Rad v. Lowe
| Decision Date | 13 April 2021 |
| Docket Number | No. 1:21-cv-00171,1:21-cv-00171 |
| Parties | CHRISTOPHER RAD, Petitioner v. CRAIG A. LOWE, Respondent |
| Court | U.S. District Court — Middle District of Pennsylvania |
(Judge Kane)
On January 29, 2021, pro se Petitioner Christopher Rad ("Petitioner"), who is currently confined at the Pike County Correctional Facility ("PCCF") in Lords Valley, Pennsylvania, initiated the above-captioned action pursuant to 28 U.S.C. § 2241, challenging the constitutionality of his detention by the United States Department of Homeland Security ("DHS"), Immigration and Customs Enforcement ("ICE"). (Doc. No. 1.) Following an Order to show cause (Doc. No. 7), Respondent filed a response, contending that Petitioner's detention is lawful (Doc. No. 8). Petitioner filed a traverse on March 31, 2021. (Doc. No. 9.) Accordingly, Petitioner's § 2241 petition is ripe for disposition.
Petitioner is a native and citizen of Canada who was admitted to the United States as a lawful permanent resident on August 14, 1976. (Doc. No. 8-1 at 5, 7.) On May 14, 2013, following a jury trial in the United States District Court for the District of New Jersey, Petitioner was convicted of conspiracy to commit securities fraud, false header spamming, false registration spamming, and conspiracy to commit unauthorized access spamming. (Id. at 5, 7.) He was sentenced to seventy-one (71) months' incarceration. (Id. at 5, 7.)
On October 16, 2017, ICE issued a Notice to Appear, charging Petitioner with being removable pursuant to section 237(a)(2)(A)(iii) of the Immigration and Nationality Act ("INA") based on his conviction for an aggravated felony in which the loss to the Government exceeded $10,000.00 and his conviction for an aggravated felony conspiracy. (Id. at 3-5.) The Notice to Appear was served upon Petitioner at the Federal Correctional Institution Allenwood Low ("FCI Allenwood Low") on November 2, 2017. (Id. at 3-4.) On December 11, 2017, an immigration judge entered an interim ruling concluding that Petitioner's conviction met the monetary requirements of section 101(a)(43)(M)(i) of the INA and sustaining ICE"s charge of removability under section 237(a)(2)(A)(iii). (Id. at 9-13.) On December 13, 2017, an immigration judge ordered Petitioner removed to Canada. (Id. at 15.) Petitioner was released from the custody of the Bureau of Prisons ("BOP") on January 22, 2018 and has been held by ICE ever since. (Id. at 14.)
Petitioner appealed the removal order to the Board of Immigration Appeals ("BIA"). (Id. at 16.) On May 8, 2018, the BIA dismissed Petitioner's appeal. (Id. at 18.) Petitioner subsequently filed a petition for review with the United States Court of Appeals for the Third Circuit. (Id.) On July 5, 2018, the Third Circuit granted Petitioner's motion for a stay of removal, concluded that he had "shown a sufficient likelihood of succeeding on his challenge to the amount of loss under 8 U.S.C. § 1101(a)(43)(M)(i)." (Id. at 20.) On August 6, 2018, the Third Circuit granted the Government's motion to remand the matter to the BIA. (Id. at 21.) On February 8, 2019, the BIA dismissed Petitioner's appeal. (Id. at 25-29.) On February 19, 2019, Petitioner filed a second petition for review with the Third Circuit. See Rad v. Att'y Gen., No. 19-1404 (3d Cir.). That same day, the Third Circuit granted Rad a temporary stay of removal pursuant to its Standing Order of August 5, 2015. See id. The Third Circuit recently held that"Petitioner's convictions for conspiring to violate the CAN-SPAM Act[1] necessarily entail deceit, and therefore satisfy the first element of an aggravated felony under 8 U.S.C. § 1101(a)(43)(M)(i)." See Rad v. Att'y Gen., 983 F.3d 651, 656 (3d Cir. 2020). The Third Circuit further held that "intended losses, not just actual ones, may meet the loss requirement for Petitioner's conspiracy offenses." See id. The Third Circuit vacated the Board of Immigration Appeals ("BIA")'s removal order and remanded for "further consideration of whether [Petitioner's] CAN-SPAM Act convictions reflect over $10,000 in intended losses." See id. at 671.
On January 21, 2021, Petitioner filed a motion to terminate removal proceedings with the BIA. (Doc. No. 8-1 at 30-37.) Respondent represents that DHS opposed Petitioner's motion on March 1, 2021. (Doc. No. 8 at 4.) Respondent further represents that the BIA "has not set a briefing schedule for the remand as it is expected to address the remand and Motion to Terminate at the same time given the basis for both is identical." (Id.)
On July 30, 2018, ICE conducted a review of Petitioner's custody status and decided to continue his detention. (Doc. No. 8-1 at 18-19.) On October 16, 2018, an immigration judge denied Petitioner's request for a redetermination of his custody status. (Id. at 39.) On February 8, 2019, the BIA dismissed Petitioner's appeal of that decision, concluding that Petitioner was subject to mandatory detention because of his conviction for an aggravated felony. (Id. at 39-42.)
