Banegas v. Decker

Background

Alonso Banegas sought relief under 28 U.S.C. § 2241, a federal law allowing a person to challenge unlawful detention. He argued that his ongoing detention by Immigration and Customs Enforcement violated the Fifth Amendment’s Due Process Clause, the Immigration and Nationality Act, and the Administrative Procedure Act.

Banegas is a Honduran citizen who had previously been removed from the United States and later reentered without inspection. After an August 2020 driving-under-the-influence conviction in New York State, Immigration and Customs Enforcement detained him. Although his detention initially proceeded under 8 U.S.C. § 1231, the Second Circuit’s temporary stay of his removal changed the legal basis of his detention to § 1226(a), under which he was entitled to a bond hearing.

An immigration judge had denied Banegas’s request for bond because he had not shown that he was not a danger to the community. The Board of Immigration Appeals affirmed that decision. Banegas then filed a petition for review and sought a stay of removal in the Second Circuit, where those matters were pending when he filed this case.

Legal issue and reasoning

Banegas requested immediate release or a new bond hearing at which the Government would have to prove, by clear and convincing evidence, that he was a danger to the community or a flight risk. The Government argued that he was not entitled to a hearing with that burden because his detention had not been unconstitutionally prolonged under the Second Circuit’s decision in Velasco Lopez.

The court relied on the Fifth Amendment’s protection against deprivation of liberty without due process. It followed its prior decisions and the decisions of numerous other judges in the Southern District of New York holding that a noncitizen detained under § 1226(a) must receive a bond hearing at which the Government bears the burden of justifying detention by clear and convincing evidence.

The court rejected the Government’s reading of Velasco Lopez. It explained that the Second Circuit had not established a fixed rule limiting this protection to people detained for a particular period. The court also stated that, even if prolonged detention were required, Banegas qualified because he had been detained for nine months and there was no indication when the Second Circuit would decide his pending proceedings. The court counted the entire period of confinement, including the time before his detention became governed by § 1226(a).

Disposition

Judge Valerie Caproni granted Banegas’s petition. The court ordered the Respondents to provide him with an individualized bond hearing within seven calendar days of the order. At that hearing, the Government had to prove by clear and convincing evidence that Banegas was a danger to the community or a flight risk. The immigration judge also had to meaningfully consider alternatives to incarceration and Banegas’s ability to pay if setting a monetary bond. If the Government failed to provide the required hearing within seven calendar days, it had to immediately release him.