Minto v. Decker

• Decision Date: 05 June 2015
• Docket Number: No. 14 Civ. 07764(LGS)(KNF).,14 Civ. 07764(LGS)(KNF).
• Citation: 108 F.Supp.3d 189
• Parties: Dwayne MINTO, Petitioner, v. Kenneth DECKER, et al., Respondents.
• Court: U.S. District Court — Southern District of New York

108 F.Supp.3d 189

Dwayne MINTO, Petitioner,

v.Kenneth DECKER, et al., Respondents.

No. 14 Civ. 07764(LGS)(KNF).

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

Signed June 5, 2015.

Paul B. Grotas, The Grotas Firm, P.C., New York, NY, for Petitioner.

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

OPINION & ORDER

LORNA G. SCHOFIELD, District Judge:

Before the Court is the Report and Recommendation of Magistrate Judge Kevin Nathaniel Fox ("Report"), recommending that (1) Petitioner's Petition for a Writ of Habeas Corpus be granted, (2) Respondents be directed to provide an individualized bond hearing to Petitioner within seven days of the date of this Opinion and Order to determine whether his continued detention is justified and (3) Petitioner's request for costs and attorneys' fees be denied. Both parties filed timely objections to the Report. For the reasons stated below, the Report is adopted in part and rejected in part. Petitioner's requests for a Writ of Habeas Corpus and an individualized bond hearing are granted.

I. BACKGROUND

The facts and procedural history relevant to the motions are set out in the Report and summarized here.

A. Relevant Factual and Procedural History

Petitioner—a citizen of Jamaica—entered the United States on a B–2 visa in 1985 when he was approximately three years old. He was arrested in Connecticut on three separate occasions in 2004. After the first arrest, he pleaded guilty to possession of a controlled substance. Following the second arrest, he pleaded guilty to third-degree assault. After the third arrest, he pleaded guilty to possession of a controlled substance. After each guilty plea, he was principally sentenced to a one-year term of imprisonment, execution suspended.

On March 28, 2014, approximately 10 years after his most recent arrest and having never served a custodial sentence, Petitioner was arrested by U.S. Immigration and Customs Enforcement ("ICE") and detained at the county jail in Goshen, New York. On the same day, Petitioner was issued a Notice to Appear, charging that Petitioner is subject to removal because of his prior criminal convictions and because his presence in the United States is "without admission or parole," under sections 212(a)(2)(A)(i)(I)–(II), 212(a)(6)(A)(i) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101 et seq. On March 28, 2014, the U.S. Department of Homeland Security ("DHS") issued a Notice of Custody Determination, stating that DHS would continue to detain him until a final administrative determination of his removal is reached. An immigration judge denied Petitioner's request for a change in custody status on April 29, 2014.

B. The Report and the Parties' Objections

Petitioner seeks a Writ of Habeas Corpus, alleging that he is being unlawfully detained by Respondents. The Report—issued on March 26, 2015—reaches three primary conclusions. First, the Report accepts Respondents' argument that Petitioner is subject to mandatory detention without a bond hearing under section 236(c) of the INA, 8 U.S.C. § 1226(c) (referred to hereafter as "section 236(c)"), deferring to a Board of Immigration Appeals ("BIA") decision interpreting section 236(c)(1). Second, the Report agrees with Petitioner that his detention violates his Fifth Amendment right to due process. Third, the Report rejects Petitioner's request for an award of costs and attorneys' fees under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412 et seq. The Report recommends a prompt individualized bond hearing to determine if Petitioner should continue to be detained.

By letter dated April 16, 2015, Petitioner timely objected to the Report's conclusion that he is subject to mandatory detention. Petitioner contends that the Report errs in its deference to the BIA interpretation of section 236(c)(1). In particular, Petitioner argues that the Report contains insufficient analysis of section 236(c)(1)'s claimed ambiguity and asks the Court to "conduct its own analysis[,] utilizing the traditional tools of statutory interpretation." Petitioner does not object to the Report's denial of his costs and attorneys' fees.

By letter dated April 16, 2015, Respondents also timely objected to the Report, specifically, the finding that Petitioner's detention violates his right to due process. First, Respondents assert that the length of Petitioner's detention cannot establish a due process violation on its own "without any fact-specific consideration of the removal proceedings giving rise to his detention...." Second, Respondents contend that, as Petitioner "has been charged as removable for having been convicted of offenses enumerated" in section 236(c), section 236(c) authorizes his continued detention without bond and without any individualized showing of flight risk or dangerousness.

