Monestime v. Reilly

• Decision Date: 09 April 2010
• Docket Number: No. 10 Civ. 1374(WHP).,10 Civ. 1374(WHP).
• Citation: 704 F.Supp.2d 453
• Parties: Patrick MONESTIME, Petitioner,v.Edward REILLY, Facility Director, U.S. Immigration and Customs Enforcement, Varick Detention Facility, 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 United States Department of Homeland Security, Respondents.
• Court: U.S. District Court — Southern District of New York

704 F.Supp.2d 453

Patrick MONESTIME, Petitioner,v.Edward REILLY, Facility Director, U.S. Immigration and Customs Enforcement, Varick Detention Facility, 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 United States Department of Homeland Security, Respondents.

No. 10 Civ. 1374(WHP).

United States District Court,

S.D. New York.

April 9, 2010.

COPYRIGHT MATERIAL OMITTED

Alina Das, Esq., Washington Square Legal Services, Inc., New York, NY, for Petitioner.

Natasha Oeltjen, Esq., Assistant United States Attorney, Southern District of New York, Floor New York, NY, for Respondents.

MEMORANDUM & ORDER

WILLIAM H. PAULEY III, District Judge.

Patrick Monestime (“Monestime”) petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Monestime has been detained by the Department of Homeland Security (the “DHS”) Bureau of Immigration and Customs Enforcement (the “ICE”) since August 6, 2009. Monestime petitions for immediate release from custody or, in the alternative, a constitutionally adequate hearing in which Respondents would be required to demonstrate that his continued detention is justified. For the following reasons, the petition for a writ of habeas corpus is granted, and Respondents are ordered to give Monestime an individualized bond hearing.

BACKGROUND

Monestime, a Haitian citizen, lawfully entered the United States in 1988 at the age of nine. (Amended Petition for Writ of Habeas Corpus dated Feb. 23, 2010 (“Pet.”) ¶¶ 11-12; Ex. A: Declaration of Lucie Monestime dated Feb. 11, 2010 at 1-2.) In 1995, he adjusted his immigration status to “Lawful Permanent Resident.” (Pet. ¶ 12.) On August 11, 1997, Monestime was convicted in a New York court of attempted menacing in the second degree, a misdemeanor. (Pet. Ex. F: Certificates of Disposition for Patrick Monestime dated Oct. 22, 2009 (“Certificates”).) On July 1, 2002, he was convicted in a New York court of criminal possession of stolen property in the fifth degree, also a misdemeanor. (Pet. ¶ 13; Certificates.)

On August 6, 2009, following his arrest for disorderly conduct, Monestime was detained by ICE at the Varick Federal Detention Facility in Manhattan (the “Varick Facility”), and removal proceedings were instituted against him. (Pet. ¶ 13.) Because the August 1997 and July 2002 convictions were crimes involving moral turpitude, DHS charged Monestime as removable under 8 U.S.C. § 1227(a)(2)(A)(ii). (Pet ¶ 13.)

On August 27, 2009, an Immigration Judge (the “IJ”) ordered Monestime released on a $7,500 bond. (Declaration of Natasha Oeltjen dated Feb. 24, 2010 (“Oeltjen Decl.”) Ex. 1: Decision of the Board of Immigration Appeals dated Nov. 19, 2009.) DHS appealed that decision to the Board of Immigration Appeals (the “BIA”). The BIA then vacated the IJ's decision and remanded the case so the IJ could consider whether Monestime was properly subject to mandatory detention under 8 U.S.C. § 1226(c). See In re Joseph, 22 I. & N. Dec. 799, 1999 WL 339053 (B.I.A. May 28, 1999). On January 29, 2010, the IJ denied Monestime's bail application, finding him subject to mandatory detention and ordered him removed to Haiti. (Pet. ¶ 14.) Monestime appealed this decision to the BIA. (Transcript of Hearing Conducted on Mar. 3, 2010 at 8-9.)

Following the devastating earthquake in Haiti on January 12, 2010, DHS announced it was “halt[ing] all removals to Haiti for the time being.” (Pet. ¶ 16.) DHS declared a Temporary Protected Status for Haitians in the United States for a minimum period of 18 months, and DHS is not currently deporting persons to that country. (Pet. ¶ 16.)

In February 2010, ICE began finalizing plans to close the Varick Facility and transfer all detainees to the Hudson Federal Detention Facility in Kearny, New Jersey (the “Hudson Facility”). (Pet. ¶ 17; Memorandum of Law in Opposition to Petition for Writ of Habeas Corpus dated Feb. 24, 2010 at 4.) On February 11, Monestime, now represented by counsel, made a request to ICE that he be released on parole, bond, or other reasonable conditions. (Pet. ¶ 18.) He argued that continued detention was unjustified in view of DHS's suspension of deportations to Haiti. (Pet. ¶¶ 18-19; Oeltjen Decl. Ex. 3: ICE Decision dated Feb. 24, 2010.) On February 19, Monestime filed this petition. Three days later, he was transferred to the Hudson Facility, which is under the control of ICE's New York Field Office. (Oeltjen Decl. ¶ 7.) Finally, on February 24, ICE denied Monestime's request for parole or release, finding him subject to mandatory detention under 8 U.S.C. § 1226(c).

