Ortiz v. Holder, Case No. 2:11CV1146 DAK
| Decision Date | 14 March 2012 |
| Docket Number | Case No. 2:11CV1146 DAK |
| Parties | SERGIO ORTIZ, Petitioner, v. ERIC H. HOLDER, Jr., United States Attorney General; JANET NAPOLITANO, Secretary of the Department of Homeland security; JAMES O. TRACY, Utah County Utah Sheriff; STEVEN BRANCH, Field Office Director for the Salt Lake City Office of Enforcement and Removal (ICE), and all other persons exercising direct legal custody over the Petitioner, Respondents. |
| Court | U.S. District Court — District of Utah |
This matter is before the court on the (1) Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241, (2) Order to Show Cause why the Writ of Habeas Corpus should not be issued; and (3) Respondent's Motion to Dismiss. A hearing was held on January 12, 2012. At the hearing, Petitioner was represented by Aaron Tarin and Hakeem Ishola. Respondents were represented by Erez Reuveni and Jared C. Bennett. The court has carefully considered the memoranda and other materials submitted by the parties, including the Motion to Expedite Decision and the Response thereto, which were recently filed. Now being fully advised, the court renders the following Memorandum Decision and Order.
Petitioner, Sergio Ortiz, is currently in the physical custody of the Department of Homeland Security, U.S. Immigration and Customs Enforcement (ICE), at the Utah County Jail located in Spanish Fork Utah. He has challenged the Respondent's position that he is subject to mandatory detention pursuant to 8 U.S.C. § 1226(c).1
Petitioner is a citizen of Mexico but has been a legal permanent resident of the United States since approximately March 30, 1999, when he was eighteen years old. From 1999 through 2009, Mr. Ortiz has pleaded guilty to various crimes and then was required to pay a fine and/or was sentenced to probation. For at least one of the crimes, he received a sentence in abeyance and then completed the terms of his plea, and the case was dismissed. The most recent criminal conviction subjecting him to mandatory detention without a bond hearing under § 1226(c), were two Class B Misdemeanors, to which Petitioner pleaded guilty on August 30, 2007.
Over three years later, in January 2011, Petitioner filed a Form I-90 Application to Replace Permanent Resident Card. The United States Customs and Immigration Services ("USCIS") approved that application May 6, 2011. Following approval of Petitioner's Form I-90, USCIS referred his case to ICE for review. Respondents contend that it was not until July 22, 2011 that ICE became aware of Petitioner and his removability. Four days after learning of Petitioner's identity and removability, ICE added Petitioner's name to a list of individuals subject to "Operation Cross Check 2," a seven-day long, nationwide enforcement operation conducted byICE Enforcement and Removal Operations, targeting previously unapprehended criminal aliens in September, 2011. As a result of Operation Cross Check 2, Petitioner was arrested on September 20, 2011, outside his residence. On November 22, 2011, an Immigration judge ordered Petitioner removed from the United States. Petitioner the appealed his removal order on December 21, 2011. That appeal remains pending. Petitioner remains mandatorily detained pursuant to 8 U.S.C. § 1226(c)(1).
The issue in this case is not whether Petitioner should be deported or whether he should be detained during the removal process.2 Rather, the issue in this case is whether Petitioner is subject to mandatory detention without a bond hearing during his removal proceedings, the answer to which turns on the appropriate reading of the mandatory detention statute contained in the Immigration and Nationality Act § 236, 8 U.S.C. § 1226, and, in particular, the meaning of the phrase "when . . . released" in § 1226(c).
Section 1226(a) authorizes immigration officials to arrest, detain, and ultimately release immigrants pending their removal proceedings upon an individualized assessment for bond, parole, or other forms of supervised release. 8 U.S.C. § 1226(a). Section 122(c), however, is an exception to this broad authority for detention and release, delimiting a narrow class of people who are subject to no-bond, mandatory detention- namely, individuals whom immigration officials detain "when . . . released" from criminal custody for qualifying offenses. See § 1226(c)(1).Specifically, Section 1226(c)(1) provides:
8 U.S.C. § 1226(c)(1) (emphasis added). Those individuals, described in §1226(c)(l), are subject to mandatory, no-bond detention pending their removal.
