Garcia v. Shanahan, No. 09 Civ. 2995 (CM).

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Writing for the CourtMcMahon
Citation615 F.Supp.2d 175
PartiesHiginio Alejandro GARCIA, Petitioner, v. Christopher SHANAHAN, Field Office Director for the Office of Detention and Removal Operations for U.S. Immigration and Customs Enforcement at 201 Varick Street, New York, NY; Wayne Muller, Assistant Field Office Director for the Office of Detention and Removal Operations; Janet Napolitano, Secretary of Homeland Security; Eric Holder, Attorney General of the United States; and the U.S. Department of Homeland Security, Respondents.
Decision Date01 May 2009
Docket NumberNo. 09 Civ. 2995 (CM).
615 F.Supp.2d 175
Higinio Alejandro GARCIA, Petitioner,
v.
Christopher SHANAHAN, Field Office Director for the Office of Detention and Removal Operations for U.S. Immigration and Customs Enforcement at 201 Varick Street, New York, NY; Wayne Muller, Assistant Field Office Director for the Office of Detention and Removal Operations; Janet Napolitano, Secretary of Homeland Security; Eric Holder, Attorney General of the United States; and the U.S. Department of Homeland Security, Respondents.
No. 09 Civ. 2995 (CM).
United States District Court, S.D. New York.
May 1, 2009.

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COPYRIGHT MATERIAL OMITTED

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Nancy Babette Morawetz, Washington Square Legal Services, Inc., New York, NY, Alina Das, New York, NY, for Petitioner.

DECISION AND ORDER GRANTING PETITIONER'S WRIT OF HABEAS CORPUS

McMAHON, District Judge:


Petitioner Higinio Alejandro Garcia challenges his confinement while removal proceedings against him are pending. Petitioner contends that the Respondents hold him in mandatory detention, without the opportunity for bail or bond assessment, pursuant to an erroneous interpretation of Section 236(c) of the Immigration and Nationality Act, 8 U.S.C. § 1226(c). Petitioner seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241, ordering Respondents to release him from mandatory detention, where he has been held since September 29, 2008, or alternatively, compelling Respondents to grant Petitioner's request for an individualized bond determination hearing.1

For the reasons stated herein, the petition for writ of habeas corpus is granted. Respondents are directed to provide Petitioner with an individualized bond determination hearing within 10 days of the date of this decision.

BACKGROUND

The Mandatory Detention Provision

On September 30, 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009-546 ("IIRIRA"). IIRIRA contains the mandatory detention provision, Section 236(c) of the INA, which is now codified at 8 U.S.C. § 1226(c). That provision provides as follows:

(c) Detention of criminal aliens

(1) Custody

The Attorney General shall take into custody any alien who—

(A) is inadmissible by reason of having committed any offense covered in section 1182(a)(2) of this title,

(B) is deportable by reason of having committed any offense covered in section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title,

(C) is deportable under section 1227(a)(2)(A)(i) of this title on the basis of an offense for which the alien has been sentence to a term of imprisonment of at least 1 year, or

(D) is inadmissible under section 1182(a)(3)(B) of this title or deportable under section 1227(a)(4)(B) of this title,

when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to

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whether the alien may be arrested or imprisoned again for the same offense.

8 U.S.C. 1226(c).

If a detainee meets any of the qualifications of Section 1226(c), he is subject to mandatory detention during removal proceedings, so no immigration judge can undertake an individualized determination about whether to grant bail or bond. 8 C.F.R. § 1003.19(h)(2)(i). The petitioner is being held pursuant to Section 1226(c)(1)(B).

Though the IIRIRA was enacted by Congress on September 30, 1996, implementation of the mandatory detention provision was deferred for two years. See Thomas v. Hogan, 08 Civ. 0417, 2008 WL 4793739, at *1 (M.D.Pa. Oct. 31, 2008)(detailing history of provision). During those two years something called the "Transition Period Custody Rules" ("TPCR") were in place. See IIRIRA § 303(b)(3). These rules provided for individualized bond hearings for certain aliens who were removable for having committed certain crimes; they gave the immigration judge discretion to set bond if the alien did not present a danger to the community and was likely to appear at future removal proceedings. Id.; See Thomas, 2008 WL 4793739, at *1.

On October 9, 1998, the TPCR expired and the mandatory detention provision under Section 1226(c) became effective.

