Anariba v. Shanahan

• Decision Date: 02 June 2016
• Docket Number: 16-cv-1928 (KBF)
• Citation: 190 F.Supp.3d 344
• Parties: Angel Agustin Argueta Anariba, Petitioner, v. Christopher Shanahan; Scott Mechkowski; Jeh Johnson; and Loretta Lynch, each in his/her official capacity, Respondents.
• Court: U.S. District Court — Southern District of New York

190 F.Supp.3d 344

Angel Agustin Argueta Anariba, Petitioner,

v.Christopher Shanahan; Scott Mechkowski; Jeh Johnson; and Loretta Lynch, each in his/her official capacity, Respondents.

16-cv-1928 (KBF)

United States District Court, S.D. New York.

Signed June 2, 2016

Karla Marie Ostolaza Ortiz, The Bronx Defenders, Bronx, NY, for Petitioner.

Brandon Matthew Waterman, United States Attorney's Office, New York, NY, for Respondents.

OPINION & ORDER

KATHERINE B. FORREST, District Judge

Angel Agustin Argueta Anariba ("Argueta") has spent the past 17 months in the custody of the Department of Homeland Security ("DHS"). He petitions this Court for a writ directing that respondents either release him or provide him with the type of bond hearing anticipated by Lora v. Shanahan, 804 F.3d 601 (2d Cir.2015). Because the Court agrees that Argueta's detention is pursuant to 8 U.S.C. § 1226, it GRANTS Argueta's petition and directs respondents to provide him with an opportunity to seek bail in a hearing before an immigration judge.

I. INTRODUCTION AND BACKGROUND

The relevant facts are not disputed.¹ Argueta is a native and citizen of Honduras who entered this country without authorization in 1998. His criminal record has three relevant entries: he was arrested and charged with driving under the influence in 2001; he was convicted of making a terroristic threat in 2004; and he was convicted of aggravated assault while armed and carrying a dangerous weapon in 2008. For the latter offense he was sentenced to 96 months imprisonment.

Argueta served his sentence without incident, and he was released from that sentence in December 2014. He was transferred directly to the custody of DHS and placed into removal proceedings. DHS charged Argueta with inadmissibility under two subparts of 8 U.S.C. § 1182 : (a)(2)(A)(i)(I), which bans admission of an alien convicted of a crime involving moral turpitude, and (a)(6)(A)(i), which bans admission of an alien present in the United States without having been admitted or paroled. DHS also determined that he was subject to mandatory detention during removal proceedings pursuant to 8 U.S.C. § 1226(c).

Argueta contested his inadmissibility on crime-of-moral-turpitude grounds, but admitted his inadmissibility as an alien present without having been admitted or paroled. However, he applied for Withholding of Removal and protection under the Convention Against Torture ("CAT").

On June 2, 2015, the Immigration Judge ("IJ") assigned to Argueta's case denied his application for relief in a written decision. Argueta appealed the IJ's decision to the Board of Immigration Appeals, which upheld the IJ's decision and dismissed Argueta's appeal on October 8, 2015. At that point Argueta's removal order became administratively final. 8 U.S.C. § 1101(a)(47)(B)(i). He had been detained, to that point, for approximately 10 months.

Argueta filed a Petition for Review of the BIA's decision before the Second Circuit on October 16, 2015. He simultaneously filed a Motion for a Stay of Removal. The government has opposed both Argueta's Petition for Review and his Motion for a Stay; both are currently pending before the Second Circuit. This posture brings him within the "forbearance policy" in effect in the Second Circuit. This policy, discussed further below, provides that the Department of Immigration and Customs Enforcement ("ICE") will not remove a detainee while judicial proceedings are pending. See, e.g., Wang v. Ashcroft, 320 F.3d 130, 147 (2d Cir.2003).

On December 21, 2015, Argueta filed a motion for a bond hearing, citing as authority the Second Circuit's October 28, 2015 decision in Lora. His hearing was originally scheduled for January 20, 2016.

On December 29, 2015, Argueta filed a petition for U Nonimmigrant Status with United States Citizenship and Immigration Services ("USCIS"). A U visa is one set aside for victims of certain crimes who have suffered mental or physical abuse and provide assistance to investigations or prosecution of criminal activity. Were Argueta to receive a U visa, he would be permitted to remain in the United States regardless of the outcome of his removal proceedings. USCIS has determined that he is prima facie eligible for a U visa; however, USCIS regulations provide that applicants with a history of violent or dangerous crimes will receive a U visa only in extraordinary circumstances. 8 C.F.R. § 212.17(b)(2). Argueta's petition is pending before USCIS.

