wholesale failure by the INS to deal with increasing rates of criminal activity by aliens” and “evidence that one of the major causes of the INS’ failure to remove deportable criminal aliens was the agency’s failure to detain those aliens during their removal proceedings.” Demore v. Kim, 538 U.S. 510, 518–19 (2003). 6 See U.S. Department of Justice, Office of the Federal Detention Trustee, Detention Needs Assessment and Baseline Report: A Compendium of Federal Detention Statistics 14 (2001), http://www.justice.gov/archive/ofdt/compendium_final.pdf (“The number of aliens ordered detained and taken into the custody of the INS pending removal from the United States or other outcome of an immigration proceeding increased from 72,154 during FY 1994 to 188,547 during FY 2001.”).
4 1 Enforcement (“ICE”) was imprisoning close to four hundred 2 thousand aliens every year, two‐thirds of whom were subject to 3 mandatory detention under section 1226(c).7 Not surprisingly, the 4 time that each immigrant spends in detention has also risen 5 substantially. In 2001, the average time an alien was detained from 6 the initiation of removal proceedings to release or entry of a final 7 order of removal was approximately thirty‐nine days.8 In 2003, the 8 average detention time for most section 1226(c) detainees was 9 approximately forty‐seven days. See Demore, 538 U.S. at 529. Since 10 then, the situation has worsened considerably. ICE has not provided 11 statistics regarding the length of time that mandatory detainees 12 spend in detention. It is clear, however, that today, a non‐citizen 13 detained under section 1226(c) who contests his or her removal 14 regularly spends many months and sometimes years in detention 15 due to the enormous backlog in immigration proceedings.9 There 16 are thousands of individuals in immigration detention within the 17 jurisdiction of this Court who languish in county jails and in short‐ 18 term and permanent ICE facilities.
19 No doubt an appreciable number of these detainees have 20 criminal records that subject them to mandatory deportation. Many 21 in this group are dangerous or have no ties to a community. 22 Congress was quite clear that it wanted such individuals detained 23 pending deportation. On the other hand, this group includes non‐ 24 citizens who, for a variety of individualized reasons, are not 25 dangerous, have strong family and community ties, are not flight 7 See Dora Schriro, U.S. Department of Homeland Security, Immigration and Customs Enforcement, Immigration Detention Overview and Recommendations 2 (2009), http://www.ice.gov/doclib/about/offices/odpp/pdf/ice‐detention‐rpt.pdf (stating that, as of reportʹs publication date, over 370,000 noncitizens had been detained in the preceding fiscal year and estimating that 66% of detained noncitizens are held pursuant to mandatory detention). 8 Detention Needs Assessment and Baseline Report: A Compendium of Federal Detention Statistics, supra note 6, at 15 n.41. 9 See Mark Noferi, Cascading Constitutional Deprivation: The Right To Appointed Counsel For Mandatorily Detained Immigrants Pending Removal Proceedings, 18 Mich. J. Race & L. 63, 80–82 (2012) (discussing how immigrants may face prolonged detention as average case processing times now exceed one year).
5 1 risks and may have meritorious defenses to deportation at such time 2 as they are able to present them.
3 One such detainee is Alexander Lora, a lawful permanent 4 resident (“LPR”) and citizen of the Dominican Republic, who was 5 convicted of drug related offenses, sentenced to probation, and taken 6 into custody by ICE agents pursuant to section 1226(c), over three 7 years into his five‐year probation term. After four months in 8 immigration custody, Lora petitioned for a writ of habeas corpus. 9 He contended, among other things, that he was eligible to apply for 10 bail because the mandatory detention provision of section 1226(c) 11 did not apply to him because he had not been taken into custody 12 “when released” and that indefinite incarceration without an 13 opportunity to apply for bail violated his right to due process.
14 His petition was granted by the District Court (Peck, M.J.). 15 Magistrate Judge Peck agreed with Lora’s statutory argument, did 16 not reach his constitutional argument, and ordered that Lora be 17 afforded a bail hearing. At that hearing, the government did not 18 contest his eligibility for bail. Following the parties’ stipulation that 19 Lora, who was gainfully employed and had substantial family ties to 20 his community, was not dangerous and posed no risk of flight, the 21 immigration judge (“IJ”) ordered Lora’s release conditioned on his 22 posting a $5000 bond. This appeal followed.
23 The main issue of statutory construction driving this appeal is 24 whether, as Lora argues and the District Court ruled, the “when 25 released” provision of section 1226(c) applies only if the government 26 takes an alien into immigration custody immediately following his 27 release from a custodial sentence or whether, as the government 28 argues, an alien is subject to mandatory detention even if DHS does 29 not detain him immediately upon release. On this issue we agree 30 with the government and conclude that Lora was subject to 31 mandatory detention under section 1226(c).
6 1 However, we agree with Lora’s constitutional argument. 2 While the Supreme Court has held “that the Government may 3 constitutionally detain deportable aliens during the limited period 4 necessary for their removal proceedings,” Demore, 538 U.S. at 526, it 5 has made clear that the indefinite detention of a non‐citizen “raise[s] 6 serious constitutional concerns” in that “[f]reedom from 7 imprisonment—from government custody, detention, or other forms 8 of physical restraint—lies at the heart of the liberty that [the Due 9 Process] Clause protects,” Zadvydas v. Davis, 533 U.S. 678, 682, 690 10 (2001). Following this guidance, we hold that, in order to avoid 11 significant constitutional concerns surrounding the application of 12 section 1226(c), it must be read to contain an implicit temporal 13 limitation. In reaching this result, we join every other circuit to have 14 considered this issue.10 Specifically, we join the Ninth Circuit in 15 holding that mandatory detention for longer than six months 16 without a bond hearing affronts due process. See Rodriguez v. 17 Robbins, 715 F.3d 1127 (9th Cir. 2013).11 Accordingly, we affirm the 18 District Court’s decision to grant the petition.
