Reid v. Donelan

• Decision Date: 09 January 2014
• Docket Number: C.A. No. 13–cv–30125–MAP.
• Citation: 991 F.Supp.2d 275
• Court: U.S. District Court — District of Massachusetts
• Parties: Mark Anthony REID, on behalf of himself and others similarly situated, Plaintiff/Petitioner v. Christopher DONELAN, Sheriff of Franklin County, et. al. Defendants/Respondents.

991 F.Supp.2d 275

Mark Anthony REID, on behalf of himself and others similarly situated, Plaintiff/Petitioner

v.Christopher DONELAN, Sheriff of Franklin County, et. al. Defendants/Respondents.

C.A. No. 13–cv–30125–MAP.

United States District Court,

D. Massachusetts.

Jan. 9, 2014.

A. Nicole Hallett, Michael J. Wishnie, Elizabeth Song, Kendall Hoechst, Lunar Mai, Mary Yanik, Miriam Hinman, Ruth Swift, Yale Law School, Muneer I. Ahmad, Jerome N. Frank Legal Services Organization, New Haven, CT, Lauren Carasik, Western New England College School Of Law, Springfield, MA, for Plaintiff/Petitioner.

Elianis N. Perez, Regan Hildebrand, Colin Abbott Kisor, U.S. Department Of Justice, Office Of Immigration Litigation, Washington, DC, Karen L. Goodwin, United States Attorney's Office, Springfield, MA, for Defendants/Respondents.

MEMORANDUM AND ORDER REGARDING PLAINTIFF'S PETITION FOR WRIT OF HABEAS CORPUS AND PLAINTIFF'S MOTION FOR ORDER TO SHOW CAUSE (Dkt. No. 4 & 5)

MICHAEL A. PONSOR, District Judge.

I. INTRODUCTION

Plaintiff, a lawful permanent resident, has been held in immigration detention for fourteen months pursuant to 8 U.S.C. § 1226(c). He has brought a Petition for Writ of Habeas Corpus, 28 U.S.C. § 2241, seeking an individualized bond hearing to challenge his detention. (Dkt. No. 4.) He has also filed a Motion for Order to Show Cause. (Dkt. No. 5.) Defendants are: Christopher Donelan, Sheriff of Franklin County; David Lanoie, Superintendent, Franklin County Jail and House of Correction; Jeh Charles Johnson, Secretary of the Department of Homeland Security; John Morton, Director of Immigration and Customs Enforcement (ICE); Dorothy Herrera–Niles, Director, ICE Boston Field Office; Thomas Hodgson, Sheriff of Bristol County; Joseph McDonald, Jr., Sheriff of Plymouth County; Steven Tompkins, Sheriff of Suffolk County; Eric Holder, Attorney General of the United States; Juan Osuna, Director of the Executive Office for Immigration Review; and The Executive Office for Immigration Review.

The decision in Bourguignon v. MacDonald, 667 F.Supp.2d 175 (D.Mass.2009), finding a “reasonableness” requirement embedded in § 1226(c), controls this case. Because detention pursuant to § 1226(c) for over six months is presumptively unreasonable, the court will grant Plaintiff's Petition for Habeas Corpus and deny as moot Plaintiff's Motion for Order to Show Cause. Furthermore, even if detention after six months were not categorically unreasonable, the facts of this case would still entitle Plaintiff to an individualized bond hearing.

II. BACKGROUND¹

Plaintiff, Mark Anthony Reid, left Jamaica for the United States in 1978 and was admitted as a lawful permanent resident. Although Plaintiff faced a number of hardships growing up, he earned a GED and served in the U.S. Army Reserve for six years.

Between 1986 and 2010 Plaintiff amassed an extensive criminal history. His convictions included, inter alia, possession of narcotics, larceny, assault, interferingwith an officer, driving with a suspended license, and selling illegal drugs. Relevant for the pending motions are his convictions for selling an illegal drug, third degree burglary, and failure to appear. As a result of those convictions in 2010, Plaintiff was sentenced in Connecticut state court to twelve years in prison, to be suspended after five.

After Plaintiff served two years in prison, he was paroled on November 13, 2012. On the same day, ICE took Plaintiff into custody pursuant to 8 U.S.C. § 1226(c).² ICE immediately took action to remove Plaintiff. Although Plaintiff conceded the factual allegations underlying the case, he sought relief on two grounds. First, he argued that the Convention Against Torture (CAT) applied. Second, he believed that removal was a disproportionate punishment to the crimes committed.

A hearing on these claims was held before an Immigration Judge (IJ) on February 13, 2013. Two months later, the IJ denied both of Plaintiff's claims and ordered him deported. Plaintiff appealed to the Board of Immigration Appeals (BIA).

While his immigration case was pending, Plaintiff filed a motion with the IJ requesting a bond re-determination hearing. That motion was argued on June 17, 2013, at the Hartford Immigration Court. The IJ concluded that he lacked authority under § 1226(c) to make a bond re-determination and, therefore, denied Plaintiff's motion.