Monestime petitions this Court to (1) assume jurisdiction over this matter; (2) enjoin Respondents from transferring him out of the jurisdiction of ICE's New York Field Office; (3) issue a writ of habeas corpus ordering his release or, in the alternative, provide a constitutionally adequate detention hearing; and (4) award costs and reasonable attorney's fees under the Equal Access to Justice Act.

DISCUSSION

I. Jurisdiction to Review Removal Detention

“While the Immigration and Nationality Act (the ‘INA’) precludes review of the ‘Attorney General's discretionary judgment’ with regard to ‘detention or release of any alien or the grant, revocation, or denial of bond or parole,’ the United States Supreme Court rejected the contention that § 1226(e) deprives courts of jurisdiction to consider challenges to the interpretation of the mandatory detention statute.” Garcia v. Shanahan, 615 F.Supp.2d 175, 179 (S.D.N.Y.2009) (quoting Demore v. Kim, 538 U.S. 510, 517, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003)). Thus, a district court may review challenges to removal detention based on questions of statutory interpretation or constitutional challenges to the statutory framework. See Garcia, 615 F.Supp.2d at 179 (citing Henderson v. I.N.S., 157 F.3d 106, 119-122 (2d Cir.1998)).

A habeas petitioner generally must exhaust administrative remedies before seeking federal court intervention. See Gomez v. Comm'r of I.N.S., No. 01 Civ. 4192(HB), 2001 WL 637382, at *2 (S.D.N.Y. June 7, 2001) see also Howell v. I.N.S., 72 F.3d 288, 291 (2d Cir.1995); Mejia-Ruiz v. I.N.S., 51 F.3d 358, 364 (2d Cir.1995). However, exhaustion is not required where it “would be futile ‘or where the agency has predetermined the issue’ before it.” Garcia, 615 F.Supp.2d at 180 (citing Hy v. Gillen, 588 F.Supp.2d 122, 125-26 (D.Mass.2008)). Thus, a number of courts have reviewed the constitutionality of an alien's detention while administrative proceedings were ongoing. See Casas-Castrillon v. Dep't of Homeland Sec., 535 F.3d 942, 950 (9th Cir.2008) (review of detention while appeal before BIA pending); Garcia, 615 F.Supp.2d at 179-80; Gillen, 588 F.Supp.2d at 125-26.

In his petition, Monestime challenges the constitutionality of the mandatory detention statute as applied to him, rather than the propriety of his removal under the INA. Since the IJ classified him as subject to mandatory detention and DHS declined to revisit his mandatory detention status, additional appeals to DHS would be futile. See Garcia, 615 F.Supp.2d at 180; see also Sulayao v. Shanahan, 09 Civ. 7347(PKC), 2009 WL 3003188, at *3 (S.D.N.Y. Sept. 15, 2009) (“If ... Congress has not explicitly required exhaustion, judicial exhaustion doctrine provides that courts may, in their discretion, waive administrative exhaustion under certain circumstances. Futility is one of those circumstances.” (internal citations and quotation marks omitted)). Therefore, this Court has jurisdiction to review whether Monestime should be afforded an opportunity to challenge the necessity of his detention during removal.

II. Detention During Removal Proceedingsa. Legal Standard

To obtain habeas relief pursuant to 28 U.S.C. § 2241, a petitioner must demonstrate that he is being detained “in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). In the context of a deportation proceeding, a petitioner's right to habeas relief depends, in part, on the stage of the deportation process at the time he files a habeas petition. See Casas-Castrillon, 535 F.3d at 950.

DHS is presently detaining Monestime under the mandatory detention statute governing removal proceedings, 8 U.S.C. § 1226(c), which provides that: “The Attorney General shall take into custody any alien who ... is deportable by reason of having committed any offense covered in section 1227(a)(2)(A)(ii).” ¹ The Attorney General may release a § 1226(c) detainee only for a limited set of reasons related to the alien's cooperation with a criminal investigation or status as a material witness. See 8 U.S.C. § 1226(c)(2). Section 1226(c) detention is exclusively intended to “govern [ ] detention of deportable criminal aliens pending their removal proceedings.” Demore, 538 U.S. at 527-28, 123 S.Ct. 1708. This “brief period” of time “lasts roughly a month and a half in the vast majority of cases in which it is invoked and about five months in the minority of cases in which an alien chooses to appeal.” Demore, 538 U.S. at 523, 530, 123 S.Ct. 1708. In Demore, the Supreme Court held that detention during the “brief” or limited period that removal proceedings are pending is “constitutionally permissible.” 538 U.S. at 531, 123 S.Ct. 1708.

After an alien is ordered removed, the Attorney General's detention authority is governed by either § 1231(a) or § 1226(a). Under § 1231(a), when an alien is ordered removed, he is to be deported within 90 days and the Attorney General must detain him during this “removal period.” 8 U.S.C. § 1231(a) see also Demore, 538 U.S. at 527-28, 530-31, 123 S.Ct. 1708; Zadvydas v. Davis, 533 U.S. 678, 683, 689, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001); Casas-Castrillon, 535 F.3d at 951 (noting that DHS also interprets § 1226(c) to apply only ...