Ahmed v. Decker et al

Filing 24

MEMORANDUM OPINION & ORDER adopting 21 Report and Recommendation. The Government's objections are denied. The Court approves the Magistrate Judge's Report and Recommendation in full. Ahmed's petition for writ of habeas corpus is granted in part, and the Government shall provide Ahmed with an individualized bond hearing no later than December 18, 2017. (Signed by Judge Alison J. Nathan on 12/4/2017) (mro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

Yusuf Aden Ahmed,
Plaintiff,
17-cv-0478 (AJN)

-vMEMORANDUM
OPINION & ORDER

Thomas Decker et al.,
Defendants.

ALISON J. NATHAN, District Judge:
Yusuf Aden Ahmed has been detained by federal immigration officials since July 2,
2016. He has filed a petition for writ of habeas corpus arguing that he is constitutionally entitled
to an individualized bond determination. The Magistrate Judge filed a Report and
Recommendation agreeing with Ahmed and recommending that this Court grant his petition and
order the Government to hold an individualized bond hearing. The Government timely filed
several objections to the Report and Recommendation. The Court concludes that there is no
merit to these objections and, as a result, the Report and Recommendation is adopted in full and
the Government is ordered to provide an individualized bond determination for Ahmed.
The Court recognizes that the Supreme Court of the United States recently reheard oral
argument in Jennings v. Rodriguez, No. 15-1204 (U.S. argued Oct. 8, 2017), a case that will
likely resolve whether detained aliens like Ahmed have a constitutional right to a bond hearing.
See Brief for Petitioners at I, Jennings v. Rodriguez, No. 15-1204 (Aug. 26, 2016) (listing as a
question presented "[w]hether aliens seeking admission to the United States who are subject to
mandatory detention under Section 1225(b) must be afforded bond hearings, with the possibility
of release into the United States, if detention lasts six months"). Normally, the Court would wait
1

to rule on a case until the Supreme Court and Second Circuit had decided the relevant legal issue
under consideration. However, in light of the remedy sought and what is required under current
Second Circuit precedent, it would be inappropriate to wait in this case. 1
I.

Background
A.

Statutory Background

A complex system of laws governs immigration into the United States. Relevant to this
petition is 8 U.S.C. § 1225, which governs aliens seeking admission into the United States. An
alien is considered "an applicant for admission" under section 1225 if he "has not been admitted
or who arrives in the United States (whether or not at a designated port of arrival and including
an alien who is brought to the United States after having been interdicted in international or
United States waters)." 8 U.S.C. § 1225(a)(l).
When an applicant for admission arrives in the United States, a federal officer must
determine whether he is, in fact, admissible. There are numerous grounds upon which such an
applicant may be found inadmissible. If the alien seeks to gain admission to the United States
"by fraud or willfully misrepresenting a material fact," he is inadmissible. Id. § 1182(a)(6)(C).
An applicant for admission is also inadmissible if he "is not in possession of a valid unexpired
immigrant visa, reentry permit, border crossing identification card, or other valid entry
document" or if he does not possess "a valid unexpired passp01i, or other suitable travel
document, or document of identity and nationality if such document is required." Id.

1

This approach has also been taken by other judges in this circuit. In a recent case, Judge Caproni
recognized that the Supreme Court is cun-ently considering Jennings and the Second Circuit has stayed appeals of
habeas petitions concerning indefinite detention of aliens pending the Supreme Court's decision. Osias v. Decker,
No. 17-cv-2786 (VEC), 2017 WL 3242332, at* 1 n.3 (S.D.N.Y. July 28, 2017), vacated No. l 7-cv-2786 (VEC),
2017 WL 3432685 (S.D.N.Y. Aug. 9, 2017). She reasoned that "[a]lthough this Court might normally be inclined to
stay the case pending the Supreme Court and Second Circuit's consideration of the very legal issue presented by the
Petition, the prolonged deprivation of Petitioner's libe1ty, without any individualized assessment of the risk that he
will flee, wmTants immediate review." Id.