19 BACKGROUND
20 Lora entered the United States as a lawful permanent resident 21 (“LPR”) from the Dominican Republic in 1990 when he was seven 22 years old. For the next nineteen years, Lora lived continuously in 23 Brooklyn, New York where he has a large family network, including 24 his U.S. citizen fiancée, chronically‐ill U.S. citizen mother, LPR 25 father, and U.S. citizen brother and sister. Lora has two sons whom 26 he supports: a two‐year‐old son who is a U.S. citizen and lives in the 27 United States and an eight‐year‐old son who lives in the Dominican 28 Republic. During the nearly two decades that Lora has spent in this 29 country, he attended school and worked in grocery stores to support 30 himself and his family.
10 The government, too, agrees that aliens cannot be detained indefinitely. Gov’t Reply Br. at 25. 11 Lora was detained for five‐and‐a‐half months, and it is certain that, were he to be returned to custody, his total period of detention would exceed six months.
7 1 In July 2009, while working at a grocery store, Lora was 2 arrested with one of his co‐workers and charged with several New 3 York state offenses relating to cocaine possession. In July 2010, Lora 4 pled guilty to criminal possession of cocaine with intent to sell, 5 criminal possession of cocaine with an aggregate weight of one 6 ounce or more, and criminal use of drug paraphernalia in violation 7 of New York Penal Law §§ 220.16, 220.50. Lora was sentenced to 8 five years of probation. He was not sentenced to any period of 9 incarceration and he did not violate any of the conditions of his 10 probation.
11 On November 22, 2013, over three years into his probation 12 term, ICE agents arrested Lora in an early morning raid in the 13 Brooklyn neighborhood where he was living at the time. After the 14 agents took Lora into custody, he was transferred to Hudson County 15 Correctional Center in Kearny, New Jersey, where he was detained 16 without bond. Lora was charged with removability under INA § 17 237(a)(2)(B), 8 U.S.C. § 1227(a)(2)(B), for having been convicted of a 18 crime involving a controlled substance, and INA § 237(a)(2)(A)(iii), 8 19 U.S.C. § 1227(a)(2)(A)(iii), for having been convicted of an 20 aggravated felony, namely, trafficking in a controlled substance as 21 defined in INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B). DHS took 22 the position that Lora’s removal charges rendered him subject to 23 mandatory detention under section 1226(c) and that he was not 24 eligible for a bail hearing.
25 While his removal proceedings were pending, Lora moved in 26 New York state court to set aside his conviction. His motion was 27 granted on consent and in March 2014, his original plea and sentence 28 were vacated. Lora was then permitted to plead to a minor 29 offense—a single count of third degree possession of a controlled 30 substance—and was re‐sentenced to a conditional discharge 31 imposed nunc pro tunc to July 21, 2010. With this new sentence, Lora 32 now has a strong argument for cancellation of removal under 1226(c) 33 because third degree possession is a Class B felony under N.Y. Penal
8 1 Law § 220.16(12) and does not qualify as an aggravated felony for 2 immigration purposes under 8 U.S.C. §§ 1227(a)(2)(A)(iii); 1228b.12 3 However, he is still technically subject to mandatory detention under 4 section 1226(c) because he had been convicted of a crime involving a 5 controlled substance under 8 U.S.C. § 1227(a)(2)(B)(i). In March 6 2014, Lora requested that he be permitted to file an application for 7 cancellation of removal and that he be afforded a bail hearing. The IJ 8 granted Lora’s request to file for cancellation of removal but denied 9 Lora’s request for a bail hearing.13
10 At the same time, Lora filed a petition for a writ of habeas 11 corpus, challenging his continued detention. Lora argued that he 12 was not subject to mandatory detention under section 1226(c), which 13 requires an alien to be taken into DHS custody “when the alien is 14 released” because DHS did not take him into custody at the precise 15 time “when” he was released on his underlying convictions, but 16 years later, and that he could not have been detained when he was 17 “released” because he was never incarcerated or kept in physical 18 custody following his triggering conviction. Lora also argued that 19 his continued imprisonment without a bail hearing raised 20 constitutional concerns under the Due Process Clause of the Fifth 21 Amendment in light of his substantial defenses to removal and the 22 strong possibility of his indefinitely prolonged detention. Finally, 23 Lora raised the alternative argument that his continued detention 12 See 8 U.S.C. § 1229b(a) (“The Attorney General may cancel removal in the case of an alien who is inadmissible or deportable from the United States if the alien‐‐(1) has been an alien lawfully admitted for permanent residence for not less than 5 years, (2) has resided in the United States continuously for 7 years after having been admitted in any status, and (3) has not been convicted of any aggravated felony.”). Lora was admitted to the United States in 1990, has worked and resided in this country ever since, and has strong family ties and responsibilities including serving as the primary caretaker of his U.S. citizen son. See March 26, 2014, Declaration of Talia Peleg, Esq. (“Given Mr. Lora’s residence in the United States as a green card holder, his strong family and community ties here, and other relevant factors, it is my opinion that he has a strong defense to his deportation.”). 13 Lora’s cancellation of removal proceedings are still pending, but because he is no longer detained, his removal proceedings have been taken off of the expedited track. Due to a backlog in non‐detained removal proceedings, his merits hearing on his application for cancellation of removal is currently scheduled for January 2018.
