Alexandre v. Decker
| Decision Date | 28 March 2019 |
| Docket Number | 17 Civ. 5706 (GBD) (KHP) |
| Parties | JODE ALEXANDRE, Petitioner, v. THOMAS DECKER, in his official capacity as New York Field Office Director for U.S. Immigration and Customs Enforcement; Diane MCCONNELL, in her official capacity as Assistant Field Office Director of U.S. Immigration and Customs Enforcement; John KELLY, in his official capacity as Secretary of the U.S. Department of Homeland Security; Jeff SESSIONS in his official capacity as Attorney General of the United States, Respondents. |
| Court | U.S. District Court — Southern District of New York |
Petitioner Jode Alexandre, by and through counsel, filed this petition for a writ of habeas corpus under 28 U.S.C. § 2241; 28 U.S.C. § 1651, the All Writs Act; and Article I, Section 9 of the Constitution of the United States challenging his continued detention without a bond hearing on statutory and constitutional grounds. (See Petition for Writ of Habeas Corpus ("Pet."), ECF No. 1.) Petitioner is a citizen of Haiti who presented himself at a United States port of entry on November 7, 2016 seeking asylum. (Id at 1-2.) United States Immigration and Customs Enforcement ("ICE") took Petitioner into custody and, following an interview on or about February 15, 2017 with an asylum officer, he was found to have a credible fear of persecution. (Id. at 10.) As his asylum claim was being considered, Alexandre submitted a parole application to ICE on June 12, 2017. (See Report and Recommendation ("Report"), ECF No. 24, at 4.) However, ICE denied the application pending the submission of additional information. (See Petitioner's Supplemental Brief ("Pet'r's Supp. Brief"), ECF No. 11, Ex. 3.)
On February 22, 2018, an immigration judge denied Petitioner's asylum application, which he timely appealed to the Board of Immigration Appeals ("BIA") on March 20, 2018. (See Respondent's Supplemental Memorandum ("Resp.'s Supp. Mem."), ECF No. 12, at 3.) On August 15, 2018, the BIA denied Petitioner's appeal. (See Petitioner's Objection to the Report and Recommendation ( ), ECF. No. 25, at 5.) Petitioner then submitted a petition for review to the United States Court of Appeals for the Second Circuit and a motion to stay his removal from the United States pending the adjudication of the appeal. (Id. at 5-6.) Pursuant to the Second Circuit's forbearance policy, Petitioner's removal is informally stayed until the Second Circuit decides his motion. (Id. at 13.)
Petitioner's writ of habeas corpus, filed on July 27, 2017, requests either that Petitioner be released on bond pending the conclusion of his appeal or, "in the alternative, ... [a] constitutionally adequate, individualized hearing before an immigration judge at which [the government would] bear the burden of establishing by clear and convincing evidence that [Petitioner's] continued detention is justified on the basis of either flight risk or a prospective danger to the community." (See Pet. at 18.) As of the date of this decision, Alexandre has been incarcerated for 27 months.
Before this Court is Magistrate Judge Parker's August 28, 2018 Report and Recommendation, recommending that Alexandre's habeas petition be denied.1 (Report at 2.) Magistrate Judge Parker advised the parties that failure to file timely objections to the Report would constitute a waiver of those objections on appeal. (Id.; see also 28 U.S.C. § 636(b)(1)(C);Fed. R. Civ. P. 72(b)). Petitioner filed timely objections to the Report on September 10, 2018, and Respondents filed a response to the Petitioner's objections on September 24, 2018. (Pet'r's Obj.; Respondent's Response to Petitioner's Objections ("Resp.'s Resp. to Pet'r's Obj."), ECF No. 26.).
Having reviewed Magistrate Judge Parker's Report and the objections made thereto, this Court ADOPTS the Report in full and overrules Petitioner's objections. Accordingly, the Petition seeking a writ of habeas corpus is DENIED.
A. Reports and Recommendations.
A court "may accept, reject, or modify, in whole or in part, the findings or recommendations" set forth within a magistrate judge's report. 28 U.S.C. § 636(b)(1)(C). When no party files objections to a report and recommendation, the court may adopt it if "there is no clear error on the face of the record." Adee Motor Cars, LLC v. Amato, 388 F. Supp. 2d 250, 253 (S.D.N.Y. 2005) (quoting Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 2005)). Where there are objections, however, the court must make a de novo determination as to those portions of the report to which objections are made. See 28 U.S.C. § 636(b)(1)(C); Rivera v. Barnhart, 423 F. Supp. 2d 271, 273 (S.D.N.Y. 2006). The court need not conduct a de novo hearing on the matter. See United States v. Raddatz, 447 U.S. 667, 675-76 (1980). Rather, it is sufficient that this Court "arrive at its own, independent conclusions" regarding those portions to which objections were made. Nelson v. Smith, 618 F. Supp. 1186, 1189-90 (S.D.N.Y. 1985) (internal citation omitted); see United States v. Raddatz, 447 U.S. 667, 675-76 (1980).