On October 23, 2013, nearly half a year after the IJ ruled on Plaintiff's claims, the BIA reversed the IJ's decision and remanded the case for further proceedings related to Plaintiff's CAT claim. An evidentiary hearing was held on November 19, 2013. On December 17, 2013, the IJ again denied Plaintiff's CAT claim. (Dkt. No. 76.) Plaintiff has indicated that he will appeal that decision to the BIA. ( Id.)

On July 1, 2013, Plaintiff filed the present Petition for Habeas Corpus and the Motion for Order to Show Cause to challenge his prolonged immigration detention.³ Counsel appeared for argument on December 12, 2013, and the court took the matter under advisement.

III. DISCUSSION

The answers to two questions dictate the result in this case. The first question is whether § 1226(c) includes a “reasonableness” restriction on the length of time an individual can be detained without a bond hearing. For the reasons set forth in Bourguignon and repeated below, the court must conclude that such a reasonableness restriction does exist. The second question is how to define and apply a “reasonableness standard.” ⁴

A. § 1226(c) and a “Reasonableness” Limit

The threshold question is whether § 1226(c) imposes a “reasonableness” limit on the length of time an individual can be detained in immigration custody without an individualized bond hearing. This court has previously held that such a limit does exist. Bourguignon, 667 F.Supp.2d at 182.

Defendants believe Bourguignon was wrongly decided and should be reconsidered. Their argument is anchored on a broad reading of Demore v. Kim, 538 U.S. 510, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003), where the Supreme Court upheld the constitutionality of § 1226(c). Far from supporting reconsideration of Bourguignon's holding, Demore supports this court's ruling. Only a brief discussion is required to make this clear.

As discussed in Bourguignon, the two Supreme Court cases touching upon this issue, Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001), and Demore, suggest a “reasonableness” limit in § 1226(c). In Zadvydas, the Supreme Court held that post-removal detention without a bond hearing was permissible so long as removal was “reasonably foreseeable.” Zadvydas, 533 U.S. at 699, 121 S.Ct. 2491. In that context, detention for less than six months was considered presumptively valid. Id. However, after six-months, if an individual “provides good reason to believe that there is no significant likelihood of removal,” the detention is presumptively invalid and a bond hearing is required. Id. at 701, 121 S.Ct. 2491.

Two years later, the Supreme Court directly addressed the constitutionality of § 1226(c) in Demore. There, Chief Justice Rehnquist distinguished Zadvydas and upheld the constitutionality of § 1226(c) for the “brief period necessary for [the detainee's] removal proceedings.” Demore, 538 U.S. at 513, 123 S.Ct. 1708.

Picking up on that language, Justice Kennedy, in his concurrence, explicitly identified a “reasonableness” requirement that limited the scope of 1226(c). He said, “[A] lawful permanent resident ... could be entitled to an individualized determination as to his risk of flight and dangerousness if the continued detention became unreasonable or unjustified.” Id. at 532, 123 S.Ct. 1708 (Kennedy, J., concurring) (citing Zadvydas, 533 U.S. at 684–86, 121 S.Ct. 2491).

Taken together, these two cases support the conclusion that a “reasonableness” requirement is included in the statute. Bourguignon, 667 F.Supp.2d at 182. Such an interpretation is necessary to avoid the Fifth Amendment due process problem that prolonged detention, absent an individualized hearing, would present.⁵ No subsequent controlling authority alters this analysis.

Indeed, strong authority supports this interpretation. At least two other circuits have considered this issue and have both found a “reasonableness” limitation in the statute. See Rodriguez v. Robbins, 715 F.3d 1127 (9th Cir.2013); Diop v. ICE/Homeland Sec., 656 F.3d 221 (3d Cir.2011). Moreover, since Bourguignon, a majority of judges in this district have reached the same conclusion. See Ortega v. Hodgson, No. 11–cv–10358–MBB, 2011 WL 4103138 (D.Mass. Sept. 13, 2011) (Bowler, Mag. J.); Flores–Powell v. Chadbourne, 677 F.Supp.2d 455 (D.Mass.2010) (Wolf, J.); Sengkeo v. Horgan, 670 F.Supp.2d 116 (D.Mass.2009) (Gertner, J.); see also Zaoui v. Horgan, No. 13–11254–DPW, 2013 WL 5615913, at *4 (D.Mass. Aug. 23, 2013) (Woodlock, J.) (finding against the petitioner, but recognizing the “reasonableness” requirement in § 1226(c)).

No sound reason justifies departure from Bourguignon's analysis. To comply with the constitution's due process requirement, § 1226(c) must be read to include a “reasonableness” limit on the length of time an individual can be detained without an individualized bond hearing.

B. Defining “Reasonableness”

The thornier aspect of this case lies in the definition of “reasonableness.” Two approaches have emerged. One view, adopted by the Third and Sixth Circuits, requires a “fact-dependent inquiry requiring an assessment of all of the circumstances of any given case,” to determine whether detention without an individualized hearing is unreasonable. Diop, 656 F.3d at 234 (3d Cir.2011); see also Ly v. Hansen, 351 F.3d 263, 272 (6th Cir.2003). This approach requires each detainee to file a habeas petition challenging his or her detention. If a federal court believes the detention crosses the reasonableness threshold, then the individual is subsequently entitled to a bond hearing.

The other approach, one...