9 1 was not in the public interest, and that he should be released on 2 parole.
3 The District Court granted Lora’s petition, holding that 4 section 1226(c)’s “clear language” requires that DHS detain aliens 5 immediately upon their release from criminal custody, and because 6 Lora was not detained until years after the criminal conviction that 7 formed the basis of his removal charge, he was not subject to 8 mandatory detention. In the alternative, the District Court also 9 found that Lora was not subject to mandatory detention because he 10 did not serve a post‐conviction custodial sentence in connection with 11 his criminal offense and so was never “released” from custody. The 12 District Court directed the government to provide Lora with an 13 individualized bail hearing by May 15, 2014, which was the date of 14 his next hearing before the IJ. The government did not seriously 15 dispute that Lora was neither a flight risk nor a danger to the 16 community and the IJ ordered that Lora be released from custody 17 after posting a $5000 bond. Insofar as the record reveals, since being 18 admitted to bail, Lora remains gainfully employed, tied to his 19 community and poised to contest his removability once DHS clears 20 its backlog sufficiently to afford him a hearing.
21 The government appeals, contesting the District Court’s 22 interpretation of section 1226(c). The government maintains that, 23 even though Lora no longer stands convicted of an aggravated 24 felony, he is still deportable and subject to mandatory detention as a 25 result of his conviction under a law relating to a controlled 26 substance. Notably, the government does not take the position that 27 it should be permitted to hold immigrants indefinitely. Rather, it 28 contends that due process requires a “fact‐dependent inquiry” as to 29 the allowable length of detention and there should be no bright‐line 30 rule for when detention becomes presumptively unreasonable. 31 Gov’t Reply Br. at 25.
10 1 DISCUSSION
2 When the government seeks removal of an alien, an IJ can 3 ordinarily conduct a bail hearing to decide whether the alien should 4 be released or imprisoned while proceedings are pending. 5 However, 8 U.S.C. § 1226(c) requires the mandatory detention, for 6 the duration of their removal proceedings, of aliens convicted of 7 certain crimes. The portion of section 1226(c)(1) applicable to Lora 8 provides: 9 10 (1) Custody 11 The Attorney General shall take into 12 custody any alien who . . . 13 (B) is deportable by reason of having 14 committed any offense covered in section 15 1227(a)(2)(A)(ii),(A)(iii), (B), (C), or (D) of 16 this title [i.e. specified offenses including 17 controlled substance offenses]; . . . when the 18 alien is released, without regard to whether 19 the alien is released on parole, supervised 20 release, or probation, and without regard to 21 whether the alien may be arrested or 22 imprisoned again for the same offense. 23 24 (2) Release 25 The Attorney General may release an alien 26 described in paragraph (1) only if the 27 Attorney General decides . . . that release of 28 the alien from custody is necessary [for 29 certain witness protection purposes], and 30 the alien satisfies the Attorney General that 31 the alien will not pose a danger to the 32 safety of other persons or of property and is 33 likely to appear for any scheduled 34 proceeding. . . .
11 1 2 8 U.S.C. § 1226(c)(1)–(2) (emphasis added).
3 Thus, detention without a bail hearing under section 1226(c) is 4 mandatory unless DHS determines that an alien falls within a 5 narrow witness‐protection exception not applicable here. See 8 6 U.S.C. § 1226(c)(2). However, the clause in paragraph (1), “when the 7 alien is released,” has been the source of persistent confusion and 8 extensive litigation in this Circuit and elsewhere.
9 This case calls for us to decide: (1) whether an alien is subject 10 to mandatory detention only if he or she has been sentenced to and 11 “released” from prison or some form of physical custody; and (2) 12 whether an alien is subject to mandatory detention if there is a gap 13 between the alien’s being on post‐conviction release and his or her 14 confinement by DHS.14 Although these are issues of first impression 15 for this Court, other circuits as well as numerous district courts, both 16 within and outside of this Circuit, have addressed the issue but 17 remain divided on how to apply section 1226(c).15
18 Meaning of “Released”
19 The government argues that the Court should reject the 20 District Court’s holding that Lora is not subject to mandatory 21 detention because he was never “released” from a post‐conviction 22 sentence of incarceration. The government relies on two BIA cases 14 Because this appeal raises questions of law as to the interpretation of 8 U.S.C. § 1226(c), we review the District Courtʹs decision on how to interpret the statute de novo. See Puello v. Bureau of Citizenship & Immigration Servs., 511 F.3d 324, 327 (2d Cir. 2007). 15 Compare Olmos v. Holder, 780 F.3d 1313, 1324 (10th Cir. 2015) (holding that even if there was a delay after alien was released before the alien was taken into immigration custody, mandatory detention still applies), and Sylvain v. Att’y Gen. of U.S., 714 F.3d 150, 156–61 (3d Cir. 2013) (holding that immigration officials do not lose authority to impose mandatory detention if they fail to do so “when the alien is released”), and Hosh v. Lucero, 680 F.3d 375, 378–84 (4th Cir. 2012) (holding that a criminal alien who is not immediately taken into immigration custody after his release from criminal custody is not exempt from section 1226(c)’s mandatory detention provision), with Castañeda v. Souza, 769 F.3d 32 (1st Cir. 2014) (interpreting “when” as signifying that DHS can subject an alien to mandatory detention only if it detains the alien at or around the time the alien is released from criminal custody), reh’g en banc granted, opinion withdrawn, Jan. 23, 2015.
