Osias v. Decker

• Decision Date: 28 July 2017
• Docket Number: 17–CV–02786 (VEC)
• Parties: Jocelyn OSIAS, Petitioner, v. Thomas DECKER, in his official capacity as Field Office Director, U.S. Immigration and Customs Enforcement; John F. Kelly, in his official capacity as Secretary of the U.S. Department of Homeland Security; Jefferson B. Sessions, in his official capacity as Attorney General of the United States, Respondents.
• Court: U.S. District Court — Southern District of New York

273 F.Supp.3d 504

Jocelyn OSIAS, Petitioner,

v.Thomas DECKER, in his official capacity as Field Office Director, U.S. Immigration and Customs Enforcement; John F. Kelly, in his official capacity as Secretary of the U.S. Department of Homeland Security; Jefferson B. Sessions, in his official capacity as Attorney General of the United States, Respondents.

17–CV–02786 (VEC)

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

Signed July 28, 2017

Kara Eileen Neaton, Craig A. Stewart, Arnold & Porter Kaye Scholer LLP, New York, NY, for Petitioner.

Joseph Nicholas Cordaro, U.S. Attorney's Office, New York, NY, for Respondents.

MEMORANDUM OPINION & ORDER

VALERIE CAPRONI, United States District Judge

Although the Statue of Liberty welcomes to the United States the "huddled masses yearning to breathe free,"¹ Jocelyn Osias ("Petitioner") was not so lucky. Petitioner fled Haiti and sought asylum from the United States. Instead of embracing him, the United States put him in jail in October 2016 and has refused to grant him an individualized bond hearing since. Osias petitions for a writ of habeas corpus seeking an individualized bond hearing. For the following reasons, Petitioner, who has been imprisoned for over nine months, must be promptly given an individualized bond hearing.²

BACKGROUND

The material facts in this case are few and undisputed. On October 12, 2016, Petitioner, a 34–year old Haitian citizen, presented himself at the U.S.–Mexico border in California, seeking asylum. Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 ("Pet.") ¶¶ 1, 31, Dkt. 1. Over a month later, on December 8, 2016, an asylum officer interviewed Petitioner and found him to have a "credible fear of torture" if he returned to Haiti. Pet. ¶ 32; Pet. Ex. A (Form I–870) at 5–7. Petitioner was served with a Notice to Appear ("NTA"), the charging document used to commence removal proceedings, pursuant to which he was charged as an "arriving alien" without valid entry documents. Pet. Ex. B. Petitioner was then placed in removal proceedings in New York, New York. Pet. ¶ 13.

Petitioner has been imprisoned since he presented himself on October 12, 2016, and remains in U.S. Immigration and Customs Enforcement ("ICE") custody in jail pending resolution of his removal proceedings. Pet. ¶¶ 1, 3. On April 18, 2017, Osias filed an application for asylum, withholding of removal and relief under the Convention against Torture. See Pet. ¶ 36. The merits hearing for Petitioner's asylum application is scheduled for July 28, 2017. Respondents' Memorandum of Law in Opposition to the Petition for a Writ of Habeas Corpus ("Opp.") 4, Dkt. 12.

On April 28, 2017, Osias filed this habeas petition ("Petition"), arguing that his imprisonment without a bond hearing violates the Due Process Clause. Dkt. 1. After Osias filed this Petition, ICE granted him discretionary parole, conditioned on payment of a $5,000 bond. Dkt. 15. Unfortunately, Petitioner has been unable to post the $5,000 bond and therefore remains in jail. Dkt. 15.

For the reasons stated herein, the Court concludes that Petitioner's prolonged imprisonment, which has exceeded nine months without any individualized assessment of the risk that he will flee, violates due process. Accordingly, the Court orders that Petitioner be given an individualized bond hearing.³

DISCUSSION

Petitioner makes two arguments for why he is entitled to an individualized bond hearing, one statutory and one constitutional. As a statutory matter, Petitioner argues that he is being detained pursuant to 8 U.S.C. § 1226(a), not 8 U.S.C. § 1225(b) as the Government contends. As a constitutional matter, Petitioner argues that even if his detention were pursuant to Section 1225(b), his prolonged imprisonment without a bond hearing, which has now exceeded nine months, violates the Due Process Clause. For the following reasons, the Court holds that Osias's prolonged detention, which has exceeded nine months, violates the Due Process Clause, and that Osias must be promptly given an individualized bond hearing.

I. Statutory Framework

The parties dispute the statutory provision governing Petitioner's detention. According to the Government, Petitioner is being detained pursuant to 8 U.S.C. § 1225(b)(1)(B)(ii), which provides that an alien with a credible fear of persecution "shall be detained for further consideration of the application for asylum." Petitioner argues that once he was determined to have credible fear, the authority vel non for his detention, which Petitioner acknowledges was initially pursuant to Section 1225(b)(1)(B)(ii), became Section 1226(a). That shift in authority is important because Section 1226(a) authorizes immigration judges to review custody decisions made by ICE and grant release from detention, see 8 C.F.R. § 1003.19(a), but no analogous authorization exists for detentions governed by Section 1225(b).