2

§ 1182(a)(7)(A)(i). If an alien is found inadmissible under either of these provisions -

subsections 1182(a)(6)(C) or 1182(a)(7)- an immigration officer "shall order the alien removed
from the United States without further hearing or review unless the alien indicates either an
intention to apply for asylum ... or a fear of persecution." Id. § 1225(b)(1 )(A)(i). If an
immigration officer finds that the alien's stated fear of persecution is not "credible," "the officer
shall order the alien removed from the United States without further hearing or review." Id.
§ 1225(b)(l)(B)(iii). If, however, the officer determines that the alien has demonstrated a

credible fear of persecution, "the alien shall be detained for further consideration of the
application for asylum." Id. § 1225(b)(l)(B)(ii).
If an applicant for admission is not found inadmissible by reason of providing fraudulent

documents or for lacking requisite admission documents but an immigration officer nevertheless
"determines that [the] alien seeking admission is not clearly and beyond a doubt entitled to be
admitted, the alien shall be detained for" a removal proceeding. Id. § 1225(b)(2)(A).
In effect, any alien deemed to be an applicant for admission who is not found to be
clearly admissible but is also not found to be clearly removable is thus subject to mandatory
detention under section 1225(b). See id. § 1225(b)(l)(B)(ii) ("[T]he alien shall be detained for
further consideration of the application for asylum."); id. § 1225(b)(2)(A) ("[T]he alien shall be
detained for a proceeding under section 1229a of this title.").

B.

Ahmed's Detention and Petition for Habeas Corpus

Yusuf Aden Ahmed is a citizen and native of Somalia. Report and Recommendation,
Dkt. No. 21, at 1-2. Ahmed arrived at the San Ysidro Port of Entry on the United States-Mexico
border on July 2, 2016. Report and Recommendation at 2. He did not have permission to enter
the United States but asked for asylum. Report and Recommendation at 2. An immigration

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officer determined that Ahmed had a "credible fear of persecution" if he returned to Somalia.
Report and Recommendation at 2. Ahmed was taken into custody by the U.S. Department of
Homeland Security Immigration and Customs Enforcement ("ICE"), and he has remained in ICE
custody since. Report and Recommendation at 2; Petition for Writ of Habeas Corpus
("Petition"), Dkt. No. 1, ~ 11. Ahmed submitted an asylum application on October 18, 2016.
Report and Recommendation at 2. Ahmed requested parole from ICE custody on October 28,
2016 pursuant to 8 C.F.R. § 212.5(b)(5), which allows ICE to parole aliens "whose continued
detention is not in the public interest," but his request was denied on November 21, 2016.
Report and Recommendation at 2; Request for Parole, Dkt. No. 1-4. ICE reconsidered Ahmed's
request for parole but denied it a second time on March 13, 2017. Report and Recommendation
at 3. On January 23, 2017, Ahmed filed a Petition for Writ of Habeas Corpus challenging his
prolonged detention without a bond hearing on both statutory and constitutional grounds. See
generally Petition. The Government opposed Ahmed's petition, arguing that for several reasons,

he was not entitled to a bond hearing as a statutory or constitutional matter. See generally Gov.
Memo. in Opp. to Petition ("Opp."), Dkt. No. 7. On February 27, 2017, the Court referred this
matter to Magistrate Judge Gabriel W. Gorenstein to prepare a Report and Recommendation.
Dkt. No. 9.
C.

