KHODR v. Adduci, Case No. 10-cv-10505.

• Decision Date: 11 March 2010
• Docket Number: Case No. 10-cv-10505.
• Citation: 697 F. Supp.2d 774
• Parties: Ali Abou KHODR, Petitioner, v. Rebecca J. ADDUCI, District Director, Bureau of Immigration and Customs Enforcement, Detroit Field Office, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

697 F. Supp.2d 774

Ali Abou KHODR, Petitioner, v. Rebecca J. ADDUCI, District Director, Bureau of Immigration and Customs Enforcement, Detroit Field Office, Respondent.

Case No. 10-cv-10505.

United States District Court, E.D. Michigan, Southern Division.

March 11, 2010.

Brian J. Miles, D'Luge, Miles, Mount Clemens, MI, for Petitioner.

Derri T. Thomas, U.S. Attorney's Office, Detroit, MI, for Respondent.

OPINION AND ORDER GRANTING PETITION FOR A WRIT OF HABEAS CORPUS

STEPHEN J. MURPHY, III, District Judge.

This is an immigration case requiring the Court to consider the mandatory detention provisions of the Immigration and Nationality Act. Because the Court finds that the statute at issue clearly and unambiguously requires the Attorney General to take into custody certain aliens without delay in order to make applicable the mandatory detention provisions of 8 U.S.C. § 1226(c), the Court does not defer to the Board of Immigration Appeals' decision to the contrary in Matter of Rojas, 23 I. & N. Dec. 117 (BIA 2001). Since Petitioner was not taken into custody upon his release from criminal confinement, the mandatory detention provisions of 8 U.S.C. § 1226(c) are inapplicable to Petitioner and the Court concludes that Petitioner's detention is conducted pursuant to 8 U.S.C. § 1226(a), which allows for redetermination of custody.

The Court will grant Petitioner's writ of habeas corpus and remand the case to the Detroit Immigration Court so that an immigration judge can provide Petitioner with an individualized bond hearing pursuant to 8 U.S.C. § 1226(a). If the Immigration Court does not provide a hearing within 21 days of the date of this order, Respondent shall release Petitioner from custody.

FACTS

On February 4, 2010, Petitioner Ali Abou Khodr filed a petition for writ of habeas corpus under 28 U.S.C. § 2241, claiming that his continued detention by Respondent Immigration and Customs Enforcement ("ICE") District Director, Rebecca Adduci, without the opportunity for a bond hearing, violated federal law. Petitioner is a native and citizen of Lebanon legally admitted to the United States as a lawful permanent resident on September 29, 1996. On May 26, 2004, he was convicted of conspiracy to possess with intent to distribute heroin, 21 U.S.C. § 846. He was sentenced to serve six months in a federal correctional facility in Pennsylvania, and two years of supervised release.

After he was released, ICE charged Petitioner as removable under 8 U.S.C. § 1227(a)(2)(A)(iii) as an alien convicted of an aggravated felony (drug trafficking), as well as under 8 U.S.C. § 1227(a)(2)(B)(i) as an alien convicted of a conspiracy to violate any law relating to a controlled substance. Petitioner appeared before an immigration court in Pennsylvania and admitted the factual allegations in the charging document. He sought relief in the form of Withholding of Removal under section 241(b)(3) of the Immigration and Nationality Act as well as deferral of removal pursuant to the Convention Against Torture ("CAT"). Then, on August 25, 2005, the Immigration Judge granted the government's motion to administratively close Petitioner's removal proceedings.¹ Petitioner returned to Michigan, where U.S. Marshals released him into the general population.

Petitioner was apprehended by ICE agents in Detroit in mid-December 2009, more than four years after being released from criminal custody. His case was recalendared and venue was transferred to the Immigration Court in Detroit, Michigan. On December 23, 2009, Immigration Judge Marsha K. Nettles denied Petitioner's request for an individualized bond hearing, concluding that he was subject to the mandatory detention provisions of 8 U.S.C. § 1226(c), the statute the Court is called upon to interpret in this case. Counsel for the respondent in this matter indicated that the immigration judge denied Petitioner a bond hearing because she concluded she was required to do so under 8 U.S.C. § 1226(c) and the Board of Immigration Appeals' decision in Matter of Rojas. Petitioner did not appeal the immigration judge's bond determination, but rather filed this petition.