12 1 in which the Board determined that the word “released” in section 2 1226(c) includes pre‐conviction release from arrests.16 See In re 3 Kotliar, 24 I. & N. Dec. 124, 125 (2007) (“[W]e have held that an alien 4 who is released from criminal custody[,] . . . including from an arrest 5 preceding a conviction, . . . is subject to mandatory detention.”); In re 6 West, 22 I. & N. Dec. 1405, 1410 (2000). West and Kotliar also suggest 7 that the alien must be released from some form of physical custody 8 for § 1226(c)(1) to apply. See, e.g., West, 22 I & N. Dec. at 1410 (“[W]e 9 construe the word ‘released’ . . . to refer to a release from physical 10 custody.”). The government urges that, consistent with these cases, 11 “released” can refer to a release from pre‐conviction confinement, 12 such as an arrest.
13 Because we find that section 1226(c)(1) unambiguously 14 mandates detention in this circumstance for other reasons, we need 15 not confront the BIA decisions or the government’s interpretation of 16 them. See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 17 837, 842–43 (1984). “[D]eference to [an agencyʹs] statutory 18 interpretation is called for only when the devices of judicial 19 construction have been tried and found to yield no clear sense of 20 congressional intent.” Gen. Dynamics Land Sys., Inc. v. Cline, 540 U.S. 21 581, 600 (2004) (citing INS v. Cardoza–Fonseca, 480 U.S. 421, 446–48 22 (1987)). A natural reading of the statute suggests that the term 23 “released” in section 1226(c) means not incarcerated, not imprisoned, 24 not detained, i.e., not in physical custody. See Demore, 538 U.S. at 513 25 (“Congress[ was] justifiably concerned that deportable criminal 26 aliens who are not detained continue to engage in crime and fail to 27 appear for their removal hearings . . . .”). Thus, detention is 28 mandated once an alien is convicted of a crime described in section 29 1226(c)(1) and is not incarcerated, imprisoned, or otherwise 30 detained. This interpretation avoids nullifying the provision in 31 section 1226(c)(1) that DHS “shall take into custody any alien who . . 32 . is inadmissible [or] is deportable by reason of having committed [a 16 The Third Circuit has deferred to the BIA’s interpretation and has held that a pre‐conviction release following arrest satisfies section 1226(c)’s release requirement. See Sylvain, 714 F.3d at 161.
13 1 certain type of crime] . . . when the alien is released, without regard to 2 whether the alien is released on parole, supervised release, or probation” 3 (emphasis added)—which clearly contemplates non‐carceral 4 sentences. See, e.g., TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) 5 (noting that statutes should be read to avoid making any provisions 6 “superfluous, void, or insignificant” (internal quotation marks 7 omitted)). Moreover, where Congress has intended to limit 8 detention to aliens sentenced to a certain prison term, it has done so 9 explicitly. See, e.g., 8 U.S.C. § 1182(a)(2) (alien is not eligible for a 10 visa or admission if the alien has committed a crime involving moral 11 turpitude for which a sentence of at least six months has been 12 imposed). Accordingly, we conclude that an alien who has been 13 convicted of a qualifying crime under section 1226(c) is subject to 14 mandatory immigration detention, whether he is sentenced to a 15 prison term or to probation.
16 “When” the Alien is Released
17 The government next argues that the District Court wrongly 18 interpreted the word “when” in the “when the alien is released” 19 clause of section 1226(c) as imposing a temporal limit on DHS’s 20 obligation to mandatorily detain non‐citizens. Because Lora was not 21 taken into immigration custody until more than three years after his 22 July 2010 criminal conviction and sentencing, the District Court 23 found that he was outside the reach of the statute and so was eligible 24 for bail.
25 This single issue consists of two inquiries: (1) whether “when 26 . . . released” contemplates detainment immediately upon release, or 27 merely at some time after release, and (2) whether, notwithstanding 28 the meaning of “when . . . released,” the statute imposes a temporal 29 restriction on the agency’s authority and duty to detain an alien. 30 Because we defer to the BIA’s interpretation that “when . . . released” 31 does not impose a temporal restriction on the agency’s authority and 32 duty to detain an alien, we need not decide the meaning of “when . . 33 . released.”
