Pan v. Sessions et al

Filing 15

OPINION and ORDER: For the reasons set forth above, the petition is granted to the extent it requires Respondents to provide Pan a prompt individualized bail hearing before an immigration judge. There, Pan "must be admitted to bail unless the go vernment establishes by clear and convincing evidence that the immigrant poses a risk of flight or a risk of danger to the community." Lora, 804 F.3d at 616. Respondents are to provide Pan with an individualized bond hearing within two weeks of this Opinion and Order. (As further set forth in this Order.) (Signed by Judge Robert W. Sweet on 2/7/2018) (cf) Modified on 2/8/2018 (cf).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

----------------------------------------x
SING FON PAN (a/k/a XIN FENG PAN),
Petitioner,
-againstJEFFERSON BEAUREGARD SESSIONS III, et al.,
Respondents.

----------------------------------------x
APPEARANCES:

Attorney for Petitioner
THE LAW OFFICE OF THEODORE N. COX
325 Broadway, Suite 201
New York, NY 10007
By:
Theodore N. Cox, Esq.
Attorneys for Respondents
GEOFFREY S. BERMAN
United States Attorney
Southern District of New York
86 Chambers Street, 3rd Floor
New York, NY 10007
By:
Brandon M. Waterman, Esq.

17 Civ. 9758
OPINION and
ORDER

Sweet, D.J.

Petitioner Sing Fon Pan ("Pan" or the "Petitioner"), a
native of China, has been detained in Immigration and Customs
Enforcement

("ICE")

custody pursuant to 8 U.S. C.

§

122 5 (b) ( 2) (A)

since May 17, 2017. Pan has petitioned for a writ of habeas
corpus under 28 U.S.C. § 2241 et seq.,

requesting that his

continued detention be found unlawful and that Respondents be
ordered to release Pan or, in the alternative, to provide Pan
with an individualized bond hearing before an immigration judge.

For the reasons set forth below, the petition is granted to
the extent that Respondents are required to hold an
individualized bond hearing for Pan within two weeks.

Prior Proceedings

Pan is a 37-year-old Chinese native and citizen who arrived
at Newark International Airport in October 1998 and sought entry
into the United States without a valid passport. Pet.
Resp'ts' Mem. of Law in Opp.

("Opp. Mero.")

1

Ex. 1

~

19;

("I-213"), at

2. That same day, Pan was paroled into the United States. Pet.
<JI

19; I-213, at 2. 1

On May 17, 2017, the U.S. Coast Guard encountered Pan while
Pan was fishing, at which time Pan was arrested, detained, and
turned over to ICE. Pet.

<JI

20; I-213, at 2. That same day,

ICE

served Pan with a Notice to Appear ("NTA'') and commenced removal
proceedings, charging Pan as an "arriving alien" and
inadmissible under 8 U.S.C.

§

1182 (a) (7) (A) (i) (I). Pet.

<JI

20;

Opp. Mem. Ex. 2 ("NTA").

On May 26, 2017, Pan filed a Request for Release with ICE
and a motion for a bond hearing with an immigration judge. Pet.
<JI

21. On June 29, 2017, Pan appeared before an immigration judge

and applied for political asylum, withholding of removal, and
protection under the Convention Against Torture. Pet.

<JI

22. That

same day, Pan had a bond hearing, during which bond was denied
1

For constitutional purposes, although Pan was paroled into
the United States for the purpose of prosecution, where he has
lived for the past 19 years, he is still treated as though he
was stopped at the border. This is an "'entry fiction,' which
provides that although aliens seeking admission into the United
States may physically be allowed within its borders pending a
determination of admissibility, such aliens are legally
considered to be detained at the border and hence as never
having effected entry into this country." Saleem v. Shanahan,
No. 16 Civ. 808 (RA), 2016 WL 4435246, at *1 n.2 (S.D.N.Y. Aug.
22, 2016) (quoting Napoles v. I.N.S., 278 F. Supp. 2d 272, 275
(D. Conn. 2003)).
2

by the immigration judge on the grounds that the immigration
court lacked jurisdiction. Pet.

