Hernandez-Carrera v. Carlson
| Decision Date | 31 March 2008 |
| Docket Number | No. 05-3051-RDR.,05-3051-RDR. |
| Citation | 546 F.Supp.2d 1185 |
| Parties | Santos HERNANDEZ-CARRERA, and Pablo Santiago Hernandez-Arenado, Petitioners, v. Ken CARLSON, Field Office Director, Immigration and Customs Enforcement, Department of Homeland Security, and E.J. Gallegos, Warden of the United States Penitentiary at Leavenworth, Kansas<SMALL><SUP>1</SUP></SMALL>, Respondents. |
| Court | U.S. District Court — District of Kansas |
David J. Phillips, Melissa Harrison, Office of Federal Public Defender, Kansas City, KS, for Petitioners.
D. Brad Bailey, Thomas G. Luedke, Office of United States Attorney, Topeka Ks, Keith I. McManus, Office of Immigration & Litigation, Washington, DC, for Respondents.
Before the court are two habeas petitions remaining from six petitions consolidated by the court.2 Each petitioner seeks relief under 28 U.S.C. § 2241 from his continued detention in a federal penitentiary in Leavenworth, Kansas. Having reviewed the record which includes respondent's supplemented answer and return, and petitioners' supplemented traverse, the court grants each remaining petitioner's application for a writ of habeas corpus.
Petitioners Santos Hernandez-Carrera and Pablo Santiago Hernandez-Arenado are natives and citizens of Cuba who illegally entered the United States in the Mariel boatlift in 1980, and are classified as inadmissible aliens.3 Each was granted immigration parole in the United States, and in each case that parole was later revoked based in part on each petitioner's one or more criminal convictions while on parole. Immigration judges issued exclusion and deportation orders for each petitioner, based upon each petitioner's lack of entry documents and their convictions for crimes of moral turpitude. Petitioners have been detained thereafter in the custody of the Immigration and Naturalization Services, now the Immigrations and Customs Enforcement in the Department of Homeland Security.
Petitioners filed the instant petition for habeas corpus relief under 28 U.S.C. § 2241, seeking their release from detention they claim is unconstitutional.
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). This Court has subject matter jurisdiction over the petitions under § 2241 because petitioners were detained within its jurisdiction in federal custody at the time they filed their petitions, asserting their detention is not statutorily authorized and violates their constitutional rights.
Petitioners are being detained pursuant to 8 U.S.C. § 1231(a)(6), a statute providing for the detention of aliens after their removal from the United States has been ordered but repatriation to their country or a third country is not foreseeable, and pursuant to 8 C. F.R. § 241.14(f), a regulation providing for the continued detention of aliens found to pose a special danger to the public. Petitioners maintain that their detention pursuant to 8 U.S.C. § 1231(a)(6) as interpreted by the Supreme Court is unconstitutional, and that 8 C.F.R. § 241.14(f) unlawfully exceeds its statutory authority. The court agrees.4
8 U.S.C. § 1231(a)(6)
The Immigration and Nationality Act, 8 U.S.C. § 1101 et seq., as comprehensively amended by the Immigration Reform and Immigrant Responsibility Act of 1996, controls the admission and removal of aliens from the United States. Petitioners Hernandez-Carrera and Hernandez-Arenado, who entered the United States with no valid entry or admission documents, are inadmissible aliens who have had final orders of removal entered against them in 1993 and 1991, respectively.
Generally, the Attorney General is required to effect an alien's removal within 90 days of the issuance of a removal order, 8 U.S.C. § 1231(a)(1)(A), with detention thereafter as authorized by 8 U.S.C. § 1231(a)(6) pending the alien's removal. Section 1231(a)(6) provides in relevant part for the continued detention of three categories of aliens who have been ordered removed from the United States: (1) those who are inadmissible under 8 U.S.C. § 1182, (2) those who are removable under specified sections of 8 U.S.C. § 1227(a), or (3) those who have been determined to be "a risk to the community or unlikely to comply with the order of removal." The statute further provides that if released, an alien "shall be subject to the terms of supervision" as set forth in 8 U.S.C. § 1231(a)(3).5
In 2001, the Supreme Court examined 8 U.S.C. § 1231(a)(6) as it applied to the second category of aliens and concluded that indefinite detention under that statute of an admitted resident alien who could not be promptly removed to his own or a third country presented "a serious constitutional threat" to the alien's rights under the Due Process Clause. Zadvydas v. Davis, 533 U.S. 678, 696 and 699, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). To avoid this constitutional defect, the Supreme Court applied the doctrine of constitutional avoidance in statutory interpretation and held the statute must be read as limiting an alien's post-removal period of detention to the time reasonably necessary to remove an alien from the United States. Id. at 699, 121 S.Ct. 2491. The Court also set a presumptive six month period as a reasonably necessary period of detention to effect a resident alien's removal. Id. at 701, 121 S.Ct. 2491. As a result, once removal was no longer reasonably foreseeable, an admitted alien's continued detention beyond the presumptively reasonable six month period was no longer authorized by 8 U.S.C. § 1231(a)(6) and the alien must be released subject to appropriate conditions. Id. at 699-700, 121 S.Ct. 2491.
