Flores-Powell v. Chadbourne, C.A. No. 08-11696-MLW.

CourtUnited States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
Citation677 F. Supp.2d 455
Docket NumberC.A. No. 08-11696-MLW.
PartiesErick Joseph FLORES-POWELL, Petitioner, v. Bruce CHADBOURNE, et al., Respondents.
Decision Date07 January 2010
677 F.Supp.2d 455

Erick Joseph FLORES-POWELL, Petitioner,
Bruce CHADBOURNE, et al., Respondents.

C.A. No. 08-11696-MLW.

United States District Court, D. Massachusetts.

January 7, 2010.

677 F. Supp.2d 457

Joseph S. Oteri, Law Office of Joseph S. Oteri, Newton, MA, for Petitioner.

Eve A. Piemonte-Stacey, Jennifer C. Boal, Mark J. Grady, John A. Wortmann, Jr., United States Attorney's Office, Boston, MA, for Respondents.


WOLF, District Judge.


Erick Joseph Flores-Powell ("Flores") has been detained for 22 months pursuant to the mandatory detention statute, 8 U.S.C. § 1226(c), while he awaits the adjudication of deportation proceedings. He filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 (the "Petition"). In the Petition, as well as in other submissions, he argues that the mandatory detention provision of the relevant statute does not apply to him and that his prolonged mandatory detention violates his right to due process. Respondents have filed a response and move to dismiss the Petition.

For the reasons stated below, the Petition is being allowed.1 In summary, the court has concluded that exhaustion of administrative remedies is not required, that the court lacks jurisdiction to consider whether petitioner is deportable, and that petitioner's mandatory detention has continued for an unreasonable period of time and, therefore, violates the implicit requirement of 8 U.S.C. § 1226(c). The court has also concluded that in these circumstances detention authority does not automatically revert to 8 U.S.C. § 1226(a) and that a court granting the equitable remedy of habeas corpus may exercise its discretion to fashion an appropriate remedy. Thus, the court will conduct a hearing to determine whether Flores is dangerous to the community or a flight risk. Accordingly, the government's Motion to Dismiss is being denied, and Flores's Motion to Sustain Habeas Corpus Petition is moot.


Flores is a citizen of Panama and a lawful permanent resident of the United States.2 Pet. at 2, 13; May 12, 2009 Decision of the Immigration Judge, Ex. A to Resp'ts' Report Pursuant to Ct.'s Order of Oct. 20, 2009 ("May 12, 2009 Decision"), at 2. He is nineteen years old and entered the United States legally with his family in April, 1995, at the age of five. May 12, 2009 Decision at 3. He is the father of a young child who is a citizen of the United States and is, by all accounts, close with

677 F. Supp.2d 458

his immediate and extended family. Id. at 6-8. Flores has been accused of participation in gang-related criminal activity prior to his detention. Id. at 5-6.

A. Proceedings in the State Court and Immigration Courts

On January 31, 2008, Flores was convicted in Massachusetts state court for possession of a controlled substance (marijuana) with intent to distribute in violation of Chapter 94C, Section 32C(a) of the Massachusetts General Laws. Id. at 2. Flores asserts that the charges arose from an incident in which police stopped a car that was allegedly driving erratically. Police Report, Ex. B to Resp. to Resp'ts' Last Mot. to Dismiss and Req. to Grant Pet'r's Habeas Corpus ("Police Report"). After observing evidence of marijuana use in the car, the police arrested Flores, who was a passenger. Id. During a search incident to arrest, they found six individually wrapped bags of marijuana in Flores's sock. Id. The weight of the marijuana recovered from Flores was less than 12 grams. Laboratory Report, Ex. C to Resp. to Resp't's Last Mot. to Dismiss and Request to Grant Pet'r's Habeas Corpus ("Lab Report"). There is no direct evidence in this proceeding that Flores was selling the marijuana as opposed to possessing it for personal or social use.

On February 6, 2008, Flores was taken into custody by Immigration and Customs Enforcement ("ICE") and was served with a notice to appear on February 7, 2008. Petition at 2.3 Flores was charged with removability pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) (conviction of an aggravated felony) and § 1227(a)(2)(B)(i) (conviction of violating a law relating to a controlled substance). Based on his conviction of an aggravated felony and of an offense relating to a controlled substance, Flores was subject to mandatory detention under 8 U.S.C. § 1226(c)(1)(B).4

Flores was initially represented by counsel, who moved to withdraw for unknown reasons on March 11, 2008. May 12, 2009 Decision at 2. This caused a hearing to be rescheduled from March 12, 2008, to March 26, 2008. Id. Flores was represented by new counsel at the March 26, 2008 hearing, but new counsel moved to withdraw on May 12, 2008, for unknown reasons. Id. The second withdrawal did not apparently cause any delay. Id. After this

677 F. Supp.2d 459

second withdrawal in May, 2008, Flores proceeded pro se in the Immigration Court. Id.