~

23.

On September 1, 2017, the immigration judge denied Pan's
application for relief, from which Pan timely appealed to the
Board of Immigration Appeals
~~

~

("BIA") on September 11. Pet.

26-27. As of writing, Pan's appeal remains pending. Pet.
27.

On October 27, 2017, Pan again filed a motion for a bond
hearing pursuant to Lora v. Shanahan, 804 F. 3d 601
2015). Pet.

~

(2d Cir.

28. On December 4, 2017, Pan had a Lora bond

hearing before a different immigration judge, which denied a
bond hearing based on lack of jurisdiction because of Pan's
previous bond hearing and previous denial. Pet.

~

30.

On December 13, 2017, Pan filed the instant petition,
contending that his continued detention without a bond hearing
violates the Due Process Clause and seeking relief. Dkt. No. 1.
On January 24, 2018, the petition was heard and marked fully
submitted.

3

Applicable Law

Section 2241 of Title 28 of the United States Code is the
general habeas corpus statute. It "authorizes a district court
to grant a writ of habeas corpus whenever a petitioner is

'in

custody in violation of the Constitution or laws or treaties of
the United States.'" Wang v. Ashcroft, 320 F.3d 130, 140
Cir. 2003)

(quoting 28 U.S.C.

§

2241 (c) (3)).

(2d

Federal courts have

jurisdiction to hear habeas corpus claims by non-citizens
challenging the constitutionality of their detention.
Kim,

538 U.S. 510, 516-17

U.S.C.] § 2241

Demore v.

(2003). "[J]urisdiction over [28

[habeas] petitions is properly limited to purely

legal statutory and constitutional claims and does not extend to
review of discretionary determinations" by immigration judges.
Chen v. United States Dep't of Justice,
(2d Cir. 2006)

434 F.3d 144, 153 n.5

(second and third alteration in original).

Section 1225(b) of Title 8 of the United States Code
governs the inspection of aliens seeking admission into the
United States, a classification sometimes termed an "arriving
aliens." See 8 C.F.R. § 1001.1

("The term arriving alien means

an applicant for admission coming or attempting to come into the
United States at a port-of-entry."). Section 1225 (b) (2) (A)
authorizes the detention of arriving aliens, which includes all
4

non-citizens, including lawful permanent residents

("LPR"), if

"the examining immigration officer determines that an alien
seeking admission is not clearly and beyond a doubt entitled to
be admitted .

for a [removal] proceeding under section 1229a

of this title." 8 U.S.C.

§

1225(b) (2) (A). Arriving aliens may

receive discretionary parole by the Department of Homeland
Security, but the statutory regime does not explicitly limit the
length of such detention or provide for a bond hearing before an
immigration judge. 8 U.S.C. § 1182(d) (5) (A); 8 C.F.R. § 212.5.
Section 1225(b) contains no limitation on how long a detention
under that provision may last. 8 U.S. C.

§

1225 (b) ( 2) (A) .

Pan's Petition is Granted

The question presented by Pan's petition is the scope and
impact of the Second Circuit's decision in Lora v. Shanahan, 804
F. 3d 601

(2d Cir. 2015). Pan asks the Court to apply Lora's

holding to his situation and find a six-month, bright-line rule
for detentions pursuant to 8 U.S.C. § 1225(b) . 2 See Pet.

~~

56-

As an alternative, Pan asks the Court to find his continued
detention "unreasonably prolonged" under the "circumstances of
this case" and in violation of his Due Process rights. Pet.
~ 42. Respondents state that Pan's eight-month detention is
reasonable given the necessary removal hearings and Pan's
appeals. See Opp. Mem. 16-19. As the Court finds that Lora's
bright-line holding applies to Pan statutorily, a fact-specific
analysis need not be undertaken.
2

5

58. Respondents contend that, unlike the petitioner in Lora who
was a LPR in the United States, Pan is an "arriving alien" who
needs to be treated for constitutional purposes as if stopped at
the border, and therefore is not afforded the same
constitutional protections. Opp. Mem. 16-19.

