Scarlett v. U.S. Dept. of Homeland Sec.

• Decision Date: 10 July 2009
• Docket Number: No. 08-CV-534.,08-CV-534.
• Citation: 632 F.Supp.2d 214
• Parties: Errol Barrington SCARLETT, Petitioner, v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT, et al., Respondents.
• Court: U.S. District Court — Western District of New York

632 F.Supp.2d 214

Errol Barrington SCARLETT, Petitioner, v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT, et al., Respondents.

No. 08-CV-534.

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

July 10, 2009.

Jeremi L. Chylinski, Lorie E. Almon, Seyfarth Shaw LLP, New York, NY, for Petitioner.

Gail Y. Mitchell, U.S. Attorney's Office, Buffalo, NY, Judy Rabinovitz, Michael Tan, American Civil Liberties Union Foundation Immigrants' R, Arthur Eisenberg, New York Civil Liberties Union, New York, NY, for Respondents.

ORDER

RICHARD J. ARCARA, Chief Judge.

This case was referred to Magistrate Judge H. Kenneth Schroeder, Jr. pursuant to 28 U.S.C. § 636(b)(1), on October 27, 2008. On July 22, 2008, petitioner filed a petition for writ of habeas corpus. On May 12, 2009, 2009 WL 1322303, Magistrate Judge Schroeder filed a Report and Recommendation, recommending that the writ be granted unless the respondents afford petitioner a hearing, within 30 days of the Order adopting the Report and Recommendation, before an Immigration Judge with the power to grant him bail unless the government establishes that petitioner is a flight risk or a danger to the community.

Both petitioner and respondents filed objections to the Report and Recommendation on June 5, 2009 and petitioner filed a response thereto. Oral argument on the objections was held on July 8, 2009.¹

Pursuant to 28 U.S.C. § 636(b)(1), this Court must make a de novo determination of those portions of the Report and Recommendation to which objections have been made. Upon a de novo review of the Report and Recommendation, and after reviewing the submissions and hearing argument from the parties, the Court modifies only that part of the Report and Recommendation setting forth the time after which the petition would be granted. The hearing in question should occur within 60 days, not 30 days. The Court otherwise adopts the proposed findings of the Report and Recommendation.

Accordingly, for the reasons set forth in Magistrate Judge Schroeder's Report and Recommendation, the petition is granted conditionally. A writ of habeas corpus will issue unless the respondents afford petitioner a hearing within 60 days of the entry of this Order. The Clerk of Court shall take all steps necessary to close the case.

IT IS SO ORDERED.

REPORT, RECOMMENDATION AND ORDER

H. KENNETH SCHROEDER, JR., United States Magistrate Judge.

This matter was referred to the undersigned by the Hon. Richard J. Arcara, in accordance with 28 U.S.C. § 636(b), for all pretrial matters and to hear and report upon dispositive motions. Dkt. # 10.

Petitioner commenced this action pro se, challenging his detention by the Department of Homeland Security ("DHS"), Bureau of Immigration and Custom Enforcement ("ICE"), since November 25, 2004. Dkt. # 1. Although the Court construes plaintiff's complaint as brought pursuant to 28 U.S.C. § 2241 (Dkt. # 3), petitioner urges the Court to regard his case as seeking "a temporary restraining order in junction [sic] relief." Dkt. # 5.

The Respondent notes that the proper respondent is Martin Heron, Assistant Field Office Director for the Buffalo Federal Detention Facility. Dkt. # 7, p. 1 n. 1. The Respondent opposes the petition on the ground that petitioner's detention is lawful pursuant to 8 U.S.C. § 1231(a)(1)(B)(i). Dkt. # 8, p. 2. The Respondent argues that the only obstacle to petitioner's immediate release from detention is his continued challenge to the removal order. Dkt. # 8, p. 3.

The American Civil Liberties Union and the New York Civil Liberties Union submitted an amici curiae brief arguing that petitioner's detention of more than five years without independent review violates his constitutional right to due process. Dkt. # 13. Rather than address the constitutional issue directly, amici urge the Court to interpret 8 U.S.C. § 1226(c) to "authoriz[e] detention only for the period of time reasonably necessary to conclude removal proceedings, and as authorizing prolonged detention only when accompanied by procedural safeguards." Dkt. # 13, p. 11. Amici also argue that petitioner's detention pursuant to 8 U.S.C. § 1226(c) is improper, because petitioner was not detained upon his release from incarceration on the underlying charges. Dkt. # 13, pp. 19-21. Instead, amici argue that petitioner is being detained pursuant to 8 U.S.C. § 1226(a), which requires an individualized bond hearing. Dkt. # 13, pp. 19-21. Under either statute, amici seek an order directing the Respondent "either to release [petitioner] immediately under reasonable conditions of supervision or to provide him with a constitutionally adequate custody hearing." Dkt. # 13, p. 11.

BACKGROUND

Petitioner is a native and citizen of Jamaica, who entered the United States as an immigrant on October 29, 1976, at the age of 20. Dkt. # 7, ¶ 2; Dkt. # 13-1, p. 22.

