Lora v. Shanahan In the 1

14‐2343
Lora v. Shanahan
In the 1
United States Court of Appeals 2
For the Second Circuit 3
________ 4
5
August Term, 2014 6
No. 14‐2343‐pr 7
8
ALEXANDER L ORA , 9
10
Petitioner‐Appellee, 11
12
v. 13
14
CHRISTOPHER SHANAHAN , in his official capacity as New York Field 15
Officer Director for U.S. Immigration and Customs Enforcement; 16
DIANE MC CONNELL , in her official capacity as Assistant Field Office 17
Director for U.S. Immigration and Customs Enforcement; THOMAS S. 18
WINKOWSKI, in his official capacity as Principal Deputy Assistant 19
Director of U.S. Immigration and Customs Enforcement; J EH 20
J OHNSON , in his official capacity as Secretary of the U.S. Department 21
of Homeland Security; L ORETTA E. L YNCH, in her official capacity as 22
the Attorney General of the United States; 1 and the U.S. DEPARTMENT 23
OF H OMELAND SECURITY,2
24
25
Respondents‐Appellants. 26
______ 27
28
Appeal from the United States District Court 29
for the Southern District of New York. 30
No. 14 Civ. 2140(AJP) ― Andrew J. Peck, Magistrate Judge. 31
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 of 24 --

________ 1
2
Argued: April 20, 2015 3
Decided: October 28, 2015 4
________ 5
Before: K EARSE , PARKER , and W ESLEY, Circuit Judges. 6
________ 7
The government appeals from a judgment of the United States 8
District Court for the Southern District of New York (Peck, Andrew 9
J., M.J.) 3 granting Alexander Lora’s petition for a writ of habeas 10
corpus. Lora was detained pursuant to section 1226(c) of the 11
Immigration and Nationality Act (“INA”), 8 U.S.C. § 1226(c), which 12
mandates detention, while their removal proceedings are pending, 13
of non‐citizens who have committed certain criminal offenses. 14
Because section 1226(c) is ambiguous, we defer to the Board of 15
Immigration Authority’s (“BIA’s”) interpretation that detention need 16
not be immediate in order to be mandatory. We also find that the 17
statute applies even if the non‐citizen is not released from a custodial 18
sentence. However, we hold that reading section 1226(c) to permit 19
indefinite detention raises significant constitutional concerns, and to 20
avoid them, we construe the statute to contain an implicit temporal 21
limitation on the length of time a detainee can be held before being 22
afforded an opportunity to seek bail. Affirmed. 23
________ 24
CHRISTOPHER CONNOLLY (Sarah S. Normand, on 25
the brief), Assistant United States Attorneys for 26
Preet Bharara, United States Attorney for the 27
Southern District of New York, for Respondents‐ 28
Appellants. 29
30
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

-- 2 of 24 --

REBECCA A. H UFSTADER , Legal Intern, L UIS ANGEL 1
REYES SAVALZA , Legal Intern, (Alina Das and 2
Nancy Morawetz, on the brief), Washington Square 3
Legal Services, Inc., NYU Law School, New York, 4
NY; Bridget Kessler, Brooklyn Defender Services, 5
Brooklyn, NY, on the brief, for Petitioner‐Appelleee. 6
AHILAN ARULANANTHAM , ACLU Immigrants’ 7
Rights Project, Los Angeles, CA; Judy Rabinovitz 8
and Anand Balakrishnan, ACLU Immigrants’ 9
Rights Project, New York, NY; Alexis Karteron 10
and Jordan Wells, New York Civil Liberties 11
Union Foundation, New York, NY, on the brief, for 12
Amici Curiae American Civil Liberties Union; New 13
York Civil Liberties Union. 14
Andrea Saenz, Immigration Justice Clinic, 15
Benjamin N. Cardozo School of Law, New York, 16
NY, for Amici Curiae the Bronx Defenders; Detention 17
Watch Network; Families for Freedom; Immigrant 18
Defense Project; Immigrant Legal Resource Center; 19
Kathryn O. Greenberg Immigration Justice Clinic; 20
Make the Road New York; National Immigrant Justice 21
Center; National Immigration Project of the National 22
Lawyers Guild; Neighborhood Defender Service of 23
Harlem; New Sanctuary Coalition of New York City; 24
Northern Manhattan Coalition for Immigrant Rights. 25
Farrin R. Anello, Immigrants’ Rights/International 26
Human Rights Clinic, Seton Hall University 27
School of Law, Newark, NJ, for Amici Curiae 28
Professors of Immigration and Constitutional Law. 29
________ 30
31
3