Report and Recommendation

On August 15, 2017, Magistrate Judge Gorenstein issued his Report and
Recommendation. Judge Gorenstein first addressed "whether Ahmed was initially subject to
detention under 8 U.S.C. § 1225(b)(2) or 8 U.S.C. § 1225(b)(l)." Report and Recommendation
at 3. Reasoning that section 1225(b)( 1) expressly applies to asylum seekers while section
1225(b)(2)(A) does not, the Magistrate Judge concluded that Ahmed was initially detained

4

pursuant to section 1225(b)(l)(B)(ii). Report and Recommendation at 4. Magistrate Judge
Gorenstein next considered whether Ahmed was still detained pursuant to section
1225(b )(1 )(B)(ii) at the time he filed his petition for writ of habeas corpus or whether, as Ahmed
argued, section 1225(b)(l)(B)(ii) mandated detention only until the Government commenced
removal proceedings in his case. Report and Recommendation at 4-5. The Magistrate Judge
concluded that the only logical reading of section 1225(b)(l)(B)(ii) calls for detention "to
continue until there has actually been a completed consideration of [asylum] proceedings."
Report and Recommendation at 5. As a result, Magistrate Judge Gorenstein concluded that
Ahmed was still required to be detained pursuant to section 1225(b)(1 )(B)(ii).
The Report and Recommendation next considered whether any constitutional limit on
indefinite detention under section 1225(b) exists. Report and Recommendation at 5-12.
Magistrate Judge Gorenstein determined that, in light of the Second Circuit's decision in Lora v.

Shanahan, 804 F.3d 601 (2d Cir. 2015), section 1225(b)(l)(B)(ii) must be read to include a "sixmonth limitation on hearing-less detention when applied to non-LPR aliens seeking asylum who
show a credible fear of persecution." Report and Recommendation at 12.
In Lora, the Second Circuit considered whether 8 U.S.C. § 1226(c), which requires
federal officials "to detain aliens who have committed certain crimes 'when [they are]
released,"' 2 804 F.3d at 604 (alteration in original) (quoting 8 U.S.C. § 1226(c)), may authorize

2

That section states in full:
The Attorney General shall take into custody any alien who( A)
is inadmissible by reason of having committed any offense covered in section
l l 82(a)(2) of this title,
(B)
is deportable by reason of having committed any offense covered in section
1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title,
(C) is deportable under section l 227(a)(2)(A)(i) of this title on the basis of an offense for
which the alien has been sentence [I] to a term of imprisonment of at least I year, or
(D) is inadmissible under section l l 82(a)(3)(B) of this title or deportable under section
1227(a)(4)(B) of this title,

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indefinite detention consistent with the Constitution. The Second Circuit acknowledged that
section 1226(c) "contains no explicit provision for bail." Id. Nevertheless, the Court of Appeals
held that, to avoid due process 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." Id. at 616. In reaching this conclusion, the Second Circuit
recounted a long line of precedents in which the Supreme Court decided that "the Fifth
Amendment entitles aliens to due process in deportation proceedings" and that "for detention
under the statute to be reasonable, it must be for a brief period of time." Id. at 613-14 (citing
Reno v. Flores, 507 U.S. 292, 306 (1993); Zadvydas v. Davis, 533 U.S. 678, 693 (2001); and
Demore v. Kim, 538 U.S. 510, 528 (2003)). Quoting Justice Kennedy's concurrence in Demore,
the Second Circuit frniher explained that "[w ]ere there to be an umeasonable delay by the INS in
pursuing and completing deportation proceedings, it could become necessary then to inquire
whether the detention is not to facilitate deportation, or to protect against risk of flight or
dangerousness, but to incarcerate for other reasons." Id. at 614 (alteration in original) (quoting
Demore, 538 U.S. at 532-33 (Kennedy, J., concurring)). Finally, the Court of Appeals concluded
that a "bright-line approach" would best ensure expedient resolution and that "similarly situated
detainees receive similar treatment," and therefore held that a detainee could only be held for six
months before receiving a bail hearing. Id. at 614-15, 616.
Magistrate Judge Gorenstein determined that the same due process concerns were
implicated by indefinite detention under section 1225(b) as under section 1226(c) and that, as a
result, Lora's holding extends to immigrants detained pursuant to section l 225(b) and requires

when the alien is released, without regard to whether the alien is released on parole,
supervised release, or probation, and without regard to whether the alien may be arrested
or imprisoned again for the same offense.
8 U.S.C. § 1226(c)(I).