II. LEGAL STANDARD

A reviewing court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). The district court "may adopt those portions of the report to which no ‘specific, written objection’ is made, as long as the factual and legal bases supporting the findings and conclusions set forth in those sections are not clearly erroneous or contrary to law." Adams v. N.Y. State Dep't of Educ., 855 F.Supp.2d 205, 206 (S.D.N.Y.2012) (citing Fed.R.Civ.P. 72(b), Thomas v. Arn, 474 U.S. 140, 149, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985) ).

The court must undertake a de novo review of any portion of the report to which a specific objection is made on issues raised before the magistrate judge. See 28 U.S.C. § 636(b)(1) ; United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir.1997). Even when exercising de novo review, "[t]he district court need not ... specifically articulate its reasons for rejecting a party's objections...." LaBarbera v. D. & R Materials Inc., 588 F.Supp.2d 342, 344 (E.D.N.Y.2008) (quoting Morris v. Local 804, Int'l Bhd. of Teamsters, 167 Fed.Appx. 230, 232 (2d Cir.2006) ). When a party makes only conclusory or general objections, or simply reiterates the original arguments made below, a court will review the report strictly for clear error. Crowell v. Astrue, No. 08 Civ. 8019, 2011 WL 4863537, at *2 (S.D.N.Y. Oct. 12, 2011) (citation omitted). Finally, "an unsuccessful party is not entitled as of right to a de novo review by the judge of an argument never seasonably raised before the magistrate." Marache v. Akzo Nobel Coatings, Inc., No. 08 Civ. 11049, 2010 WL 3731124, at *3 (S.D.N.Y. Sept. 7, 2010) (quoting Paterson–Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 990–91 (1st Cir.1988) ); accord Walker v. Stinson, 205 F.3d 1327, 2000 WL 232295, at *2 (2d Cir.2000) (summary order) ("district court did not abuse its discretion in refusing to consider" an argument where the objector failed to raise it before the magistrate judge).

III. DISCUSSION

A. Mandatory Detention Under Section 236(c) of the INA

Petitioner contends that he is not subject to mandatory detention without the possibility of bail for the duration of his removal proceedings because he was not detained by immigration officials "when ... released" from criminal custody, as required by section 236(c) of the INA. The Report disagrees, finding that the language of section 236(c) is ambiguous, and defers to the BIA's interpretation of the statute. Petitioner objects to the Report's section 236 analysis. For the following reasons, this portion of the Report is rejected.

Section 236(c) provides:

The Attorney General shall take into custody any alien [who has been convicted of an enumerated offense] 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.

8 U.S.C. § 1226(c) (emphasis added). The interpretation of the words "when" and "released" has generated much litigation in this District. Like petitioners in previous cases, Petitioner here "argues that the word ‘when’ requires that mandatory detention should begin at or around the time of release from criminal confinement." Martinez–Done v. McConnell, 56 F.Supp.3d 535, 538 (S.D.N.Y.2014). He further "argues that an alien is only ‘released’ for purposes of section 236(c) if he serves—and is released from—a custodial sentence." Id. at 539. With this interpretation, section 236(c) would not apply to Petitioner because his last sentence was imposed approximately 10 years ago, and he has never served a custodial sentence.

Respondents, as they have in previous cases, "argue[ ] that ‘when’ does not ‘set a deadline’ for the onset of mandatory detention .... but ‘creates a precondition for the [DHS] to exercise its mandatory detention authority,’ and that such authority, once triggered, extends indefinitely through time." Id. at 538 (alteration omitted). Respondents further argue that "the word ‘release’ refers not only to release from physical custody following a sentence, but also to release from ‘physical custody following arrest. ’ " Id. at 539.

The Second Circuit has yet to address this issue, although it may do so in the pending appeals in Lora v. Shanahan (U.S.C.A.Dkt. No. 14–2343) and Araujo–Cortes v. Shanahan (U.S.C.A.Dkt. No. 14–3719). Decisions in this District have been split on their interpretation of section 236. Nine Judges have adopted Petitioner's interpretation of the word "when," see Martinez–Done, 56 F.Supp.3d at 538 n. 25 (collecting cases and adopting Petitioner's interpretation); see also Cruz v. Shanahan, 84 F.Supp.3d 267, No. 14 Civ. 9736, 2015 WL 409225 (S.D.N.Y. Jan. 30, 2015) (Judge Caproni); Rodriguez v. Shanahan, 84 F.Supp.3d 251, No. 14 Civ. 9838, 2015 WL 405633 (S.D.N.Y. Jan. 30, 2015) (Judge Netburn); Figueroa v. Aviles, No. 14 Civ. 9360, 2015 WL 464168 (S.D.N.Y. Jan. 29, 2015) (Judge Torres), and eight Judges have adopted Respondents' interpretation, see Martinez–Done, 56...