-- 3 of 24 --

B ARRINGTON D. PARKER , Circuit Judge 1
________ 2
In 1996, with the passage of the Illegal Immigration Reform 3
and Immigrant Responsibility Act (“IIRIRA”), Congress significantly 4
expanded the categories of non‐citizens subject to mandatory 5
detention pending their removal proceedings.4 Under section 6
1226(c) of the revised INA, the Department of Homeland Security 7
(“DHS”) is required to detain aliens who have committed certain 8
crimes “when [they are] released.” The section contains no explicit 9
provision for bail.5 When the constitutionality of section 1226(c) was 10
challenged in Demore v. Kim, 538 U.S. 510 (2003), statistics showed 11
that removal proceedings were completed within forty‐seven days in 12
eighty‐five percent of cases in which aliens were mandatorily 13
detained. Id. at 529. Emphasizing the relative brevity of detention in 14
most cases, the Court concluded that detention during removal 15
proceedings was “constitutionally permissible.” Id. at 531. 16
However, the passage of the IIRIRA, which, among other 17
things, expanded the definition of criminal aliens and required states 18
to provide notice of aliens who violate state criminal laws, combined 19
with a simultaneous rise in immigration to the United States, has 20
resulted in an enormous increase in the number of aliens taken into 21
custody pending removal.6 By 2009, Immigration and Customs 22
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

-- 4 of 24 --

Enforcement (“ICE”) was imprisoning close to four hundred 1
thousand aliens every year, two‐thirds of whom were subject to 2
mandatory detention under section 1226(c).7 Not surprisingly, the 3
time that each immigrant spends in detention has also risen 4
substantially. In 2001, the average time an alien was detained from 5
the initiation of removal proceedings to release or entry of a final 6
order of removal was approximately thirty‐nine days.8 In 2003, the 7
average detention time for most section 1226(c) detainees was 8
approximately forty‐seven days. See Demore, 538 U.S. at 529. Since 9
then, the situation has worsened considerably. ICE has not provided 10
statistics regarding the length of time that mandatory detainees 11
spend in detention. It is clear, however, that today, a non‐citizen 12
detained under section 1226(c) who contests his or her removal 13
regularly spends many months and sometimes years in detention 14
due to the enormous backlog in immigration proceedings.9 There 15
are thousands of individuals in immigration detention within the 16
jurisdiction of this Court who languish in county jails and in short‐ 17
term and permanent ICE facilities. 18
No doubt an appreciable number of these detainees have 19
criminal records that subject them to mandatory deportation. Many 20
in this group are dangerous or have no ties to a community. 21
Congress was quite clear that it wanted such individuals detained 22
pending deportation. On the other hand, this group includes non‐ 23
citizens who, for a variety of individualized reasons, are not 24
dangerous, have strong family and community ties, are not flight 25
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

-- 5 of 24 --

risks and may have meritorious defenses to deportation at such time 1
as they are able to present them. 2
One such detainee is Alexander Lora, a lawful permanent 3
resident (“LPR”) and citizen of the Dominican Republic, who was 4
convicted of drug related offenses, sentenced to probation, and taken 5
into custody by ICE agents pursuant to section 1226(c), over three 6
years into his five‐year probation term. After four months in 7
immigration custody, Lora petitioned for a writ of habeas corpus. 8
He contended, among other things, that he was eligible to apply for 9
bail because the mandatory detention provision of section 1226(c) 10
did not apply to him because he had not been taken into custody 11
“when released” and that indefinite incarceration without an 12
opportunity to apply for bail violated his right to due process. 13
His petition was granted by the District Court (Peck, M.J.). 14
Magistrate Judge Peck agreed with Lora’s statutory argument, did 15
not reach his constitutional argument, and ordered that Lora be 16
afforded a bail hearing. At that hearing, the government did not 17
contest his eligibility for bail. Following the parties’ stipulation that 18
Lora, who was gainfully employed and had substantial family ties to 19
his community, was not dangerous and posed no risk of flight, the 20
immigration judge (“IJ”) ordered Lora’s release conditioned on his 21
posting a $5000 bond. This appeal followed. 22
The main issue of statutory construction driving this appeal is 23
whether, as Lora argues and the District Court ruled, the “when 24
released” provision of section 1226(c) applies only if the government 25
takes an alien into immigration custody immediately following his 26
release from a custodial sentence or whether, as the government 27
argues, an alien is subject to mandatory detention even if DHS does 28
not detain him immediately upon release. On this issue we agree 29
with the government and conclude that Lora was subject to 30
mandatory detention under section 1226(c). 31
6

-- 6 of 24 --

However, we agree with Lora’s constitutional argument. 1
While the Supreme Court has held “that the Government may 2
constitutionally detain deportable aliens during the limited period 3
necessary for their removal proceedings,” Demore, 538 U.S. at 526, it 4
has made clear that the indefinite detention of a non‐citizen “raise[s] 5
serious constitutional concerns” in that “[f]reedom from 6
imprisonment—from government custody, detention, or other forms 7
of physical restraint—lies at the heart of the liberty that [the Due 8
Process] Clause protects,” Zadvydas v. Davis, 533 U.S. 678, 682, 690 9
(2001). Following this guidance, we hold that, in order to avoid 10
significant constitutional concerns surrounding the application of 11
section 1226(c), it must be read to contain an implicit temporal 12
limitation. In reaching this result, we join every other circuit to have 13
considered this issue. 10 Specifically, we join the Ninth Circuit in 14
holding that mandatory detention for longer than six months 15
without a bond hearing affronts due process. See Rodriguez v. 16
Robbins, 715 F.3d 1127 (9th Cir. 2013).11 Accordingly, we affirm the 17
District Court’s decision to grant the petition. 18
BACKGROUND 19
Lora entered the United States as a lawful permanent resident 20
(“LPR”) from the Dominican Republic in 1990 when he was seven 21
years old. For the next nineteen years, Lora lived continuously in 22
Brooklyn, New York where he has a large family network, including 23
his U.S. citizen fiancée, chronically‐ill U.S. citizen mother, LPR 24
father, and U.S. citizen brother and sister. Lora has two sons whom 25
he supports: a two‐year‐old son who is a U.S. citizen and lives in the 26
United States and an eight‐year‐old son who lives in the Dominican 27
Republic. During the nearly two decades that Lora has spent in this 28
country, he attended school and worked in grocery stores to support 29
himself and his family. 30
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

