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Immigration Law

Habeas Victory at CA2: Velasco Lopez v. Decker

Velasco Lopez v. Decker

"The Government appeals from a judgment of the United States District Court for the Southern District of New York (Carter, J.), granting Carlos Alejandro Velasco Lopez’s petition for a writ of habeas corpus. Velasco Lopez was detained pursuant to 8 U.S.C. § 1226(a), which provides for discretionary detention of noncitizens during the pendency of removal proceedings. His habeas petition challenged the procedures employed in his bond hearings, which required him to prove, to the satisfaction of an immigration judge, that he is neither a danger to the community nor a flight risk. We hold that the district court correctly granted the petition, and provided the correct remedy by ordering a new bond hearing in which the Government bore the burden of showing by clear and convincing evidence that Velasco Lopez was either a danger or a flight risk. ... The irony in this case is that, in the end, all interested parties prevailed. The Government has prevailed because it has no interest in the continued incarceration of an individual who it cannot show to be either a flight risk or a danger to his community. Velasco Lopez has prevailed because he is no longer incarcerated. And the public’s interest in seeing that individuals who need not be jailed are not incarcerated has been vindicated."

[Hats off to JULIE DONA, Supervising Attorney (Janet E. Sabel, Attorney-in-Chief, Adriene Holder, Attorney-in-Charge, Civil Practice, Hasan Shafiqullah, Attorney-in Charge, Immigration Law Unit, Aadhithi Padmanabhan, Of Counsel, on the brief), The Legal Aid Society, New York, NY, and amici!]