Academic journal article Washington and Lee Law Review

Locked Up: Demore, Mandatory Detention, and the Fifth Amendment

Academic journal article Washington and Lee Law Review

Locked Up: Demore, Mandatory Detention, and the Fifth Amendment

Article excerpt

Table of Contents

I. Introduction................. 2338

II. Examining 8 U.S.C. 1226(c)............. 2346

A. Background and Impact of 1226(c).................... 2346

B. Legislative History of 1226(c)................. 2348

III. Chinese Exclusion Cases and the Origin of the Plenary Power Doctrine............................ 2349

A. Historical Backdrop to the Chinese Exclusion Cases......................... 2349

B. Chae Chan Ping v. United States........................... 2351

C. Fong Yue Ting v. United States........................ 2354

IV. Evolution of Congress's Plenary Power in the Detention Context................................ 2357

A. Shaughnessy v. United States ex rel. Mezei...................... 2357

B. Zadvydas v. Davis.................. 2361

C. Demore v. Kim........................... 2365

V. Analyzing the Federal Circuit Split............................ 2371

A. Individualized Reviews of Reasonableness...................... 2372

B. Bright-line, Six-Month Reasonableness Limitation on Detention.................................... 2378

VI. Recommendation to Resolve the Circuit Split.......................... 2381

A.Demore's Inconsistency with Due Process Jurisprudence............................. 2382

B. United States v. Salerno................ 2385

C. Comparing 1226(c) Under Demore to the Bail Reform Act...................... 2386

D. Comparing 1226(c) in the Circuit Courts to the Bail Reform Act....................... 2387

E. The Road to Resolution........................ 2390

VII. Conclusion............................. 2391

I.Introduction

In November 2013, Alexander Lora received word that the police were looking for him.1 On a Friday morning, a week before Thanksgiving, Lora stood outside his girlfriend's apartment in Brooklyn waiting for the officers to arrive.2 Lora assumed it was a simple misunderstanding and was eager to clear things up, as he was starting a new job in the construction industry the following day.3 Instead, Lora stood in awe as five vehicles quickly pulled up the street and a group of Immigration and Customs Enforcement (ICE) officers came storming towards him.4 According to Lora, the officers threw him against a car, handcuffed him, and told him "[y]ou're going to get deported."5

Lora was born in the Dominican Republic, but he entered the United States as a lawful permanent resident (LPR) in 1990 when he was seven years old.6 Since arriving to the United States, Lora "lived continuously in Brooklyn, New York where he has a large family network, including his . . . chronically ill U.S. citizen mother, LPR father, and U.S. citizen brother and sister."7 At the time of his 2013 detention, Lora "was 31 and staying with his girlfriend in Brooklyn; they took turns caring for Lora's son with the two-year-old's mother, Lora's ex."8

Lora's 2013 detention stemmed from a 2009 arrest, where Lora and a co-worker were charged with allegedly selling cocaine.9 In 2010, Lora pleaded guilty to criminal possession of cocaine and was sentenced to five years' probation.10 Lora "was not sentenced to any period of incarceration and he did not violate any of the conditions of his probation."11

Unbeknownst to Lora, the possession charge rendered him deportable12 under both 8 U.S.C. 1227(a)(2)(B)13 and 8 U.S.C. 1227(a)(2)(A)(iii).14 Further, 8 U.S.C. 1226(c)15 requires detention16 during removal proceedings for non-citizens17 eligible for deportation under 1227(a)(2)(B) or 1227(a)(2)(A)(iii).18 Accordingly, the ICE officers who detained Lora in November of 2013 were acting pursuant to 1226(c).

At the time of his 2013 detention, Lora was gainfully employed,19 he had extensive family ties to Brooklyn,20 he shared custody of his two-year-old child,21 and he had never been arrested for a violent crime.22 Unfortunately for Lora, none of these facts mattered, as 1226(c) denied Lora the opportunity for a bond hearing to demonstrate that he was not a flight risk and posed no threat to the community. …

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