-- 7 of 24 --

In July 2009, while working at a grocery store, Lora was 1
arrested with one of his co‐workers and charged with several New 2
York state offenses relating to cocaine possession. In July 2010, Lora 3
pled guilty to criminal possession of cocaine with intent to sell, 4
criminal possession of cocaine with an aggregate weight of one 5
ounce or more, and criminal use of drug paraphernalia in violation 6
of New York Penal Law §§ 220.16, 220.50. Lora was sentenced to 7
five years of probation. He was not sentenced to any period of 8
incarceration and he did not violate any of the conditions of his 9
probation. 10
On November 22, 2013, over three years into his probation 11
term, ICE agents arrested Lora in an early morning raid in the 12
Brooklyn neighborhood where he was living at the time. After the 13
agents took Lora into custody, he was transferred to Hudson County 14
Correctional Center in Kearny, New Jersey, where he was detained 15
without bond. Lora was charged with removability under INA § 16
237(a)(2)(B), 8 U.S.C. § 1227(a)(2)(B), for having been convicted of a 17
crime involving a controlled substance, and INA § 237(a)(2)(A)(iii), 8 18
U.S.C. § 1227(a)(2)(A)(iii), for having been convicted of an 19
aggravated felony, namely, trafficking in a controlled substance as 20
defined in INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B). DHS took 21
the position that Lora’s removal charges rendered him subject to 22
mandatory detention under section 1226(c) and that he was not 23
eligible for a bail hearing. 24
While his removal proceedings were pending, Lora moved in 25
New York state court to set aside his conviction. His motion was 26
granted on consent and in March 2014, his original plea and sentence 27
were vacated. Lora was then permitted to plead to a minor 28
offense—a single count of third degree possession of a controlled 29
substance—and was re‐sentenced to a conditional discharge 30
imposed nunc pro tunc to July 21, 2010. With this new sentence, Lora 31
now has a strong argument for cancellation of removal under 1226(c) 32
because third degree possession is a Class B felony under N.Y. Penal 33
8

-- 8 of 24 --

Law § 220.16(12) and does not qualify as an aggravated felony for 1
immigration purposes under 8 U.S.C. §§ 1227(a)(2)(A)(iii); 1228b. 12
2
However, he is still technically subject to mandatory detention under 3
section 1226(c) because he had been convicted of a crime involving a 4
controlled substance under 8 U.S.C. § 1227(a)(2)(B)(i). In March 5
2014, Lora requested that he be permitted to file an application for 6
cancellation of removal and that he be afforded a bail hearing. The IJ 7
granted Lora’s request to file for cancellation of removal but denied 8
Lora’s request for a bail hearing. 13
9
At the same time, Lora filed a petition for a writ of habeas 10
corpus, challenging his continued detention. Lora argued that he 11
was not subject to mandatory detention under section 1226(c), which 12
requires an alien to be taken into DHS custody “when the alien is 13
released” because DHS did not take him into custody at the precise 14
time “when” he was released on his underlying convictions, but 15
years later, and that he could not have been detained when he was 16
“released” because he was never incarcerated or kept in physical 17
custody following his triggering conviction. Lora also argued that 18
his continued imprisonment without a bail hearing raised 19
constitutional concerns under the Due Process Clause of the Fifth 20
Amendment in light of his substantial defenses to removal and the 21
strong possibility of his indefinitely prolonged detention. Finally, 22
Lora raised the alternative argument that his continued detention 23
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

-- 9 of 24 --

was not in the public interest, and that he should be released on 1
parole. 2
The District Court granted Lora’s petition, holding that 3
section 1226(c)’s “clear language” requires that DHS detain aliens 4
immediately upon their release from criminal custody, and because 5
Lora was not detained until years after the criminal conviction that 6
formed the basis of his removal charge, he was not subject to 7
mandatory detention. In the alternative, the District Court also 8
found that Lora was not subject to mandatory detention because he 9
did not serve a post‐conviction custodial sentence in connection with 10
his criminal offense and so was never “released” from custody. The 11
District Court directed the government to provide Lora with an 12
individualized bail hearing by May 15, 2014, which was the date of 13
his next hearing before the IJ. The government did not seriously 14
dispute that Lora was neither a flight risk nor a danger to the 15
community and the IJ ordered that Lora be released from custody 16
after posting a $5000 bond. Insofar as the record reveals, since being 17
admitted to bail, Lora remains gainfully employed, tied to his 18
community and poised to contest his removability once DHS clears 19
its backlog sufficiently to afford him a hearing. 20
The government appeals, contesting the District Court’s 21
interpretation of section 1226(c). The government maintains that, 22
even though Lora no longer stands convicted of an aggravated 23
felony, he is still deportable and subject to mandatory detention as a 24
result of his conviction under a law relating to a controlled 25
substance. Notably, the government does not take the position that 26
it should be permitted to hold immigrants indefinitely. Rather, it 27
contends that due process requires a “fact‐dependent inquiry” as to 28
the allowable length of detention and there should be no bright‐line 29
rule for when detention becomes presumptively unreasonable. 30
Gov’t Reply Br. at 25. 31
32
10

