Hechavarria v. Sessions

• Decision Date: 16 May 2018
• Docket Number: August Term, 2017,Docket No. 16-1380
• Citation: 891 F.3d 49
• Parties: Joseph Emanuel HECHAVARRIA, Petitioner–Appellant, v. Jefferson B. SESSIONS III, Attorney General of the United States, Michael Philips, Field Director for Department of Homeland Security Immigration and Customs Enforcement Detention and Removal, Todd Tryon, Facility Director, Buffalo Federal Detention Facility, Respondents–Appellees.
• Court: U.S. Court of Appeals — Second Circuit

891 F.3d 49

Joseph Emanuel HECHAVARRIA, Petitioner–Appellant,

v.Jefferson B. SESSIONS III, Attorney General of the United States, Michael Philips, Field Director for Department of Homeland Security Immigration and Customs Enforcement Detention and Removal, Todd Tryon, Facility Director, Buffalo Federal Detention Facility, Respondents–Appellees.

Docket No. 16-1380

August Term, 2017

United States Court of Appeals, Second Circuit.

Submitted: February 1, 2018

Decided: May 16, 2018

Amended: May 22, 2018

JOSEPH EMANUEL HECHAVARRIA, Batavia, N.Y., pro se.

JESI J. CARLSON, Senior Litigation Counsel, Office of Immigration Litigation, United States Department of Justice (Chad A. Readler, Acting Assistant Attorney General, Civil Division, John W. Blakeley, Assistant Director, Office of Immigration Litigation, on the brief ), Washington, D.C., for Respondents–Appellees.

VILIA B. HAYES, Hughes Hubbard & Reed LLP (Malik Havalic, Dustin P. Smith, on the brief ), New York, N.Y., Amicus Curiae, in support of Petitioner–Appellant.

Before: POOLER, SACK, Circuit Judges, and ENGELMAYER, District Judge.¹

AMENDED OPINION

POOLER, Circuit Judge:

The Immigration and Nationality Act ("INA") provides for the detention of immigrants under various circumstances, two of which are at issue in this case. Immigrants who have been ordered removed are detained during their "removal period" under 8 U.S.C. § 1231(a). "Criminal aliens" are detained pursuant to 8 U.S.C. § 1226(c). In this appeal, we are asked to decide whether a "criminal alien" is detained under Section 1231(a) when he has exhausted his options for administrative review, even though he has a stay pending resolution of his appeal in this Court. We hold today that when a stay has been issued, an immigrant is not held pursuant to Section 1231(a) because he is not in the "removal period" contemplated by statute until his appeal is resolved by this Court. Accordingly, we reverse the district court's determination that Hechavarria was detained under Section 1231(a) and remand for reconsideration of his habeas petition under the correct statutory provision.

BACKGROUND

I. Immigration and Criminal History

Joseph Emanuel Hechavarria is a Jamaican citizen who first arrived in the United States in 1984 on a nonimmigrant visitor visa. Hechavarria overstayed his visa and married a U.S. citizen, who filed a marriage-based conditional permanent resident ("CPR") application on his behalf, which was granted in 1987. In 1989, Hechavarria's CPR status was terminated because he and his spouse failed to submit a petition to lift the conditions on his status as required by 8 U.S.C. § 1186a(c). In 2009, Hechavarria's son filed a Form I-130 petition on his behalf, which was granted by United States Citizen and Immigration Services ("USCIS") in 2010. Shortly thereafter, Hechavarria was served with a Notice to Appear and was charged with being removable from the United States under 8 U.S.C. § 1227(a)(1)(D)(i), the section of the immigration statutes that renders deportable individuals with terminated CPR status. Hechavarria was not detained at the time and instead was released to the Department of Homeland Security's ("DHS") Alternatives to Detention ("ATD") program.

In December 2010, Hechavarria failed to appear for a required check-in in Buffalo and instead called the ATD officers to tell them he was on his way to Florida. Subsequent to this phone call, Immigration and Customs Enforcement (ICE) learned that Hechavarria was the subject of a criminal arrest warrant issued in Cheektowaga, New York on December 13, 2010 for, among other things, an alleged rape and assault that had occurred on December 2, 2010. Hechavarria was detained by ICE agents in New York City on December 22, 2010 and transported to Cheektowaga, New York to face the pending charges. In 2011, Hechavarria was convicted of assault in the second degree and sentenced to three years of incarceration and two years of post-release supervision.

While Hechavarria was incarcerated for the December 2010 assault, ICE filed an additional charge of deportability on the basis of Hechavarria's conviction of an aggravated felony under Immigration and Nationality Act ("INA") § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F). On July 11, 2013, Hechavarria was released from criminal custody and immediately transferred to DHS custody at the Buffalo Federal Detention Facility in Batavia, New York, where he was ordered removed to Jamaica. Over the course of the next two years, Hechavarria filed two appeals as well as a motion to reopen proceedings.² The last of those appeals was dismissed by the Board of Immigration Appeals ("BIA") on September 30, 2015.