On December 29, 2015, ICE commenced a Post-Order Custody Review ("POCR.")

ICE issued a written Decision to Continue Detention on January 5, 2016, which briefly explained that the reasoning behind its decision was four-fold: Argueta's criminal history made him a risk to the well-being of the public; his lack of money, equities, or property in the United States made him a flight risk; his removal was expected in the reasonably foreseeable future; and he was an enforcement priority under a November 2014 directive of the Secretary of DHS.

The government failed to produce Argueta for his January 20, 2016 bond hearing. They did produce him for the rescheduled hearing date on February 18, 2016. The parties expressed their disagreement over Argueta's entitlement to a bond hearing, and the IJ asked the parties to brief the issue. On March 15, 2016, the parties again met before the IJ, who ruled that he did not have jurisdiction to hold a bond hearing because, in his determination, Argueta was in custody pursuant to 8 U.S.C. § 1231, rather than 8 U.S.C. § 1226. The same day, Argueta filed the instant habeas petition challenging the IJ's ruling under 28 U.S.C. § 2241, which authorizes a district court to issue a writ to anyone in custody in violation of the Constitution or law or treaties of the United States.²

II. LEGAL PRINCIPLES

A. Statutory Framework

Two provisions of Title 8 of the United States Code govern detention of aliens as they proceed through removal proceedings. Sections 1226"governs the detention of aliens against whom the Government has initiated removal proceedings, but whose removal periods have not yet commenced." Wang, 320 F.3d at 146. Section 1331 "governs the detention of aliens subject to final orders of removal." Id. at 145. As discussed further below, this description of the statutory scheme opens the possibility of an overlap for aliens whose orders of removal have become administratively final but whose removal periods have not yet commenced.

8 U.S.C. § 1226(a) authorizes the Attorney General to issue a warrant by which "an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States." Although detention is generally at the Attorney General's discretion, subpart (c) of § 1226 mandates that the Attorney General take into custody any alien who is inadmissible or deportable on the basis of listed provisions of Title 8.³

8 U.S.C. § 1231 governs the "[d]etention, release, and removal of aliens ordered removed." It directs that, with certain exceptions, "when an alien is ordered removed, the Attorney General shall remove the alien from the United States within a period of 90 days," a period referred to as the "removal period." 8 U.S.C. § 1231(a)(1)(A).

The removal period begins on the latest of the following:

(i) The date the order of removal becomes administratively final.

(ii) If the removal order is judicially reviewed and if a court orders a stay of the removal of the alien, the date of the court's final order.

(iii) If the alien is detained or confined (except under an immigration process), the date the alien is released from detention or confinement.

Id.§ 1231(a)(1)(B). Section 1231(a)(2) mandates that the Attorney General detain the alien during the removal period.

B. Due Process

It is well-settled that the Fifth Amendment entitles aliens to due process in deportation proceedings. Reno v. Flores, 507 U.S. 292, 306, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993). The due process rights of aliens detained under sections 1226 and 1231 have been the subject of decisions by the Second Circuit Court of Appeals and the Supreme Court.

In Lora v. Shanahan, 804 F.3d 601 (2d Cir.2015), the Second Circuit held that "in order to avoid the constitutional concerns raised by indefinite detention, an immigrant detained pursuant to section 1226(c) must be afforded a bail hearing before an immigration judge within six months of his or her detention." Id. at 616. The Lora court further held that "the detainee must be admitted to bail unless the government establishes by clear and convincing evidence that the immigrant poses a risk of flight or a risk of danger to the community." Id.

In Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001), the Supreme Court analyzed the due process rights of aliens held during and after a removal period. Zadvydas concerned a resident alien who could not be deported because none of the relevant countries would accept him. Id. at 684, 121 S.Ct. 2491. Because indefinite detention without adequate safeguards could violate aliens' due process rights, the Supreme Court established a presumption of six months as a reasonable period of detention while an order of removal is carried out. Id. at 701, 121 S.Ct. 2491. After that period elapses, an alien who "provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future" must be released, unless the government can "respond with evidence sufficient to rebut that showing." Id.

C. Forbearance Policy

In the Second Circuit, the government has put in effect a policy of forbearance. Under this policy, the government will not remove an alien while a petition for review is pending before the Second Circuit. In re Immigration Petitions for Review Pending in the U.S. Court of Appeals for Second Circuit, 702 F.3d 160, 162 (2d Cir.2012). It appears that, as a result of this policy, the Second Circuit Court of Appeals has in some instances declined to act on motions for stays of removal...