Pisciotta v. Ashcroft

• Decision Date: 09 January 2004
• Docket Number: Civ. No. 03-5132 (JAG).
• Citation: 311 F.Supp.2d 445
• Parties: Giovanni PISCIOTTA, Petitioner v. John ASHCROFT, Attorney General of the United States, et al., Respondents.
• Court: U.S. District Court — District of New Jersey

311 F.Supp.2d 445

Giovanni PISCIOTTA, Petitioner v. John ASHCROFT, Attorney General of the United States, et al., Respondents.

Civ. No. 03-5132 (JAG).

United States District Court, D. New Jersey.

January 9, 2004.

Jerard A. Gonzalez, Esq., Meyner & Landis, Newark, NJ, for Petitioner.

Christopher J. Christie, United States Attorney, Caroline A. Sadlowski, Assistant U.S. Attorney, Newark, NJ, for Respondents.

OPINION

GREENAWAY, District Judge

This matter comes before the Court upon the application of Petitioner Giovanni Pisciotta ("Petitioner") seeking a writ of habeas corpus, pursuant to 28 U.S.C § 2241, and injunctive and declaratory relief releasing Petitioner from detention by the Department of Homeland Security ("DHS") during the pendency of his removal proceedings. Petitioner asserts that his detention violates his Fifth Amendment right to due process and deprives him of the protection of the Eighth Amendment prohibition against excessive bail. Further, Petitioner argues that these rights continue to be violated as a result of his ongoing detention. Specifically, Petitioner claims that his rights were violated when: (1) on July 9, 2003, shortly after the June 20, 2003 reopening of his removal proceedings, the government revoked the terms of its 1996 determination that Petitioner should be released on $12,000 bond and instead detained him without setting bond; and (2) on July 14, 2003, upon an order from an Immigration Judge ("IJ") releasing Petitioner on $12,000 bond, the government stayed the order, pursuant to 8 C.F.R. § 1003.19(i)(2), pending its appeal to the Bureau of Immigration Appeals ("BIA").

FACTUAL AND PROCEDURAL HISTORY

Petitioner is a citizen of Italy and was admitted to the United States as a legal permanent resident on May 27, 1967. See Exhibit A to Declaration of Charles M.G. Parker dated November 14, 2003, ("Parker Decl."). On August 1, 1986, Petitioner was convicted of third-degree robbery and first-degree attempted robbery in the Supreme Court of the State of New York. See Exhibits B and C to Parker Decl. Deportation proceedings began on October 30, 1987. See Exhibit D to Parker Decl. At this time, the Immigration and Naturalization Service ("INS") released Petitioner on $5,000 bond. See Verified Complaint and Habeas Corpus Petition dated October 23, 2003 ("Petition"), at ¶ 9. On December 20, 1989, while deportation proceedings were pending, Petitioner was convicted of first-degree attempted rape in the Supreme Court of the State of New York. See Exhibit E to Parker Decl.¹

Upon completing his sentence, Petitioner was released on $12,000 bond in 1996 and deportation proceedings resumed. On December 18, 2001, the IJ ordered the removal of Petitioner in absentia. See Exhibit F to Parker Decl. In late 2002, Petitioner moved to Elizabeth, New Jersey. On May 30, 2003, pursuant to the December 18, 2001 in absentia order, Petitioner was arrested by the Bureau of Immigration and Customs Enforcement ("BICE") and has since been detained in Hudson County, New Jersey. See Petition at ¶ 12; Respondent's Brief dated November 14, 2003 ("Resp.Br."), at 2-3.

On June 20, 2003, the IJ reopened Petitioner's removal proceedings, ostensibly on the basis that the Notice to Appear on December 18, 2001 had been served on counsel who did not represent Petitioner. See Resp. Br. at 3; Exhibit G to Parker Decl. In addition, the IJ transferred Petitioner's removal proceedings to New Jersey and scheduled a hearing on the merits of Petitioner's application for relief from removal for on or about August 15, 2003.

On July 9, 2003, the District Director of New Jersey cancelled the prior bond and determined that Petitioner should be detained without bond. Petitioner challenged this decision, and upon review of BICE's no-bond determination, the IJ ordered the release of Petitioner under $12,000 bond on July 14, 2003. See Exhibit I to Parker Decl. On that same day, BICE filed for an automatic stay of the IJ's order, pursuant to 8 C.F.R. § 1003.19(i)(2), in order to appeal the IJ's custody ruling. See Exhibit J to Parker Decl. On or about July 22, 2003, BICE filed its appeal of the IJ's bond determination. See Exhibit J to Parker Decl.

On October 8, 2003, the IJ conducted a merits hearing on Petitioner's application for a discretionary waiver of removal, pursuant to Immigration and Nationality Act ("INA") § 212(c).² The IJ declined to grant such relief to Petitioner, see Exhibit K to Parker Decl., and Petitioner has appealed this ruling, see Petition at ¶ 17.