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that they be given a bail hearing after six months of detention. Report and Recommendation at
10-12. His Report and Recommendation identifies numerous cases similarly concluding that
mandatory detention under section 1225(b) is governed by Lora because the same due process
concern attaches to mandatory detention under 1225(b) as was at issue in Lora. Report and
Recommendation at 7-8 (citing Osias v. Decker, 2017 WL 3242332; Morris v. Decker, No. 17cv-2224 (VEC), 2017 WL 1968314 (S.D.N.Y. May 11, 2017), appeal docketed, No. 17-2121 (2d
Cir. July 7, 2017); Heredia v. Shanahan, 245 F. Supp. 3d 521 (S.D.N.Y. 2017), appeal docketed,
No. 17-1720 (2d Cir. May 26, 2017), Ricketts v. Simonse, No. 16-cv-6662 (LGS), 2016 WL
7335675 (S.D.N.Y. Dec. 16, 2016); Saleem v. Shanahan, No. 16-cv-0808 (RA), 2016 WL
4435246 (S.D.N.Y. Aug. 22, 2016), appeal docketed, No. 16-3587 (2d Cir. Oct. 21, 2016); Arias

v. Aviles, 15-cv-9249 (RA), 2016 WL 3906738 (S.D.N.Y. July 14, 2016), appeal docketed, No.
16-3186 (2d Cir. Sept. 12, 2016)). Magistrate Judge Gorenstein noted that there exist "two cases
in this circuit that have refused to apply Lora's six-month limitation to section 1225(b)": Judge
Keenan's decision in Perez v. Aviles, 188 F. Supp. 3d 328 (S.D.N.Y. 2016), and Judge
Scheindlin's decision in Cardona v. Nalls-Castillo, 177 F. Supp. 3d 815 (S.D.N.Y. 2016).
Report and Recommendation at 8 n.5. However, he determined that these two cases were not
persuasive because the decision in Perez was based in part on the absence of any case within this
circuit applying a six-month temporal limitation to section 1225(b) and "there are now numerous
such cases," and "Cardona contains no analysis as to why Lora does not apply to section
1225(b) detention." Report and Recommendation at 8 n.5.

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The Magistrate Judge further concluded that it was irrelevant to the case that Lora
concerned a lawful permanent resident ("LPR") while Ahmed is a non-LPR. 3 He explained that
multiple decisions from both this Circuit and elsewhere have applied time limitations to the
detention of non-LPR aliens under section l 225(b ). Report and Recommendation at 8 (citing

Saleem, 2016 WL 4435246; Osias, 2017 WL 3242332; Order, Sammy v. Decker, No. l 7-cv-2615
(PAE), Dkt. No. 14; Singh v. Lowe, Civ. Action No. 3:17-0119, 2017 WL 1134413 (M.D. Pa.
Mar. 27, 2017), appeal docketed, No. 17-2178 (3d Cir. May 26, 2017); Ahadv. Lowe, 235 F.
Supp. 3d 676 (M.D. Pa. 2017), appeal docketed, No. 17-1492 (3d Cir. Mar. 3, 2017); Crespo v.

Baker, No. l l-cv-3019-IEG (POR), 2012 WL 1132961 (S.D. Cal. Apr. 3, 2012)). The
Magistrate Judge adopted the reasoning of those decisions, which hold that because 1225(b) has
generally been read to contain a temporal limitation on detention for LPRs, 1225(b) must also
contain a temporal limitation on detention for non-LPRs. See Report and Recommendation at 810. This syllogism follows from the Supreme Court's holding in Clark v. Martinez, 543 U.S.
371 (2005), that "the same detention provision" of the INA cannot be given different meanings
depending on the type of alien who has been detained. 543 U.S. at 380; see also id. ("It is not at
all unusual to give a statute's ambiguous language a limiting construction called for by one of the
statute's applications, even though other of the statute's applications, standing alone, would not
support the same limitation. The lowest common denominator, as it were, must govern.").
Relying on Clark and cases applying that decision to section 1225(b), the Report and
Recommendation concludes that "section 1225(b) ... must be read to have the same limitation
since its indefinite detention provision could be applied to LPRs." Report and Recommendation

3

In its opposition, the Government argued that because LPRs receive greater constitutional protection than
aliens who have never been admitted into the United States, cases finding an implicit six-month limitation to
detention for LPRs should not apply to Ahmed. See Opp. at 2-3, 14-15.

