Immigration and Citizenship

L.M.U. v. King

In L.M.U. v. King, the United States District Court for the Southern District of New York was asked to consider whether the potential availability of habeas corpus review bars the filing of a lawsuit under the Administrative Procedure Act (APA) by a noncitizen seeking to vindicate his right to a constitutionally adequate bond hearing.

Case Summary

Prior to the resolution of this case, the federal government had detained L.M.U., a young asylum seeker, for more than sixteen months in connection with pending removal proceedings.  During that time, while COVID-19 ravaged prisons and L.M.U. suffered a significant decline in mental health, the United States Court of Appeals for the Second Circuit decided in Velasco Lopez v. Decker that, at least when an individual’s detention becomes prolonged, as it had in L.M.U.’s case, the Fifth Amendment’s Due Process Clause entitles that individual to a bond hearing in which the government bears the burden of proving, by clear and convincing evidence, that the individual is a danger to the community or a flight risk.

Despite the Second Circuit’s ruling, the Varick Street Immigration Court refused to provide L.M.U. with a constitutionally adequate bond hearing.  In order to obtain that hearing, L.M.U. filed suit pursuant to the APA, seeking to “compel agency action unlawfully withheld or unreasonably delayed.”  The APA makes reviewable “final agency action for which there is no other adequate remedy in a court.”  In response, the government argued that L.M.U. could not proceed with his APA claim because, in its view, a writ of habeas corpus is an “adequate remedy in court” that makes APA review unavailable.  CAC filed an amicus curiae brief in support of L.M.U. arguing that the government was wrong.

First, our brief argued that the text and history of the APA show that Congress included the “no other adequate remedy in a court” language in order to avoid duplicating specific statutory procedures for reviewing particular types of agency actions. That language was not included, as the government asserts, to foreclose APA review where any other avenue of redress might be available, such as habeas corpus review.

Next, our brief explained that the Second Circuit requires clear and convincing evidence of congressional intent to override the APA’s strong presumption in favor of judicial review.  Our brief demonstrates that no clear and convincing evidence exists in the text of either 28 U.S.C. § 2241, the general habeas statute that the government urged L.M.U. to invoke, or in the text of 8 U.S.C. § 1226(a), the general immigration detention provision pursuant to which L.M.U. was being held.  Moreover, since the enactment of the APA, Congress has amended immigration laws and detention review procedures in numerous significant ways, but it has never designated habeas as the exclusive form of review over agency procedures regarding detention and release, further illustrating that Congress did not plan for APA review to be foreclosed in a case like L.M.U.’s.

Shortly after CAC filed its brief in late June 2021, the government released L.M.U. from detention, and the case was voluntarily dismissed.

Case Timeline

  • June 22, 2021

    CAC files amicus curiae brief

    S.D.N.Y. Amicus Br.
  • July 23, 2021

    The case is voluntarily dismissed after the government releases L.M.U. from detention

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