14 1 Over a decade ago, the BIA, the agency charged with 2 administering this statute, considered a challenge from a detainee to 3 his mandatory detention. See In re Rojas, 23 I. & N. Dec. 117 (BIA 4 2001). The detainee argued that because he had not been taken into 5 custody “when . . . released,” as directed by section 1226(c)(1), he 6 was not subject to mandatory detention under section 1226(c)(2). Id. 7 at 118. The BIA declined to consider whether “when . . . released” 8 meant immediately upon release or merely sometime after the 9 detainee was released, and instead agreed with the government that 10 regardless of the proper interpretation of “when . . . released,” the 11 text, structure, history, and purpose of the statute all suggested that 12 Congress did not intend the “when . . . released” clause to limit the 13 authority of agents to detain an alien. Id. at 121–25. Under the BIA’s 14 interpretation, “when . . . released” refers to the time at which the 15 duty to detain arises, and does not place a temporal limit on the 16 agents’ authority to detain an alien—thus, 1226(c)(2) mandates 17 detainment even if DHS does not detain the alien immediately upon 18 release. Id. at 123–24. This has been referred to in this Circuit as the 19 “duty‐triggering” construction, while Lora argues for what has been 20 referred to as the “time‐limiting” construction. See Straker v. Jones, 21 986 F. Supp. 2d 345, 352–53 (S.D.N.Y. 2013).
22 Because we are faced with an administrative agency’s 23 interpretation of a statute, we follow the two‐step Chevron inquiry. 24 See Chevron, 467 U.S. at 842–44. If we find, based on the plain 25 language of the statute, that “the intent of Congress is clear, that is 26 the end of the matter.” Id. at 842. However, if we find that the 27 statute is silent or ambiguous with respect to the specific issue, we 28 will proceed to the second step: determining “whether the agency’s 29 answer is based on a permissible construction of the statute.” Id. at 30 843. We defer to the BIA’s interpretation so long as it is “reasonable, 31 and not ‘arbitrary, capricious, or manifestly contrary to the statute.’“ 32 Adams v. Holder, 692 F.3d 91, 95 (2d Cir. 2012) (quoting Chevron, 467 33 U.S. at 844). The government argues that, because the statute is
15 1 ambiguous, the District Court should have followed the BIA’s 2 reasonable interpretation. We agree.
3 At the first step of the Chevron inquiry, we have little trouble 4 concluding that it is ambiguous whether “when . . . released” should 5 be given the “duty‐triggering” construction or the “time‐limiting” 6 construction. The BIA agrees. Rojas, 23 I. & N. Dec. at 120. And the 7 Supreme Court has long recognized that the word “when” may 8 alternatively mean “the precise time when a particular act must be 9 performed,” or “the occurrence which shall render that particular act 10 necessary.” United States v. Willings, 8 U.S. 48, 55 (1807).
11 As the BIA recognized, it is unclear from the text of section 12 1226(c) whether the “when . . . released” clause is part of the 13 definition of aliens subject to mandatory detention. Rojas, 23 I. & N. 14 Dec. at 120. Section 1226(c) requires that DHS take custody of aliens 15 convicted of four categories of predicate criminal or terrorist acts and 16 offenses (“A” through “D”) when they are released and that DHS 17 may not “release an alien described in paragraph (1)” unless that 18 alien falls under an exception for protected witnesses. But it is not 19 clear whether the phrase “an alien described in paragraph (1)” refers 20 to the aliens described in categories “A” through “D,” as the 21 government argues, or to aliens who both qualify under these 22 subcategories and were taken into immigration custody “when . . . 23 released” from custody, as Lora argues. Noting this difficulty, the 24 Tenth Circuit has described how the “when . . . released” phrase can 25 be considered adverbial, modifying the opening verb phrase “the 26 [DHS] shall,” or it can be considered adjectival, modifying the noun 27 phrases in categories (A) through (D). See Olmos, 780 F.3d at 28 1318–19.
29 Because we find that Congress has not directly spoken on the 30 meaning or application of “when . . . released” in this statute, we 31 must consider whether the BIA’s interpretation of section 1226(c) is 32 permissible and thus entitled to Chevron deference. See Khouzam v. 33 Ashcroft, 361 F.3d 161, 164 (2d Cir. 2004). In Rojas, the alien argued
16 1 that he was not subject to mandatory detention under section 1226(c) 2 because immigration authorities did not take him into custody until 3 two days after his release. To resolve the statute’s ambiguity, the 4 BIA used four separate approaches to analyze section 1226(c): (1) the 5 ordinary meaning of the statute’s language, although that language 6 was ambiguous;17 (2) the overall statutory context and goals; (3) the 7 statute’s predecessor provisions; and (4) practical considerations. 8 Rojas, I. & N. Dec. at 121–24. The BIA, while not deciding whether 9 “when . . . released” meant immediately upon release or something 10 else, concluded that “the duty to detain is not affected by the 11 character of an alien’s release from criminal incarceration,” id. at 121, 12 and “that [the alien was] subject to mandatory detention pursuant to 13 section [1226(c)] of the Act, despite the fact that he was not taken 14 into [immigration] custody immediately upon his release from state 15 custody,” id. at 127.18 Consistent with Chevron, we are not convinced 16 that the interpretation is “arbitrary, capricious, or manifestly 17 contrary to the statute.“ Adams, 692 F.3d at 95 (internal quotation 18 marks and citation omitted). As the BIA explained in Rojas, “[i]t is 19 difficult to conclude that Congress meant to premise the success of 20 its mandatory detention scheme on the capacity of [DHS] to appear 21 at the jailhouse door to take custody of an alien at the precise 22 moment of release.” 23 I. & N. Dec. at 128.
23 Moreover, the BIA’s interpretation of section 1226(c) follows 24 Supreme Court precedent establishing that statutes providing “that 25 the Government ‘shall’ act within a specified time, without more,” 26 are not “jurisdictional limit[s] precluding action later.” Barnhart v.
