By Alina Das
Every day, tens of thousands of immigrants experience immigration detention as punishment. Although characterized in law as “civil”, “non-punitive”, and “administrative” in nature, immigration detention presents all the hallmarks of punishment—immigrants are routinely locked up in county jails or private prisons, many miles away (and too often across state lines) from their families and communities, forced to wear prison uniforms, shackled when they appear in court, at the mercy of the jail or prison guards with respect to their ability to seek medical care and myriad other necessities that we often take for granted when we are free—all while simply trying to get through the process of their immigration case. Indeed, for those facing deportation for a past criminal record, detention often comes as a second punishment, far worse than the time they served, if any, for the past criminal offense.
Yet, unlike pre-trial detention in the criminal context, bail hearings are not the norm in immigration proceedings. Many immigrants in detention—some estimate a majority—are subjected to “mandatory detention” and therefore are denied the opportunity for a simple bail hearing on whether they should be released. As their immigration proceedings stretch from weeks to months to even years, immigrants subjected to mandatory detention see no light at the end of the tunnel. Despite the fact that over half of immigrants placed in removal proceedings are ultimately allowed to stay, many who are detained have a much more difficult time getting a fair day in court, and inevitably lose months or years of their lives that they will never get back, at tremendous human and financial cost to themselves, their families, and our entire country as a whole.
Last week, the U.S. Court of Appeals for the Second Circuit recognized a simple and straightforward principle—that this kind of limitless, prolonged, and indefinite detention raises serious concerns under the Due Process Clause of the Fifth Amendment of the U.S. Constitution. In Lora v. Shanahan, No. 14-2343-pr, slip op. (2d Cir. Oct. 28, 2015), the Second Circuit held that “to avoid the constitutional concerns raised by indefinite detention, an immigrant detained pursuant to section 1226(c) [mandatory detention] must be afforded a bail hearing before an immigration judge within six months of his or her detention.” Following the U.S. Court of Appeals for the Ninth Circuit, which also recognizes a 6 month limitation on mandatory detention under various provisions of the Immigration and Nationality Act (a principle reaffirmed and expanded most recently this past week), the Second Circuit also held 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.”
The decision was announced in the context of the prolonged detention of Alex Lora, a longtime lawful permanent resident who has lived in the United States for twenty-five years. A hardworking father, Mr. Lora was detained by immigration officers in an early morning raid in his Brooklyn, New York neighborhood in 2013, taken to a jail across state lines in Kearny, New Jersey, and placed in deportation proceedings—all based on a 2009 nonviolent drug conviction for which Mr. Lora served no jail time. His mandatory immigration detention over three years later devastated both him and his family, as he was the caretaker for his then two-year-old son, who was placed in foster care.
The government argued that the denial of his ability to seek release was proper under INA 236(c), 8 U.S.C. § 1226(c), which mandates immigration detention for noncitizens convicted of certain types of crimes when they are released for those offenses. Mr. Lora filed a petition for a writ of habeas corpus with a federal district court. The federal district court granted Mr. Lora’s petition, ordering a bail hearing, at which time the government stipulated to his release on $5000 bail. After five-and-a-half months of detention, Mr. Lora was finally able to return to his family. The government appealed the district court’s ruling, which culminated in the Second Circuit’s opinion last week.
The Second Circuit’s decision, recognizing a constitutional limitation on detention without a bail hearing, is a crucial step forward for immigrants who have languished in jails and prisons for months or years on end. Importantly, the Court recognized that the six month rule applied to Mr. Lora even though he had not yet been detained for six months, since prospectively he would be detained more than six months as he litigated his case. Moreover, the Court recognized the importance of a bright line rule to avoid the harms a more case-by-case approach would produce. As the Second Circuit recognized, “without a six-month rule, endless months of detention, often caused by nothing more than bureaucratic backlog, has real-life consequences for immigrants and their families.” Indeed, looking at the facts of Mr. Lora’s own case, the Second Circuit observed that “[n]o principled argument has been mounted for the notion that he is either a flight risk or is dangerous.”
Of course, these observations—about the needlessness of Mr. Lora’s detention and the harm it caused him and his family— were true not only at the five-and-a-half-month mark, but also on day one of his detention. Unfortunately, the Lora decision rejected two important arguments that would have ensured a limited reading of the initial application of the mandatory detention statute—namely, the argument that mandatory detention does not even apply to noncitizens who, like Mr. Lora, were not detained “when . . . released” from criminal incarceration for a predicate conviction as required by 8 U.S.C. § 1226(c).
First, the Court adopted a reading of the “released” requirement in the statute that is at odds with the plain language and statutory scheme that requires a predicate release, thus allowing immigrants who have served no jail time through the criminal process to be incarcerated at length without bail for the first time as part of civil deportation proceedings.
Second, the Court improperly applied Chevron deference to reject Mr. Lora’s argument that it was unlawful to detain him without bail three years after, rather than at the time of, any alleged release from criminal custody. As I’ve written, such Chevron deference is inappropriate in this context, where an individual’s liberty is at stake and robust habeas review is required. The federal district court below had the right approach to these statutory claims. While the Court’s rejection of these claims is not central to its holding, it is unfortunate that Mr. Lora was not vindicated on this basis.
Ultimately, however, the holding of Lora— requiring bond hearings within 6 months of detention and placing the burden on the government to justify detention—will provide many immigrants with hope, and restore a modicum of due process to our punitive immigration system. In a country where reliance on the tools of mass incarceration has corrupted any notion of justice in our legal system, the least we can do is advance liberty and remember, as the Supreme Court has stated, 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.”
Alina Das is an Associate Professor of Clinical Law at NYU Law School where she co-directs the Immigrant Rights Clinic.