II. Petition for Review and Habeas Corpus

On October 16, 2015, Hechavarria filed a pro se petition for review of the BIA order dismissing his appeal, as well as a motion for stay of removal with this Court. See Hechavarria v. Lynch , No. 15-3331 (2d Cir. 2015), ECF No. 1. On December 15, 2016, we granted the stay of removal because we found that Hechavarria had "an arguable claim that the BIA erred in adhering to the aggravated felony crime of violence determination under the law of the case doctrine without assessing whether Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), constituted intervening precedent." Order Staying Appeal, Hechavarria v. Lynch , No. 15-3331 (2d Cir. 2016), ECF No. 55. We recognized that the question of Johnson 's application to the same section of the INA providing grounds for Hechavarria's removal was currently under review by the Supreme Court in Dimaya v. Lynch , 803 F.3d 1110 (9th Cir. 2015), cert. granted , ––– U.S. ––––, 137 S.Ct. 31, 195 L.Ed.2d 902 (2016). Id . Oral argument was heard in Dimaya on October 2, 2017, and the Supreme Court issued its opinion on February 27, 2018.

Sessions v.Dimaya , ––– U.S. ––––, 138 S.Ct. 1204, 200 L.Ed.2d 549 (2018). The parties are currently litigating the impact of Dimaya on Hechavarria's petition for review. Meanwhile, the stay of removal remains in place.

On December 8, 2015, while his stay request was pending, Hechavarria filed a pro se petition for a writ of habeas corpus in the Western District of New York. The district court analyzed Hechavarria's detention under 8 U.S.C. § 1231 and denied his habeas petition on April 11, 2016. The district court reasoned that "because the detention challenged by the habeas petition in this action has been prolonged by petitioner's own pursuit of judicial review of the final order of removal, the duration of his detention cannot be found to constitute a violation of his rights under the due process clause of the Fifth Amendment."Hechavarria v. Lynch , No. 15-cv-1058 (W.D.N.Y. April 11, 2016), ECF No. 9 ("District Court Opinion") at 12. The district court alternatively found that the outcome would be the same via the analysis required by Zadvydas v. Davis , 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001), because Hechavarria could not demonstrate that "there [was] no significant likelihood of removal in the reasonably foreseeable future." District Court Opinion at 12 (quoting Zadvydas , 533 U.S. at 701, 121 S.Ct. 2491 ).

On April 29, 2016, Hechavarria timely appealed the district court's denial of his petition for a writ of habeas corpus. On October 27, 2017, we appointed amicus curiae counsel to address whether Hechavarria's detention was governed by 8 U.S.C. § 1226(c) or 8 U.S.C. § 1231(a). Order Appointing Amicus Curiae Counsel, Hechavarria v. Sessions , No. 16-1380 (2d Cir. 2017), ECF No. 76.

DISCUSSION

Hechavarria challenges the district court's denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. We have jurisdiction to hear this case under 28 U.S.C. § 1291, the statute that vests the courts of appeals with jurisdiction to hear appeals from final decisions of the district courts. Because a petition for a writ of habeas corpus raises questions of law regarding the power of the state to detain an individual, we conduct a de novo review of the denial. See Wang v. Ashcroft , 320 F.3d 130, 139–40 (2d Cir. 2003) ; see also INS v. St. Cyr , 533 U.S. 289, 301, 314, 121 S.Ct. 2271, 150 L.Ed.2d 347 (holding that courts retain habeas jurisdiction in immigration cases and observing that "[a]t its historical core, the writ of habeas corpus has served as a means of reviewing the legality of Executive detention, and it is in that context that its protections have been strongest").

Hechavarria and the government disagree about which provision of the INA governs Hechavarria's detention. Hechavarria and the court-appointed amicus counsel argue that Hechavarria's detention is governed by 8 U.S.C. § 1226(c) (" Section 1226"), the section of the INA that governs the detention of "criminal aliens." The government argues that Hechavarria is detained pursuant to 8 U.S.C. § 1231 (" Section 1231"), the section of the INA that addresses the "removal period" for immigrants facing deportation. We agree with Hechavarria and the amicus counsel that the plain language of the statute dictates that Hechavarria is detained pursuant to section 1226(c). We hold that section 1226(c) governs because he has obtained a stay of removal from this Court pending the disposition of his petition for review.

I. Judicial Review

This Court is currently engaged in two threads of judicial review regarding Hechavarria. The first thread is the one at issue in the instant appeal, namely, the review of the district court's denial of his petition for a writ of habeas corpus. The second is the petition for review of the underlying removal order that was stayed before this Court pending the Supreme Court's decision in Dimaya . The two threads are interwoven in this case.

The INA explicitly provides for judicial review of removal orders in the federal courts of appeals. 8 U.S.C. § 1252(a)(5) ("[A] petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and...