NEEDREPLACE, Civil Action No. 13–cv–02586–CMA–CBS

CourtNew York District Court
Citation7 F.Supp.3d 1136
Decision Date31 December 2013
Docket NumberCivil Action No. 13–cv–02586–CMA–CBS
PartiesGuadalupe Sanchez–Penunuri, Petitioner, v. John Longshore, Field Director, Immigration and Customs Enforcement, Jeh Johnson, Secretary of the Department of Homeland Security, John Morton, Director for Immigration and Customs Enforcement, Eric Holder, Attorney General, United States of America, and Respondents.

7 F.Supp.3d 1136

Guadalupe Sanchez–Penunuri, Petitioner,
John Longshore, Field Director, Immigration and Customs Enforcement, Jeh Johnson, Secretary of the Department of Homeland Security, John Morton, Director for Immigration and Customs Enforcement, Eric Holder, Attorney General, United States of America, and Respondents.

Civil Action No. 13–cv–02586–CMA–CBS

United States District Court, D. Colorado.

December 31, 2013

Petition granted.

[7 F.Supp.3d 1137]

Matthew William Buck, Buck Law LLC, Denver, CO, for Petitioner.

Amanda Adams Rocque, U.S. Attorney's Office, Denver, CO, Sarah B. Fabian, U.S. Department of Justice, Washington, DC, for Respondents.

[7 F.Supp.3d 1138]


CHRISTINE M. ARGUELLO, United States District Judge

This matter is before the Court on Petitioner Guadalupe Sanchez–Penunuri's petition for a writ of habeas corpus. (Doc. # 1.) For the reasons stated below, the Court grants Mr. Sanchez–Penunuri's petition.


Mr. Sanchez–Penunuri is a native and citizen of Mexico who first entered the United States in 1985 and obtained legal permanent residency in 1990. In 2003, Mr. Sanchez–Penunuri pleaded guilty to two felony violations of Colorado laws banning the possession and distribution of controlled substances. He was sentenced to a three-year term of probation, a fine, and community service, all of which he completed by 2007. On August 27, 2013, Mr. Sanchez–Penunuri was arrested by Immigration and Customs Enforcement and has been detained at the GEO Detention Facility in Aurora, Colorado, since that date. (Doc # 1 at 5–6.)

This case concerns Mr. Sanchez–Penunuri's access to a bond hearing, which in the immigration context is governed by 8 U.S.C. § 1226(a). Certain classes of immigrants are not entitled to a § 1226(a) bond hearing because they are subject to mandatory detention pursuant to 8 U.S.C. § 1226(c). Mr. Sanchez–Penunuri asked an Immigration Judge (IJ) to conduct a bond hearing in accord with § 1226(a). The IJ, however, rejected this request, reasoning that Mr. Sanchez–Penunuri was subject to mandatory detention under § 1226(c). (Doc. # 1–1.) The IJ was required to deny Mr. Sanchez–Penunuri's bond hearing request because he was bound by Matter of Rojas, 23 I. & N. Dec. 117 (BIA 2001), a precedential decision from the Board of Immigration Appeals (BIA), which broadly interprets § 1226(c) to include noncitizens 1 such as Mr. Sanchez–Penunuri.

Mr. Sanchez–Penunuri argues he is entitled to a bond hearing because the BIA's interpretation of § 1226(c) is erroneous and the conditions dictating mandatory detention in § 1226(c) do not apply to him. In the alternative, he argues that the statute as applied violates his constitutional rights. The government disagrees, arguing that § 1226(c) requires mandatory detention for Mr. Sanchez–Penunuri and that no constitutional violation arises from his detention.


This Court must resolve several issues in the present case. First, in light of an argument raised by the government in its response to Mr. Sanchez–Penunuri's habeas petition, this Court must determine if Mr. Sanchez–Penunuri has named a proper respondent for the petition, such that this Court can reach the merits of his claims. Second, this Court must consider the parties' competing interpretations of § 1226(c) and determine whether the statute applies to Mr. Sanchez–Penunuri. Third, if the statute does apply to Mr. Sanchez–Penunuri, this Court must reach Mr. Sanchez–Penunuri's alternative argument that the statute as applied violates his constitutional rights.

[7 F.Supp.3d 1139]

This Court concludes that Mr. Sanchez–Penunuri has named a proper respondent and that it can therefore consider the merits of Mr. Sanchez–Penunuri's claims. Further, on the merits, this Court substantially agrees with Mr. Sanchez–Penunuri's interpretation of § 1226(c) and, in line with the majority of federal courts to have addressed this issue, 2concludes that § 1226(c) does not apply to Mr. Sanchez–Penunuri. Thus, this Court concludes that Mr. Sanchez–Penunuri is entitled to a bond hearing under § 1226(a). Because the language of the statute dictates this result, this Court declines to reach Mr. Sanchez–Penunuri's constitutional challenge.

