Chavez-Alvarez v. Warden York Cnty. Prison

• Decision Date: 09 April 2015
• Docket Number: No. 14–1402.,14–1402.
• Citation: 783 F.3d 469
• Parties: Jose Juan CHAVEZ–ALVAREZ, Appellant v. WARDEN YORK COUNTY PRISON; Thomas Decker, in his official capacity as Philadelphia Field Office Director for United States Immigration and Customs Enforcement; John T. Morton, In his official capacity as Assistant Secretary of United States Immigration and Customs Enforcement; Secretary United States Department of Homeland Security; Attorney General United States of America.
• Court: U.S. Court of Appeals — Third Circuit

783 F.3d 469

Jose Juan CHAVEZ–ALVAREZ, Appellant

v.WARDEN YORK COUNTY PRISON; Thomas Decker, in his official capacity as Philadelphia Field Office Director for United States Immigration and Customs Enforcement; John T. Morton, In his official capacity as Assistant Secretary of United States Immigration and Customs Enforcement; Secretary United States Department of Homeland Security; Attorney General United States of America.

No. 14–1402.

United States Court of Appeals, Third Circuit.

Argued Nov. 18, 2014.

Filed: April 9, 2015.

Valerie A. Burch, Esq., [Argued], The Shagin Law Group, Harrisburg, PA, Counsel for Appellant.

Leon Fresco, Esq., [Argued], Katherine E.M. Goettel, Esq., Troy D. Liggett, Esq., United States Department of Justice, Washington, DC, Timothy S. Judge, Esq., Office of United States Attorney, Scranton, PA, Mark E. Morrison, Esq., Office of United States Attorney, Harrisburg, PA, Counsel for Appellees.

Michael K.T. Tan, Esq., (Argued), American Civil Liberties Union Foundation, San Francisco, CA, Counsel for Amicus Appellants.

Before: RENDELL, JORDAN, and NYGAARD, Circuit Judges.

OPINION OF THE COURT

NYGAARD, Circuit Judge.

Jose Juan Chavez–Alvarez appeals the District Court's denial of his petition for a writ of habeas corpus. He contends that the Government is violating his right to due process by detaining him, pursuant to 8 U.S.C. § 1226(c),¹ without a bond hearing since June 5, 2012. We will reverse the District Court's order and remand with instruction to grant the writ of habeas corpus and ensure that Chavez–Alvarez is promptly afforded a bond hearing.

I.

Chavez–Alvarez, a citizen of Mexico, entered the United States at a young age without inspection and later adjusted to lawful permanent resident status. He married a United States citizen, but is now divorced. He has two sons who are United States citizens. In 2000, while serving in the United States Army in South Korea, a General Court–Martial convicted him of giving false official statements (10 U.S.C. § 907 ), sodomy (10 U.S.C. § 925 ), and violating the general article (10 U.S.C. § 934 ).² It sentenced him to eighteen months of imprisonment. He served thirteen months in prison and was released on February 4, 2002.

Immigration Customs and Enforcement agents arrested Chavez–Alvarez on June 5, 2012, and served him with a Notice to Appear, charging him with being removable under 8 U.S.C. § 1227(a)(2)(A)(iii) for his conviction on an aggravated felony. He was ordered detained without bond under 8 U.S.C. § 1226(c) and sent to York County Prison.

The total number of days that Chavez–Alvarez has been held in civil detention since his arrest, of itself, gives us reason for pause. However, we judge the reasonableness of a detention during the removal process by “tak[ing] into account a given individual detainee's need for more or less time, as well as the exigencies of a particular case.” Diop v. ICE/Homeland Sec., 656 F.3d 221, 234 (3d Cir.2011). Our close review of this record has been significant to our deliberation about the constitutionality of Chavez–Alvarez's detention. And so, we begin by summarizing what happened in the Immigration Court.

II.

Shortly after his arrest, Chavez–Alvarez obtained counsel and challenged the Government's case for removal. The Immigration Judge accepted pleadings on June 19, 2012; Chavez–Alvarez argued against removability. Ten days later, the Government, pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii), added a charge that Chavez–Alvarez was removable on the ground of being convicted for two or more crimes involving moral turpitude. Roughly five weeks after he was arrested, on July 11, 2012, the Immigration Judge denied Chavez–Alvarez's request for a bail hearing—filed two days after his arrest on June 7, 2012—ruling that he was subject to mandatory detention under section 1226(c) in compliance with Matter of Joseph, 22 I. & N. Dec. 799 (BIA 1999).

Between August and October of 2012, the Immigration Judge held two hearings. During this time, Chavez–Alvarez denied that he was removable on the new charge, and challenged the Government's claim that his earlier conviction made him removable. Two issues emerged during these hearings: whether the Manual for Courts Marshal—which the Government used to categorize his crime—has the effect of law; and, whether Chavez–Alvarez's eighteen month sentence arose from all of his crimes, or just the sodomy conviction. Chavez–Alvarez said at the October hearing that, if necessary, he would request a 212(h) waiver of inadmissibility, pursuant to 8 U.S.C. § 1182(h).