8

at 11; see also id. at 11-12 ("Because the detention aspect of section 1225(b)(1) could apply to
both LPRs and undocumented arriving aliens seeking admission, it must be read to be identical
for both classes of aliens.").
D.

Government's Objections

On August 29, 2017, the Government timely filed objections to the Report and
Recommendation pursuant to 18 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b ).
See Gov. Objections to Report and Recommendation ("Objections"), Dkt. No. 22. The

Government's objections first state that it agrees with the Magistrate Judge's conclusion that
Ahmed's initial detention was pursuant to section 1225(b)(l)(B)(ii) rather than section
1225(b)(2)(A). Objections at 3. The Government writes that it had "mistakenly stated" in its
original opposition to Ahmed's petition that Ahmed was detained pursuant to section
1225(b)(2)(A), and thereby "created an apparent dispute between the parties when in fact none
existed." Objections at 3. The Government further agrees with the Report and
Recommendation's conclusion that section 1225(b)(l)(B)(ii) continues to govern Ahmed's
detention "during his removal proceedings." Objections at 3-4.
The Government then raises two objections to the Report and Recommendation. First,
the Government argues that the Magistrate Judge incorrectly stated that section 1225(b)(l)(B)(ii)
applies to LPRs when, in fact, that provision does not ever govern detention of LPRs.
Objections at 4-6. Second, the Government objects to the Magistrate Judge's conclusion that the
holding of Lora is applicable to mandatory detention under section 1225(b). The Government
argues that there are procedural differences between section 1225(b) and the provision at issue in
Lora (section 1226(c)) that make Lora's holding inapplicable to 1225(b). Objections at 6-8. The

Government also argues that because Lora applied to aliens already inside the United States who

9

receive greater due process protections than those seeking admission at the border, Lora's
holding does not extend to detention under section 1225(b). Objections at 9-11. As a result, the
Government urges the Court to reject the Report and Recommendation's due process analysis
and conclude that Ahmed's detention is lawful. Objections at 11.

II.

Legal Standard
A court may "designate a magistrate judge to conduct hearings, including evidentiary

hearings, and to submit to a judge of the court proposed findings of fact and recommendations
for the disposition" of certain dispositive matters, including petitions for writ of habeas corpus.
See 28 U.S.C. § 636(b)(l)(B). A party to the action may file objections to the proposed findings
and recommendations within fourteen days after being served with a copy of the report, and the
district judge "shall make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made." Id. § 636(b)(l)(C). The
judge may "accept, reject, or modify, in whole or in part, the findings or recommendations made
by the magistrate judge." Id.

III.

Discussion
The Government raises two objections to the Magistrate Judge's Report and

Recommendation. For the reasons explained below, the Court rejects both objections and adopts
the Report and Recommendation.

A.

Section 1225(b)(l)(B)(ii) Applies to LPRs

The Government's first objection to the Report and Recommendation is that it is "based
on an incorrect premise," namely the Report's conclusion that section 1225(b)(l) "could apply to
both LPRs and undocumented arriving aliens seeking admission." Objections at 4 (quoting
Report and Recommendation at 11-12). The Government argues that section 1225(b)(1 )(B)(ii) -