The issue of whether indefinite detention under Section
1225(b) violates the Due Process Clause is presently before, but
has not yet been resolved by, the Supreme Court and the Second
Circuit. See Jennings v. Rodriguez, No. 15-1204, 2016 WL 1182403
(U.S. argued Oct. 20, 2017)

(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"); Arias v. Aviles,
No. 16-3186 (2d Cir. filed Sept. 12, 2016)

(proceedings stayed

pending the outcome of Jennings). As a general course of
conduct, this Court agrees with others in the circuit that
staying a decision pending additional guidance from the Supreme
Court or Second Circuit is sensible. Given the issue of
prolonged deprivation of liberty that Pan raises in his
petition, however, to elect to delay decision an indeterminate
period while waiting for a future ruling is "inappropriate."
(AJN), 2017 WL 6049387, at *l &

Ahmed v. Decker, No. 17 Civ. 478
6

n.1

(S.D.N.Y. Dec. 4, 2017)

(citing Osias v. Decker, No. 17 Civ.

2786 (VEC), 2017 WL 3242332, at *1 n.3

(S.D.N.Y. July 28, 2017),

vacated No. 17 Civ. 2786 (VEC), 2017 WL 3432685 (S.D.N.Y. Aug.
9, 2017)). Accordingly, Pan's petition warrants immediate
review.

The Second Circuit's decision in Lora undergirds Pan's
petition and is a necessary starting point of analysis. In Lora,
the Second Circuit considered whether Lora, an LPR and citizen
of the Dominican Republic, could be detained indefinitely under
8 U.S.C. § 1226(c), which mandates detention during the removal
proceedings of non-citizens convicted of certain criminal
offenses. See 804 F.3d at 613-16. The Lora court found that
Section 1226(c) "contain[ed] no explicit provision for bail."
Id. at 604. However, the circuit court considered the statute in
light of Supreme Court precedent, which had previously held
"that, for detention under the statute [Section 1226(c)] to be
reasonable, it must be for a brief period of time." Id. at 614
(citing Demore, 538 U.S. at 528); see also id. at 606
(alterations in original)
690)

(quoting Zadvydas, 533 U.S. at 682,

(observing that the Supreme Court has stated that

"[f]reedom from imprisonment-from government custody, detention,
or other forms of physical restraint-lies at the heart of the
liberty that [the Due Process] Clause protects.'"). Therefore,
7

to avoid "serious constitutional concerns" from indefinite
detention, the Second Circuit found that there must "be some
procedural safeguard in place for immigrants detained for months
without a hearing" under Lora's detention statute. Id. at 614.
Following the lead of the Ninth Circuit in Rodriguez v. Robbins,
715 F.3d 1127, 1131

(9th Cir. 2013)

("Rodriguez II"), the Second

Circuit applied "a bright-line rule to cases of mandatory
detention where the government's

'statutory mandatory detention

authority under Section 1226(c)

[is]

limited to a six-

month period, subject to a finding of flight risk or
dangerousness.'" Id. at 614

(quoting Rodriguez II, 715 F.3d at

1133). The Second Circuit declined to adopt the approach of
other circuits that analyzed the reasonableness of each
individual's detention, concluding that a bright-line rule is
preferable because it "ensures that similarly situated detainees
receive similar treatment." Id. at 615.

In the wake of Lora, district courts in this circuit have
found that the Lora court's due process considerations for the
detention of LRPs pursuant to Section 1226(c) extends to the
detention of LRP and other non-citizen pursuant to Section
1225(b). See Abdi v. Duke, No. 17 Civ.
5599521, at *12

721

(W.D.N.Y. Nov. 17, 2017)

Decker, No. 17 Civ. 478

(AJN)

(GWG),
8

(EAW), 2017 WL

(Wolford, J.); Ahmed v.

