OPINION AND ORDER Petitioner Josue Manrique Vallejo, a citizen of Honduras, petitions for the writ of habeas corpus, pursuant to Title 28, United States Code, Section 2241, contending that his detention by immigration authorities for almost seventeen months since he received an individualized bond hearing violates his due process rights. (Docket No. 1 (“Pet.”)). Respondents Thomas Decker, Kirstjen Nielsen, and Jefferson B. Sessions (collectively, the “Government”) argue that, as an alien who has “committed certain criminal or terrorist offenses,” Vallejo is subject to mandatory detention pursuant to Title 8, United States Code, Section 1226(c). (Docket No. 15 (“Gov’t Br.”), at 8-9). In his Petition, Vallejo claims that Section 1226(c) does not authorize his detention and that, even if it does, its application is unconstitutional as to him. (Pet.
70-94). For the following reasons, the Court concludes that Vallejo is detained pursuant to Section 1226(c), but that his detention for nearly seventeen months without an individualized bond hearing violates his due process rights. Accordingly, Vallejo’s petition is GRANTED.FACTUAL BACKGROUNDThe relevant facts are largely undisputed. Vallejo allegedly first entered the United States in 1990. (Pet. 1). Thereafter, he was convicted of several crimes: In 2004, he was convicted in South Carolina of receipt of stolen property; in 2007, he was convicted in South Carolina of shoplifting; and in 2009, he was convicted in New York of driving under the influence of drugs or alcohol. (Pet. 28). For these three crimes, he was sentenced to pay a fine of $187.95, to serve thirty days in jail, and to spend three years on probation, respectively. (Id.).1 Vallejo was served with a Notice to Appear — the charging document that commences removal proceedings — in 2009, (see Docket No. 13, Ex. 1), and received an in absentia order of removal in 2010; he was removed to Honduras on January 21, 2011. (Pet. 29).Vallejo alleges that, after returning to Honduras, “he was kidnapped, assaulted, interrogated, threatened, and raped by men who wanted to exploit his family’s small [business]…for illegal purposes.” (Id. 30). Accordingly, he “fled Honduras and returned to the United States to find safety.” (Id.). Specifically, Vallejo reentered the United States on or about May 28, 2012, when he was apprehended at the border and again placed in removal proceedings. (Id. 31). At that time, a Department of Homeland Security (“DHS”) officer interviewed Vallejo and determined that he had a “reasonable fear of persecution or torture” if he was removed to Honduras. (Id.). Thus, Vallejo was released on an order of supervision. (Id.). On December 24, 2015, Vallejo was arrested for driving while intoxicated and aggravated unlicensed operation of a motor vehicle; he pleaded guilty on March 23, 2016, and was sentenced to seven months’ imprisonment to be followed by three years of probation. (Docket No. 14 (“Deleon Decl.”), at 25). On September 23, 2016, after serving his term of imprisonment, Vallejo was transferred directly into Immigration and Customs Enforcement (“ICE”) custody. (Pet. 31).Vallejo first appeared with counsel before an immigration judge (“IJ”) on December 15, 2016. (Deleon Decl. 28). After several adjournments, Vallejo appeared again on March 16, 2017, at a hearing in which his counsel filed applications for withholding of removal and protection under the Convention Against Torture. (Pet. 34). At this hearing, DHS argued that Vallejo was subject to mandatory detention pursuant to Section 1226(c), citing his 2004 and 2007 convictions for receipt of stolen property and shoplifting. (Id.). The IJ agreed, and held a bond hearing pursuant to the Second Circuit’s since-vacated decision in Lora v. Shanahan, 804 F.3d 601 (2d Cir. 2015), vacated, 138 S. Ct. 1260 (2018). (Pet. 34). Citing Vallejo’s “numerous arrests as well as the very dangerous driving under the influence offenses,” the IJ concluded that DHS had met its burden to show by clear-and-convincing evidence that Vallejo presented a danger to the community. (See Docket No. 13, Ex. 4, at 18). And citing Vallejo’s failure to comply with orders from various tribunals, the IJ also found that he was a flight risk. (Id. at 19). Vallejo reserved appeal, but he did not appeal. (Deleon Decl. 32).In the nearly seventeen months since that hearing, Vallejo’s case has been continued or adjourned eight times: (1) On March 16, 2017 — following Vallejo’s initial bond hearing — the IJ scheduled Vallejo’s merits hearing for June 30, 2017, (Pet. 