-- 10 of 24 --

DISCUSSION 1
When the government seeks removal of an alien, an IJ can 2
ordinarily conduct a bail hearing to decide whether the alien should 3
be released or imprisoned while proceedings are pending. 4
However, 8 U.S.C. § 1226(c) requires the mandatory detention, for 5
the duration of their removal proceedings, of aliens convicted of 6
certain crimes. The portion of section 1226(c)(1) applicable to Lora 7
provides: 8
9
(1) Custody 10
The Attorney General shall take into 11
custody any alien who . . . 12
(B) is deportable by reason of having 13
committed any offense covered in section 14
1227(a)(2)(A)(ii),(A)(iii), (B), (C), or (D) of 15
this title [i.e. specified offenses including 16
controlled substance offenses]; . . . when the 17
alien is released, without regard to whether 18
the alien is released on parole, supervised 19
release, or probation, and without regard to 20
whether the alien may be arrested or 21
imprisoned again for the same offense. 22
23
(2) Release 24
The Attorney General may release an alien 25
described in paragraph (1) only if the 26
Attorney General decides . . . that release of 27
the alien from custody is necessary [for 28
certain witness protection purposes], and 29
the alien satisfies the Attorney General that 30
the alien will not pose a danger to the 31
safety of other persons or of property and is 32
likely to appear for any scheduled 33
proceeding. . . . 34
11

-- 11 of 24 --

1
8 U.S.C. § 1226(c)(1)–(2) (emphasis added). 2
Thus, detention without a bail hearing under section 1226(c) is 3
mandatory unless DHS determines that an alien falls within a 4
narrow witness‐protection exception not applicable here. See 8 5
U.S.C. § 1226(c)(2). However, the clause in paragraph (1), “when the 6
alien is released,” has been the source of persistent confusion and 7
extensive litigation in this Circuit and elsewhere. 8
This case calls for us to decide: (1) whether an alien is subject 9
to mandatory detention only if he or she has been sentenced to and 10
“released” from prison or some form of physical custody; and (2) 11
whether an alien is subject to mandatory detention if there is a gap 12
between the alien’s being on post‐conviction release and his or her 13
confinement by DHS. 14 Although these are issues of first impression 14
for this Court, other circuits as well as numerous district courts, both 15
within and outside of this Circuit, have addressed the issue but 16
remain divided on how to apply section 1226(c).15
17
Meaning of “Released” 18
The government argues that the Court should reject the 19
District Court’s holding that Lora is not subject to mandatory 20
detention because he was never “released” from a post‐conviction 21
sentence of incarceration. The government relies on two BIA cases 22
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

-- 12 of 24 --

in which the Board determined that the word “released” in section 1
1226(c) includes pre‐conviction release from arrests.16 See In re 2
Kotliar, 24 I. & N. Dec. 124, 125 (2007) (“[W]e have held that an alien 3
who is released from criminal custody[,] . . . including from an arrest 4
preceding a conviction, . . . is subject to mandatory detention.”); In re 5
West, 22 I. & N. Dec. 1405, 1410 (2000). West and Kotliar also suggest 6
that the alien must be released from some form of physical custody 7
for § 1226(c)(1) to apply. See, e.g., West, 22 I & N. Dec. at 1410 (“[W]e 8
construe the word ‘released’ . . . to refer to a release from physical 9
custody.”). The government urges that, consistent with these cases, 10
“released” can refer to a release from pre‐conviction confinement, 11
such as an arrest. 12
Because we find that section 1226(c)(1) unambiguously 13
mandates detention in this circumstance for other reasons, we need 14
not confront the BIA decisions or the government’s interpretation of 15
them. See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 16
837, 842–43 (1984). “[D]eference to [an agencyʹs] statutory 17
interpretation is called for only when the devices of judicial 18
construction have been tried and found to yield no clear sense of 19
congressional intent.” Gen. Dynamics Land Sys., Inc. v. Cline, 540 U.S. 20
581, 600 (2004) (citing INS v. Cardoza–Fonseca, 480 U.S. 421, 446–48 21
(1987)). A natural reading of the statute suggests that the term 22
“released” in section 1226(c) means not incarcerated, not imprisoned, 23
not detained, i.e., not in physical custody. See Demore, 538 U.S. at 513 24
(“Congress[ was] justifiably concerned that deportable criminal 25
aliens who are not detained continue to engage in crime and fail to 26
appear for their removal hearings . . . .”). Thus, detention is 27
mandated once an alien is convicted of a crime described in section 28
1226(c)(1) and is not incarcerated, imprisoned, or otherwise 29
detained. This interpretation avoids nullifying the provision in 30
section 1226(c)(1) that DHS “shall take into custody any alien who . . 31
. is inadmissible [or] is deportable by reason of having committed [a 32
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

