Louisaire v. Muller

• Decision Date: 01 December 2010
• Docket Number: No. 10–cv–07503 (CM).,10–cv–07503 (CM).
• Citation: 758 F.Supp.2d 229
• Parties: Jean LOUISAIRE, Petitioner,v.Wayne MULLER, Assistant Field Office Director, Office of Detention and Removal for U.S. Immigration and Customs Enforcement; Ruben Perez, Assistant Field Office Director, Office of Detention and Removal for U.S. Immigration and Customs Enforcement; Christopher Shanahan, New York Field Office Director for the Office of Detention and Removal for U.S. Immigration and Customs Enforcement; Janet Napolitano, Secretary of Homeland Security; Eric Holder, Attorney General of the United States; and the U.S. Department of Homeland Security, Respondents.
• Court: U.S. District Court — Southern District of New York

758 F.Supp.2d 229

Jean LOUISAIRE, Petitioner,

v.Wayne MULLER, Assistant Field Office Director, Office of Detention and Removal for U.S. Immigration and Customs Enforcement; Ruben Perez, Assistant Field Office Director, Office of Detention and Removal for U.S. Immigration and Customs Enforcement; Christopher Shanahan, New York Field Office Director for the Office of Detention and Removal for U.S. Immigration and Customs Enforcement; Janet Napolitano, Secretary of Homeland Security; Eric Holder, Attorney General of the United States; and the U.S. Department of Homeland Security, Respondents.

No. 10–cv–07503 (CM).

United States District Court, S.D. New York.

Dec. 1, 2010.

Nancy Babette Morawetz, New York, NY, for Petitioner.Natasha Oeltjen, United States Attorney's Office, New York, NY, for Respondents.

DECISION AND ORDER GRANTING PETITIONER'S WRIT OF HABEAS CORPUS

McMAHON, District Judge.

Petitioner Jean Louisaire challenges his confinement while removal proceedings against him are pending. Petitioner contends that the Respondents hold him in mandatory detention, without the opportunity for bail or bond assessment, pursuant to an erroneous interpretation of Section 236(c) of the Immigration and Nationality Act, 8 U.S.C. § 1226(c). Petitioner seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241, ordering Respondents to release him from mandatory detention, where he has been held since October 1, 2010, or alternatively, compelling Respondents to grant Petitioner's request for an individualized bond determination hearing.

For the reasons stated herein, the petition for writ of habeas corpus is granted. Respondents are directed to provide Petitioner with an individualized bond determination hearing within 10 days of the date of this decision.

BACKGROUND

Louisaire, a citizen of Haiti and a lawful permanent resident of the United States since 1977, has been undergoing removal proceedings since December 5, 2006, based on a charge that he is removable under INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i), as an alien convicted of a controlled substance offense. See Petition (“Pet”), Exh. B (Notice to Appear). This charge was based on a 2004 conviction for Criminal Possession of a Controlled Substance in the Seventh Degree (cocaine), under N.Y.P.L. § 220.03. See Declaration of Natasha Oeltjen (“Oeltjen Decl.”), Exh. 1 (Disposition of Arrest).¹

Louisaire's Removal Proceedings

Louisaire conceded that he was removable as charged, but applied for discretionary relief in the form of cancellation of removal under INA § 240A(a), 8 U.S.C. § 1229b(a). See id., Exh. 3 (Decision of the IJ), at 1–2. ICE argued that he was not eligible for such relief, because he was an aggravated felon, see 8 U.S.C. §§ 1101(a)(43)(B) (defining certain drug offenses as aggravated felonies), 1229b(a)(3) (making aggravated felons ineligible for cancellation)—in that his cocaine conviction was his second drug offense, and was thus punishable as a felony under federal law. See id. at 6–9. Upon rejecting this argument, the IJ considered whether Louisaire merited relief as a matter of discretion. Id. at 10–15. After weighing the equities Louisaire's long residence and close family ties in the United States, and the potential hardship of returning to Haiti—against the negative factors—his extended criminal record, illegal drug use, lack of steady employment, failure to pay taxes, and lack of evidence of rehabilitation, id. at 15–21—the IJ decided to give Louisaire “one final chance to try to avoid removal from the United States.” Id. at 21–22.

ICE appealed the IJ's decision to the BIA, challenging the IJ's ruling with respect to eligibility only, and on February 28, 2008, the BIA sustained the appeal and ordered Louisaire removed to Haiti. Pet., Exh. D (Decision of the BIA).

Louisaire filed an untimely petition for review of his removal order in the Second Circuit, which ultimately was dismissed, in January 2010. See Oeltjen Decl., Exh. 4 (Order). Subsequently, following the Second Circuit's decision in Alsol v. Mukasey, 548 F.3d 207 (2d Cir.2008), which held that a second simple drug possession conviction does not constitute a drug trafficking “aggravated felony” under the INA, ICE joined Louisaire in a motion to reopen. Id., Exh. F. On December 18, 2009, the BIA granted the motion and remanded the case to the IJ “for the purpose of allowing [ICE] to complete or update identity, law enforcement, or security investigations or examinations, and further proceedings, if necessary.” Id.