10

the section pursuant to which Ahmed is detained - does not apply to LPRs because it is reserved
for aliens who lack entry documents or attempt to enter the country by fraud but who then pass a
credible-fear screening process at the border. See Objections at 4.
The Court will not consider this argument because it was not raised before the Magistrate
Judge. "In this district and circuit, it is established law that a district judge will not consider new
arguments raised in objections to a magistrate judge's report and recommendation that could
have been raised before the magistrate but were not." Illis v. Artus, No. 06-cv-3077 (SLT)
(KAM), 2009 WL 2730870, at *l (E.D.N.Y. Aug. 28, 2009); accord Azkour v. Haouzi, No. 1 lcv-5780 (RJS), 2017 WL 3016942, at *4 (S.D.N.Y. July 17, 2017); see also Pan Am. World

Airways, Inc. v. Int'! Bhd. a/Teamsters, 894 F.2d 36, 40 n.3 (2d Cir. 1990) ("Pan Am had no
right to present further testimony when it offered no justification for not offering the testimony at
the hearing before the magistrate."). Considering such new arguments "would unduly undermine
the authority of the Magistrate Judge by allowing litigants the option of waiting until a Report is
issued to advance additional arguments." Abu-Nassar v. Elders Futures, Inc., No. 88-cv-7906
(PKL), 1994 WL 445638, at *4 n.2 (S.D.N.Y. Aug. 17, 1994).
The Government did not argue in its original brief that Ahmed must be treated differently
because he is detained pursuant to section 1225(b)(l)(B)(ii), which is inapplicable to LPRs,
rather than section 1225(b)(2), which is sometimes applicable to LPRs. To the contrary, in its
memorandum in opposition, the Government repeatedly stated that Ahmed was "subject to
detention under 8 U.S.C. § 1225(b)(2)(A)" rather than section 1225(b)(l)(B)(ii). Opp. at l; see

also id. at 5, 9, 11. The Government has disavowed that it ever actually believed Ahmed was
detained pursuant to section l 225(b )(2)(A), stating in its objections that "an error in its
opposition brief created an apparent dispute between the parties when in fact none existed ....

11

The government apologizes for this oversight and agrees with the Report's conclusion on this
preliminary finding." Objections at 3. The Government's failure to catch and correct such a
major factual error in its brief until after a Report and Recommendation has been issued is not a
legitimate justification for the Court to accept new arguments framed as objections to that Report
and Recommendation.
Moreover, the Government's memorandum in opposition routinely treated section
l 225(b) as a single statutory provision and acknowledged that some LPRs may be detained under
that provision. See, e.g., Opp. at 14 ("The mere fact that an LPR returning from abroad might be
detained under§ 1225(b) does not raise constitutional doubts .... "); id. ("As noted, most aliens
coming to this country are not LPRs, and most LPRs cannot be detained under§ 1225(b)."); see
also id. at 12, 14, 19. The Government cannot argue to the Magistrate Judge that section l 225(b)

sometimes applies to LPRs and then object that the Magistrate Judge's Report and
Recommendation treats 1225(b) as a provision that applies in some cases to LPRs. The
Government waived this argument.
Even if the Comi were to consider the Government's new argument, it would not change
the outcome. The Court agrees that LPRs are not subject to detention under section
l 225(b )(1 )(B)(ii) because an alien who has already been granted status as a lawful permanent
resident would not be detained at the border while seeking asylum. Nor does it seem at all likely
that an LPR would seek admission "by fraud or willfully misrepresenting a material fact" in
violation of 8 U.S.C. § 1182(a)(6)(C), or lack a valid entry document in violation of 8 U.S.C.
§ 1182(a)(7). As a result, to the extent that the Report and Recommendation concluded that
"section l 225(b )(1) could apply to both LPRs and undocumented arriving aliens," Report and
Recommendation at 11-12, it was incorrect.