-- 13 of 24 --

certain type of crime] . . . when the alien is released, without regard to 1
whether the alien is released on parole, supervised release, or probation” 2
(emphasis added)—which clearly contemplates non‐carceral 3
sentences. See, e.g., TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) 4
(noting that statutes should be read to avoid making any provisions 5
“superfluous, void, or insignificant” (internal quotation marks 6
omitted)). Moreover, where Congress has intended to limit 7
detention to aliens sentenced to a certain prison term, it has done so 8
explicitly. See, e.g., 8 U.S.C. § 1182(a)(2) (alien is not eligible for a 9
visa or admission if the alien has committed a crime involving moral 10
turpitude for which a sentence of at least six months has been 11
imposed). Accordingly, we conclude that an alien who has been 12
convicted of a qualifying crime under section 1226(c) is subject to 13
mandatory immigration detention, whether he is sentenced to a 14
prison term or to probation. 15
“When” the Alien is Released 16
The government next argues that the District Court wrongly 17
interpreted the word “when” in the “when the alien is released” 18
clause of section 1226(c) as imposing a temporal limit on DHS’s 19
obligation to mandatorily detain non‐citizens. Because Lora was not 20
taken into immigration custody until more than three years after his 21
July 2010 criminal conviction and sentencing, the District Court 22
found that he was outside the reach of the statute and so was eligible 23
for bail. 24
This single issue consists of two inquiries: (1) whether “when 25
. . . released” contemplates detainment immediately upon release, or 26
merely at some time after release, and (2) whether, notwithstanding 27
the meaning of “when . . . released,” the statute imposes a temporal 28
restriction on the agency’s authority and duty to detain an alien. 29
Because we defer to the BIA’s interpretation that “when . . . released” 30
does not impose a temporal restriction on the agency’s authority and 31
duty to detain an alien, we need not decide the meaning of “when . . 32
. released.” 33
14

-- 14 of 24 --

Over a decade ago, the BIA, the agency charged with 1
administering this statute, considered a challenge from a detainee to 2
his mandatory detention. See In re Rojas, 23 I. & N. Dec. 117 (BIA 3
2001). The detainee argued that because he had not been taken into 4
custody “when . . . released,” as directed by section 1226(c)(1), he 5
was not subject to mandatory detention under section 1226(c)(2). Id. 6
at 118. The BIA declined to consider whether “when . . . released” 7
meant immediately upon release or merely sometime after the 8
detainee was released, and instead agreed with the government that 9
regardless of the proper interpretation of “when . . . released,” the 10
text, structure, history, and purpose of the statute all suggested that 11
Congress did not intend the “when . . . released” clause to limit the 12
authority of agents to detain an alien. Id. at 121–25. Under the BIA’s 13
interpretation, “when . . . released” refers to the time at which the 14
duty to detain arises, and does not place a temporal limit on the 15
agents’ authority to detain an alien—thus, 1226(c)(2) mandates 16
detainment even if DHS does not detain the alien immediately upon 17
release. Id. at 123–24. This has been referred to in this Circuit as the 18
“duty‐triggering” construction, while Lora argues for what has been 19
referred to as the “time‐limiting” construction. See Straker v. Jones, 20
986 F. Supp. 2d 345, 352–53 (S.D.N.Y. 2013). 21
Because we are faced with an administrative agency’s 22
interpretation of a statute, we follow the two‐step Chevron inquiry. 23
See Chevron, 467 U.S. at 842–44. If we find, based on the plain 24
language of the statute, that “the intent of Congress is clear, that is 25
the end of the matter.” Id. at 842. However, if we find that the 26
statute is silent or ambiguous with respect to the specific issue, we 27
will proceed to the second step: determining “whether the agency’s 28
answer is based on a permissible construction of the statute.” Id. at 29
843. We defer to the BIA’s interpretation so long as it is “reasonable, 30
and not ‘arbitrary, capricious, or manifestly contrary to the statute.’“ 31
Adams v. Holder, 692 F.3d 91, 95 (2d Cir. 2012) (quoting Chevron, 467 32
U.S. at 844). The government argues that, because the statute is 33
15