DISCUSSION

The sole issue before the Court is whether 8 U.S.C. § 1226(c), pursuant to which the immigration judge concluded Petitioner was subject to mandatory detention and therefore ineligible for bond, clearly and unambiguously applies to Petitioner, an alien detained by ICE more than four years after being released from criminal custody. Because the Court finds it does not apply, ICE's mandatory detention is contrary to the laws of the United States. The Court will grant the writ and remand the matter back to the immigration court for a bond hearing. If Petitioner is not given an individualized bond hearing by the immigration judge under 8 U.S.C. § 1226(a) within 21 days of the date of this order, Respondent shall release Petitioner from custody.

I. The Proper Respondent

The Court must first address a threshold issue raised by the Respondent in a footnote in its response brief. Respondent argues it is not the proper respondent since it is not the warden of the facility where Petitioner is presently detained. Response Br. p. 1 n. 1. It states that the proper respondent is the warden of the Monroe County Jail, Petitioner's immediate custodian. Id. Respondent does not, however, request that the Court change the respondent and dismiss it from the case. The Court finds, for the reasons that follow, that the ICE District Director named as the respondent in the petition is the proper respondent.

The Sixth Circuit recently held, applying the immediate custodian rule for habeas petitions, that the ICE District Director is the proper respondent in a habeas petition brought by an alien, since the District Director has power over such aliens. Roman v. Ashcroft, 340 F.3d 314, 320 (6th Cir.2003). The U.S. Supreme Court recently held, however, that the proper respondent for habeas challenges to present physical confinement is the warden of the facility where the petitioner is being held, as opposed to the Attorney General or some other remote supervisory official. Rumsfeld v. Padilla, 542 U.S. 426, 435-36, 124 S.Ct. 2711, 159 L.Ed.2d 513 (2004). While this reasoning would seemingly require that the Monroe County Jail Warden be named as the respondent here, the Supreme Court in Rumsfeld expressly cabined its holding and did not resolve the question of who would be the proper respondent in a habeas petition filed by "an alien detained pending deportation." Id. at 435 n. 8, 124 S.Ct. 2711. Although Petitioner here is not "pending deportation" since he is not subject to a final order of removal and simply waiting to be removed, the Court finds the Supreme Court's statements in footnote 8 of the Padilla opinion are sufficiently broad to cover the present situation. Cf. Kholyavskiy v. Achim, 443 F.3d 946, 952 n. 7 (7th Cir.2006) ("The Supreme Court in Padilla expressly reserved the question of whether the immediate custody rule applies in the context of immigration habeas petitions.") (emphasis supplied). Accordingly, the Court will follow appropriate Sixth Circuit authority and find the ICE District Director is the proper party to be sued in the habeas case here.

Even if the proper respondent was the warden of the Monroe County Jail, the Court would find the change of the respondent to be a simple procedural formality. It would not change venue in this case given that the Monroe County Jail is located in this District. 28 U.S.C. § 102; 28 U.S.C. § 1391(e). Moreover, the U.S. Attorney's Office, rather than the Michigan Attorney General's office would likely continue to represent the respondent in this matter. Accordingly, if the Petitioner had legally named the wrong person as respondent, any error would be harmless.

II. Petitioner's Challenge to Respondent's Continued Detention

Since this case involves a statute interpreted by an agency responsible for its administration, the Court applies the two-step analysis established in Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). In Chevron, the U.S. Supreme Court stated:

When a court reviews an agency's construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute.

467 U.S. at 842-43, 104 S.Ct. 2778 (footnotes omitted).

The Court, therefore, begins with the language of the statute at issue here and determines whether it is ambiguous. The relevant statute is 8 U.S.C. § 1226(c), which provides:

(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 sic 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

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