On May 27, 2008, Flores appeared before an Immigration Judge and was ordered removed. Id. On June 26, 2008, Flores appealed the order of removal to the Board of Immigration Appeals ("BIA"). Id. On August 26, 2008, the BIA stated that "the Immigration Judge did not prepare a separate oral or written decision in this matter setting out the reasons for the decision" and that "an explanation of the reasons in the transcript is not sufficient."5 Aug. 26, 2008 Decision of the BIA, Ex. C to Mem. of Law in Supp. of Mot. to Dismiss ("Aug. 26, 2008 Decision"). The BIA remanded the case to the Immigration Judge and ordered that the Immigration Judge prepare a "full decision" for review. Id.

On September 24, 2008, the Immigration Judge complied and issued a two-page decision. Sept. 24, 2008 Oral Decision, Ex. D to Mem. of Law in Supp. of Mot. to Dismiss ("Sept. 24, 2008 Decision"). The Immigration Judge concluded that Flores was removable on two grounds, namely conviction for an aggravated felony (deportable under 8 U.S.C. § 1227(a)(2)(A)(iii)) and conviction for a violation of a law relating to a controlled substance (deportable under 8 U.S.C. 1227(a)(2)(B)(i)). Id. at 1-2. On November 4, 2008, Flores appealed that decision.6 May 12, 2009 Decision at 3.

On December 24, 2008, the BIA vacated the Immigration Judge's decision and remanded the matter to the Immigration Court for a new hearing. Dec. 24, 2008 Decision of the BIA, Ex. A to Mem. of Law in Supp. of Mot. to Dismiss ("Dec. 24, 2008 Decision"). The BIA concluded that, despite the fact that Flores raised the issue, the Immigration Judge did not explicitly consider whether Flores qualified for the mitigating exception in 21 U.S.C. § 841(b)(4),7 which punishes distribution of a small amount of marijuana without remuneration as a misdemeanor and would, therefore, change the classification of Flores's state conviction from an aggravated felony to the equivalent of a misdemeanor under federal law. Id. at 2.

On February 18, 2009, the Immigration Judge "reiterated" his previous decision that Flores was not eligible for bail and subject to mandatory detention. Aug. 17, 2009 Decision, Ex. B to Resp. and Mot. to Dismiss ("Aug. 17, 2009 Decision"), at 2.

The Immigration Judge eventually concluded that the aggravated felony charge could not be sustained because the mitigating exception applied. May 12, 2009 Decision at 3, 12. Specifically, the Immigration Judge found that Flores "submitted a notarized drug laboratory report to prove

677 F. Supp.2d 460

that the net weight of the marijuana found in six small bags was less than 12 grams" and "provided sufficient evidence to establish that he possessed a small amount of marijuana in a situation which represented casual sharing with no remuneration." Id. at 12. Nonetheless, the Immigration Judge found that Flores remained deportable pursuant to 8 U.S.C. 1227(a)(2)(B)(i) (conviction for a drug offense). Id. at 13. On May 12, 2009, the Immigration Judge ordered Flores removed to Panama.8 Id. at 15. Flores appealed the order, although it is not clear from the record exactly when this occurred.

On July 14, 2009, the BIA remanded the case because, due to a tape recording error, the record of the proceedings below was defective. July 14, 2009 Decision of the BIA, Ex. A to Resp. and Mot. to Dismiss the Pet. for Writ of Habeas Corpus ("July 14, 2009 Decision"). Specifically, an April 8, 2009 hearing was apparently recorded over a February 11, 2009 hearing and a February 18, 2009 hearing. Id. The BIA ordered the Immigration Judge to "take such steps as are necessary and appropriate to enable preparation of a complete transcript of the proceedings including a new hearing, if necessary." Id.

On August 17, 2009, the Immigration Judge issued a supplemental oral decision describing what took place in the improperly taped portions of the earlier proceeding. Aug. 17, 2009 Decision. On September 1, 2009, Flores again appealed. See Ex. C to Resp. and Mot. to Dismiss the Pet. for Writ of Habeas Corpus. The briefs for that appeal were due October 6, 2009. Id. Respondents initially "anticipated that it may take 45 days for the BIA to issue a decision," but noted that "when the BIA may issue a decision is uncertain." Mot. for Extension of Time to File a Resp. at 2. At a November 6, 2009 hearing before this court, respondents represented that, after making additional inquiries with the BIA, respondents believed that the appeal would be resolved six to eight weeks after the briefing was complete on October 2, 2009. Respondents subsequently requested an expedited decision from the BIA. Ex. A to Nov. 13, 2009 Status Report at 2. Ten weeks have now elapsed from October 2, 2009, and the BIA has not decided the appeal.

B. Habeas Proceedings

Flores filed a Petition for Writ of Habeas Corpus with this court on or about October 3, 2008, in which he challenges his prolonged detention and the constitutionality of mandatory detention under 8 U.S.C. § 1226(c). In the October 10, 2008 Service Order, the court directed respondents to respond to the...

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