The fifth hearing was held on November 1, 2012, almost five months into Chavez–Alvarez's detention. The Immigration Judge ruled that Chavez–Alvarez was removable. Specifically, he concluded that sodomy by force is a crime of violence under 18 U.S.C. § 16(a) and (b), qualifying as an aggravated felony under 8 U.S.C. § 1101(a)(43)(F). But, the Immigration Judge also told Chavez–Alvarez that he would consider a 212(h) waiver, and encouraged him to have a petition for an alien relative (Form I–130) filed on his behalf to accompany the waiver.

Over the next four months, the Immigration Judge held four more hearings. During this time, it became clear that Chavez–Alvarez was seeking only a standalone waiver.³ This brought up a question of whether and when Chavez–Alvarez had been admitted to the country. The Immigration Judge then requested briefing on the implications of the ruling in Matter of Sanchez, 17 I. & N. Dec. 218 (BIA 1980), to Chavez–Alvarez's eligibility for the waiver.

On March 5, 2013, at the final hearing, nine months after he was arrested and detained, the Immigration Judge issued an oral decision denying Chavez–Alvarez's application for a 212(h) waiver. This was the sole remaining issue. Chavez–Alvarez stated that he was reserving his right to appeal.

On April 3, 2013, approximately 10 months after his arrest and detention, Chavez–Alvarez appealed to the Board of Immigration Appeals (BIA). The Government filed a motion with the BIA for a summary affirmance, but the BIA affirmed the Immigration Judge's decision in a precedential decision on March 14, 2014, over twenty-one months after Chavez–Alvarez's arrest and detention. Chavez–Alvarez then petitioned this Court for review of the BIA's decision.⁴

III.

Chavez–Alvarez says that the Government is violating his due process rights by detaining him for an unreasonable amount of time without conducting a hearing at which he would have the opportunity to be released on bond.⁵ The law applying to Chavez–Alvarez's issue is well established. It was long ago decided that the Government has authority to detain any alien during removal proceedings. Wong Wing v. United States, 163 U.S. 228, 235, 16 S.Ct. 977, 41 L.Ed. 140 (1896). Before 1996, significant numbers of aliens convicted of serious crimes were taking advantage of their release on bond as an opportunity to flee, avoid removal, and commit more crimes.

Demore v. Kim, 538 U.S. 510, 518–19, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003). Congress fixed this problem by enacting section 1226(c), expanding the range of serious crimes for which the Government was required to detain convicted aliens. Notably, section 1226(c) does not give the Attorney General any authority to release these aliens on bond. Id. at 521, 123 S.Ct. 1708.

The Supreme Court left no doubt that the Government's authority under section 1226(c) to detain aliens without an opportunity for bond complies with the Constitution. Id. at 531, 123 S.Ct. 1708. However, as we discuss below, we read Demore as also recognizing that there are limits to this power. Diop, 656 F.3d 221 ; Leslie v. Attorney Gen. of the United States, 678 F.3d 265 (3d Cir.2012).

When the Supreme Court upheld the constitutionality of the law in Demore, it also gave us insight into how, from a due process perspective, section 1226(c)'s allowance of detention without bail worked. The Court reiterated the fundamental idea that aliens are protected by constitutional due process. Demore, 538 U.S. at 523, 123 S.Ct. 1708 (citing Reno v. Flores, 507 U.S. 292, 306, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993) ). But, it put the alien's issue in perspective, saying “ ‘[i]n the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens.’ ” Id. at 521, 123 S.Ct. 1708 (quoting Mathews v. Diaz, 426 U.S. 67, 79–80, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976) ). The Court went on to say that applying “ ‘reasonable presumptions and generic rules' ” to groups of aliens—for purposes of due process—can be consistent with the idea that aliens can be treated differently. Id. at 526, 123 S.Ct. 1708 (quoting Flores, 507 U.S. at 313, 113 S.Ct. 1439 ); see also Carlson v. Landon, 342 U.S. 524, 72 S.Ct. 525, 96 L.Ed. 547 (1952).

The Court, in essence, concluded that Congress lawfully required the Attorney General to make presumptions of flight and dangerousness about the alien solely because he belonged to the group of aliens convicted of the types of crimes defined in section 1226(c).⁶ These presumptions, Demore says, justified the alien's detention and eliminated the need for an individualized bond hearing: they were the reason the alien's six-month detention without a bond hearing was not an arbitrary deprivation of liberty. Id. at 528, 123 S.Ct. 1708 (“Such detention necessarily serves the purpose of preventing deportable criminal aliens from fleeing prior to or during their removal proceedings, thus increasing the chance that, if ordered removed, the aliens will be successfully removed.”).

Eight years after Demore, we addressed the question of whether the Government's use of section 1226(c) to detain an alien for almost three years without a bond hearing complied with due process. Diop, 656 F.3d 221. Citing earlier decisions by the Supreme Court, we recognized the importance of judicial deference to the Executive Branch in immigration matters, Negusie v. Holder, 555...