Rodriguez v. Shanahan

• Decision Date: 30 January 2015
• Docket Number: No. 14–CV–09838 SN.,14–CV–09838 SN.
• Citation: 84 F.Supp.3d 251
• Parties: Ramon RODRIGUEZ, Petitioner, v. Christopher SHANAHAN, in his official capacity as New York Field Office Director for U.S. Immigration and Customs Enforcement, et al., Respondents.
• Court: U.S. District Court — Southern District of New York

84 F.Supp.3d 251

Ramon RODRIGUEZ, Petitioner

v.Christopher SHANAHAN, in his official capacity as New York Field Office Director for U.S. Immigration and Customs Enforcement, et al., Respondents.

No. 14–CV–09838 SN.

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

Signed Jan. 30, 2015.

Nancy Babette Morawetz, Washington Square Legal Services, Inc., New York, NY, for Petitioner.

Shane Patrick Cargo, U.S. Attorney Office, New York, NY, for Respondents.

ORDER AND OPINION

SARAH NETBURN, United States Magistrate Judge.

In Section 236(c) of the Immigration and Nationality Act (“INA”), Congress directed the Department of Homeland Security (“DHS”) to detain certain criminal non-citizens for the duration of their removal proceedings without an opportunity for release on bail conditions. The statute provides that DHS shall execute this duty “when [such criminal non-citizens] are released, without regard to whether the alien is released on parole, supervised release, or probation....” 8 U.S.C. § 1226(c)(1). The question presented by this habeas corpus petition, is whether DHS acted within the scope of its authority when it detained petitioner Ramon Rodriguez without providing him a bail hearing seven years after he was “released” from jail.

Because I find that the plain language of the statute prohibits the extraordinary restrictions on Rodriguez's liberty sought by the government, Rodriguez's petition is GRANTED. The government is ordered to provide Rodriguez with a bond hearing, pursuant to Section 236(a), no later than ten days from the date of this Order. If the Immigration Court fails to provide a hearing within ten days, respondents shall release Rodriguez from custody.

BACKGROUND

I. Factual and Removal Proceedings Background

Rodriguez is a 32 year-old native of the Dominican Republic who came to the United States in November 1989 at the age of seven and has been a lawful permanent resident (“LPR”) since that time. He grew up in New York City and has worked there as an adult. Rodriguez has a network of family and friends in the New York area, including his LPR father and his U.S. citizen sisters. (Pet. Ex. A: Jiminez Aff.; Pet. Ex. B: Ramirez Aff.; Pet. Ex. C: Rodriguez Aff.)

On August 23, 2006, at the age of 24, Rodriguez was arrested and, on April 23, 2007, pled guilty to attempted criminal possession of a controlled substance. (Pet. Ex. F: Certificate of Disposition, Case No. 2006 N.Y. 057128.) He was sentenced to five years of probation. (Id. ) On October 31, 2007, he was arrested again and, on November 1, 2007, pled guilty to possession of marijuana, for which he served a custodial sentence of five days. (Pet. Ex. G: Certificate of Disposition, Case No. 2007 N.Y. 082624). Thereafter, he completed a rehabilitation program, obtained his GED, and began taking classes at City University of New York Kingsborough Community College. (Pet. Ex. H: Proof of Completion of NRI Outpatient Program; Pet. Ex. I: GED Certificate; Pet. Ex. J: Kingsborough Community College Transcript, Fall and Spring 2010.)

On September 26, 2014, Rodriguez was apprehended by Immigration and Customs Enforcement (“ICE”) while he was submitting a job application at a local supermarket and served with a Notice to Appear (“NTA”), the charging document used to commence removal proceedings. (Pet. Ex. D: Lopez Decl.; Pet. Ex. E: Gomez Decl.; Pet. Ex. K: NTA.) The NTA alleged that Rodriguez was admitted to the United States as an LPR but his controlled substance convictions render him removable under INA § 237(a)(2)(B)(i) and subject him to mandatory detention without bond for the pendency of his removal proceedings. (Id. )

On December 1, 2014, Rodriguez's attorney submitted a motion for a bond determination before an Immigration Judge (“IJ”). The IJ denied the request finding that Rodriguez was subject to mandatory detention without bond pursuant to INA § 236(c). (Resp. Ex. 5: Order of IJ with Respect to Custody.) The IJ scheduled a master calendar hearing for February 23, 2015, to discuss a schedule to address Rodriguez's anticipated petition for cancellation of removal.

II. Habeas Corpus Petition Background

On December 12, 2014, Rodriguez filed this petition for writ of habeas corpus. On December 29, 2014, the government filed their response in opposition to Rodriguez's writ. On January 5, 2015, Rodriguez filed a reply memorandum in support of his petition. The Court heard oral argument in the matter on January 14, 2015. The parties consented to the Court's jurisdiction of this case, pursuant to 28 U.S.C. § 636(c).