17 See Rojas, 23 I. & N. Dec. at 120 (“We find the statutory provision, when read in isolation, to be susceptible to different readings.”). 18 As the Supreme Court explained in Demore, 538 U.S. at 518, Congress adopted section 1226(c) in response to its frustration with criminal aliens’ ability to avoid deportation if they were not already in DHS custody when removal proceedings were completed and its concern that criminal aliens who are not detained continue to commit crimes. See S. Rep. No. 104‐48, 1995 WL 170285, at *14, *23 (1995). The BIA relied on this history and concluded, “we discern that the statute as a whole is focused on the removal of criminal aliens in general, not just those coming into [INS] custody ‘when . . . released’ from criminal incarceration.” Rojas, 23 I. & N. Dec. at 122 (second alteration in original).
17 1 Peabody Coal Co., 537 U.S. 149, 158 (2003). “[I]f a statute does not 2 specify a consequence for noncompliance with statutory timing 3 provisions, the federal courts will not in the ordinary course impose 4 their own coercive sanction.” United States v. James Daniel Good Real 5 Prop., 510 U.S. 43, 63 (1993); see also United States v. Montalvo‐Murillo, 6 495 U.S. 711 (1990) (holding that the government may detain 7 criminal defendants leading up to trial even if they do not comply 8 with the relevant statute’s command that a judicial officer “shall” 9 hold a bail hearing “immediately upon the person’s first 10 appearance” before the officer); Sylvain, 714 F.3d at 157–59 (applying 11 Barnhart and Montalvo‐Murillo to section 1226(c) and concluding that 12 “the government retains authority under [section 1226(c)] despite 13 any delay”).
14 Finally, the BIA’s interpretation has the added benefit of 15 accounting for practical concerns arising in connection with 16 enforcing the statute. Particularly for criminal aliens in state 17 custody, it is unrealistic to assume that DHS will be aware of the 18 exact timing of an alien’s release from custody, nor does it have the 19 resources to appear at every location where a qualifying alien is 20 being released. State and local law enforcement may also have 21 difficulty determining citizenship, since records of arrests and 22 convictions may be incomplete in this regard. Accordingly, we join 23 the Third, Fourth, and Tenth Circuits in holding that DHS retains its 24 authority and duty to detain an alien even if not exercised 25 immediately upon the alien’s release.19 Regardless of whether 26 “when . . . released” contemplates detainment immediately upon 27 release or merely sometime after release, we adopt the “duty‐ 28 triggering” construction, and hold that an alien may be subject to
19 See, e.g., Sylvain, 714 F.3d at 161 (“[E]ven if the statute calls for detention ‘when the alien is released,’ . . . nothing in the statute suggests that officials lose authority if they delay.”); Hosh, 680 F.3d at 382 (“The negligence of officers, agents, or other administrators, or any other natural circumstance or human error that would prevent federal authorities from complying with § 1226(c), cannot be allowed to thwart congressional intent and prejudice the very interests that Congress sought to vindicate.”).
18 1 mandatory detention even where DHS does not immediately detain 2 the alien after release from criminal custody.20
3 Whether 8 U.S.C. § 1226(c) Authorizes Mandatory Detention 4 Beyond Six Months Without a Bail Hearing
5 Because the District Court decided in Lora’s favor on statutory 6 grounds, it did not reach his constitutional argument.21 As noted, 7 Lora also argued below and argues to this Court that his indefinite 8 detention without being afforded a bond hearing would violate his 9 right to due process. We agree. Significantly, the distance between 10 Lora and the government on this issue is not large: the government 11 does not advocate for indefinite detention nor does it contest the 12 view that, in order to avoid serious constitutional concerns, an 13 implicit time limitation must be read into section 1226(c).
14 It is well‐settled that the Fifth Amendment entitles aliens to 15 due process in deportation proceedings. Reno v. Flores, 507 U.S. 292, 16 306 (1993). “[T]he Due Process Clause applies to all ‘persons’ within 17 the United States, including aliens, whether their presence here is 18 lawful, unlawful, temporary, or permanent.” Zadvydas, 533 U.S. at 19 693 (considering a challenge to post‐removal detention). As noted, 20 more than a decade ago, in Zadvydas, the Supreme Court signaled its 21 concerns about the constitutionality of a statutory scheme that 22 ostensibly authorized indefinite detention of non‐citizens. Id. Two 23 years later, when the court upheld the constitutionality of section 20 Lora also argues that the BIA’s analysis is unreasonable in light of the constitutional concerns it raises by giving the government limitless authority to deny bond hearings. However, in making this argument, Lora misconstrues Justice Kennedy’s concurrence in Demore, which observed that due process concerns could arise if there was an unreasonable delay by ICE in deportation proceedings. 538 U.S. at 532 (Kennedy, J., concurring). Justice Kennedy’s observations were relevant to how long an alien is kept in custody, not when the custody must start or whether there may be a gap between release from criminal custody and commencement of immigration custody. Id. at 532–33. 21 The issue was briefed by the parties below, and we may affirm a district court’s decision “on any basis for which there is a record sufficient to permit conclusions of law, including grounds upon which the district court did not rely.ʺ See Mauro v. S. New England Telecomms., Inc., 208 F.3d 384, 387 n.2 (2d Cir. 2000) (per curiam) (internal quotation marks omitted).