2017 WL 6034647, at *6

(S.D.N.Y. Aug. 15, 2017)

(Gorenstein, M.J.), report and

recommendation adopted, No. 17 Civ. 478
(S.D.N.Y. Dec. 4, 2017)

(AJN), 2017 WL 6049387

(Nathan, J.); Osias, 2017 WL 3242332, at

*6 (Caproni, J.); Galo-Espinal v. Decker, No. 17 Civ. 3492
(AKH), 2017 WL 4334004

(S.D.N.Y. June 30, 2017)

J.); Morris v. Decker, No. 17 Civ. 2224
at *3

(S.D.N.Y. May 11, 2017)

(VEC), 2017 WL 1968314,

(Caproni, J.); Heredia v.

Shanahan, 245 F. Supp. 3d 521, 526-27

(S.D.N.Y. Mar. 28, 2017)

(Wood, J.); Ricketts v. Simonse, 16 Civ. 6662
7335675, at *l

(S.D.N.Y. Dec. 16, 2016)

v. Shanahan, No. 16 Civ. 808
(S.D.N.Y. Aug. 22, 2016)

(Hellerstein,

(LGS), 2016 WL

(Schofield, J.); Saleem

(RA), 2016 WL 4435246, at *5

(Abrams, J.); Arias v. Aviles, No. 15

Civ. 9249 (RA), 2016 WL 3906738, at *10

(S.D.N.Y. July 14, 2016)

(Abrams, J.).

Respondent argues that this Court should decline to join
this growing consensus amongst our sister courts and find that
Lora does not apply to Pan's statutory situation. Under
Respondents' theory, because the petitioner in Lora was a
different statutory classification of alien than Pan-Lora was an
LPR, already in the country, and detained under Section 1226(c)the due process to which the petitioner in Lora was entitled has
no bearing to Pan, a detainee who lacks lawful status and,
constitutionally-speaking, has never gained admission to the
9

United States. Respondents cite authority which identify
"distinction between an alien who has effected an entry into the
United States and one who has never entered runs throughout
immigration law." Zadvydas v. Davis, 533 U.S.

678,

693

(2001)

(citations omitted); see also Shaughnessy v. United States ex
rel. Mezei, 345 U.S. 206, 212

(1953)

(citations omitted)

(stating that "an alien on the threshold of initial entry stands
on a different footing" from an alien who has already entered
the country). However, that does not mean that aliens outside
the United States' borders are entitled to no due process
rights, as opposed to aliens already in the United States, who
are given the "traditional standards of fairness encompassed in
due process of law." Mezei, 345 U.S. at 212. Those detained at
the border are limited to "[w]hatever the procedure authorized
by Congress is." Id.

( citation omitted) .

Two district courts in this circuit have issued opinions in
accord with the Government's narrow reading of Lora. See Cardona
v. Nalls-Castillo, 177 F. Supp. 3d 815 (S.D.N.Y. 2016)
(Scheindlin, J.); Perez v. Aviles, 188 F. Supp. 3d 328
2016)

(S.D.N.Y.

(Keenan, J.). In Cardona, the court found, without further

analysis, that because Lora only addressed detentions under
Section 1226(c), it did not extend to detentions under Section
1225(b). See Cardona, 117 F. Supp. 3d at 816. In Perez, the
10

court could not find any authority in the circuit extending Lora
to Section 1225(b) and denied habeas relief. See Perez,

188 F.

Supp. 3d at 332. These decisions, issued prior to the more
recent and constitutionally analytical opinions of courts in the
circuit, are in the minority.

By contrast, the reasoning of Judge Abrams, who has twice
dealt with how to apply Lora to other kinds of alien detentions,
is persuasive. In Arias v. Aviles, Judge Abrams found that
Lora's reasoning applied to an LPR detained under Section
1225(b), since although the petitioner in Arias had briefly
traveled abroad, he still possessed "the same due process
protections enjoyed by continuously present LPRs." Arias, 2016
WL 3906738, at *8

(citation omitted). As such, because Lora

created a bright-line six-month rule under the canon of
constitutional avoidance for continuously-present LPRs to be
entitled to a bond hearing, the same protection needed to be
afforded to LPRs detained under Section 1225(b) because
otherwise it "could result in affording more protections to nonresident aliens detained under section 1226(c), and for whom
removal is authorized by law, than to LPRs detained pursuant to
§ 1225(b) and merely accused of wrongdoing." Id., 2016 WL
3906738, at *9 (alteration and emphasis in original)

(citing

Rodriguez II, 715 F.3d at 1143 ("[I]f anything it would appear
11

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.")).

