190 F. Supp. 3d 344
S.D.N.Y.2016Background
- Petitioner Angel Agustín Argueta Anariba, a Honduran national who entered the U.S. in 1998, has criminal convictions including a 2008 aggravated assault (96-month sentence); DHS took custody on release in December 2014.
- DHS charged inadmissibility under 8 U.S.C. § 1182 and asserted mandatory detention under 8 U.S.C. § 1226(c); Argueta applied for withholding/CAT and later filed a U‑visa application (prima facie eligible, but discretionary given violent history).
- The Immigration Judge denied relief; the BIA dismissed Argueta’s appeal on October 8, 2015 (order became administratively final); Argueta then filed a Petition for Review and a stay motion in the Second Circuit on October 16, 2015.
- ICE conducted a Post‑Order Custody Review and continued detention citing danger and flight risk; Argueta requested a Lora bond hearing but the IJ declined, finding custody governed by 8 U.S.C. § 1231 rather than § 1226.
- Argueta filed a habeas petition under 28 U.S.C. § 2241; the district court held that because his petition for review and stay motion (coupled with the Second Circuit’s forbearance policy) prevented removal, his custody remained governed by § 1226(c), entitling him to a Lora bond hearing.
- Court granted the habeas petition and ordered ICE to provide a Lora bond hearing before an IJ within 30 days.
Issues
| Issue | Argueta's Argument | Respondents' Argument | Held |
|---|---|---|---|
| Which statute governs detention after BIA affirmed removal but while petition for review/stay pending — §1226 or §1231? | Filing a petition for review and stay (plus Second Circuit forbearance) prevents start of the §1231 removal period; detention remains under §1226. | The removal period begins when the BIA order is administratively final; absent a formal court stay, §1231 governs. | §1226 governs because the petition for review and stay, together with the Circuit’s forbearance policy, prevents removal and keeps custody in §1226 posture. |
| Does the forbearance policy/timely stay motion toll the §1231 removal period? | Yes — under the forbearance policy, filing for review/stay effectively prevents removal and tolls the removal period as if a stay were entered. | No — only a formal judicial stay tolls the removal period; administrative finality starts §1231. | Court adopts the view that the forbearance policy + stay motion prevents the removal period from starting, consistent with avoiding due‑process concerns. |
| Is Argueta entitled to a Lora bond hearing and, if so, what standard applies? | Yes; Lora requires a bond hearing within six months of detention and admission to bail unless government proves by clear and convincing evidence risk of flight or danger. | Government argued §1231 applied (so Lora inapplicable) and asserted continued detention based on risk/detention review. | Lora applies; Argueta must be afforded a Lora bond hearing and the government bears clear and convincing evidence burden to deny bail. |
| Remedy and scope — does prior detention time or pending collateral applications (e.g., U‑visa) affect relief? | Seeks immediate bond hearing before IJ; notes U‑visa pending but argues detention warrants Lora process. | Government relied on POCR factors (danger, flight, enforcement priority) and discretionary considerations. | Court ordered a Lora bond hearing before an IJ within 30 days; emphasized limited scope—decision applies to similarly situated detainees pending circuit review under the forbearance policy. |
Key Cases Cited
- Lora v. Shanahan, 804 F.3d 601 (2d Cir. 2015) (six‑month Lora bond hearing rule and clear‑and‑convincing burden to deny bail)
- Zadvydas v. Davis, 533 U.S. 678 (2001) (six‑month presumption against indefinite post‑removal‑period detention)
- Rodriguez v. Robbins, 715 F.3d 1127 (9th Cir. 2013) (bond hearing standards for prolonged detention)
- Singh v. Holder, 638 F.3d 1196 (9th Cir. 2011) (allocation of burden at bond hearings for detainees awaiting review)
- Casas‑Castrillon v. Dep’t of Homeland Sec., 535 F.3d 942 (9th Cir. 2008) (judicial review considered part of decision whether alien will be removed)
- Wang v. Ashcroft, 320 F.3d 130 (2d Cir. 2003) (discussion of removal‑period commencement and habeas review)
- In re Immigration Petitions for Review Pending in the U.S. Court of Appeals for Second Circuit, 702 F.3d 160 (2d Cir. 2012) (Circuit forbearance policy and docket‑management considerations)