Parfait v. Holder
| Decision Date | 11 October 2011 |
| Docket Number | Civil No. 11-4877 (DMC) |
| Parties | LESLY PARFAIT, Petitioner, v. ERIC H. HOLDER, et al., Respondents. |
| Court | U.S. District Court — District of New Jersey |
NOT FOR PUBLICATION
Hon. Dennis M. Cavanaugh
LESLY PARFAIT, A 091 037 651
Bergen County Jail
Petitioner ProSe
TONY WEST, Assistant Attorney General, Civil Division
DAVID J. KLINE, Director, District Court Section
ELIZABETH J. STEVENS, Assistant Director
United States Department of Justice, Civil Division
Attorneys for Respondents
Lesly Parfait, confined at the Bergen County Jail in Hackensack, New Jersey, filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241 challenging his pre-removal-period mandatory detention, pursuant to 8 U.S.C. § 1226(c), in the custody of respondents and the Department of Homeland Security ("DHS"). Respondents filed an Answer and several exhibits. For the reasons expressed in this Opinion, this Court holds that Petitioner's detention is governed by 8 U.S.C. § 1226(a), grants the Writ of Habeas Corpus, and directs that the Immigration Judgeconduct a bond hearing pursuant to 8 U.S.C. § 1226(a)(2) to determine if he is a flight risk or danger to the community.
Lesly Parfait, a native and citizen of Haiti, challenges his detention in the custody of DHS at the Bergen County Jail. The facts are undisputed. Parfait emigrated to the United States from Haiti in 1975 at the age of five. On March 9, 1995, his status was adjusted to lawful permanent resident. In 2001, Parfait married a United States citizen, and they have six American children and three grandchildren. On August 18, 2005, a judgment of conviction was filed against Parfait in the Supreme Court of New York, County of Dutchess, based on his guilty plea to third-degree robbery, contrary to § 160.05 of the New York Penal Laws; he was sentenced to a minimum term of imprisonment of two and one-third years to a maximum of seven years. On July 2, 2008, New-York released Parfait into the community on parole.
On March 11, 2010, Parfait filed an 1-90 Application to Replace Permanent Resident Card, which was approved. On March 10, 2011, immigration agents arrested Parfait at his home in Queens, New York, and served him with a Notice of Custody Determination and Notice to Appear.1 The Notice of Custody Determination states that DHS will detain him pending a final determination in his case and he "may not request a review of this determination by an immigration judge because the Immigration and Nationality Act prohibits [his] release from custody." (Dkt. 3-7.) The Notice to Appear charges him with removal based on the August 18, 2005, conviction: conviction of an aggravated felony, a law relating to a theft offense or burglaryoffense for which the term of imprisonment of at least one year was imposed, under 8 U.S.C. § 1227(a)(2)(A)(iii), and conviction of an aggravated felony, a crime of violence for which the term of imprisonment ordered is at least one year, under 8 U.S.C. § 1226(a)(2)(A)(iii). (Dkt. 3-8.) At this time, Parfait's removal proceeding is scheduled for a hearing before Immigration Judge Abrams on November 29, 2011.
Parfait executed the § 2241 Petition presently before this Court on August 8, 2011. The Clerk received it on August 22, 2011. In the Petition, Petitioner argues that he is not subject to mandatory detention under 8 U.S.C. § 1226(c) because he was released from incarceration on July 2, 2008, from incarceration for the crime forming the basis of his removal, but respondents did not take him into immigration custody until two and one-half years later on March 10, 2011. He seeks a Writ of Habeas Corpus directing respondents to either release him from custody or to provide a bond hearing before an Immigration Judge, pursuant to 8 U.S.C. § 1226(a).
By Order entered September 9, 2011, this Court ordered service on respondents and ordered respondents to file an answer and relevant documents. Respondents concede that DHS did not take Petitioner into custody until over two years after he was released from criminal incarceration for the crime underlying the notice to appear. Respondents argue that this Court should defer to the Board of Immigration Appeals's ("BIA") interpretation of 8 U.S.C. § 1226(c) in Matter of Roias, 23 I. & N. Dec. 117 (BIA 2001), because the "when released" clause in § 1226(c) is ambiguous and the BIA's interpretation is reasonable. Respondents contend that, under the BIA's reading of § 1226(c), "an alien convicted of an enumerated offense was subject to mandatory detention even if there was a gap between his release from criminal custody and entry into DHS custody." (Answer at 11) (Dkt. 3 at 18).
