Johnson v. Orsino

• Decision Date: 24 April 2013
• Docket Number: No. 12 Civ. 6913 (PKC).,12 Civ. 6913 (PKC).
• Parties: Shaka JOHNSON, Petitioner, v. Mr. Dominic ORSINO, in his official capacity as Warden, Orange County Jail; Christopher Shanaham, in his official capacity as Orange Field Office Director for Detention and Removal; John T. Morton, in his official capacity as Assistant Secretary of U.S. Immigration and Customs Enforcement; Janet Napolitano, in her official capacity as the Secretary of the U.S. Department of Homeland Security; and Eric Holder, in his official capacity as Attorney General of the U.S. Department of Justice, Respondents.
• Court: U.S. District Court — Southern District of New York

942 F.Supp.2d 396

Shaka JOHNSON, Petitioner,

v.Mr. Dominic ORSINO, in his official capacity as Warden, Orange County Jail; Christopher Shanaham, in his official capacity as Orange Field Office Director for Detention and Removal; John T. Morton, in his official capacity as Assistant Secretary of U.S. Immigration and Customs Enforcement; Janet Napolitano, in her official capacity as the Secretary of the U.S. Department of Homeland Security; and Eric Holder, in his official capacity as Attorney General of the U.S. Department of Justice, Respondents.

No. 12 Civ. 6913 (PKC).

United States District Court,

S.D. New York.

April 24, 2013.

Augustine Martin Ripa, Stephen Michael LeBlanc, BuckleySandler LLP, Washington, DC, for Petitioner.

Christopher Kendrick Connolly, United States Attorney's Office, New York, NY, for Respondents.

MEMORANDUM AND ORDER

P. KEVIN CASTEL, District Judge.

Petitioner Shaka O'Christopher Johnson brings this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Johnson has been detained by the Bureau of Immigration and Customs Enforcement (the “ICE”) since January 18, 2012, pending a final determination of his removal proceedings. Johnson petitions this Court to order his immediate release from custody or, in the alternative, to grant a constitutionally adequate hearing in which Respondents would be required to demonstrate that Johnson's continued detention is justified.

Four months ago, an Immigration Judge found Johnson removable, and ordered him removed from the United States to Jamaica. Johnson timely appealed this decision to the Board of Immigration Appeals, triggering an automatic stay of removal. For the reasons stated herein, the Court concludes that Johnson's claim has not yet ripened to a due process violation, but that could soon change. At present, the petition for writ of habeas corpus is denied without prejudice, but the Court will hold a further hearing on July 2, 2013 to re-evaluate Johnson's claim.

BACKGROUND

Johnson, a native and citizen of Jamaica, lawfully entered the United States on a temporary visitor visa on September 3, 2001, at the age of nineteen. (Verified Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (“Pet.”) at 20; ¹ Return to Habeas Petition (“Return”), Ex. 1 (Record of Deportable Alien).) In 2006, Johnson applied to adjust his immigration status to that of a lawful permanent resident, based on his marriage to a United States citizen. (Pet. at 23; Return, Ex. 1.) His application was denied based on his inadmissibility as a result of a criminal narcotics conviction. (Return, Ex. 1.) He has remained in the United States without lawful status following the expiration of his visa. ( Id.)

On May 30, 2006, Johnson was arrested in Westchester County for criminal possession of a controlled substance. (Return, Ex. 2 (Information).) On July 25, 2007, Johnson waived indictment and pled guilty to Criminal Possession of a Controlled Substance in the Fourth Degree, a class C felony, in violation of N.Y. Penal Law § 220.09. ( Id. (Uniform Sentence and Commitment; Waiver of Indictment).) Johnson was sentenced to treatment at St. John's Riverside Hospital Solutions Chemical Dependence Treatment Program. (Pet. at 39–40 (Discharge Form; Treatment Certificate); Return, Ex. 2 (Uniform Sentence and Commitment).) Johnson entered this treatment program on September 18, 2007 and was granted a successful discharge roughly six months later on March 14, 2008. (Pet. at 39–40 (Discharge Form; Treatment Certificate).)