Respondents contend that, regardless of whether ICE detained Petitioner immediately following his release from state custody for any of his crimes enumerated in the statute, or at some point later (in this case, approximately four years later) he is subject to mandatory detention during his removal proceedings under 8 U.S.C. § 1226 and is not entitled to a bond hearing.3
Petitioner, however, argues that the individuals described in §1226(c)(l) are subject to mandatory, no-bond detention pending their removal only if they are detained by ICE immediately or within a reasonably short period of time following release from state custody for an offense enumerated in the statute. In other words, he contends that Congress did not intend for mandatory detention to apply to immigrants who are detained by immigration officials months or years after their re-entry into society following a criminal conviction. Instead, he argues, those immigrants are subject to discretionary detention-with the potential for release on bond-while they pursue their case against removal. Petitioner contends that he was never taken into custody by ICE "when" he was released from state custody for an enumerated offense, and thus it is illegal to deny him a bond hearing.
Respondents base their contrary view on Matter of Rojas, 23 I&N Dec.117 (BIA 2001). In Matter of Rojas, the Board of Immigration Appeals ("BIA" or "the Board") held that the mandatory detention statute applies to any noncitizen with an enumerated offense regardless of whether they were detained when released from criminal custody. See id. at 127. The BIA concluded that the "when ... released" clause in § 1226(c) "does direct the Attorney General to take custody of aliens immediately upon their release from criminal confinement." Id. at 122. However, the BIA held that the "when ... released" clause was a "statutory command" rather than a "description of an alien who is subject to detention," and therefore mandatory detention could apply to noncitizens days, months, or even years after their release from criminal custody.4 See id. at 121-22.
Respondents urge the court to defer to the agency's position, pursuant to Chevron US.A., Inc. v. Nat'! Res. Def Council, Inc., 467 U.S. 837 (1984). Under step one of Chevron, a court must analyze the plain language of a statute and apply the "traditional tools of statutory construction" to determine if the intent of Congress is clear. Id. at 842-43. "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." Id. If Congress's intent is ambiguous, a court will proceed to step two of Chevron, and assess whether the agency's interpretation of the ambiguous terms is reasonable. Id at 844. On issues of statutory construction, the judiciary is the final authority and must reject administrative constructions which are contrary to clear congressional intent. Id. at 843 n.9. Respondents emphasize that many district courts have found the statute ambiguous and have therefore given Chevron deference to the Board's interpretation of the statute.5 Respondents also point out that the veryfact that district courts have disagreed about the meaning of the statute highlights the fact that the statute is ambiguous.
Having considered the law and the facts pertaining to this issue, this court disagrees with Respondent's position. In light of the plain language of the statute at issue, traditional tools of statutory construction, and the legislative history, the court concludes that the intend of Congress is unambiguous: Congress intended for mandatory detention to apply only to noncitizens who are detained at the time of their release from criminal custody for an enumerated offense under 8 U.S.C. § 1226(c).6 Moreover, even if Congress's intent were ambiguous, the Board's interpretation of the statute is not reasonable because it leads to arbitrary and manifestly unjust results. Thus, the court will not give deference to the Board's decision in Matter of Rojas.7
To the contrary, this court joins the vast majority of federal courts that have addressed this issue (and the dissent in Matter of Rojas) and finds that, because Petitioner was not taken into immigration custody when he was released by state officials from his qualifying offense(s), § 1226(c) does not apply, and he is entitled to an individualized bond hearing with an Immigration Judge.8
Accordingly, for the foregoing reasons and good cause...
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...PRACTICE MANUAL (2009) available at http://www.justice.gov/eoir/vll/ OCIJPracManual/ocij_page1.htm; see also Ortiz v. Holder, 2012 WL 893154, at *2, n.3 (D. Utah March 14, 2012) (declining to dismiss other respondents because warden presumably had no authority to obtain a bond hearing befor......