Cabral v. Decker

• Decision Date: 21 September 2018
• Docket Number: 18 Civ. 4823 (JGK)
• Citation: 331 F.Supp.3d 255
• Parties: Dalbido Antonio Gil CABRAL, Petitioner, v. Thomas DECKER et al., Respondents.
• Court: U.S. District Court — Southern District of New York

331 F.Supp.3d 255

Dalbido Antonio Gil CABRAL, Petitioner,

v.Thomas DECKER et al., Respondents.

18 Civ. 4823 (JGK)

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

Signed September 21, 2018

Zoey Theo Jones, Brooklyn Defender Services, Brooklyn, NY, for Petitioner.

Dominika Natalia Tarczynska, United States Attorney's Office Southern District of New York, New York, NY, for Respondents.

OPINION AND ORDER

JOHN G. KOELTL, District Judge

This case, a petition for habeas corpus under 28 U.S.C. § 2241, concerns whether a lawful permanent resident's prolonged mandatory detention under 8 U.S.C. § 1226(c), without a bond hearing, violates the Due Process Clause of the Fifth Amendment.

The petitioner, Dalbido Antonio Gil Cabral – a lawful permanent resident of this country – has been imprisoned without a bond hearing for over seven months. His next hearing is scheduled for mid-November, at which time he will have been detained for over nine months. He now brings this petition for a writ of habeas corpus against the respondents: Thomas Decker,¹ Kirstjen Nielsen,² and Jefferson B. Sessions³ in their official capacities. He seeks an order requiring the respondents to provide a bond hearing.

For the following reasons, the petition for a writ of habeas corpus is granted . The respondents are ordered to provide a bond hearing or release the petitioner with in seven days of this Order.

I.

Dalbido Antonio Gil Cabral is a 26-year-old lawful permanent resident of the United States. (Pet. ¶ 1.) He is from the Dominican Republic, but has lived in the United States since he was fourteen years old. (Id. ¶ 1.)His mother (a lawful permanent resident), sister (a United States citizen), brother (a lawful permanent resident), grandfather, and partner all live here as well. (See id. ¶ 21; Pet. Ex. A ¶ 3.) He is the father of one United States citizen child, and also serves a paternal role for his partner's three children, who are United States citizens. (Pet. ¶ 21; Pet. Ex. A ¶ 3.)

On January 22, 2018, the respondents transferred the petitioner to civil immigration detention. (Pet. ¶ 2.) He was sent to the Bergen County Jail in New Jersey, and removal proceedings were initiated against him at the Executive Office for Immigration Review. (Id. ¶ 26; Pet. Ex. B.) The respondents charged the petitioner as removable under 8 U.S.C. § 1226(c). Under § 1226(c), the Government must detain a limited class of noncitizens without bond for the period of time while removal proceedings are pending. Certain crimes, known as "crimes of moral turpitude," can be the basis for detention under § 1226(c). Two crimes of moral turpitude are required if that is the basis for removal. Id. In this case, the Government initially claimed that two of the petitioner's prior convictions – attempted robbery and turnstile jumping – satisfied that requirement. (See Pet. Ex. B.)On February 22, 2018, the petitioner appeared at his first immigration hearing. (Pet. ¶ 28; Pet. Ex. A ¶¶ 4-5.)At that hearing, his case was adjourned to April 6, 2018. (Pet. ¶ 28; Pet. Ex. A¶ 5.)

On March 23, 2018, the petitioner filed a motion to terminate the immigration proceedings. (Pet. ¶ 29.) He argued that a conviction for turnstile jumping was not a crime involving moral turpitude. (Id. ¶ 29; Pet. Ex. F.)The Department of Homeland Security ("DHS")later filed a written opposition, (Pet. ¶ 30), and the immigration judge adjourned the case until May 1, 2018, to consider the motion. (Id. ) On April 13, 2018, DHS amended the petitioner's notice to appear to add an allegation that the petitioner was convicted of petit larceny – a misdemeanor. (Id. ¶ 31.)

At the May 1 hearing, the immigration judge declared that she would not make a formal ruling on the petitioner's motion to terminate because DHS had amended the notice to appear to include another purported crime of moral turpitude: the conviction for petit larceny. (Id. ¶ 32.) That same day, the immigration judge held a Matter of Joseph hearing⁴ to determine whether the petitioner was properly subject to detention under 8 U.S.C. § 1226(c). (Pet. ¶ 33; Pet. Ex. A ¶ 8.) The petitioner argued that DHS was substantially unlikely to prevail on its charge that the petitioner is deportable. (Pet. ¶ 33.)

The immigration judge disagreed, holding the petitioner had not met his burden. (Id. ) The judge then adjourned the case until May 31, 2018. (Id. )

On May 31, 2018, the immigration judge denied the petitioner's Amended Motion to Terminate Removal Proceedings. (Id. ¶ 34.) The immigration judge stated that she believed she was bound to conclude that a New York petit larceny conviction is a crime involving moral turpitude. (Id. ) The judge then scheduled a merits hearing for adjudication of the petitioner's applications for relief from removal. (Id. ) The judge set the hearing for August 7, 2018. (Id. )

At the August 7 merits hearing, the petitioner was allowed to present only one witness. (Aug. 8, 2018, Z. Jones Letter to the Court, at 1, Dkt. No. 16.) The immigration court then continued the hearing to a date more than three months in the future: November 14, 2018. (Id. )At the November 14 hearing, the petitioner will have spent over nine months in custody without a bond hearing.

