Gayle v. Napolitano

• Decision Date: 15 March 2013
• Docket Number: Civil Action No. 12-2806 (FLW)
• Parties: GARFIELD GAYLE Petitioner v. JANET NAPOLITANO, et al., Respondent
• Court: U.S. District Court — District of New Jersey

GARFIELD GAYLE Petitioner v. JANET NAPOLITANO, et al., Respondent

Civil Action No. 12-2806 (FLW)

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

Dated: March 15, 2013

NOT FOR PUBLICATION

OPINION

WOLFSON, United States District Judge:

Garfield Gayle ("Petitioner" or "Gayle") is currently being detained by the Department of Homeland Security, Immigration and Customs Enforcement ("DHS/ICE") at the Monmouth County Correctional Facility in Freehold, New Jersey, pending his removal from the United States. On or about May 10, 2012, Petitioner filed a petition for Writ of Habeas Corpus under 28 U.S.C. § 2241, in which he challenges his pre-removal mandatory detention. According to Respondents¹ (hereinafter, "the Government" or"Respondents"), this detention is authorized by 8 U.S.C § 1226(c), which states that "[t]he Attorney General shall take into custody any alien [specified in this section], when the alien is released." On or about November 15, 2012, Petitioner filed an Amended Petition for Writ of Habeas Corpus on his own behalf and on behalf of a class consisting of individuals claiming to be subjected to unauthorized mandatory immigration detention under 8 U.S.C. § 1226(c).² This Opinion deals solely with Petitioner's individual request for habeas relief.³

For the reasons stated below, the Court grants Gayle's request for habeas relief, and directs an Immigration Judge to conduct a bond hearing pursuant to 8 U.S.C. § 1226(a)(2), to determine if Petitioner is a flight risk or danger to the community.

BACKGROUND

Petitioner states that he is a Jamaican national and a lawful permanent resident of the United States. Petition at ¶ 24. He has lived in the United States for approximately 30 years, most of the time in New York City. In 1995, Petitioner was convicted of criminal possession of a controlled substance with the intent to sell in the third degree under New York State Penal Law § 220.16. He served approximately two years of jail time and was released on parole in June 1997. After satisfying all conditions of parole, Petitioner was discharged in May 2001. Id. at ¶ 26. Thereafter, in March 2007, Petitioner was sentenced to ten days in jail for a misdemeanor controlled substance offense. Id. at 28.

Approximately five years later, on March 24, 2012, a team of ICE officers arrested Petitioner at his home in Brooklyn. ICE charged Petitioner with removal on the grounds that his 1995 conviction rendered him deportable, and also found him subject to mandatory detention based on his March 2007 offense.⁴ Id. at 27.

Petitioner sought to terminate his removal proceedings, and on October 23, 2012, the Immigration Judge denied Petitioner's request. Petitioner was then scheduled for a master calendar hearing on October 31, 2012, at which time the Immigration Judge would have ruled on his eligibility for cancellation of removal. This hearing was postponed due to Hurricane Sandy and rescheduled for January 30. See Declaration of Lawanda Charles ¶ 15.

On November 15, 2012, Petitioner filed am Amended Petition for Writ of Habeas Corpus asserting that DHS lacks the statutory authority to detain him under 8 U.S.C. § 1226(c), because it failed to take him into custody when he was released from criminal incarceration in 2007, but instead waited five years from the date of his 2007 incarceration to arrest him. In that regard, Petitioner argues that the phrase "when ... released" unambiguously requires immediacy, and that because DHS failed to take him into custody immediately upon his release in 2007, he is not subject to mandatory detention, and is instead entitled to a bond hearing before an Immigration Judge, as required by § 1226(a).