Following Zadvydas, the Attorney General promulgated regulations that detailed procedures to be followed for any continued detention of an alien whose removal was not significantly likely to occur in the reasonably foreseeable future. See 8 C.F.R. § 241.14. Significant to petitioners in this case, those regulations provided for the continued detention under "special circumstances" of removable aliens who pose a special danger to the public because of their proven history of violent criminal activity and mental illness. See 8 C.F.R. 241.14(f).6
In 2005, the Supreme Court again addressed § 1231(a)(6) as it applied to the first category of aliens, inadmissible aliens such as petitioners in the instant case, and concluded its reading of § 1231(a)(6) in Zadvydas was controlling because the statute could not be interpreted differently when applied to various types of aliens. Clark v. Martinez, 543 U.S. 371, 378, 125 S.Ct. 716, 160 L.Ed.2d 734 (2005).7 Thus a presumptive six-month period of detention under 8 U.S.C. § 1231(a)(6) applies to both admissible and inadmissible aliens after issuance of a final order of removal, and further detention pursuant to § 1231(a)(6) is improper if the alien demonstrates, and the government fails to rebut, the lack of a significant likelihood of the alien's removal in the reasonably foreseeable future. Id. at 386-87, 125 S.Ct. 716; Zadvydas, 533 U.S. at 701, 121 S.Ct. 2491. See e.g., Morales-Fernandez v. Immigration & Naturalization Service, 418 F.3d 1116 (10th Cir.2005)(applying the holdings in Zadvydas and Martinez to find plain error in the district court's dismissal of § 2241 petition brought by Mariel Cuban).
In response to Martinez, the government initiated the post-Zadvydas procedural review of Hernandez-Carrera's and Hernandez-Arenado's detention in May 2005, and determined their continued detention was warranted as provided by 8 C.F.R. 241.14(f).
Pursuant to the holdings in Zadvydas and Martinez, petitioners Hernandez-Carrera and Hernandez-Arenado filed the instant petitions to claim their continued detention pursuant to 8 U.S.C. § 1231(a)(6) is unconstitutional, and to seek their release on supervision with appropriate conditions.
Respondent counters that Zadvydas and Martinez can and should be read as not deciding the exact issue presented in this matter, namely whether it is unconstitutional to continue the detention of an alien, for whom removal is not reasonably foreseeable, beyond the presumptive six month post-removal detention period if the alien has a harm-threatening mental illness and is likely to engage in violent behavior if released such that public safety cannot reasonably be guaranteed. To support this contention, respondent reads Zadvydas and Martinez as leaving open the possibility of preventive civil detention under 8 U.S.C. § 1231(a)(6) of aliens where special circumstances, such as harm-threatening mental illness, warrant continued detention to protect public safety. Respondent also argues for deference to the Attorney General's interpretation of 8 U.S.C. § 1231(a)(6) in promulgating 8 C.F.R. 241.14(f) as lawfully providing for the continued detention of specially dangerous aliens like petitioners.
Nonetheless, the Supreme Court has unequivocally stated that its interpretation and reading of 8 U.S.C. § 1231(a)(6) in Zadvydas "applies without differential to all three categories of aliens that are its subject." Martinez, 543 U.S. at 378, 125 S.Ct. 716. Additionally, courts have rejected any reading of Zadvydas and Martinez as allowing a separate interpretation of § 1231(a)(6) for the third category of aliens in that statute. See Tuan Thai v. Ashcroft, 366 F.3d 790 (9th Cir.)(Supreme Court's interpretation of § 1231(a)(6) does not authorize continued detention of alien suffering from harm-threatening mental illness for longer than the presumptive six-month post-removal period authorized in Zadvydas where the alien's removal from the United States is not reasonably foreseeable), rehearing denied, 389 F.3d 967 (2004); Tran v. Gonzales, 411 F.Supp.2d 658 (W.D.La.2006)( reasoning in Martinez necessarily applies to third category of...
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Hernandez-Carrera v. Carlson
...(2005), rather than the agency's construction of the statute pursuant to notice-and-comment rulemaking. See Hernandez-Carrera v. Carlson, 546 F.Supp.2d 1185, 1186-89 (D.Kan.2008). It concluded that the Supreme Court had definitively interpreted 8 U.S.C. § 1231(a)(6) to permit detention only......