Louisaire's Detention History

Meanwhile, Louisaire was in immigration custody for a substantial portion of his removal proceedings. ICE began detaining him on December 5, 2006, after locating him in Riker's Island and initiating proceedings, see Oeltjen Decl., Exh. 5 (Record of Deportable/Inadmissible Alien), ruling that he was subject to mandatory detention on account of his controlled substance conviction. Id., Exh. 6 (Notice of Custody Determination). Louisaire remained in ICE detention throughout his proceedings before the IJ, and ICE's appeal to the BIA, until he was granted a conditional release on January 30, 2008. See id., Exh. 7 (Order of Release on Recognizance). The release notification specified that his release was subject to certain conditions, including that he “not violate any local, State, or Federal laws or ordinances,” and warned: “Failure to comply with the conditions of this order may result in revocation of your release and your arrest and detention by [ICE].” Id.

On July 7, 2008, Louisaire was arrested in Mineola, New York, and on September 24, 2008, he pleaded guilty to criminal mischief in the fourth degree under N.Y.P.L. § 145.00; he was sentenced to 90 days' imprisonment, and had an order of protection entered against him. See Oeltjen Decl., Exh. 2. Upon his release, he was again taken into ICE custody. See id. He remained in ICE detention—at this point, governed by INA § 241 (authorizing the detention of aliens ordered removed), given the BIA's February 2008 removal order—until December 7, 2009. See id., Exh. 8 (Release Notification); Exh. 9 (Order of Supervision). ICE, having determined that Louisaire's removal was not foreseeable at that time, released him from post-order detention under an Order of Supervision. See id. This order was subject to a number of conditions, including that Louisaire “not commit any crimes,” and warned him that “[a]ny violation of these conditions may result in [his] being taken into ICE custody.” Id., Exh. 9.

On March 15, 2010, Louisaire was again arrested in Mineola, New York, and on July 6, 2010, he was convicted of Criminal Contempt in the First Degree, under N.Y.P.L. § 215.51(d).² See id., Exh. 10 (Certificate of Disposition). He was sentenced to ten months' imprisonment, and an eight-year order of protection was issued against him. Id.

Events Culminating in the Instant Habeas Petition

Around September 27, 2010, Louisaire's current counsel learned that ICE had issued a detainer, and that a transfer from criminal custody to ICE custody was imminent. See Pet., Exh. A (Fax to Richard McClancy). After further informal discussions with ICE revealed that Louisaire would likely be subject to mandatory detention, see id., Louisaire proceeded to file this action on October 1, 2010—at some point during his transfer from the Nassau County Jail in East Meadow, New York, to ICE's Varick Street Processing Facility in New York City, and subsequently to ICE's contract facility at the Hudson County Jail in Kearny, New Jersey. Oeltjen Decl., ¶ 3.

Louisaire argues that he is not subject to INA § 236(c) because “his most recent convictions are not grounds of removability and thus do not provide a statutory basis for taking him into ICE custody.” Pet. ¶¶ 40, 43. He further argues that the statute does not apply because he has “already spent a cumulative total of over two years in immigration detention and continuing to detain him beyond that period is unconstitutional,” id. ¶ 36, and because his case is now on remand following an initial round of IJ and BIA proceedings, id. ¶ 37. Finally, he argues that his detention is unconstitutional because it “does not serve any of the purposes for which Congress granted Respondents the authority to detain individuals awaiting removal,” in that he does not now have a final order and might yet be granted relief, id. ¶ 38, and because ICE “cannot remove him to Haiti in the reasonably foreseeable future” given its suspension of removals to Haiti since the January 2010 earthquake, id. ¶ 43. He also challenges the constitutionality of available procedures for challenging his detention. See Mem. at 21–23

Subsequent Developments

Later on October 1, 2010, ICE formally determined that Louisaire was subject to mandatory detention. On October 7, 2010, Louisaire filed a motion to challenge that finding and IJ Steven Abrams held a hearing on that motion on October 14, 2010. See Mem. at 9. As Louisaire had submitted substantial briefing, IJ Abrams did not issue an immediate decision, but rather, requested that ICE file a responsive brief, and indicated that he would issue a written decision on the legal issue shortly thereafter. Oeltjen Decl. ¶ 5. He also set November 30, 2010 as a “control date,” by which he would hold another hearing if he had not yet ruled. Id. ICE filed its brief on October 20, 2010, arguing that INA § 236(c) applied, and in the alterative, that bond should be denied as a matter of discretion. See id., Exh. 11 (ICE Brief). ICE also noted that it intended to lodge a new charge of removability under INA § 237(a)(2)(E) (covering violations of protective orders), on account of Louisaire's recent conviction. Id. at 4.

On November 18, 2010, IJ Vomacka conducted a hearing regarding the merits of Louisaire's removal case. The next merits hearing is scheduled for January 26, 2011, and there is no indication from the parties that the removal proceedings will be concluded...