-- 15 of 24 --

ambiguous, the District Court should have followed the BIA’s 1
reasonable interpretation. We agree. 2
At the first step of the Chevron inquiry, we have little trouble 3
concluding that it is ambiguous whether “when . . . released” should 4
be given the “duty‐triggering” construction or the “time‐limiting” 5
construction. The BIA agrees. Rojas, 23 I. & N. Dec. at 120. And the 6
Supreme Court has long recognized that the word “when” may 7
alternatively mean “the precise time when a particular act must be 8
performed,” or “the occurrence which shall render that particular act 9
necessary.” United States v. Willings, 8 U.S. 48, 55 (1807). 10
As the BIA recognized, it is unclear from the text of section 11
1226(c) whether the “when . . . released” clause is part of the 12
definition of aliens subject to mandatory detention. Rojas, 23 I. & N. 13
Dec. at 120. Section 1226(c) requires that DHS take custody of aliens 14
convicted of four categories of predicate criminal or terrorist acts and 15
offenses (“A” through “D”) when they are released and that DHS 16
may not “release an alien described in paragraph (1)” unless that 17
alien falls under an exception for protected witnesses. But it is not 18
clear whether the phrase “an alien described in paragraph (1)” refers 19
to the aliens described in categories “A” through “D,” as the 20
government argues, or to aliens who both qualify under these 21
subcategories and were taken into immigration custody “when . . . 22
released” from custody, as Lora argues. Noting this difficulty, the 23
Tenth Circuit has described how the “when . . . released” phrase can 24
be considered adverbial, modifying the opening verb phrase “the 25
[DHS] shall,” or it can be considered adjectival, modifying the noun 26
phrases in categories (A) through (D). See Olmos, 780 F.3d at 27
1318–19. 28
Because we find that Congress has not directly spoken on the 29
meaning or application of “when . . . released” in this statute, we 30
must consider whether the BIA’s interpretation of section 1226(c) is 31
permissible and thus entitled to Chevron deference. See Khouzam v. 32
Ashcroft, 361 F.3d 161, 164 (2d Cir. 2004). In Rojas, the alien argued 33
16

-- 16 of 24 --

that he was not subject to mandatory detention under section 1226(c) 1
because immigration authorities did not take him into custody until 2
two days after his release. To resolve the statute’s ambiguity, the 3
BIA used four separate approaches to analyze section 1226(c): (1) the 4
ordinary meaning of the statute’s language, although that language 5
was ambiguous;17 (2) the overall statutory context and goals; (3) the 6
statute’s predecessor provisions; and (4) practical considerations. 7
Rojas, I. & N. Dec. at 121–24. The BIA, while not deciding whether 8
“when . . . released” meant immediately upon release or something 9
else, concluded that “the duty to detain is not affected by the 10
character of an alien’s release from criminal incarceration,” id. at 121, 11
and “that [the alien was] subject to mandatory detention pursuant to 12
section [1226(c)] of the Act, despite the fact that he was not taken 13
into [immigration] custody immediately upon his release from state 14
custody,” id. at 127.18 Consistent with Chevron, we are not convinced 15
that the interpretation is “arbitrary, capricious, or manifestly 16
contrary to the statute.“ Adams, 692 F.3d at 95 (internal quotation 17
marks and citation omitted). As the BIA explained in Rojas, “[i]t is 18
difficult to conclude that Congress meant to premise the success of 19
its mandatory detention scheme on the capacity of [DHS] to appear 20
at the jailhouse door to take custody of an alien at the precise 21
moment of release.” 23 I. & N. Dec. at 128. 22
Moreover, the BIA’s interpretation of section 1226(c) follows 23
Supreme Court precedent establishing that statutes providing “that 24
the Government ‘shall’ act within a specified time, without more,” 25
are not “jurisdictional limit[s] precluding action later.” Barnhart v. 26
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

-- 17 of 24 --

Peabody Coal Co., 537 U.S. 149, 158 (2003). “[I]f a statute does not 1
specify a consequence for noncompliance with statutory timing 2
provisions, the federal courts will not in the ordinary course impose 3
their own coercive sanction.” United States v. James Daniel Good Real 4
Prop., 510 U.S. 43, 63 (1993); see also United States v. Montalvo‐Murillo, 5
495 U.S. 711 (1990) (holding that the government may detain 6
criminal defendants leading up to trial even if they do not comply 7
with the relevant statute’s command that a judicial officer “shall” 8
hold a bail hearing “immediately upon the person’s first 9
appearance” before the officer); Sylvain, 714 F.3d at 157–59 (applying 10
Barnhart and Montalvo‐Murillo to section 1226(c) and concluding that 11
“the government retains authority under [section 1226(c)] despite 12
any delay”). 13
Finally, the BIA’s interpretation has the added benefit of 14
accounting for practical concerns arising in connection with 15
enforcing the statute. Particularly for criminal aliens in state 16
custody, it is unrealistic to assume that DHS will be aware of the 17
exact timing of an alien’s release from custody, nor does it have the 18
resources to appear at every location where a qualifying alien is 19
being released. State and local law enforcement may also have 20
difficulty determining citizenship, since records of arrests and 21
convictions may be incomplete in this regard. Accordingly, we join 22
the Third, Fourth, and Tenth Circuits in holding that DHS retains its 23
authority and duty to detain an alien even if not exercised 24
immediately upon the alien’s release. 19 Regardless of whether 25
“when . . . released” contemplates detainment immediately upon 26
release or merely sometime after release, we adopt the “duty‐ 27
triggering” construction, and hold that an alien may be subject to 28
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

