Gordon v. Johnson
| Decision Date | 31 December 2013 |
| Docket Number | C.A. No. 13–cv–30146–MAP. |
| Citation | 991 F.Supp.2d 258 |
| Parties | Clayton Richard GORDON, on behalf of himself and others similarly situated, Plaintiff/Petitioner v. Jeh Charles JOHNSON, Secretary of Homeland Security; Eric H. Holder, Jr., Attorney General of the U.S.; John Sandweg, Acting Director, Immigration and Customs Enforcement; Sean Gallagher, Acting Director, Immigration and Customs Enforcement; Christopher Donelan, Sheriff of Franklin County; Michael G. Bellotti, Sheriff of Norfolk County; Steven W. Tompkins, Sheriff of Suffolk County; Thomas M. Hodgson, Sheriff of Bristol County; and, Joseph D. McDonald, Jr., Sheriff of Plymouth County, Defendants/Respondents. |
| Court | U.S. District Court — District of Massachusetts |
OPINION TEXT STARTS HERE
Adriana Lafaille, Matthew Segal, American Civil Liberties Union, Boston, MA, Elizabeth A. Badger, Lutheran Social Services, Worcester, MA, Eunice Lee, Michael Tan, American Civil Liberties Union Federation, San Francisco, CA, Judy Rabinovitz, American Civil Liberties Union, New York, NY, for Plaintiff/Petitioner.
Aram A. Gavoor, United States Department of Justice, Washington, DC, Karen L. Goodwin, United States Attorney's Office, Springfield, MA, for Defendants/Respondents.
MEMORANDUM AND ORDER REGARDING PLAINTIFF'S PETITION FOR WRIT OF HABEAS CORPUS, PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION, and DEFENDANTS' MOTION TO DISMISS
Plaintiff, a lawful permanent U.S. resident held by the government pursuant to 8 U.S.C. § 1226(c), brought a petition for writ of habeas corpus on behalf of himself and those similarly situated. (Dkt. No. 1.) He sought an individualized bond hearing to challenge his ongoing detention by immigration authorities. Defendants are: Jeh Charles Johnson, Secretary of Homeland Security; Eric Holder, Attorney General; John Sandweg, Acting Director of Immigrations and Customs Enforcement (ICE); Sean Gallagher, Acting Field Office Director for the New England Field Office of ICE; Christopher Donelan, Sheriff of Franklin County; Michael Bellotti, Sheriff of Norfolk County; Steven Tompkins, Sheriff of Suffolk County; Thomas Hodgson, Sheriff of Bristol County; and Joseph McDonald, Jr., Sheriff of Plymouth County. In addition to his petition for habeas corpus, Plaintiff filed a Motion for a Preliminary Injunction. (Dkt. No. 2.) Defendants also submitted a Motion to Dismiss. (Dkt. No. 13.)
On October 23, 2013, 2013 WL 5774843, this court granted Plaintiff's individual habeas petition, denied without prejudice Plaintiff's Motion for a Preliminary Injunction, and denied Defendants' Motion to Dismiss.1 This memorandum provides a more detailed explanation of the court's reasoning.
As the facts of this case can only be understood in the context of the statute, a brief discussion of the law is necessary before laying out the factual background.
Section 1226 of Title 8 governs the detention of noncitizens during immigration removal proceedings. Sub-section (a) provides discretionary authority to the government to take an alien into custody while a decision on removal is pending. A non-citizen detained under § 1226(a) is entitled to an individualized bond hearing to determine whether release pending removal is appropriate. 8 C.F.R. §§ 1003.19 & 1236.1(d); Matter of Guerra, 24 I. & N. Dec. 37, 37–38 (BIA 2006). Sub-section (a) provides:
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 from the 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 with security approved by, and containing conditions prescribed by, the Attorney General, or
(B) conditional parole; but
(3) may not provide the alien with work authorization (including an “employment authorized” endorsement or other appropriate work permit), unless the alien is lawfully admitted for permanent residence or otherwise would (without regard to removal proceedings) be provided such authorization.
8 U.S.C. § 1226(a) (emphasis added).
Sub-section (c) of the law eliminates this discretion with respect to certain non-citizens. This provision requires detention pending removal, and, unlike sub-section (a), it does not explicitly provide for individualized bond hearings. Sub-section (c) reads as follows:
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(c) (emphasis added).
Plaintiff Clayton Richard Gordon, a native of Jamaica, arrived in the U.S. in 1982 at age six as a lawful permanent resident. Plaintiff joined the National Guard in 1994 and then served in active duty with the U.S. Army. He was honorably discharged in 1999.
In 2008, Plaintiff was arrested after police found cocaine in his home. Within one day of his arrest, he was released from custody. Plaintiff pled guilty in state court to a charge of possession of narcotics with intent to sell, for which he received a seven-year suspended sentence and three years of probation. He successfully completed his probation without incident.
Since that arrest, Plaintiff has re-established himself as a productive member of society. He met his current fiancee around 2008, and the couple had a son in 2010. They purchased a home together in Bloomfield, Connecticut. Plaintiff developed a successful business and has worked on a project to open a halfway house for women released from incarceration.
On June 20, 2013, while driving to work, Plaintiff was unexpectedly stopped by ICE agents. He was taken into ICE custody and detained at the Franklin County Jail and House of Correction in Greenfield, Massachusetts. Defendants, relying on the 2008 criminal conviction, invoked the mandatory provisions of § 1226(c) to detain Plaintiff without the opportunity for an individualized bond hearing.
Plaintiff filed this petition for Writ of Habeas Corpus on his own behalf and on behalf of a class of similarly situated individuals, seeking an individualized bond hearing. He also filed a Motion for a Preliminary Injunction.3 Defendants moved to dismiss the case.
On October 23, 2013, the court granted Plaintiff's individual habeas petition, denied without prejudice Plaintiff's Motion for a Preliminary Injunction, and denied Defendants' Motion to Dismiss.4
In their submissions and at oral argument, both parties urged the court to rule on the underlying merits of the habeas petition. The parties agreed that the case hinged on the interpretation of the phrase “when the alien is released” in § 1226(c)(1).
Defendants contend that the phrase indicates the time at which it can begin to act, rather than setting the time at which it must act. Defendants raise two arguments in support of this interpretation. First, the court must defer to the Board of Immigration Appeal's (BIA) decision in Matter of Rojas, 23 I. & N. Dec. 117 (BIA 2001), because the statute—specifically, the word “when”—is ambiguous. The BIA's reading is a permissive construction because it is consistent with the plain language and purpose of the statute. Deference is therefore required under Chevron U.S.A., Inc. v. Nat'l Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).
Second, Defendants invoke favorable Third and Fourth Circuit decisions relying on the “loss of authority” line of cases.5They suggest that adopting Plaintiff's interpretation impermissibly imposes a sanction on the government for failing to act in a specific, limited period of time.
Defendants' arguments are unpersuasive. The plain language of this statute sets forth an immediacy requirement. Furthermore, the purposes underlying the section and the structure of § 1226 amply support that reading. Thus, no deference to the BIA opinion is appropriate.
Even if there were an ambiguity in the statutory language, the BIA's argument goes too far. Its interpretation fails to recognize any temporal limitation on the government's ability to act. It also shifts unintended discretion to the executive branch, yielding arbitrary and capricious results, of which this case provides a prime example.
Finally, the “loss of authority” cases do not apply to this statute. Under Plaintiff's proposed interpretation of 12...
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