On September 14, 2018, the petitioner submitted a letter to notify the Court about a recently issued opinion from the Board of Immigration Appeals ("BIA"), Matter of J. M. Acosta, 27 I. & N. Dec. 420, 432 (B.I.A. 2018). (Sept. 14, 2018, Z. Jones Letter to the Court, Dkt. No. 21.) In that case, the BIA held that "a conviction does not achieve finality for immigration purposes until the time for filing an initial direct appeal has expired under the laws of the applicable jurisdiction." Matter of J. M. Acosta, 27 I. & N. Dec. 420, 432 (B.I.A. 2018). One of the two crimes that is purported to be a crime of moral turpitude committed by the plaintiff is currently on appeal. (Sept. 14, 2018, Z. Jones Letter to the Court, Dkt. No. 21.) The petitioner claims that this strengthens his arguments against removability but is likely to extend his already prolonged detention. (Id. )

II.

Congress has authorized federal district courts "to grant a writ of habeas corpus whenever a petitioner is ‘in custody in violation of the Constitution or laws or treaties of the United States.’ " Wang v. Ashcroft, 320 F.3d 130, 140 (2d Cir. 2003) (quoting 28 U.S.C. § 224l(c)(3) ). This includes claims by non-citizens challenging the constitutionality of their detention without bail. Demore v. Kim, 538 U.S. 510, 516-17, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003).

Federal immigration law authorizes DHS to arrest and initially detain an alien who has entered the United States and is believed to be removable. 8 U.S.C. § 1226(a) ;see also Lora v. Shanahan, 804 F.3d 601, 608-09 (2d Cir. 2015), vacated ––– U.S. ––––, 138 S. Ct. 1260, 200 L.Ed.2d 415 (2018). Certain classes of aliens are subject to mandatory detention and may not, under the text of § 1226(c), be released until the removal proceedings conclude.⁵ Jennings v. Rodriguez, ––– U.S. ––––, 138 S. Ct. 830, 837-38, 200 L.Ed.2d 122 (2018).For example, aliens who have committed certain crimes of "moral turpitude" are subject to mandatory detention. 8 U.S.C. §§ 1226(c), 1227(a)(2)(A)(ii) ("Any alien who at any time after admission is convicted of two or more crimes involving moral turpitude ... is deportable.").

However, "there must be some procedural safeguard in place for immigrants detained for months without a hearing." Lora, 804 F.3d at 614; see also Demore, 538 U.S. at 513, 123 S.Ct. 1708 (holding Congress "may require that [noncitizens held under § 1226(c) ] be detained for the brief period necessary for their removal proceedings" (emphasis added) ). Thus, where there has been a prolonged mandatory detention of the aliens under 8 U.S.C. § 1226(c), without access to a bond hearing, federal courts have found that habeas petitioners' Fifth Amendment Due Process rights were violated. See, e.g., Sajous v. Decker, No. 18cv2447, 2018 WL 2357266, at *1 (S.D.N.Y. May 23, 2018) ; see also Zadvydas v. Davis, 533 U.S. 678, 682, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). In such cases, federal courts have the authority to order that the petitioners be released from detention unless they are provided with an individualized bond hearing. Hernandez v. Decker, No. 18cv5026, 2018 WL 3579108, at *8 (S.D.N.Y. July 25, 2018) ; Frederic v. Edwards, No. 18cv5540, Dkt. No. 13 (S.D.N.Y. July 19, 2018); Sajous, 2018 WL 2357266, at *5, *8.

III.

The petitioner offers three arguments in support of his request for a bond hearing: first, that § 1226(c) does not apply to him because he has contested his deportability; second, that § 1226(c) is unconstitutional if read to apply to aliens who have contested their removability; and third, that he has been detained for an unreasonably long period of time without a bond hearing in violation of his Fifth Amendment Due Process rights. Only the third argument is meritorious, but each is addressed below.

A.

The petitioner first argues 8 U.S.C. § 1226(c) – the mandatory detention statute – does not apply to him. He notes that the text of § 1226(c) only requires detention for an alien who "is deportable." (Pet. ¶¶ 60-61.)He claims that because he has contested his deportation, he does not qualify as a person who "is deportable." (Id. )The argument is without merit.

First, the plain text of § 1226 authorizes the government to detain an alien "pending a decision on whether the alien is to be removed from the United States." 8 U.S.C. § 1226(a) (emphasis added).

Second, in Jennings the Supreme Court noted that § 1226(c) provides for detention of an alien "until ‘a decision on whether the alien is to be removed’ is made." Jennings, 138 S.Ct. at 847 (emphasis added) (quoting 8 U.S.C. § 1226 ); see also Young v. Aviles, 99 F.Supp.3d 443, 454 (S.D.N.Y. 2015) ("[T]he Supreme Court's decision in Demore all but forecloses the argument that the term ‘is deportable,’ as used in § 1226(c),...