For the reasons that follow, the Report correctly found that Petitioner's § 2254 petition should be denied on the merits.
The Report correctly found that an individual granted parole has not been "lawfully admitted" into the United States; that is, the individual is still deemed an applicant for admission and not "within our borders" for purposes of protections given to citizens or undocumented persons who have been living within the nation's borders (lawfully or unlawfully). 8 U.S.C. § 1182(d)(5)(A), 1101(a)(13)(B); see also Zadvydas v. Davis, 533 U.S. 678, 693 (2001) (); (Report at 6-7.). As such, these individuals are deemed "arriving aliens." (Report at 6-7.)
In addition, Magistrate Judge Parker correctly found that "arriving aliens" are treated differently from individuals who have already been admitted into this country (such as Lawful Permanent Residents ("LPRs")) (Report at 7.). For example, if the government seeks to remove an LPR, it may detain such a person pursuant to another provision of the INA during the pendency of his or her removal proceedings. 8 U.S.C. § 1226(a). But that person would also have a right under existing regulations to a bond hearing before an immigration judge at which the government must prove by clear and convincing evidence that the person poses a flight risk or danger to the community.2 8 C.F.R. §§ 236.1(d)(1), 1236.1(d)(1); see also 8 U.S.C. § 1226(c); Jennings v. Rodriguez, 138 S. Ct. 830 (2018).
In contrast, "arriving aliens" seeking asylum are provided only one mechanism for release into the United States during the pendency of immigration proceedings: conditional parole. See 8 U.S.C. §§ 1225(b), 1182(d)(5)(A); 8 C.F.R. §§ 212.5(b), 235.3(c); see also Jennings, 138 S. Ct. at 837. Moreover, the Attorney General or his/her designee has discretion to grant parole, as well as the ability to impose certain conditions on the parolee. See 8 C.F.R. §§ 212.5(b), 235.3(c).
Given this important distinction, the Report correctly found that Petitioner, who is an "arriving alien," is subject to these provisions.
The Report correctly found that, in 2009, ICE issued a policy directive establishing standards and procedures for the parole of certain "arriving aliens" found to have a credible fear of persecution or torture. (See ICE Policy Directive, ECF No. 6, Ex. 3.) Under the policy, an individual who has been found to have a credible fear of persecution "should be paroled" if the undocumented person's identity is sufficiently established, the undocumented person poses neither a flight risk nor a danger to the community, and no additional factors weigh against release." (Id.) If an asylum seeker is denied parole, the directive provides for reapplication and reevaluation based on changed circumstances.
The Report correctly determined that Petitioner's parole application was denied because he failed to sufficiently establish his identity and lack of danger to the community. (See Zabbia Decl., ECF No. 13, Ex. B.) Under the ICE Policy Directive, he can reapply for parole based on changed circumstances. (See ICE Policy Directive, Ex. 3.)
a. Governing Case Law Was Properly Reviewed and Applied to the Parole Process.
The Report provides a thorough review of the case law governing the issues in this case.3 It correctly found that the United States Supreme Court has repeatedly held that detention of undocumented immigrants during removal proceedings does not violate the Constitution's due process protections. Jennings, 138 S. Ct. at 830; Demore v. Kim, 538 U. S. 510, 523(2003)) ( that detention is "a constitutionally valid aspect of the deportation process"); accord Reno v. Flores, 507 U. S. 292, 305-306 (1993); Shaughnessy v. United States ex rel. Mezei, 345 U. S. 206, 215 (1953); Carlson v. Landon, 342 U.S. 524, 538-542 (1952). The Court's jurisprudence regarding the due process requirements for detention during exclusion or removal proceedings has evolved over time to require an individualized bond hearing in certain specific circumstances. For example, the Court held that a bond hearing was required for a detained LPR who resided continuously in the United States. See Kwong Hai Chew v. Colding, 344 U.S. 590 (1953). The Court also found that a bond hearing was necessary where...
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