12

However, this does not change the fact that section 1225(b)(l)(B)(ii) must implicitly
contain a provision requiring a bond hearing after six months. First, the rationale of Lora did not
turn exclusively on the rights of LPRs. In that case, the Second Circuit recognized a more
general concern regarding a "statutory scheme that ostensibly authorized indefinite detention of
non-citizens." 804 F.3d at 613. As courts in this district have recognized, "the logic of the
holding in Lora logically extends to an alien held under Section 1225(b), and all the more so
under Section 1225(b)(l)(B)(ii), where potentially lengthy asylum proceedings are under way."
Transcript for May 25, 2017 ("Sammy Bench Opinion"), Sammy v. Decker, No. l 7-cv-2615
(PAE), Dkt. No. 16, at 49. As a result, the need for "procedural safeguard[ s] in place for
immigrants detained for months without a hearing" is equally high. Id. (quoting Lora, 804 F.3d
at 614).
Second, the cases interpreting Lora have relied in part on a concern that the same
category of aliens should receive similar treatment regardless of which provision of the INA
governs their particular case. See, e.g., Morris, 2017 WL 1968314, at *4 ("This Court sees no
principled basis to distinguish the due process rights afforded the LPR in Lora from those to
which Petitioner is entitled. Both are LPRs, both were convicted of a drug crime, and both were
detained pending conclusion of removal proceedings."); Heredia, 245 F. Supp. 3d at 526 ("[T]he
Court can find no basis to distinguish a LPR detained before a removal hearing pursuant to
§ 1226(c) who is entitled to a bail hearing within six months and a LPR detained pursuant to
§ 1225(b)." (citation omitted)). For example, in Arias, Judge Abrams reasoned that Lora's

holding must be extended to section 1225(b) because "[i]f this Court were to rule that Gutierrez
Arias could be permissibly detained for an unlimited period of time under § l 225(b ), such a
decision could result in affording more protections to non-resident aliens detained under

13

§ 1226(c), and for whom removal is authorized by law, than to LPRs detained pursuant to
§ 1225(b) and merely accused of wrongdoing." 2016 WL 3906738, at *9. The Court described
this result as "untenable." Id.; see also Rodriguez v. Robbins, 715 F .3d 1127, 1143 (9th Cir.
2013) ("[I]f anything it would appear that the LPRs who fall within§ 1225(b)'s purview should
enjoy greater constitutional protections than criminal aliens who have already failed to win relief
in their removal proceedings .... "). That concern supports a finding of an implicit six-month
temporal limit for aliens detained pursuant to section 1225(b)(l)(B)(ii): there is no logical reason
that a non-LPR individual who arrives at the border and demonstrates a credible fear of
persecution under section 1225(b)(l)(B)(ii)- that is, makes out a showing that he is likely
entitled to asylum - should be detained indefinitely while a similarly situated non-LPR
individual who arrives at the border and simply cannot demonstrate that he is admissible under
section 1225(b)(2)(A) - including because of previous wrongdoing or removal - should be
protected from indefinite detention.
The Court concludes that, even if it reached the Government's argument, it would not
alter the validity of the Rep01i and Recommendation's conclusion. As a result, this objection is
denied.

B.

There Is No Difference Between Section 1225(b) and Section 1226(c) That Is
Material to Lora's Holding

The Government's second objection to the Magistrate Judge's Report and
Recommendation asserts that Lora is inapplicable to aliens detained under section 1225(b)
because of differences between the detention-pursuant-to-removal provision at issue in Lora section 1226(c) - and the detention-pursuant-to-removal provision of section 1225(b). However,
the Court does not find any of these differences dispositive.

14

The Government first argues that the provisions are dissimilar because under 8 U.S.C.
§ 1226, "detention subject to bond or other conditions is the default rule and mandatory detention
is the exception." Objections at 7. In contrast, under section 1225(b), "the default rule is
mandatory detention with release on parole the exception." Objections at 7. The Government
argues that this distinction is meaningful because in Lora, "the Second Circuit found detention
under section 1226(c) problematic because it lacked a 'procedural safeguard' for aliens detained
without a hearing. But aliens detained under section 1225(b)(l)(B)(ii) have a procedural
safeguard: the opportunity for release on parole." Objections at 7 (quoting Lora, 804 F.3d at
614).
This argument is flawed. If the Second Circuit was concerned about the lack of a
procedural safeguard for aliens detained without a hearing, that concern would apply more under
section l 225(b) where the norm is mandatory detention than under section 1226(c) where the
standard practice is to provide bond. Moreover, even assuming that the Government's argument
followed logically, the opportunity to seek parole is an insufficient procedural safeguard under

Lora. Indeed, aliens held pursuant to section 1226(c) may also seek parole iftheir "continued
detention is not in the public interest," 8 C.F.R. § 212.5(b)(5), as the habeas petitioner in Lora
did as an alternative justification for why he should no longer be subject to indefinite detention.