DISCUSSION

I. Jurisdiction

The Court has subject matter jurisdiction to review Rodriguez's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241(c)(3). See, e.g., Lora v. Shanahan, 15 F.Supp.3d 478, 482 (S.D.N.Y.2014) ; Louisaire v. Muller, 758 F.Supp.2d 229, 234 (S.D.N.Y.2010). The INA precludes judicial review of DHS's discretionary judgment regarding a non-citizen's detention or release. 8 U.S.C. § 1226(e). But the statute does not preclude courts from conducting habeas review based on an interpretation of the statutory framework governing immigration detention. Demore v. Kim, 538 U.S. 510, 517, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003). See also Henderson v. I.N.S., 157 F.3d 106, 119–22 (2d Cir.1998) (habeas review extends to statutory questions in the context of immigration removal proceedings).

II. Immigration Detention under INA § 236

A. Discretionary and Mandatory Immigration Detention During Removal Proceedings

The INA provides for two types of immigration detention during the pendency of removal proceedings.¹ While the “proceedings are in progress, most aliens may be released on bond or paroled.” Zadvydas v. Davis, 533 U.S. 678, 683, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) (citing 8 U.S.C. § 1226 ).

First, Section 236(a) provides for the general immigration detention, “except as provided in subsection (c),” of non-citizens in removal proceedings. DHS has discretion over whether to detain or release non-citizens and, under this subsection, must provide all non-citizens an individualized bond hearing. 8 U.S.C. § 1226(a). At the bond hearing, the IJ must determine whether the non-citizen's release would endanger other persons or property and whether he is likely to appear for future proceedings. See Castaneda v. Souza, 769 F.3d 32, 36–37 (1st Cir.2014) (“Castaneda I ”) (citing 8 C.F.R. § 1236.1 ). See also Matter of Patel, 15 I. & N. Dec. 666, 666 (B.I.A.1976) (A non-citizen “generally is not and should not be detained or required to post bond except on a finding that he is a threat to the national security, ... or that he is a poor bail risk.”) (citations omitted). To determine if a non-citizen poses a danger to the community or a flight risk, an IJ may consider the non-citizen's “stable employment history, the length of residence in the community, the existence of family ties,” Matter of Andrade, 19 I. & N. Dec. 488, 489 (B.I.A.1987), and any “criminal record, including ... the recency of such activity.” In re Guerra, 24 I. & N. Dec. 37, 40 (B.I.A.2006). See generally Matter of Urena, 25 I. & N. Dec. 140 (B.I.A.2009). If the IJ grants a non-citizen's release, the IJ can revoke it “at any time [at her] discretion.” 8 C.F.R. § 1236.1(c)(9).

Second, Section 236(c) carves out an exception to Section 236(a)'s general immigration detention and provides for the mandatory detention, without an individualized bond hearing, of a narrow category of criminal non-citizens. 8 U.S.C. § 1226(c). Paragraph (1) of Section 236(c) provides in relevant part that:

The Attorney General shall take into custody any alien who [is inadmissible or deportable by reason of having committed a qualifying offense under § 236(c)(1)(A)–(D) ] when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense.

8 U.S.C. § 1226(c)(1) (emphasis supplied).² The predicate crimes listed in Section 236(c)(1)(A)–(D) include aggravated felonies, crimes of moral turpitude, certain firearm offenses, violations of law relating to controlled substances, and various others. See Castaneda I, 769 F.3d at 37 (citing 8 U.S.C. § 1226(c)(1)(A)–(D) ). Paragraph (2) of Section 236 provides that DHS “may release” a non-citizen described in paragraph (1) in certain limited circumstances (not relevant here). 8 U.S.C. § 1226(c)(2). The Supreme Court has upheld the constitutionality of Section 236(c)'s mandatory detention scheme against a facial challenge. Demore, 538 U.S. at 513, 123 S.Ct. 1708 (concluding that the narrow subset of non-citizens detained under Section 236(c) may constitutionally be detained without an individual hearing “for the brief period necessary for their removal proceedings”).

B. Matter of Rojas, 23 I. & N. Dec. 117 (BIA, 2001)

In Matter of Rojas, the Board of Immigration Appeals (“BIA”) considered whether the phrase “when the alien is released” was necessary in identifying who was subject to mandatory detention. 23 I. & N. Dec. 117, 119 (BIA, 2001). As discussed above, paragraph (1) of Section 236(c) provides that DHS “shall take into custody” a non-citizen who has committed certain offenses “when the alien is released.” Paragraph (2) provides that “an alien described in paragraph (1)” is subject to mandatory detention unless certain exceptions apply (not relevant here). Rojas was taken into DHS custody two days after he was released from state custody for a crime rendering him subject to mandatory detention. He challenged his mandatory detention, arguing that “an alien described in paragraph (1)” encompassed non-citizens convicted of certain crimes and who had been detained “when ... released” from criminal custody. Because he was not immediately detained from state custody, he argued that he did not fit the statutory definition.

The BIA rejected this argument. It concluded that “an alien described in paragraph (1)” references only a...