19 1 1226(c) in Demore v. Kim, it emphasized that, for detention under the 2 statute to be reasonable, it must be for a brief period of time. See, 3 e.g., 538 U.S. at 528 (detention permissible because, as compared to 4 Zadvydas, “the detention here is of a much shorter duration”). 5 Justice Kennedy explained in his concurrence that “[w]ere there to be 6 an unreasonable delay by the INS in pursuing and completing 7 deportation proceedings, it could become necessary then to inquire 8 whether the detention is not to facilitate deportation, or to protect 9 against risk of flight or dangerousness, but to incarcerate for other 10 reasons.” Id. at 532–33 (Kennedy, J., concurring).
11 These cases clearly establish that mandatory detention under 12 section 1226(c) is permissible, but that there must be some 13 procedural safeguard in place for immigrants detained for months 14 without a hearing. Accordingly, we join every other circuit that has 15 considered this issue, as well as the government, in concluding that 16 in order to avoid serious constitutional concerns, section 1226(c) 17 must be read as including an implicit temporal limitation. See, e.g., 18 Rodriguez, 715 F.3d at 1137 (“[I]n several decisions over the past 19 decade . . . we have consistently held that Demore’s holding is limited 20 to detentions of brief duration.”); Diop v. ICE/Homeland Sec., 656 F.3d 21 221, 231 (3d Cir. 2011) (applying canon of constitutional avoidance to 22 “conclude that the statute implicitly authorizes detention for a 23 reasonable amount of time”); Ly v. Hansen, 351 F.3d 263, 267–68, 271 24 (6th Cir. 2003) (noting that Demore “is undergirded by reasoning 25 relying on the fact that [the alien in the case], and persons like him, 26 will normally have their proceedings completed within a short 27 period of time” and the case must be understood as only authorizing 28 detention for brief periods of time).
29 However, while all circuits agree that section 1226(c) includes 30 some “reasonable” limit on the amount of time that an individual 31 can be detained without a bail hearing, courts remain divided on 32 how to determine reasonableness. This Court has not yet had the 33 opportunity to decide which approach to follow. The first approach,
20 1 employed by the Third and Sixth Circuits and favored by the 2 government, calls for a “fact‐dependent inquiry requiring an 3 assessment of all of the circumstances of any given case,” to 4 determine whether detention without an individualized hearing is 5 unreasonable. Diop, 656 F.3d at 234; see also Chavez‐Alvarez v. Warden 6 York Cty. Prison, 783 F.3d 469, 475 n.7 (3d Cir. 2015) (explaining “the 7 highly fact‐specific nature” of the balancing framework). Under this 8 approach, every detainee must file a habeas petition challenging 9 detention, and the district courts must then adjudicate the petition to 10 determine whether the individual’s detention has crossed the 11 “reasonableness”threshold, thus entitling him to a bail hearing.
12 In contrast, the second approach, adopted by the Ninth 13 Circuit, is to apply a bright‐line rule to cases of mandatory detention 14 where the government’s “statutory mandatory detention authority 15 under Section 1226(c) . . . [is] limited to a six‐month period, subject to 16 a finding of flight risk or dangerousness.” Rodriguez, 715 F.3d at 17 1133. We believe that, considering the relevant Supreme Court 18 precedent, the pervasive confusion over what constitutes a 19 “reasonable” length of time that an immigrant can be detained 20 without a bail hearing, the current immigration backlog and the 21 disastrous impact of mandatory detention on the lives of immigrants 22 who are neither a flight risk nor dangerous, the interests at stake in 23 this Circuit are best served by the bright‐line approach.
24 First, Zadvydas and Demore, taken together, suggest that the 25 preferred approach for avoiding due process concerns in this area is 26 to establish a presumptively reasonable six‐month period of 27 detention. In Zadvydas, the Court held that six months was a 28 “presumptively reasonable period of detention” in a related context, 29 namely post‐removal‐determination detention. 533 U.S. at 700–01 30 (finding that there was “reason to believe . . . that Congress 31 previously doubted the constitutionality of detention for more than 32 six months”). After that point, “once the alien provides good reason 33 to believe that there is no significant likelihood of removal in the
21 1 reasonably foreseeable future, the Government must respond with 2 evidence sufficient to rebut that showing.” Id. In Demore, the Court 3 held that section 1226(c) authorized mandatory detention only for 4 the ”limited period of [the alien’s] removal proceedings.” 538 U.S. at 5 531. At that time (2003), the “limited period” referred to “last[ed] 6 roughly a month and a half in the vast majority of cases in which 7 [section 1226(c) was] invoked, and about five months in the minority 8 of cases in which the alien cho[se] to appeal.” Id. at 529–30; see 9 Rodriguez, 715 F.3d at 1138 (“As a general matter, detention is 10 prolonged when it has lasted six months and is expected to continue 11 more than minimally beyond six months.”).