On January 29, 1999, petitioner entered a plea of guilty to the charge of Criminal Possession of a Controlled Substance, Second Degree, in Erie County, New York and was sentenced to a term of imprisonment of 5 years to life. Dkt. # 7, ¶ 3; Dkt. # 7-2, p. 23. He was released from New York state custody on May 28, 2002. Dkt. # 7, ¶ 3.

Removal proceedings were commenced by the issuance of a Notice to Appear dated January 22, 2003, charging petitioner with being subject to removal from the United States pursuant to 8 U.S.C. § 1227(a)(2)(B)(i), as an alien who had been convicted of a controlled substance offense. Dkt. #7, ¶ 4. Petitioner was placed in custody pursuant to a Warrant of Arrest of Alien on November 25, 2003 and transferred to the Federal Detention Center in Oakdale, Louisiana on December 4, 2003. Dkt. #7, ¶ 5; Dkt. # 13-1, p. 17. On January 7, 2004, petitioner was subjected to the additional charge of being an alien convicted of an aggravated felony offense as set forth in 8 U.S.C. § 1227(a)(2)(A)(iii). Dkt. #7, ¶ 6; Dkt. # 13-1, p. 17.

On February 5, 2004, an immigration judge in Oakdale, Louisianna, applying precedent from the Court of Appeals for the Fifth Court, ordered petitioner removed to Jamaica as an aggravated felon. Dkt. # 7, ¶ 7. Petitioner appealed the decision to the Board of Immigration Appeals ("BIA"), which on July 12, 2004 agreed that petitioner's controlled substance conviction constituted an aggravated felony offense. Dkt. #7, ¶¶ 7-8. Specifically, the BIA stated as follows:

The respondent argues that his conviction would not be classified as an aggravated felony in New York which is the convicting jurisdiction. However, there is no dispute that the respondent was convicted of Criminal Possession of a Controlled Substance in the Second Degree which is a class A-II felony. See Matter of Salazar ... (BIA 2002) (holding that we will follow the precedent decisions of the Fifth Circuit in United States v. Hernandez-Avalos, 251 F.3d 505 [(5th Cir.2001)] and United States v. Honojosa-Lopez [Hinojosa-Lopez], 130 F.3d 691 [(5th Cir.1997)] in cases, such as this one, which arise in its jurisdiction). In the Fifth Circuit, a felony drug possession conviction is an aggravated felony as defined in section 101(a)(43)(B) of the Act. Id. Therefore, under the law of the Fifth Circuit, the respondent has been convicted of an aggravated felony. Accordingly, the appeal is dismissed.

Dkt. # 7-2, p. 12.

On August 10, 2004, the Consulate of Jamaica issued a travel document for petitioner. Dkt. # 7, ¶ 9. Petitioner's removal was scheduled for August 26, 2004, but petitioner filed a petition for writ of habeas corpus and motion for emergency stay of removal in the United States District Court for the Eastern District of New York on August 24, 2004. Dkt. # 7, ¶¶ 9-10. The District Court granted petitioner's motion for stay of removal on August 25, 2004. Dkt. #7, ¶ 10.

On February 28, 2005, the District Court for the Eastern District of New York remanded petitioner's claim to the immigration court for a determination of whether petitioner's conviction constituted an aggravated felony pursuant to Aguirre v. I.N.S., 79 F.3d 315 (2d Cir.1996). Dkt. # 7, ¶ 11. If not, the District Court directed the Immigration Judge to provide petitioner with a cancellation of removal hearing pursuant to 8 U.S.C. § 1229b. Dkt. # 7-4, pp. 14-15.

On March 23, 2005, the Department of Homeland Security informed petitioner that it had reviewed his custody status and determined to continue his detention. Dkt. # 7, ¶ 12.

On June 30, 2005, the BIA remanded petitioner's case to the immigration court, which changed venue to New York. Dkt. # 13-3, p. 18. Petitioner is currently detained at the Buffalo Federal Detention Facility.

On January 18, 2006, an immigration judge relied upon forensic laboratory reports to find petitioner subject to removal pursuant to 8 U.S.C. § 1227(a)(2)(B)(i) and ineligible for cancellation of removal. Dkt. # 7, ¶ 13; Dkt. # 13-1, p. 18. Petitioner appealed to the BIA, which dismissed his appeal on May 9, 2006. Dkt. # 7, ¶¶ 13-14. Specifically, the BIA stated:

We disagree with the respondent's argument on appeal that the Immigration Judge erred in finding him ineligible for cancellation of removal by relying on a forensics lab report which the respondent argues does not fall within the permissible documents to establish the existence of a criminal conviction.... The forensics lab report indicated that the respondent's conviction for felony possession of cocaine ... involved cocaine base in excess of 5 grams.... Therefore, the Immigration Judge determined that the respondent had failed to meet his burden of establishing that he was not barred from applying for cancellation of removal inasmuch as he now appeared to fall within an exception to federal law specifying that simple possession of a controlled substance was a misdemeanor; rather, pursuant to 21 U.S.C. § 844(a), a person convicted of possession of a controlled substance which contains an excess of 5 grams of cocaine base is...