Judge Abrams later extended her reasoning in Arias to nonresident arriving aliens detained under Section 1225(b). Saleem
v. Shanahan, 2016 WL 4435246, at *4. Following the Supreme
Court's opinion in Clark v. Martinez, 543 U.S. 371

(2005), which

held that once the doctrine of constitutional avoidance is used
to interpret a statute, it controls all applications of the
statute, see id. at 380-81, the Saleem court found that as
Section 1225(b) makes no distinction between LPRs and nonresident aliens, protections construed to apply to the former
also need to apply to the latter. See Saleem, 2016 WL 4435246,
at *4

(citing Clark, 543 U.S. at 380-81); see also Clark, 543

U.S. at 380-81

("[W]hen deciding which of two plausible

statutory constructions to adopt, a court must consider the
necessary consequences of its choice. If one of them would raise
a multitude of constitutional problems, the other should
prevail-whether or not those constitutional problems pertain to
the particular litigant before the Court."); Ahmed, 2017 WL
6034647, at *5 (detailing the statutory interplay where LPRs
detained under Section 1225(b) are detained under the indefinite

12

detention provision discussed in Lora). Judge Abrams reasoned
that, because Section 1225(b) needed to be construed with Lora's
six-month bright-line to protect "certain LPRs," it must also be
applied "consistently to [non-LPR aliens like the petitioner
held under Section 1225 (b) (2) (A)] irrespective of 'whether or
not those constitutional problems pertain to the particular
litigant.'" Id.

(quoting Clark, 543 U.S. at 381); see also

Ahmed, 2017 WL 6049387, at *8

(emphasis in original)

(holding

that because "constitutional avoidance is a tool of statutory
construction

. detention pursuant to section 1225(b) without

an individualized bond hearing must have an implicit six-month
limit .

. for all aliens seeking admission regardless of their

status").

Even if Respondents are correct that fewer due process
rights are owed petitioners like Pan than the petitioner in
Lora, the statutory provisions laid down by Congress control.
The Lora court found that Section 1226(c) "must be read as
including an implicit temporal limitation" to "avoid serious
constitutional concerns," a reading that applies to all aliens
for whom Section 1226(c)'s indefinite detention provision
applies-which includes those detained under Section 1225(b) such
as Pan. Lora, 804 F.3d at 614

(emphasis added). To find

otherwise would unfaithfully apply Lora's "logical conclusion."
13

Ahmed, 2017 WL 6034647, at *5 (finding that "Lora must control
the indefinite detention provision in section 1225(b) (1)" and
that "[b]ecause 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").

This reading is also supported by the Ninth Circuit's
decision in Rodriguez. There, in a class action of non-citizens
challenging their prolonged detentions without individualized
bond hearings, the Ninth Circuit also construed Section 1225(b)
to contain a six-month limitation because there was a "mere
possibility that DHS could detain LPRs pursuant to it." Saleem,
2016 WL 4435246, at *4

(emphasis in original)

(citing Rodriguez

l_!, 715 F.3d at 1142); see also Rodriguez v. Robbins, 804 F.3d
1060, 1082-83 (9th Cir. 2015)

("Rodriguez III")

(affirming the

court's holding in Rodriguez II and stating that "even if the
majority of prolonged detentions under§ 1225(b) are
constitutionally permissible" because the alien is a non-citizen
seeking admission at the border, if one possible application of
the statute requires due process protections, the statutory
scheme of Section 1225(b) requires "a bond hearing after six
months of detention"), cert. granted sub nom. Jennings v.
Rodriguez, 136 S. Ct. 2489 (U.S. 2016).
14

As articulated by Judge Abrams, to avoid constitutional
concerns, Section 1225(b) will be read to include a six-month
limitation on the length of detention of non-citizen arriving
aliens like Pan without an individualized bond hearing.