12 Secondly, the pervasive inconsistency and confusion exhibited 13 by district courts in this Circuit when asked to apply a 14 reasonableness test on a case‐by‐case basis weighs, in our view, in 15 favor of adopting an approach that affords more certainty and 16 predictability. Notably, the Supreme Court has recognized that 17 bright‐line rules provide clear guidance and ease of administration 18 to government officials. See, e.g., Zadvydas, 533 U.S. at 700–01 19 (adopting six‐month rule “for the sake of uniform administration,” 20 while also noting that it would limit the need for lower courts to 21 make “difficult judgments”). Compare, e.g., Martin v. Aviles, No. 15 22 Civ. 1080(AT)(AJP), 2015 WL 3929598, at *2–3 (S.D.N.Y. June 15, 23 2015) (holding an alien for over a year without a bond hearing 24 violated his due process rights), and Minto v. Decker, No. 14 Civ. 25 07764(LGS)(KNF), 2015 WL 3555803, at *7 (S.D.N.Y. June 5, 2015) 26 (“Because Petitioner’s detention has exceeded twelve months—in the 27 absence of any evidence that Petitioner might be a flight risk or a 28 danger to the community—he is entitled to an individualized bond 29 hearing.”), and Monestime v. Reilly, 704 F. Supp. 2d 453, 458 (S.D.N.Y. 30 2010) (ordering bond hearing after eight months detention), and 31 Scarlett v. DHS, 632 F. Supp. 2d 214, 223 (W.D.N.Y. 2009) (five years 32 detention unreasonable), with Johnson v. Orsino, 942 F. Supp. 2d 396 33 (S.D.N.Y. 2013) (fifteen month detention not unreasonable), and 34 Luna‐Aponte v. Holder, 743 F. Supp. 2d 189, 194 (W.D.N.Y. 2010)
22 1 (nearly three years of detention not unreasonable). Adopting a six‐ 2 month rule ensures that similarly situated detainees receive similar 3 treatment. Such a rule avoids the random outcomes resulting from 4 individual habeas litigation in which some detainees are represented 5 by counsel and some are not, and some habeas petitions are 6 adjudicated in months and others are not adjudicated for years.
7 Moreover, while a case‐by‐case approach might be workable 8 in circuits with comparatively small immigration dockets, the 9 Second and Ninth Circuits have been disproportionately burdened 10 by a surge in immigration appeals and a corresponding surge in the 11 sizes of their immigration dockets.22 With such large dockets, 12 predictability and certainty are considerations of enhanced 13 importance and we believe that the interests of the detainees and the 14 district courts, as well as the government, are best served by this 15 approach.
16 Finally, without a six‐month rule, endless months of 17 detention, often caused by nothing more than bureaucratic backlog, 18 has real‐life consequences for immigrants and their families. Lora is 19 one such example. As noted, he is a LPR who has resided in and 20 been extensively tied to his community for twenty‐five years. 21 During his years in this country, Lora has remained gainfully 22 employed and has attended school. He is in jeopardy of removal as 23 a consequence of what now stands as a conviction in 2009 for third 24 degree possession of a controlled substance for which he received a 25 conditional discharge. No principled argument has been mounted 26 for the notion that he is either a risk of flight or is dangerous. 27 Instead, the record suggests that Lora is an excellent candidate for 28 cancellation of removal pursuant to 8 U.S.C. § 1229b(a). He is the 29 primary caretaker of a two‐year‐old U.S. citizen son who was placed 30 in foster care while Lora was in detention; he has no arrest record 31 aside from this non‐violent drug offense conviction; he has been
22 See John R.B. Palmer, The Nature and Causes of the Immigration Surge in the Federal Courts of Appeals: A Preliminary Analysis, 51 N.Y. L. Sch. L. Rev. 13, 14 (2006).
23 1 gainfully employed for over two decades while he has resided in the 2 United States.23
3 For these reasons, we hold that, in order to avoid the 4 constitutional concerns raised by indefinite detention, an immigrant 5 detained pursuant to section 1226(c) must be afforded a bail hearing 6 before an immigration judge within six months of his or her 7 detention. Following the Ninth Circuit, we also hold that the 8 detainee must be admitted to bail unless the government establishes 9 by clear and convincing evidence that the immigrant poses a risk of 10 flight or a risk of danger to the community. Rodriguez, 715 F.3d at 11 1131.24
12 CONCLUSION
13 For the foregoing reasons, we AFFIRM the judgment of the 14 District Court.
23 Amici in this case cite multiple other examples of immigrants whose lives and whose families’ lives have been upended by DHS’s enforcement of section 1226(c) without judicially imposed procedural safeguards. There is the case of a LPR who was arrested by ICE, without warning, nearly nine years after the most recent conviction for which ICE charged him as deportable, and five days before his girlfriend gave birth to their second child. He was detained for eleven months without a bond hearing before his habeas petition was finally decided while his companion struggled to raise his three children in a homeless shelter. See Baker v. Johnson, No. 14 Civ. 9500(LAP), 2015 WL 2359251 (S.D.N.Y. May 15, 2015). Amici also cite the example of an immigrant from Trinidad and Tobago who was detained by ICE without bond following his arrest on a dismissed criminal charge for seven months before the district court ordered that he be provided with a bond hearing. See Straker, 986 F. Supp. 2d 345. During those seven months, his daughter was left without a primary caretaker. The fact that there are over 30,000 immigrants in ICE custody in the United States on an average day and many of those individuals are parents and primary caregivers of U.S. citizen children gives some indication of section 1226(c)’s scope and potential impact. We are confident that the government also does not wish for the type of outcomes described above and does not favor a regime that perpetuates them. 24 In the present case, the length of Lora’s detention fell just shy of the six‐month mark: he was detained by ICE on November 22, 2013, and granted bond on May 8, 2014. Because of the length of Lora’s appeal, this Court sees no reason to remand this case so as to implicate the six‐month rule.