On or about October 14, 2003, Petitioner received a Notice from the BIA, stating that it had received BICE's notice of appeal of the IJ's redetermination of the terms of Petitioner's custody. It appears that a delay in scheduling the briefing and argument in connection with this appeal resulted when the BIA misplaced the government's appeal. See Resp. Br. at 3.

On November 17, 2003, the parties were notified by the BIA that the deadline for submission of briefs on the custody status of Petitioner had been set for November 28, 2003. On November 24, 2003, upon the parties' submissions, this Court heard argument on Petitioner's application for a writ of habeas corpus.

On December 4, 2003, a single member of the BIA affirmed the IJ's custody determination to release Petitioner on $12,000 bond. Pursuant to the terms of 8 C.F.R. § 1003.19(i)(2), the decision was stayed for five days. On December 11, 2003, DHS moved for reconsideration of the BIA's ruling before a three-member panel and sought an emergency stay of the BIA's decision pending the determination of its motion for reconsideration. On December 12, 2003, the BIA granted an emergency stay and stated it would "adjudicate the motion to reconsider expeditiously."

On January 2, 2004, the BIA granted DHS' motion for reconsideration and remanded the custody determination to the IJ. See BIA Decision dated January 2, 2004. In granting DHS' motion, the BIA indicated it had been persuaded to affirm the IJ's initial bond determination of $12,000 because DHS' predecessor agency had set bond in this amount in 1996 upon Petitioner's release from state custody, and Petitioner had not been involved in any "trouble with the law" since his release. In its decision, the BIA stated that, on reconsideration, the IJ and the parties should clarify the nature of Petitioner's 1989 conviction for attempted rape in the first degree, and that the IJ should consider specifically the fact that Petitioner is a registered sex offender in New York. See id.

LEGAL STANDARDS

A. Relevant Statutory Authority

Section 1226 governs the custodial status of aliens in pending removal proceedings. See 8 U.S.C. § 1226. Section 1226(a) grants the Attorney General discretion to determine whether an alien should be arrested and detained, or released on bond or otherwise, pending removal proceedings.³ Section 1226(b) gives the Attorney General discretion to revoke a bond or parole under subsection (a). The discretionary decisions made pursuant to these provisions are not within any court's jurisdiction to set aside or review. See 8 U.S.C. § 1226(e).

Where the Attorney General determines the terms of custody of an alien pursuant to § 1226(a) or (b), an alien may seek review of this decision by an Immigration Judge. See 8 C.F.R. § 1003.19(c)(1)-(3); 8 C.F.R. § 236.1(d)(1).

In any case in which an IJ authorizes the release of an alien, on bond or otherwise, contrary and subsequent to a determination by the district director that the alien either should not be released or only released on bond of at least $10,000, the Department of Homeland Security ("DHS") is now authorized, pursuant to 8 C.F.R. § 1003.19(i)(2), to invoke an automatic stay of the IJ's ruling.⁴ The regulation also establishes deadlines for effecting the stay and filing an appeal of such order.⁵ This regulation was designed to ensure removal by preventing flight during the pendency of proceedings and to protect the public from potential harm. See Ashley v. Ridge, 288 F.Supp.2d 662, 664-65 (D.N.J.2003).

Once the automatic stay is initiated and BICE files its appeal with the BIA, the BIA has a finite period within which it must render its decision. See 8 C.F.R. § 1003.1(e)(8) (governing the timeliness of BIA decision-making). More specifically, "after completion of the record on appeal, including any briefs, motions or other submissions on appeal, the Board member or panel to which the case is assigned shall issue a decision on the merits as soon as practicable, with a priority for cases or custody appeals involving detained aliens." Id. (emphasis added). Furthermore, regulations also provide that the BIA "shall dispose of all appeals assigned to a single Board member within 90 days of completion of the record on appeal, or within 180 days after an appeal is assigned to a three-member panel (including any additional opinion by a member of the panel)." 8 C.F.R. § 1003.1(e)(8)(i). Thus, notwithstanding BICE's ability to stay a contrary custody determination by an IJ, regulations define the period of time in which the BIA should decide an appeal by the government.

B. Mandatory Detention Pursuant to § 1226(c) and Demore v. Kim

Section 1226(c) requires the Attorney General to detain certain criminal aliens subject to removal pending the completion of removal proceedings. In Demore v. Kim, 538 U.S. 510, 123 S.Ct. 1708, 1719, 155 L.Ed.2d 724 (2003), the Supreme Court, reaffirming its "longstanding view that the Government may constitutionally detain deportable aliens during the limited period necessary for their removal proceedings," upheld the mandatory detention of criminal aliens pursuant to § 1226(c) as a constitutionally permissible part of the removal process. See id. at 1722. The Court concluded that § 1226(c) furthered the government's legitimate purpose of preventing aliens from fleeing prior to the completion of their removal proceedings and that detention pursuant to this...