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Mar 12, 2022 | Rommel H. Ojeda

Immigrants Can Wait Indefinitely for a Bail Hearing

Indefinite imprisonment without a bail hearing raises constitutional concerns. This case created the rule that immigrants must have a bail hearing within 6 months.
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In June 2022, the Supreme Court ruled that detained immigrants are not entitled to a bond hearing.  The recent case, Johnson v. Arteaga-Martinez, overturned an earlier decision that stated that immigrants were entitled to a bond hearing within 6 months. Now, immigrants can be detained indefinitely. This walks back from a previous decision.

The case Lora v. Shanahan, brought under the Obama administration, decided that all detained immigrants must be afforded a bail hearing before an immigration judge within six months of their detention. The decision upheld important rights of due process for lawful permanent residents when detained following their conviction of a crime and after their release.

Under U.S. Code: Title 8 – Aliens And Nationality section 1226(c), the Department of Homeland Security is required to detain immigrants who have committed certain crimes “when [they are] released” from prison. Alexander Lora, a green card holder from the Dominican Republic who arrived in the U.S. in 1990 when he was 7 years old, was convicted for cocaine possession in 2010, and was arrested in 2013 by ICE pursuant to that code. 

Despite having pled guilty to the cocaine charge and sentenced to a 5-year probation, which he hadn’t violated, DHS ruled Lora’s detention was mandatory and that he would not be eligible for a bail hearing.

Lora applied for a writ of habeas corpus, which allowed him to challenge his continued detention before the court, given that DHS did not detain him when he was released from custody after his conviction three years earlier. Lora further argued that his indefinite imprisonment without a bail hearing raised constitutional concerns over his right to due process.

A federal appeals court ruled Lora was eligible to receive a bail hearing, as “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.” The decision of the court was also based on Lora’s record, employment history, and that he did not pose a risk of flight or a risk of danger to the community. His detainment would also hinder his ability to take care of his two-year-old son. 

Lora was released from custody after posting a $5,000 bond.

In 2018, following the Supreme Court’s decision on Jennings v Rodriguez, Lora v. Shanahan’s decision was vacated and the six month rule is no longer in place.

Also Read: How Immigration Bonds Work

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