The Government does not dispute that individualized bond hearings are available for immigrants detained pursuant to Section 1226(a), but it contends that Petitioner is being detained pursuant to Section 1225(b)(1)(B)(ii). The Government argues that Section 1225(b)(1)(B)(ii) unambiguously authorizes the mandatory detention of an immigrant such as Petitioner. Section 1225(b)(1)(B)(ii) provides, "If the officer determines at the time of the interview that an alien has a credible fear of persecution ... the alien shall be detained for further consideration of the application for asylum." 8 U.S.C. § 1225(b)(1)(B)(ii) (emphasis added).

Petitioner argues that Section 1225(b)(1)(B)(ii) governed Petitioner's detention only up until the time he was adjudged to have credible fear; otherwise, the statutory provision titled "mandatory detention" and authorizing an immigrant's detention "pending a final determination of credible fear of persecution" would be superfluous. See 8 U.S.C. § 1225(b)(1)(B)(iii)(IV) ("Any alien subject to the procedures under this clause shall be detained pending a final determination of credible fear of persecution and, if found not to have such a fear, until removed"). According to Petitioner, after he passed the credible-fear interview and was charged with the NTA, he was placed in general removal proceedings under Section 1226(a), which provides for an alien's detention "pending a decision on whether the alien is to be removed from the United States." 8 U.S.C. § 1226(a).

The Court declines to resolve at this time the statutory question of whether Petitioner is being held pursuant to Section 1225(b) or Section 1226(a). In general, "[p]rinciples of judicial restraint" caution against "reaching constitutional questions when they are unnecessary to the disposition of a case." Anobile v. Pelligrino , 303 F.3d 107, 123 (2d Cir. 2002) ; see also Ashwander v. Tenn. Valley Auth. , 297 U.S. 288, 347, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring) ("The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of."). But here, it is clear that even resolving the statutory question in the Government's favor would not dispose of this case.⁴ For the purposes of this opinion, the Court assumes that the Government is correct that the Petitioner is being held pursuant to Section 1225(b)(1)(B)(ii).⁵ Nevertheless, because Petitioner has been held for more than nine months without an individualized bond hearing, his continued imprisonment violates due process. To avoid constitutional concerns, 8 U.S.C. § 1225(b)(1)(B)(ii) must be read to include a six-month limitation on the duration of detention without an individualized bond hearing.

II. Lora Extends to Section 1225(b)(1)(B)(ii)

In general, 8 U.S.C. § 1225(b) governs the inspection of immigrants seeking "admission" to the United States.⁶ An immigrant seeking admission includes "[a]n alien present in the United States who has not been admitted or who arrives in the United States." 8 U.S.C. § 1225(a)(1). Section 1225(b)(1) governs the "[i]nspection of aliens arriving in the United States and certain other aliens who have not been admitted or paroled," which includes asylum-seekers such as Petitioner. Section 1225(b)(2) governs the "[i]nspection of other aliens," which includes Lawful Permanent Residents ("LPRs") and nonresident immigrants. Cf. Saleem v. Shanahan , No. 16-CV-808, 2016 WL 4435246 (S.D.N.Y. Aug. 22, 2016). According to the Government, Petitioner is being detained pursuant to Section 1225(b)(1)(B)(ii), which provides: "If the officer determines at the time of the interview that an alien has a credible fear of persecution ... the alien shall be detained for further consideration of the application for asylum."

In considering the constitutionality of the prolonged imprisonment of an LPR pursuant to Section 1225(b)(2)(A),⁷ the Undersigned concluded that "to avoid constitutional concerns, section 1225(b) must be read to include a six-month limitation on the length of detention of an LPR without an individualized bond hearing." Morris v. Decker , 17–CV–02224 (VEC), 2017 WL 1968314, at *3 (S.D.N.Y. May 11, 2017), appeal docketed , No. 17–2121 (2d Cir. filed July 7, 2017). This Court based its decision on Lora v. Shanahan , 804 F.3d 601 (2d Cir. 2015), which held that mandatory detention pursuant to 8 U.S.C. § 1226(c) for longer than six months without a bond hearing violates the Due Process Clause. For the reasons thoughtfully discussed by Judge Abrams in Arias v. Aviles , No. 15-CV-9249 (RA), 2016 WL 3906738 (S.D.N.Y. July 14, 2016), this Court extended the Second Circuit's Lora decision to an LPR detained pursuant to 8 U.S.C. 1225(b)(2)(A) as an "arriving alien." See Morris , 2017 WL 1968314, at *3–4 (discussing Arias ).

Like the Morris petitioner, Osias is also charged as an "arriving alien," which means "an applicant for admission coming or attempting to come into the United States at a port-of-entry." 8 C.F.R. § 1001.1(q). Unlike the Morris...