Respondents filed a response on December 4, 2012, arguing that § 1226(c) authorizes Petitioner's pre-removal mandatory detention. (Dkt. 20). The response relies, in large part, on what Respondents perceive as an ambiguity in the phrase "when ...released" found in § 1226(c). This ambiguity, Respondents claim, requires this Court to defer, under Chevron USA, Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984), to a ruling by the Board of Immigration Appeals ("BIA") finding an alien subject to mandatory detention despite the fact that he was not taken into custody immediately upon his release. Petitioner then filed a reply brief pointing out that Respondents have raised no new arguments that have not already been considered and rejected by me in previous opinions. ⁵

I. Jurisdiction

Under 28 U.S.C § 2241(c), habeas jurisdiction "shall not extend to a prisoner unless ... [h]e is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). A federal court has subject matter jurisdiction under § 2241(c)(3) if two requirements are satisfied: (1) the petitioner is "in custody," and (2) the custody is "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3); Maleng v. Cook, 490 U.S. 488, 490 (1989). This Court has subject matter jurisdiction over the Petition under § 2241 because Petitioner was detained within its jurisdiction in the custody of DHS/ICE at the time he filed his petition, see Spencer v. Kenna, 523 U.S. 1, 7 (1998), and because Petitioner asserts that his mandatory detention is not statutorily authorized by 8 U.S.C § 1226(c). See Zadvydas v. Davis, 533 U.S. 678, 699 (2001); Diop v. ICE/Homeland Security, 656 F.3d 221, 226 (3d Cir. 2011).

II. Statutory Framework for Detention During Removal Proceedings

Section 1226 governs the pre-removal detention of an alien. Section 1226(a) authorizes the Attorney General to arrest and detain an alien pending a decision on whether the alien is to be removed from the United States, except as provided in subsection (c). See 8 U.S.C. § 1226(a). Detention under section 1226(a) is discretionary - the Attorney General may release the alien on bond or parole. An alien also has the right to a hearing before an immigration judge to determine whether the alien should be released on bond, pending any challenge to removal and a decision as to whether that alien is to be removed. Id. However, the exception in § 1226(c) commands that the Attorney General "shall take into custody any alien ... when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense." 8 U.S.C. § 1226(c)(1). An alien detained under § 1226(c) must be detained until his removal is final, regardless of whether he is a flight risk or danger to the community, unless the Attorney General determines that the alien should be part of the federal witness protection program, and provided that detention has not become unreasonably prolonged. See Diop v. ICE/Homeland Sec., 656 F.3d at 232 ("At a certain point, continued detention becomes unreasonable and the Executive Branch's implementation of § 1226(c) becomes unconstitutional unless the Government has justified its actions at a hearing inquiring into whether continued detention is consistent with the law's purposes of preventing flight and dangers to the community"). Section 1226 provides in full:

(a) Arrest, detention, and release

On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed fromthe United States. Except as provided in subsection (c) of this section and pending such decision, the Attorney General—

(1) may continue to detain the arrested alien; and

(2) may release the alien on—

(A) bond of at least $1,500.; or

(B) conditional parole; but

(3) may not provide the alien with work authorization ... unless the alien is lawfully admitted for permanent residence or otherwise would ... be provided such authorization.

(b) Revocation of bond or parole

The Attorney General at any time may revoke a bond or parole authorized under subsection (a) of this section, rearrest the alien under the original warrant, and detain the alien.

(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[d] 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 whether the alien may be arrested or imprisoned again for the same offense.

(2) Release

The Attorney General may release an alien described in paragraph (1) only if the Attorney General decides pursuant to section 3521 of Title 18 that release of the alien from custody is necessary to provide protection to a witness, a potential witness, a person cooperating with an investigation into major criminal activity, or an immediate family member or close associate of a witness, potential witness, or person cooperating with such an investigation, and the alien satisfies the Attorney General that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding. A decision relating to such release shall take place in accordance with a procedure that considers the severity of the offense committed by the alien.

8 U.S.C. § 1226.

Petitioner was charged as removable on September 27, 2011, on the basis of his 1995 conviction. He was subsequently detained in March 2012, and remains in custody. According to the Government, Petitioner is subject to mandatory detention because of his 2007...