Factual Background

Petitioner came to the United States from the Dominican Republic in or about July 1986. (Am. Pet. ¶ 13.) He was admitted as a lawful permanent resident, and has lived in this country continuously since his arrival. (Id.) The papers submitted in support of the petition indicate that Garcia has the support of a number of family members, who live in the United States as citizens or as lawful permanent residents. Before Garcia was taken into DHS custody, he took care of his teenage daughter, of whom he had full custody. (See, e.g., Am. Pet. Exs. E-J within Ex. C.)

On October 13, 1989—nine years before the mandatory detention provision went into effect—Garcia was convicted, by plea, of attempted criminal sale of a controlled substance in the third degree under N.Y. Penal Law §§ 110, 220.39(1). (Am. Pet. ¶ 14.) Garcia was sentenced to a term of imprisonment of five years probation, with six months incarceration (commonly referred to by New York judges as a "six month split"). (Declaration of Natasha Oeltjen ("Oeltjen Deck") Ex. 1.) He completed his sentence well prior to the passage of the mandatory detention provision.

On March 8, 2008, Mr. Garcia was arrested on unspecified charges that were wholly unrelated to the 1989 arrest. (Am. Pet. Ex. C within Ex. C.) On September 25, 2008, the charges against Garcia were dismissed. (Am. Pet. ¶ 15.)

While he was in pre-trial custody on those charges, however, the Bureau of Immigration and Customs Enforcement ("BICE") and Department of Homeland Security ("DHS") determined that Garcia was not a citizen, and that he had a felony drug conviction from 1989. (Id. Ex. D within Ex. C.) On September 29, 2008, four days after his release from Riker's Island, BICE charged Garcia with removability, based on his 1989 drug conviction, and rearrested him on the ground that he was subject to non-reviewable mandatory detention under 8 U.S.C. § 1226(c). He has languished in custody since September 19, 2008. (Oeltjen Decl. Ex. 5; Am. Pet. Ex. A.) Mr. Garcia has been transferred to various detention centers in the United States, including centers in New Mexico and Texas. (Id. ¶ 17.) Eventually, his case was transferred back to Immigration Court at 201 Varick Street in New York City, and he was returned to this district,

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where he is presently incarcerated. (Id. ¶ 11-12.)

On March 27, 2009, Garcia filed the instant petition, challenging his impending transfer to a detention facility outside of the DRO and his classification as an alien subject to mandatory detention. (Id. ¶¶ 19-21.) On March 27, 2009, the Hon. Harold Baer signed an Order to Show Cause restraining respondents from removing Petitioner from the jurisdiction of the New York DRO pendente lite. (Id. ¶ 21.)

On April 2, 2009, Petitioner had a hearing before Immigration Judge Vomacka, at which he challenged his classification as subject to mandatory detention. Judge Vomacka denied bond, on the ground that Garcia was subject to mandatory detention as a matter of law and could not be bailed. (Id. ¶ 8.) He performed no individualized assessment of petitioner's bailability.

Respondent has assured the Court that BICE and DHS will keep Garcia in a detention facility under the jurisdiction of the New York DRO office pending a final decision by an Immigration Judge in his removal proceedings.

DISCUSSION

I. Jurisdiction to Review this Petition

This Court has subject matter jurisdiction to review Garcia's writ for petition of habeas petition under 28 U.S.C. § 2241(c)(3). While the Immigration and Nationality Act ("INA") precludes review of the "Attorney General's discretionary judgment" with regard to "detention or release of any alien or the grant, revocation, or denial of bond or parole," 8 U.S.C. § 1226(e), the United States Supreme Court rejected the contention that § 1226(e) deprives courts of jurisdiction to consider challenges to the interpretation of the mandatory detention statute. Demore v. Kim, 538 U.S. 510, 517, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003). In Demore, the Court held that a challenge to "the statutory framework that permits [petitioner's] detention without bail" is not the same as a challenge to "a `discretionary judgment' by the Attorney General or a `decision' that the Attorney General has made regarding his detention or release." Id. at 516-17, 123 S.Ct. 1708. Therefore, this Court has subject matter jurisdiction over the petition. See, e.g., Henderson v. I.N.S., 157 F.3d 106, 119-22 (2d Cir.1998) (habeas review extends to statutory questions in the context of removal).

A number of other district courts have previously exercised jurisdiction to decide similar questions of statutory interpretation under the IIRIRA's mandatory detention statute. See, e.g., Oscar v. Gillen, 595 F.Supp.2d 166 (D.Mass.2009); Saysana v. Gillen, No. 08-11749, 2008 WL 5484553 (D.Mass. Dec. 1, 2008); Thomas v. Hogan, No. 08-0417, 2008 WL 4793739 (M.D.Pa. Oct. 31, 2008); Hy v. Gillen, 588 F.Supp.2d 122 (D.Mass.2008).