-- 18 of 24 --

mandatory detention even where DHS does not immediately detain 1
the alien after release from criminal custody.20
2
Whether 8 U.S.C. § 1226(c) Authorizes Mandatory Detention 3
Beyond Six Months Without a Bail Hearing 4
Because the District Court decided in Lora’s favor on statutory 5
grounds, it did not reach his constitutional argument. 21 As noted, 6
Lora also argued below and argues to this Court that his indefinite 7
detention without being afforded a bond hearing would violate his 8
right to due process. We agree. Significantly, the distance between 9
Lora and the government on this issue is not large: the government 10
does not advocate for indefinite detention nor does it contest the 11
view that, in order to avoid serious constitutional concerns, an 12
implicit time limitation must be read into section 1226(c). 13
It is well‐settled that the Fifth Amendment entitles aliens to 14
due process in deportation proceedings. Reno v. Flores, 507 U.S. 292, 15
306 (1993). “[T]he Due Process Clause applies to all ‘persons’ within 16
the United States, including aliens, whether their presence here is 17
lawful, unlawful, temporary, or permanent.” Zadvydas, 533 U.S. at 18
693 (considering a challenge to post‐removal detention). As noted, 19
more than a decade ago, in Zadvydas, the Supreme Court signaled its 20
concerns about the constitutionality of a statutory scheme that 21
ostensibly authorized indefinite detention of non‐citizens. Id. Two 22
years later, when the court upheld the constitutionality of section 23
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

-- 19 of 24 --

1226(c) in Demore v. Kim, it emphasized that, for detention under the 1
statute to be reasonable, it must be for a brief period of time. See, 2
e.g., 538 U.S. at 528 (detention permissible because, as compared to 3
Zadvydas, “the detention here is of a much shorter duration”). 4
Justice Kennedy explained in his concurrence that “[w]ere there to be 5
an unreasonable delay by the INS in pursuing and completing 6
deportation proceedings, it could become necessary then to inquire 7
whether the detention is not to facilitate deportation, or to protect 8
against risk of flight or dangerousness, but to incarcerate for other 9
reasons.” Id. at 532–33 (Kennedy, J., concurring). 10
These cases clearly establish that mandatory detention under 11
section 1226(c) is permissible, but that there must be some 12
procedural safeguard in place for immigrants detained for months 13
without a hearing. Accordingly, we join every other circuit that has 14
considered this issue, as well as the government, in concluding that 15
in order to avoid serious constitutional concerns, section 1226(c) 16
must be read as including an implicit temporal limitation. See, e.g., 17
Rodriguez, 715 F.3d at 1137 (“[I]n several decisions over the past 18
decade . . . we have consistently held that Demore’s holding is limited 19
to detentions of brief duration.”); Diop v. ICE/Homeland Sec., 656 F.3d 20
221, 231 (3d Cir. 2011) (applying canon of constitutional avoidance to 21
“conclude that the statute implicitly authorizes detention for a 22
reasonable amount of time”); Ly v. Hansen, 351 F.3d 263, 267–68, 271 23
(6th Cir. 2003) (noting that Demore “is undergirded by reasoning 24
relying on the fact that [the alien in the case], and persons like him, 25
will normally have their proceedings completed within a short 26
period of time” and the case must be understood as only authorizing 27
detention for brief periods of time). 28
However, while all circuits agree that section 1226(c) includes 29
some “reasonable” limit on the amount of time that an individual 30
can be detained without a bail hearing, courts remain divided on 31
how to determine reasonableness. This Court has not yet had the 32
opportunity to decide which approach to follow. The first approach, 33
20

-- 20 of 24 --

employed by the Third and Sixth Circuits and favored by the 1
government, calls for a “fact‐dependent inquiry requiring an 2
assessment of all of the circumstances of any given case,” to 3
determine whether detention without an individualized hearing is 4
unreasonable. Diop, 656 F.3d at 234; see also Chavez‐Alvarez v. Warden 5
York Cty. Prison, 783 F.3d 469, 475 n.7 (3d Cir. 2015) (explaining “the 6
highly fact‐specific nature” of the balancing framework). Under this 7
approach, every detainee must file a habeas petition challenging 8
detention, and the district courts must then adjudicate the petition to 9
determine whether the individual’s detention has crossed the 10
“reasonableness”threshold, thus entitling him to a bail hearing. 11
In contrast, the second approach, adopted by the Ninth 12
Circuit, is to apply a bright‐line rule to cases of mandatory detention 13
where the government’s “statutory mandatory detention authority 14
under Section 1226(c) . . . [is] limited to a six‐month period, subject to 15
a finding of flight risk or dangerousness.” Rodriguez, 715 F.3d at 16
1133. We believe that, considering the relevant Supreme Court 17
precedent, the pervasive confusion over what constitutes a 18
“reasonable” length of time that an immigrant can be detained 19
without a bail hearing, the current immigration backlog and the 20
disastrous impact of mandatory detention on the lives of immigrants 21
who are neither a flight risk nor dangerous, the interests at stake in 22
this Circuit are best served by the bright‐line approach. 23
First, Zadvydas and Demore, taken together, suggest that the 24
preferred approach for avoiding due process concerns in this area is 25
to establish a presumptively reasonable six‐month period of 26
detention. In Zadvydas, the Court held that six months was a 27
“presumptively reasonable period of detention” in a related context, 28
namely post‐removal‐determination detention. 533 U.S. at 700–01 29
(finding that there was “reason to believe . . . that Congress 30
previously doubted the constitutionality of detention for more than 31
six months”). After that point, “once the alien provides good reason 32
to believe that there is no significant likelihood of removal in the 33
21

