Doe v. Decker
- Lorna Schofield
- 1:21-cv-05257
- U.S. District Court · Southern District of New York
- 4
In Doe v. Decker, Judge Schofield ruled that John Doe remained detained under § 1226(c) and ordered an individualized bond hearing.
John Doe, who was detained under § 1226(c), was entitled to an individualized bond hearing; the Respondents were required to provide it or release him if they failed to do so.
What happened
In Doe v. Decker, John Doe challenged his continued immigration detention after the Board of Immigration Appeals made his removal order final. The court had previously found that his detention without a bond hearing was unreasonable and violated due process.
The parties disagreed about which immigration law governed Doe’s detention while a petition for review and related stay request were pending. Respondents argued that detention had shifted to § 1231, which would not require a bond hearing. Doe argued that § 1226 continued to govern because the court’s forbearance policy prevented his removal while his review request was pending.
Judge Schofield ruled that § 1226(c) governed Doe’s detention, lifted the stay on the bond hearing, and ordered Respondents to provide an individualized bond hearing within fourteen calendar days. If they failed to provide the hearing, they were ordered to release Doe within that period.
The detailed version
- Doe v. Decker · No. 1:21-cv-05257
- Lorna Schofield
- Nov. 19, 2021
Background
John Doe was detained under 8 U.S.C. § 1226(c). In an earlier order dated November 3, 2021, the court granted in part and denied in part Doe’s petition for a writ of habeas corpus, a request challenging the legality of his detention. The court found that Doe’s detention without a bond hearing was unreasonable and violated due process, and ordered an individualized bond hearing to determine whether his detention was justified.
On October 29, 2021, the Board of Immigration Appeals affirmed Doe’s removal order, making it administratively final. The court then stayed the bond hearing after Respondents argued that Doe was no longer detained under § 1226 but instead was detained under 8 U.S.C. § 1231. Doe had filed a petition for review with the Second Circuit and moved to stay his removal. Under the Second Circuit’s forbearance policy, a person who files a petition for review and moves to stay removal may not be removed while the motion is pending.
Issue and arguments
The issue was whether detention during a removal stay under the forbearance policy is governed by § 1226 or § 1231. The court explained that a bond hearing would be required if § 1226 governed, but not if § 1231 governed.
Doe argued that the forbearance policy amounted to a court-ordered stay of removal. Respondents argued that it was not a court-ordered stay and that § 1231 governed because the Board of Immigration Appeals had made the removal order administratively final.
Ruling and order
The court ruled that § 1226(c) governed Doe’s detention. Relying on the structure of the statute, the Second Circuit’s discussion in Hechavarria v. Sessions, and the practical fact that the forbearance policy clearly prevented Doe’s immediate removal, the court treated the removal stay under that policy as falling within § 1226 rather than § 1231.
The court ordered that the stay of its November 4, 2021, order be lifted. Respondents were required to provide Doe with an individualized bond hearing within fourteen calendar days after the order was docketed and to advise the court of the hearing’s outcome within one business day afterward. The hearing had to include the procedural safeguards described in the November 3 order. If Respondents failed to provide the hearing, they were required to release Doe from detention within fourteen calendar days after docketing.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.