Contreras v. Terry, Civ. No. 12-746 LH/ACT
| Decision Date | 25 January 2013 |
| Docket Number | Civ. No. 12-746 LH/ACT |
| Parties | MARVIN CONTRERAS, Plaintiff, v. RAY TERRY, Warden of Otero County Processing Center, in his official capacity, ADRIAN MACIAS, El Paso Field Office Director, Immigration and Customs Enforcement, ERIC H. HOLDER, Jr., U.S. Attorney General in their official capacity, Defendants. |
| Court | U.S. District Court — District of New Mexico |
THIS MATTER is before the Court on Petitioner's Petition for Writ of Habeas Corpus and Immediate Release From Custody [Doc. No. 1], filed July 10, 2012 ("Petition"). Respondents filed a Response [Doc. No. 4] on August 13, 2012 (Response), and Petitioner filed a Reply [Doc. No. 7] on August 23, 2012 ("Reply"). Petitioner filed a Notice of Recently Decided Additional Authority [Doc. No. 9] on November 28, 2012. Having considered the parties' submissions, relevant law, and the record in this case, the undersigned recommends that the Petitioner's Petition for Writ of Habeas Corpus and Immediate Release From Custody be GRANTED and that Petitioner be brought before an immigration judge within twenty-one days of the entry of an order adopting this recommendation.
The Court has jurisdiction over this § 2241 petition because Petitioner was confined in New Mexico at the time he filed the petition. [Doc. No. 1 at 6.] See Rumsfeld v. Padilla, 542 U.S. 426, 443 (2004); United States v. Scott, 803 F.2d 1095, 1096 (10th Cir. 1986) ().
Petitioner is a citizen of Guatemala and was admitted to the United States as a temporary resident on September 10, 1980, when he was only 7 years old. [Doc. 1 at 3, 6.] On December 2, 2002, Petitioner pled guilty to two counts of criminal sexual penetration in violation of NMSA 1978 § 30-9-11(F). [Doc. 1 at 6.] Petitioner was sentenced to eighteen (18) months confinement for each count for a total term of incarceration of three (3) years. [Id.] One year of Petitioner's sentence was suspended and Petitioner received a pre-sentence confinement credit of 138 days. [Id.] Petitioner was additionally ordered to serve a period of unsupervised probation. [Id.] On November 29, 2004, Petitioner received a certificate of completion of sentence and his case was closed. [Id.]
On May 9, 2012, Petitioner was arrested and taken into Immigration and Custom Enforcement (hereinafter "ICE") custody. [Doc. No. 1 at 7.] This arrest occurred over seven (7) years after the Petitioner's completion of his sentence and probation. [Id.] Petitioner is currently being held at the Otero County Processing Center. [Doc. No. 1 at 3.] Petitioner is being detained under the provisions of 8 U.S.C. § 1226(c) and U.S.C. § 1227(a)(2)(A)(i). Under the mandatory detention provision, Petitioner is not entitled to a bond hearing, and an immigration judge would not have jurisdiction over a bond motion. See 8 U.S.C. § 1226; 8 C.F.R. § 1008.19(h)(2)(i)(D);Matter of Rojas, 23 I. & N. Dec. 117 (B.I.A. 2001). Petitioner has no administrative remedies available to him at this time. [Doc. No. 1 at 5.]
Petitioner filed his Petition against Ray Terry (Warden of Otero County Processing Center), Adrian Macias (Field Office Director for the El Paso Field Office of ICE), and Eric H. Holder, Jr. (Attorney General of the United States). Petitioner requests that this Court remand this case to the Executive Office for Immigration Review ("EOIR") to set a bond hearing under 8 U.S.C. § 1226(a) with a time limitation, and if EOIR is not able to grant a hearing within a reasonable limitation set by this Court, for Respondents to release Petitioner. Petitioner asserts that Mr. Macias and Mr. Holder are proper respondents because "in the event this Court does not order Petitioner's release but instead wishes to give Petitioner the opportunity to apply for bond, it has jurisdiction to so order the responsible parties." [Motion at 4-5.] Respondents contend that Mr. Macias and Mr. Holder are improperly named as Respondents and should be dismissed because the proper respondent to a habeas petition is the person who has custody over the petitioner.