-- 21 of 24 --

reasonably foreseeable future, the Government must respond with 1
evidence sufficient to rebut that showing.” Id. In Demore, the Court 2
held that section 1226(c) authorized mandatory detention only for 3
the ”limited period of [the alien’s] removal proceedings.” 538 U.S. at 4
531. At that time (2003), the “limited period” referred to “last[ed] 5
roughly a month and a half in the vast majority of cases in which 6
[section 1226(c) was] invoked, and about five months in the minority 7
of cases in which the alien cho[se] to appeal.” Id. at 529–30; see 8
Rodriguez, 715 F.3d at 1138 (“As a general matter, detention is 9
prolonged when it has lasted six months and is expected to continue 10
more than minimally beyond six months.”). 11
Secondly, the pervasive inconsistency and confusion exhibited 12
by district courts in this Circuit when asked to apply a 13
reasonableness test on a case‐by‐case basis weighs, in our view, in 14
favor of adopting an approach that affords more certainty and 15
predictability. Notably, the Supreme Court has recognized that 16
bright‐line rules provide clear guidance and ease of administration 17
to government officials. See, e.g., Zadvydas, 533 U.S. at 700–01 18
(adopting six‐month rule “for the sake of uniform administration,” 19
while also noting that it would limit the need for lower courts to 20
make “difficult judgments”). Compare, e.g., Martin v. Aviles, No. 15 21
Civ. 1080(AT)(AJP), 2015 WL 3929598, at *2–3 (S.D.N.Y. June 15, 22
2015) (holding an alien for over a year without a bond hearing 23
violated his due process rights), and Minto v. Decker, No. 14 Civ. 24
07764(LGS)(KNF), 2015 WL 3555803, at *7 (S.D.N.Y. June 5, 2015) 25
(“Because Petitioner’s detention has exceeded twelve months—in the 26
absence of any evidence that Petitioner might be a flight risk or a 27
danger to the community—he is entitled to an individualized bond 28
hearing.”), and Monestime v. Reilly, 704 F. Supp. 2d 453, 458 (S.D.N.Y. 29
2010) (ordering bond hearing after eight months detention), and 30
Scarlett v. DHS, 632 F. Supp. 2d 214, 223 (W.D.N.Y. 2009) (five years 31
detention unreasonable), with Johnson v. Orsino, 942 F. Supp. 2d 396 32
(S.D.N.Y. 2013) (fifteen month detention not unreasonable), and 33
Luna‐Aponte v. Holder, 743 F. Supp. 2d 189, 194 (W.D.N.Y. 2010) 34
22

-- 22 of 24 --

(nearly three years of detention not unreasonable). Adopting a six‐ 1
month rule ensures that similarly situated detainees receive similar 2
treatment. Such a rule avoids the random outcomes resulting from 3
individual habeas litigation in which some detainees are represented 4
by counsel and some are not, and some habeas petitions are 5
adjudicated in months and others are not adjudicated for years. 6
Moreover, while a case‐by‐case approach might be workable 7
in circuits with comparatively small immigration dockets, the 8
Second and Ninth Circuits have been disproportionately burdened 9
by a surge in immigration appeals and a corresponding surge in the 10
sizes of their immigration dockets.22 With such large dockets, 11
predictability and certainty are considerations of enhanced 12
importance and we believe that the interests of the detainees and the 13
district courts, as well as the government, are best served by this 14
approach. 15
Finally, without a six‐month rule, endless months of 16
detention, often caused by nothing more than bureaucratic backlog, 17
has real‐life consequences for immigrants and their families. Lora is 18
one such example. As noted, he is a LPR who has resided in and 19
been extensively tied to his community for twenty‐five years. 20
During his years in this country, Lora has remained gainfully 21
employed and has attended school. He is in jeopardy of removal as 22
a consequence of what now stands as a conviction in 2009 for third 23
degree possession of a controlled substance for which he received a 24
conditional discharge. No principled argument has been mounted 25
for the notion that he is either a risk of flight or is dangerous. 26
Instead, the record suggests that Lora is an excellent candidate for 27
cancellation of removal pursuant to 8 U.S.C. § 1229b(a). He is the 28
primary caretaker of a two‐year‐old U.S. citizen son who was placed 29
in foster care while Lora was in detention; he has no arrest record 30
aside from this non‐violent drug offense conviction; he has been 31
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

-- 23 of 24 --

gainfully employed for over two decades while he has resided in the 1
United States. 23
2
For these reasons, we hold that, in order to avoid the 3
constitutional concerns raised by indefinite detention, an immigrant 4
detained pursuant to section 1226(c) must be afforded a bail hearing 5
before an immigration judge within six months of his or her 6
detention. Following the Ninth Circuit, we also hold that the 7
detainee must be admitted to bail unless the government establishes 8
by clear and convincing evidence that the immigrant poses a risk of 9
flight or a risk of danger to the community. Rodriguez, 715 F.3d at 10
1131.24
11
CONCLUSION 12
For the foregoing reasons, we AFFIRM the judgment of the 13
District Court. 14
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.
24

-- 24 of 24 --