Respondents contend that the Court should defer to the
"broad power" of the political branches in deciding immigration
policy, particularly at the border, and that the courts should
not upset the statutory scheme created by Congress. See Opp.
Mem. 7-12. However, the political branches' "plenary power" to
create different laws for different kinds of aliens neither
places those laws beyond "important constitutional limitations"
nor eliminates the need to apply uniformly those laws as
construed to detainees. Zadvydas, 533 U.S. at 695; see Morris,
2017 WL 1968314, at *4

("This Court is not questioning the

political branches' power to admit or remove immigrants; rather,
this Court holds only that LPRs detained pending removal
proceedings are entitled to certain due process protections,
including the availability of an individualized bond hearing if
the detention is prolonged.").

Respondents contend that the holdings in Rodriguez and
courts in this circuit who have cited it in support should be
15

rejected because Rodriguez was "a class action" and considered
the potential of a member of the "certified§ 1225(b) subclass"
to warrant constitutional protection, unlike the situation here.
Opp. Mem. 12-13. However, in Rodriguez, the court held that to
apply the constitutional avoidance doctrine required finding
that "one possible application of a statute raises
constitutional concerns.·" Rodriguez III, 804 F.3d at 1082
(emphasis added). As described above, Section 1225(b) could
apply to a group found by the Lora court to require additional
protection, and that protection must flow to all others to whom
the statute applies. See Saleem, 2016 WL 4435246, at *4
(alteration in original)

(quoting Clark, 543 U.S. at 382)

("To

interpret the statute one way for LPRs and another way for nonresident arriving aliens 'would render [the] statute a
chameleon, its meaning subject to change depending on the
presence or absence of constitutional concerns in each
individual case.'").

Respondents contend the canon of constitutional avoidance
should not to be used to construe a six-month limitation on a
statute that does not otherwise possess it. See Opp. Mem. 15-16.
However, the Supreme Court has employed the canon of
constitutional avoidance to·create a six-month limitation on
detentions without a bond hearing for a section of the INA. See
16

Zadvydas, 533 U.S. at 690, 701, 705. The Second Circuit in Lora
did the same for a different section of the INA. See Lora, 804
F.3d at 613. No compelling reason has been presented why the
canon's application is suddenly inappropriate.

Lastly, Respondents contend that Pan's detention does not
violate due process because the detention of aliens like Pan
serves a valid statutory purpose and, in Pan's case, the length
of his proceedings has been reasonable and, in part, a byproduct
of his choice to appeal his removal order. See Opp. Mem. 16-19.
As other courts have also noted, the concern with statutory
indefinite detention is not in "the Government's authority to
detain Petitioner" but rather "the length of Petitioner's
detention without an individualized bond hearing." Morris, 2017
WL 1968314, at *5. And as Lora proscribes the creation of a sixmonth bright-line rule, a threshold Pan's detention has already
crossed, the particulars of his detention are not necessary to
adjudicate his petition. See Lora, 804 F.3d at 615.

Pan should not have to make a choice between seeking relief
through the appeals process or the possibility of indefinite
detention without the prospect of review. See Zadvydas, 533 U.S.
at 690

("Freedom from imprisonment-from government custody,

detention, or other forms of physical restraint-lies at the
17

heart of the liberty that [the Due Process] Clause protects.")
Due process does not need to be a zero-sum game. Pan has been
detained for over eight months and counting; pursuant to the
reasoning and principles laid out in Lora, he is entitled to an
individualized bond hearing.

18

Conclusion

For the reasons set forth above, the petition is granted to
the extent it requires Respondents to provide Pan a prompt
individualized bail hearing before an immigration judge. There,
Pan "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." Lora, 804 F.3d
at 616. Respondents are to provide Pan with an individualized
bond hearing within two weeks of this Opinion and Order.

It is so ordered.

·7,

New York, NY
February
2018

U.S.D.J.

19