Petitioner argues that the mandatory detention provision of § 1226(c) that allows the Attorney General to take into custody any alien who is deportable on the basis of an offense for which the alien has been sentenced to a term of imprisonment of at least one year does not apply to the Petitioner because the plain language of the provision indicates mandatory detention only occurs "when the alien is released" from criminal custody. [Motion at 8.] Here, the Petitioner was taken into custody by ICE nearly eight (8) years after his release from incarceration and over seven (7) years after his sentence was completed. [Id.] Petitioner rejects the Respondents' reliance on Matter of Rojas, 23 I. & N. Dec. 117 (BIA 2001), wherein the Bureau of Immigration Appeals ("BIA") held that ICE does not have to detain a person immediately after release fromcriminal custody for mandatory detention under § 1226(c) to apply. [Doc. No. 1 at 8-9.] Petitioner contends that the BIA's reasoning has been rejected by a multitude of district court decisions, including the District of New Mexico, and that the BIA case is not entitled to deference by this Court. [Doc. No. 1 at 11.]
Respondents assert that Petitioner has been lawfully detained since May 9, 2012, in accordance with the mandatory detention provisions of 8 U.S.C. § 1226(c). [Response at 1.] Respondents argue that the "when released" clause is ambiguous and therefore this Court should defer to the Board's formal interpretation of that clause as articulated in Matter of Rojas, 23 I. & N. Dec. 117 (BIA 2001).
Petitioner contends that Respondents Macias and Holder, Jr., are proper respondents because they have jurisdiction to order the proper parties to provide Petitioner a bond hearing if the Court grants that request. [Motion at 3-4.] Respondents, relying on Rumsfeld v. Padilla, contend that Respondent Terry is the only proper respondent in this case because he has custody over Petitioner. [Response at 15.]
Pursuant to Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004), "in habeas challenges to present physical confinement - 'core challenges' - the default rule is that the proper respondent is the warden of the facility where the prisoner is being held, not the Attorney General or some other remote supervisory official." (citations omitted). The custodian is "the person in charge of [the] institution" where the petitioner is confined. Al-Marri v. Rumsfeld, 360 F.3d 707, 708 (7th Cir.2004) (citation omitted). However, the United States Supreme Court has "left open the question of whether the Attorney General is a proper respondent to a habeas petition filed by analien detained pending deportation." and noted in Padilla that the circuits are split on that question.2 Id. at 435 n.8.
Here, neither of the parties have cited to Tenth Circuit authority on the issue of whether the Attorney General or ICE Field Director are proper respondents to a habeas petition filed by an alien detained pending deportation, and the Court has not found any. In addition, the United States has presented no reason to exclude Respondents Macias or Holder, Jr., from the proceeding, other than citing to Padilla, which did not rule on this issue. Warden Terry alone presumably has no authority to order a bond hearing before the EOIR judge because EOIR is an office within the Department of Justice, and the Otero County Processing Center is under the supervision of DHS/ICE. See 8 C.F.R. §§ 236.1, 1003.0(a); UNITED STATES DEPARTMENT OF JUSTICE, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, THE IMMIGRATION COURT PRACTICE MANUAL (2009) available at http://www.justice.gov/eoir/vll/ OCIJPracManual/ocij_page1.htm; see also Ortiz v. Holder, 2012 WL 893154, at *2, n.3 (D. Utah March 14, 2012) (). Further, the relief requested by the Petitioner implicates both administrative agencies. See Heras-Quezada v. Terry, USDC NM Civ. No. 2:12-00615 JP/WPL, Doc. No. 12 at 2-3 (D.N.M. Sept. 10, 2012)( that Holder and Macias were properly named parties because relief requested required action by bothadministrative agencies). For these reasons, this Court recommends that Respondents Macias and Holder, Jr., as well as Respondent Terry, remain as Respondents in this proceeding.
Section 1226(a) authorizes immigration officials to arrest, detain, and ultimately release immigrants pending their removal proceedings upon an individualized assessment for bond, parole, or other forms of supervised release. 8 U.S.C. § 1226(a). Section 1226(c) is an exception to this broad authority for detention and release, delimiting a narrow class of people who are subject to no-bond, mandatory detention- namely, individuals whom immigration officials detain "when the alien is released" from criminal custody for qualifying offenses.
To continue reading
Request your trial