1. Introduction

Before reaching the merits, this Court must address the threshold question of whether Mr. Sanchez–Penunuri has named a proper respondent in his habeas petition. Mr. Sanchez–Penunuri brought his petition under 28 U.S.C. § 2241(c)(3), which extends habeas relief to persons “in custody under or by color of the authority of the United States,” 28 U.S.C. § 2241(c)(1), and to those “in custody in violation of the Constitution or laws or treaties of the United States,” id. § 2241(c)(3). (Doc. # 1, at 3.) There is no dispute that Mr. Sanchez–Penunuri's petition satisfies the “in custody” requirements of § 2241 or that this Court has subject matter jurisdiction pursuant to this statute.3

Rather, the dispute arises over who can grant Mr. Sanchez–Penunuri the relief he requests. Mr. Sanchez–Penunuri originally named four respondents in his petition: the Attorney General, the Secretary of the Department of Homeland Security,4 the Director of ICE, and the Field Director of Denver's ICE Office. He alleges these respondents can provide the type of relief he requests: “an individualized bond hearing before an Immigration Judge.” (Doc. # 1, at 22.)

The government disagrees. Citing Rumsfeld v. Padilla, 542 U.S. 426, 124 S.Ct. 2711, 159 L.Ed.2d 513 (2004), the government argues that none of these individuals are proper respondents for a habeas petition based on a challenge to immigration detention.

Similar to this case, Padilla concerned a habeas petition filed under 28 U.S.C. § 2241 by Jose Padilla, a United States citizen detained as an “enemy combatant” and suspected member of Al Qaeda, pursuant to the Authorization for Use of Military Force Joint Resolution, Pub.L. 107–40, 115 Stat. 224. At the time he filed his habeas petition, Mr. Padilla—who was then detained in the Consolidated Naval Brig in Charleston, South Carolina—named the Secretary of Defense as the respondent to his petition. The lower courts agreed that naming the Secretary

[7 F.Supp.3d 1140]

was proper, rationalizing that although the warden of the naval brig exercised control over Mr. Padilla's day-to-day activities, the Secretary maintained the legal reality of control. Padilla, 542 U.S. at 433, 124 S.Ct. 2711.

The Supreme Court disagreed, concluding that the “immediate custodian rule” applied to Mr. Padilla's petition. The Court traced the origin of this rule to Wales v. Whitney, 114 U.S. 564, 574, 5 S.Ct. 1050, 29 L.Ed. 277 (1885), which held that the habeas statute “contemplate[s] a proceeding against some person who has the immediate custody of the party detained, with the power to produce the body of such party before the court or judge, that he may be liberated if no sufficient reason is shown to the contrary.” Padilla, 542 U.S. at 435, 124 S.Ct. 2711 (quoting Wales, 114 U.S. at 574, 5 S.Ct. 1050 (emphasis supplied by the Padilla Court)).

Further, the Padilla Court continued, “in accord with the statutory language and Wales' immediate custodian rule, longstanding practice confirms that in habeas challenges to present physical confinement—‘core challenges'—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.” Padilla, 542 U.S. at 435, 124 S.Ct. 2711. Rather than the Secretary of Defense, the Court concluded that the commander of the brig in South Carolina—Mr. Padilla's immediate custodian—was the only proper respondent. Id. at 436, 124 S.Ct. 2711.

The government invokes this “core challenge” language from Padilla and argues the immediate custodian rule applies here. Thus, the government concludes that “[a]ll of the named individuals are remote supervisory officials, and all are therefore improperly named and should be dismissed from this Petition.” (Doc. # 11, at 1 n.1.) At the same time, the government alleges that Mr. Sanchez–Penunuri is “detained at the Denver Contract Detention Facility, and the warden of that facility is Johnny Choate, who is therefore the proper respondent to this Petition.” ( Id.) Mr. Sanchez–Penunuri disputes that Mr. Choate is the proper respondent and maintains that the local Field Office Director for Immigration and Customs Enforcement is the only proper respondent. (Doc. # 12, at 1 n.1.)

Resolving this dispute between the parties actually involves answering two separate questions. First, the Court must determine if the immediate custodian rule applies to Mr. Sanchez–Penunuri's petition. Second, if the rule does not apply, this Court must determine who is a proper respondent.

This Court concludes first that the immediate custodian rule does not apply to Mr. Sanchez–Penunuri's type of challenge to detention. Second, this Court finds that at least two of the originally named respondents—the Attorney General and DHS Secretary—are properly named. Third, however, out of an abundance of caution and for the reasons stated below, this Court declines to dismiss any respondent from this case.

2. Padilla Exception for Immigration Detention

As an initial matter, this Court notes that the government's basis for demanding that the other named respondents be dismissed is entirely contained within one relatively short footnote at the beginning of the government's response to Mr. Sanchez–Penunuri's petition. (Doc. # 11, at 1 n.1.) This Court views what is a borderline conclusory argument as insufficient, especially because the government fails to alert the Court to adverse authority contained

[7 F.Supp.3d 1141]

in Padilla itself that might dictate a different result.5

In particular, the government inexplicably ignores a footnote appended to the...

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