Petitioner argues that he is not subject to mandatory detention under 8 U.S.C. § 1226(c) because DHS did not take him into custody when he was released from criminal incarceration for the offense forming the basis of his removal, as the statute commands, but waited for over two and one-half years. The government argues that this Court should defer under Chevron USA. Inc. v. Natural Res. Def. Council. Inc., 467 U.S. 837 (1984), to the BIA's determination in Matter of Rojas, 23 I.&N. Dec. 117 (BIA 2001). Thus, the question in this case is one of statutory interpretation, i.e., does "when [the alien] is released" mean "when [the alien] is released," or does it mean "any time after [the alien] is released?
Under 28 U.S.C. § 2241(c), habeas jurisdiction "shall not extend to a prisoner unless . . . [h]e is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241 (c)(3). A federal court has subject matter jurisdiction under § 2241 (c)(3) if two requirements are satisfied: (1) the petitioner is "in custody," and (2) the custody is "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3); Maleng v. Cook, 490 U.S. 488, 490 (1989). This Court has subject matter jurisdiction over the Petition under § 2241 because Petitioner was detained within its jurisdiction in the custody of DHS at the time he filed his Petition, see Spencer v. Kemna, 523 U.S. 1, 7 (1998), and he asserts that his mandatory detention is not statutorily authorized by 8 U.S.C. § 1226(c). See Zadvydas v. Davis, 533 U.S. 678, 699 (2001); Bonhometre v. Gonzales, 414 F.3d 442, 445-46 (3d Cir.2005).
The government has not raised failure to exhaust administrative remedies as an affirmative defense. Although 28 U.S.C. § 2241 contains no exhaustion requirement, "[o]rdinarily, federal prisoners are required to exhaust their administrative remedies prior to seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2241." Gambino v. Morris, 134 F.3d 156, 171 (3d Cir. 1998); see also, e.g., Callwood v. Enos, 230 F.3d 627, 634 (3d Cir. 2000); Bradshaw v. Carlson, 682 F.2d 1050, 1052 (3d Cir. 1981). The Third Circuit requires administrative exhaustion of a claim raised under § 2241 for three reasons: "(1) allowing the appropriate agency to develop a factual record and apply its expertise facilitates judicial review; (2) permitting agencies to grant the relief requested conserves judicial resources; and (3) providing agencies the opportunity to correct their own errors fosters administrative autonomy." Moscato v. Federal Bureau of Prisons, 98 F. 3d 757, 761-62 (3d Cir. 1996); see also Gambino, 134 F.3d at 171: Lyons v. U.S. Marshals, 840 F.2d 202, 205 (3d Cir. 1988). However, where the petitioner is challenging an agency's precedential interpretation of a statute, the purposes of exhaustion would not be served and exhaustion is not required. See Woodall v. Federal Bureau of Prisons, 432 F. 3d 235, 239 n.2 (3d Cir. 2005). In this case, exhaustion is not required because the BIA has interpreted § 1226(c)(1) in a precedential opinion as requiring detention in a case like Petitioner's. See Matter of Rojas, supra.
The statutory authority to detain an alien depends on where the alien is in the removal process. Section 1226 governs the pre-removal-period detention of an alien; § 1231(a)(2) mandates detention during the removal period established in § 1231(a)(1)(B); and § 1231(a)(6)provides the Attorney General with discretionary authority to detain aliens beyond the removal period, or release them under supervision. Section 1226(a) authorizes the arrest, detention and release of aliens pending a decision on whether the alien is to be removed from the United States, except as provided in § 1226(c). See 8 U.S.C. § 1226(a). Section 1226(b) authorizes the Attorney General to "at any time . . . revoke a bond or parole authorized under subsection (a) of this section, rearrest the alien under the original warrant, and detain the alien." 8 U.S.C. § 1226(b). Section § 1226(c), an exception to § 1226(a), mandates detention of specified criminal aliens during removal proceedings. See 8 U.S.C. § 1226(c). Section 1226 provides in full:
(3) may not provide the alien with work authorization . . . unless the alien is lawfully admitted for permanent residence or otherwise would . . . be provided such authorization.
(b) Revocation of bond or parole
The Attorney General at any time may revoke a bond or parole authorized under subsection (a) of this section, rearrest the alien under the original warrant, and detain the alien.
To continue reading
Request your trial
-
Contreras v. Terry, Civ. No. 12-746 LH/ACT
...custody several months or several years after they have been released from state custody.") (footnote omitted); Parfait v. Holder, Civil No. 11-4877(DMC), 2011 WL 4829391 at *6 (D.N.J. Oct.11, 201 1) (unpublished) (holding that because "taking the alien into custody more than two and one-ha......