34); (2) on June 30, 2017, Vallejo requested a determination of his competency, which the IJ scheduled for July 17, 2017 (rejecting Vallejo’s request to make findings that very day), (id. 35); (3) thereafter, Vallejo sought an adjournment because of witness unavailability, and the IJ scheduled the next hearing for October 3, 2017, (id. 36); (4) on October 3, 2017, the IJ found Vallejo to be competent and began the merits hearing, but the hearing did not conclude, and the IJ continued the case to November 28, 2017, (id. 38); (5) without notice, the IJ then adjourned that hearing date to December 26, 2017, the day after Christmas, (id. 39); (6) Vallejo’s counsel sought an adjournment of the December 26, 2017 hearing date because he had preexisting plans to be out of state, and the IJ adjourned the hearing to April 17, 2018, (id.); (7) at the April 17, 2018 hearing, the IJ heard additional evidence for Vallejo’s application, but the proceeding did not conclude, and the IJ continued the case to June 21, 2018, later rejecting Vallejo’s request to move the date earlier, (id. 40); and (8) the IJ heard additional testimony on June 21, 2018, but continued it again to September 18, 2018. (Id. 41). In the meantime, Vallejo alleges that his “mental health condition” — which was troubled even before his first removal, (id. 27) — “has deteriorated.” (Id. 42). In particular, “[h]e experiences suicidal and paranoid thoughts, including flashbacks to the attack he suffered in Honduras.” (Id.). With the assistance of social workers at Brooklyn Defender Services (his counsel in this case), he “now has a reentry plan and plan for securing mental health treatment should he be allowed to return to his community of Freeport on Long Island, where he would go back to residing with his family.” (Id. 43).LEGAL BACKGROUNDThis Court previously addressed the due process rights of an admitted alien detained pursuant to Section 1226(c) in Young v. Aviles (“Young I”), 99 F. Supp. 3d 443 (S.D.N.Y. 2015), and Young v. Aviles (“Young II”), No. 15-CV-4545 (JMF), 2015 WL 4579204 (S.D.N.Y. July 29, 2015). In those opinions, the Court concluded, citing Zadvydas v. Davis, 533 U.S. 678 (2001), and Demore v. Kim, 538 U.S. 510 (2003), that “at some point, detention without a hearing offends the Due Process Clause.” Young I, 99 F. Supp. 3d at 455. A few months after the Court’s decision in Young II, the Second Circuit issued its opinion in Lora. See 804 F.3d 601. In Lora, the Second Circuit reached the same conclusion that this Court had reached in Young I: that mandatory detention under Section 1226(c) could become so prolonged that it would violate the alien’s due process right. Id. at 613-14; see Young I, 99 F. Supp. 3d at 455. The Second Circuit, however, went one step further: Applying the canon of constitutional avoidance, the Court construed Section 1226(c) to require that an alien be afforded a bail hearing before an immigration judge within six months of his or her detention. Lora, 804 F.3d at 616.The Supreme Court rejected that approach in Jennings v. Rodriguez, 138 S. Ct. 830 (2018). Specifically, the Supreme Court held that the Ninth Circuit had erred in doing what the Lora Court did: applying the canon of constitutional avoidance to find that the detention of an alien must, as a statutory matter, be limited to sixth months before a bail hearing is required. The Court observed that “[Section] 1226(c) does not on its face limit the length of the detention it authorizes.” Id. at 846. The Ninth Circuit’s interpretation of that provision to “include an implicit 6-month time limit on the length of mandatory detention,” the Court reasoned, “falls far short of a plausible statutory construction.” Id. (internal quotation marks omitted). Significantly, however, the Jennings Court expressly “d[id] not reach” the constitutional question of whether, as the Second Circuit had held in Lora, the Due Process Clause prohibits the prolonged detention of an alien. Id. at 851. A few weeks after deciding Jennings, the Supreme Court granted certiorari in Lora, vacated the Second Circuit’s judgment, and remanded the case to the Second Circuit “for further consideration in light of Jennings.” 138 S. Ct. 1260. Thereafter, the Second Circuit dismissed the case as moot because the petitioner had been released in the interim. See 719 F. App’x 79, 80 (2d Cir. 2018) (summary order).DISCUSSIONVallejo raises two primary challenges to his detention. First, he contends, as a matter of statutory interpretation, that Section 1226(c) does not apply. (See Pet.