Nearly four years later, on January 18, 2012, Johnson was taken into ICE custody and removal proceedings were commenced against him. (Pet. at 21; Return, Ex. 3.) ICE charged Johnson as removable under 8 U.S.C. § 1227(a)(2)(B)(i) (covering aliens convicted of any crime involving a controlled substance, other than a single offense involving possession of 30 grams or less of marijuana for personal use) based on Johnson's 2007 controlled substance conviction, and under 8 U.S.C. § 1227(a)(1)(B) for remaining in the United States without lawful status after the expiration of his visitor's visa. (Return, Ex. 3.) ICE determined that Johnson's removal charges subjected him to mandatory detention under 8 U.S.C. § 1226(c), precluding a review of his custody by an Immigration Judge (an “IJ”). (Return, Ex. 4.) On December 17, 2012, after eleven months without a bond hearing, an IJ issuedan oral decision ordering Mr. Johnson removed from the United States to Jamaica. (Return, Ex. 5.) Johnson appealed this decision to the Board of Immigration Appeals (the “BIA”). That appeal is presently pending.

Johnson, appearing pro se, filed this petition for writ of habeas corpus on September 12, 2012. (Docket # 1). Johnson also submitted an application under 18 U.S.C. § 3006A(g) requesting the Court appoint counsel. (Docket # 3.) The Court initially denied the application without prejudice, noting that “appointment of counsel at this early stage is not warranted.” (Docket # 12.) However, after receiving and reviewing the government's memorandum of law in opposition to the habeas petition, the Court concluded that additional guidance from counsel might be useful in reviewing the Petition. (Docket # 28.) Accordingly, the Court requested that the Pro Se Clerk list this action as eligible for assigned counsel, ( id.), and Johnson formally obtained counsel on March 12, 2013, (Docket # 36).

Johnson argues that his detention is not authorized under 8 U.S.C. § 1226(c) because he was not taken into ICE custody until nearly four years after his release from state criminal custody. He also argues that his prolonged detention violates his right to due process under the Fifth Amendment to the United States Constitution.

DISCUSSION

I. Jurisdiction

This Court has subject matter jurisdiction to review the instant petition for writ of habeas corpus pursuant to 28 U.S.C. §§ 2241(a) & (c). Section 236 of the Immigration and Nationality Act (the “INA”), codified at 8 U.S.C. § 1226, provides in part that “[t]he Attorney General's discretionary judgment regarding the application of this section shall not be subject to review.” 8 U.S.C. § 1226(e). Johnson has not challenged the Attorney General's discretion. Instead, Johnson has challenged the interpretation of “the statutory framework that permits his detention without bail.” Demore v. Kim, 538 U.S. 510, 517, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003). The Supreme Court has determined that section 1226(e) does not deprive district courts of jurisdiction to hear such a challenge. Id. at 516–17, 123 S.Ct. 1708.

Neither party has contested this Court's personal jurisdiction. Venue is proper because “a substantial part of the events ... giving rise to the claim occurred” within this district. 28 U.S.C. § 1391(e).

A habeas petition should name as respondent “the person who has custody over [the petitioner].” 28 U.S.C. § 2242. In accord with the “immediate custodian rule, longstanding practice confirms that in habeas challenges to present physical confinement ... the default rule is that the proper respondent is the warden of the facility where the prisoner is being held, not the Attorney General or some other remote supervisory official.” Rumsfeld v. Padilla, 542 U.S. 426, 435, 124 S.Ct. 2711, 159 L.Ed.2d 513 (2004) (citations omitted). Although the Supreme Court in Padilla “left open the question whether the Attorney General is a proper respondent to a habeas petition filed by an alien detained pending deportation,” id. at 436 n. 8, 124 S.Ct. 2711, a “majority of district courts in this Circuit have applied the immediate custodian rule to habeas petitions filed by incarcerated aliens challenging their physical detentions prior to deportation,” Santana v. Muller, No. 12 Civ. 430(PAC), 2012 WL 951768, at *2 (S.D.N.Y. Mar. 12, 2012) (citations omitted). Therefore, Dominic Orsino, the warden of Orange County Jail, is likely the only proper respondent in this case, but in the exercise of caution, the Court will refrain from dismissing the other respondents until the July 2, 2013 hearing.

II. Interpretation of Section 1226(c)

Section 236 of the INA grants the Attorney General authority to detain any alien pending a decision on whether the alien is to be removed from the United States.² Although this authority to detain is discretionary in certain circumstances, see8 U.S.C. § 1226(a), detention is mandatory for aliens who have been convicted of certain enumerated offenses, including crimes involving a controlled substance, see8 U.S.C. § 1226(c). Aliens detained pursuant to the discretionary detention provision may be afforded the opportunity for an individualized bond hearing before an IJ. 8 U.S.C. § 1226(a). Conversely, aliens detained pursuant to the mandatory detention provision are not eligible for a bond determination. 8 U.S.C. § 1226(c).

Section 1226(c) provides in part:

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 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 [under limited circumstances related to witness protection and not applicable to petitioner]....

8 U.S.C. § 1226(c) (emphasis added).

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