Lora v. Shanahan, No. 14-2343 (2d Cir. 2015)Annotate this Case
Petitioner, a lawful permanent resident (LPR), and citizen of the Dominican Republic, was convicted of drug related offenses, sentenced to probation, and taken into custody by ICE agents pursuant to 8 U.S.C. 1226(c). Petitioner then sought habeas relief, contending that he was eligible to apply for bail because the mandatory detention provision of section 1226(c) did not apply to him because he had not been taken into custody “when released” and that indefinite incarceration without an opportunity to apply for bail violated his right to due process. The district court granted the petition. The court deferred to the BIA's interpretation that detention need not be immediate in order to be mandatory. The court held, however, that to avoid the constitutional concerns raised by indefinite detention, an immigrant detained pursuant to section 1226(c) must be afforded a bail hearing before an immigration judge within six months of his or her detention. Following the Ninth Circuit, the court 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. In this case, petitioner is neither a risk of flight nor dangerous where he is the primary caretaker of his two-year-old son who was placed in foster care while petitioner was in detention, he has no arrest record, and he has been gainfully employed for over two decades. The court affirmed the judgment.