II. Exhaustion of Remedies

Respondents argue that Garcia's petition should be denied because he has failed to exhaust his administrative remedies. (Resp't Opp'n at 5-6.) Respondents concede that there is no statutory requirement of exhaustion where, as here, an alien challenges the mandatory nature of his detention. Respondents nonetheless argue that, "as a prudential matter," the Court should require administrative exhaustion in Garcia's case. (Resp't Opp'n at 6.)

However, where Congress is silent on the issue of exhaustion, it is a matter of the Court's discretion whether a petitioner must exhaust his administrative remedies before applying for relief in federal court. See, e.g., Hy, 588 F.Supp.2d. at 125-26; Pastor-Camarena v. Smith, 977

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F.Supp. 1415, 1417 (W.D.Wash.1997). A court...

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45 practice notes
  • Rodriguez v. Shanahan, No. 14–CV–09838 SN.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • January 30, 2015
    ...... be construed so that, if possible, no clause, sentence or word is rendered superfluous, void or insignificant.” Garcia v. Shanahan, 615 F.Supp.2d 175, 183 (S.D.N.Y.2009) (citation omitted). “[W]hen, after the application of ordinary textual analysis, the statute is found to be susceptib......
  • Reynoso v. Aviles, No. 14 Civ. 9482PAE.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • February 5, 2015
    ...decision whether to grant release, but DHS's construction of the mandatory detention statute. See, e.g., Garcia v. Shanahan, 615 F.Supp.2d 175, 179 (S.D.N.Y.2009) (“While the Immigration and Nationality Act ... precludes review of the ‘Attorney General's discretionary judgment’ with regard ......
  • Oneil St. Elmo Burns v. Cicchi, Civil Action No.: 09 CV 2609 FLW.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • March 10, 2010
    ...whether a petitioner must exhaust his administrative remedies before applying for relief in federal court.” Garcia v. Shanahan, 615 F.Supp.2d 175, 179-80 (S.D.N.Y.2009); Duy Tho Hy v. Gillen, 588 F.Supp.2d 122, 125-26 (D.Mass.2008) (holding that exhaustion of administrative remedies is not ......
  • Straker v. Jones, No. 13 Civ. 6915(PAE).
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 10, 2013
    ...the mandatory detention statute, not a discretionary decision whether or not to grant release on a bond. See, e.g., Garcia v. Shanahan, 615 F.Supp.2d 175, 179 (S.D.N.Y.2009) (“While the Immigration and Nationality Act ... precludes review of the ‘Attorney General's discretionary judgment’ w......
  • Request a trial to view additional results
44 cases
  • Rodriguez v. Shanahan, No. 14–CV–09838 SN.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • January 30, 2015
    ...... be construed so that, if possible, no clause, sentence or word is rendered superfluous, void or insignificant.” Garcia v. Shanahan, 615 F.Supp.2d 175, 183 (S.D.N.Y.2009) (citation omitted). “[W]hen, after the application of ordinary textual analysis, the statute is found to be susceptib......
  • Reynoso v. Aviles, No. 14 Civ. 9482PAE.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • February 5, 2015
    ...decision whether to grant release, but DHS's construction of the mandatory detention statute. See, e.g., Garcia v. Shanahan, 615 F.Supp.2d 175, 179 (S.D.N.Y.2009) (“While the Immigration and Nationality Act ... precludes review of the ‘Attorney General's discretionary judgment’ with regard ......
  • Oneil St. Elmo Burns v. Cicchi, Civil Action No.: 09 CV 2609 FLW.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • March 10, 2010
    ...whether a petitioner must exhaust his administrative remedies before applying for relief in federal court.” Garcia v. Shanahan, 615 F.Supp.2d 175, 179-80 (S.D.N.Y.2009); Duy Tho Hy v. Gillen, 588 F.Supp.2d 122, 125-26 (D.Mass.2008) (holding that exhaustion of administrative remedies is not ......
  • Straker v. Jones, No. 13 Civ. 6915(PAE).
    • United States
    • U.S. District Court — Southern District of New York
    • December 10, 2013
    ...the mandatory detention statute, not a discretionary decision whether or not to grant release on a bond. See, e.g., Garcia v. Shanahan, 615 F.Supp.2d 175, 179 (S.D.N.Y.2009) (“While the Immigration and Nationality Act ... precludes review of the ‘Attorney General's discretionary judgment’ w......
  • Request a trial to view additional results

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