On August 23, 2019, an immigration judge held a hearing on Petitioner's request for a custody redetermination pursuant to Guerrero-Sanchez v. Warden York County Prison, 905 F.3d 208 (3d Cir. 2018). (Doc. No. 8-1 at 46.) The immigration judge denied Petitioner's request, concluding that DHS had "met their burden of proving that the respondent is a danger to the community and a flight risk." (Id.) Petitioner did not appeal this decision to the BIA. On March 8, 2021, an immigration judge again denied Petitioner's request for a custody redetermination, noting that he was "[s]ubject to [m]andatory [d]etention and in the alternative danger based on federal conviction with a 35 month sentence." (Id. at 48.)
Petitioner filed the instant § 2241 petition on January 29, 2021. (Doc. No. 1.) In his § 2241 petition, Petitioner asserts that his continued detention violates the Fifth Amendment's Due Process Clause. (Id. at 3.) Petitioner asserts that he "has been in ICE custody now for over three years and there is no significant likelihood of removal in the reasonably foreseeable future." (Id. at 2.) Petitioner further asserts that his "removal order improperly ordered [him] removable under § 101(a)(43)(M)i) only for a conspiracy conviction which was clearly improper." (Id. at 7-8.) As relief, Petitioner seeks release from custody. (Id. at 7.)
Under 28 U.S.C. § 2241(c), a prisoner or detainee may receive habeas relief only if he "is in custody in violation of the Constitution or laws or treaties of the United States." See 28 U.S.C. § 2241(c)(3); see also Maleng v. Cook, 490 U.S. 488, 490 (1989). Because Petitioner is currently detained within the jurisdiction of this Court and asserts that his continued detention violates due process, this Court has jurisdiction over his § 2241 petition. See Zadvydas v. Davis, 533 U.S. 678, 699 (2001); Spencer v. Kemna, 523 U.S. 1, 7 (1998).
Respondent asserts that Petitioner's § 2241 petition should be denied because: (1) his detention remains lawful and is not a violation of the Fifth Amendment's Due Process Clause; and (2) the Court lacks jurisdiction over Petitioner's challenge to his removal order. (Doc. No. 8 at 5.) The Court considers these arguments below.
In the instant case, the parties do not dispute that Petitioner is currently detained pursuant to 8 U.S.C. § 1226(c), which provides for pre-removal mandatory detention of individuals previously convicted of certain criminal offenses. See 8 U.S.C. § 1226(c); see also Orozco Arroyo v. Doll, No. 4:19-cv-490, 2019 WL 6173753, at *4-5 (M.D. Pa. Oct. 10, 2019), report and recommendation adopted, 2019 WL 6130483 (M.D. Pa. Nov. 19, 2019) (); Carlos A. v. Green, No. 18-741 (SDW), 2018 WL 3492150, at *2 n.1 (D.N.J. July 20, 2018); Chica-Iglesia v. Lowe, No. 1:18-cv-35, 2018 WL 1960438, at *1 (M.D. Pa. Apr. 25, 2018); Gekara v. Lowe, No. 3:17-cv-1693, 2018 WL 837599, at *2 (M.D. Pa. Feb. 12, 2018); Payano v. Lowe, No. 3:16-cv-2029, 2016 WL 6995433, at *2 (M.D. Pa. Nov. 30, 2016); cf. Leslie v. Att'y Gen., 678 F.3d 265, 270 (3d Cir. 2012) (), abrogated in part on other grounds by Jennings v. Rodriguez, 138 S. Ct. 830 (2018). An individual detained under § 1226(c) may be released only if the Attorney General decides that release is necessary to protect a witness and that the individual is not a flight risk and does not pose a danger to society. See id. § 1226(c)(2). Thus, "section 1226(c) does not give theAttorney General any authority to release these [individuals] on bond." See Chavez-Alvarez v. Warden York Cty. Prison, 783 F.3d 469, 473 (3d Cir. 2015) (citing Demore v. Kim, 538 U.S. 510, 521 (2003)), abrogated in part on other grounds by Jennings, 138 S. Ct. 830.
Previously, the Third Circuit "read Demore as also recognizing that there are limits to" the Government's authority to detain individuals under § 1226(c) without an opportunity to be considered for bond. See Chavez-Alvarez, 783 F.3d at 473 (citing Diop v. ICE/Homeland Sec., 656 F.3d 221, 233 (3d Cir. 2011); Leslie, 678 F.3d 265). Specifically, the Third Circuit recognized that the Demore Court based its ruling upon the short, fixed, and finite term of pre-removal detention. See id. at 474. Thus, in Chavez-Alvarez, the Third Circuit "read a reasonable time limit into the statute, relying on the Court's earlier decision in Diop, which employed the doctrine of constitutional avoidance to come to this conclusion." See Coello-Udiel v. Doll, No....
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