See 804 F.3d at 608. The existence of the possibility of parole did not change the Second
Circuit's decision that section 1226(c) "must be read to contain an implicit temporal limitation."

Id. at 606.
Other courts in this circuit to consider the constitutionality of indefinite detention under
section 1225(b) have also discussed the reasons why parole is an inadequate protection. First,
"[t]he parole decision is not made by a neutral judicial arbiter," but rather by an executive officer

15

of the Department of Homeland Security. Sammy Bench Opinion at 51. The parole
determination "is a discretionary decision" that is unreviewable "by an immigration judge or
federal court." Ricketts, 2016 WL 7335675, at *4. That some aliens might receive
constitutionally required review of their detention if an executive officer decides to grant it is
insufficient to satisfy due process, which must be satisfied for all similarly situated aliens.
Second, and perhaps more important, "[p ]arole may only be granted for 'urgent humanitarian
reasons' or 'significant public benefit.' That standard is not coextensive with the standards for
release governing a bond hearing." Sammy Bench Opinion at 51. Many detained individuals
who are not dangerous to the public or flight risks, and thus would likely be entitled to release on
bond, "cannot argue that humanitarian reasons or the public benefit compel[s] [their] release"
and will thus remain detained without a hearing indefinitely. Arias, 2016 WL 3906738, at *10;
accord Ricketts, 2016 WL 7335675, at *4; see also Morris, 2017 WL 1968314, at *5

("Discretionary parole for 'urgent humanitarian reasons' or 'significant public benefit' may be
available for some immigrants, but Petitioner's parole request was denied." (citation omitted)).
As a result, parole does not provide process for all aliens facing indefinite detention under
section l 225(b ), and thus it cannot provide a satisfactory alternative to individualized bond
hearings pursuant to Lora.
The Government next argues that because section 1225(b) "applies to aliens on the
threshold of initial entry to the United States," who receive fewer due process protections than
aliens who are already in the United States like those detained under section 1226(c), Lora's
holding cannot be extended to section l 225(b ). Objections at 9. However, as explained above,
LPRs may be detained pursuant to section l 225(b) under certain conditions, and these
individuals "possess the same rights at the border as they do inside it, in spite of their brief

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absence from the United States." Arias, 2016 WL 3906738 (citing Kwong Hai Chew v. Colding,
344 U.S. 590 (1953), and London v. Plasencia, 459 U.S. 21 (1982)); accord Morris, 2017 WL
1968314, at *3. As a result, these individuals are entitled to due process even when arriving at
the border, and therefore may not be subjected to indefinite detention. And because
constitutional avoidance is a tool of statutory construction, "once the statute is construed in a
particular way, that is how it applies across the board, even if in factually less sympathetic cases
than those that prompted the statute's narrowed construction." Sammy Bench Opinion at 49-50;
see also Clark, 543 U.S. at 378 ("To give these same words a different meaning for each

category would be to invent a statute rather than interpret one."). As a result, detention pursuant
to section 1225(b) without an individualized bond hearing must have an implicit six-month limit
for LP Rs seeking admission, and thus for all aliens seeking admission regardless of their status.
IV.

Conclusion

The Government's objections are denied. The Court approves the Magistrate Judge's
Report and Recommendation in full. Ahmed's petition for writ of habeas corpus is granted in
part, and the Government shall provide Ahmed with an individualized bond hearing no later than
December 18, 2017.
SO ORDERED.
Dated: December _ _ , 2017
New York, New York

United States District Judge

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