Sutherland v. Shanahan

• Decision Date: 05 June 2015
• Docket Number: No. 15–CV–2224 (RLE).,15–CV–2224 (RLE).
• Citation: 108 F.Supp.3d 172
• Parties: David SUTHERLAND, Petitioner, v. Christopher SHANAHAN, et al., Acting New York Field Office Director for U.S. Immigration and Customs Enforcement Respondents.
• Court: U.S. District Court — Southern District of New York

108 F.Supp.3d 172

David SUTHERLAND, Petitioner,

v.Christopher SHANAHAN, et al., Acting New York Field Office Director for U.S. Immigration and Customs Enforcement Respondents.

No. 15–CV–2224 (RLE).

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

Signed June 5, 2015.

OPINION & ORDER

RONALD L. ELLIS, United States Magistrate Judge.

I. INTRODUCTION

Petitioner David Sutherland seeks a writ of habeas corpus under 28 U.S.C. § 2241. (Doc. No. 1) On July 25, 2014, the United States Department of Homeland Security ("DHS") Bureau of Immigration and Customs Enforcement ("ICE") detained Sutherland pursuant to Section 236(c) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1226(c), which mandates that ICE detain without bond certain categories of criminal noncitizens pending the outcome of their removal proceedings. (Doc. No. 14–6) Sutherland has now been detained for approximately ten months. He argues that he is not properly subject to mandatory detention without a bond hearing, and that he has been deprived of his liberty without due process of law in violation of the Fifth Amendment to the United States Constitution. (Doc. No. 1) The Parties consented to the jurisdiction of the undersigned on March 30, 2015, pursuant to 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. (Doc. No. 7) This case requires the Court to interpret the meaning of the phrase "when the alien is released" within the statutory framework of the INA. For the reasons which follow, the Court finds that Sutherland is not properly subject to mandatory detention. Sutherland's Petition is GRANTED and the government is directed to provide Sutherland with an individualized bond hearing by June 15, 2015.

II. BACKGROUND

Sutherland came to the United States from Trinidad and Tobago in 1980 at the age of fifteen. (Doc. No. 1 at 4.) Now fifty years old, he has been a legal permanent resident for thirty-five years. (Id. at 8.) Sutherland acquired a master barber's license in 1999 and opened a barbershop in Staten Island, New York, that he has relied upon to support his family since. (Id., Ex. A–B) At the time of his ICE arrest, Sutherland was living with and fully supporting his fiancée, her two children, and two children they have together. (Id. at 9.) Sutherland is a grandfather of eight children and a father of ten, many of whom are now adults living in his neighborhood. (Id. at 8.)

Before he was detained, Sutherland's barbershop was the primary source of income for his family. Since he was arrested, Sutherland's fiancée has had to find employment, and she and the children have had to move from their home as she can no longer afford to pay the rent. (Id. at 10.) In Sutherland's absence, his eleven-year-old daughter has suffered a ruptured appendix

. She subsequently remained hospitalized for two weeks because of an E. coli infection. (Doc. No. 17) As of May 4, 2015, the child had missed a month of school and was due to return to the hospital for surgery later in the month. (Id. ) Sutherland's ten-year-old daughter has behavioral and learning disabilities that have progressively worsened during his detention. In her father's absence and without his ability to calm her, she has begun hitting her head against walls and hallucinating people who belittle her. (Id., Ex C.)

A. Sutherland's Criminal History

In 2007, Sutherland was convicted of two drug-related misdemeanors. (Doc. No. 14–3 at 9, 10.) On October 22, 2007, Sutherland pled guilty to criminal possession of marijuana under NYPL § 221.10. (Id. at 10.) On December 14, 2007, he pled guilty to criminal possession of marijuana under NYPL § 221.15. (Id. at 9.) Sutherland was released on his own recognizance after each underlying arrest, and he was ultimately sentenced to one-year conditional discharges for each conviction.¹ (Id. at 9, 10.) Sutherland was not incarcerated or otherwise held in physical custody after his convictions.²

B. Sutherland's ICE Detention and Removal Proceedings

On the morning of July 25, 2014, approximately six and one-half years after his 2007 convictions, ICE agents went to Sutherland's apartment and arrested him in front of his fiancee and children. (Doc. No. 14–2 at 2; Doc. No. 11) ICE charged Sutherland with being subject to removal pursuant to § 237(a)(2)(B)(i) of the INA for having committed an offense involving a controlled substance. (Doc. No. 14–2; Doc. No. 14–5)

Sutherland faces removal proceedings which have not yet been scheduled. He has had several hearings since his arrest, but he did not have legal counsel for the first five months of his detainment. (Doc. No. 1 at 10.) On March 24, 2015, Sutherland's counsel requested a bond hearing before Immigration Judge ("IJ") Alan Page. (Id. ) IJ Page "ruled that Sutherland's case was controlled by INA § 236(c), 8 U.S.C. § 1226(c), and that Sutherland was therefore not eligible for bond." (Doc. No. 16–1 at 2.)

C. Sutherland's Federal Habeas Corpus Petition

Sutherland filed his Petition on March 24, 2015: the same day that IJ Page determined he was ineligible for bond. (Doc. No. 1) Sutherland seeks an order, inter alia, directing ICE to release him "immediately on his own recognizance or under parole, bond, or reasonable conditions of supervision, or, in the alternative, ordering [ICE] to provide [him] with a constitutionally adequate, individualized hearing before an impartial adjudicator" pursuant to 8 U.S.C. § 1226(c).

Sutherland argues that he does not fall within the limited class of persons who are subject to mandatory detention "when ... released" under 8 U.S.C. § 1226(c) because: 1) the "when ... released" clause requires an individual to have been subject to post-conviction physical custody; and 2) the "when ... released" clause requires ICE to arrest and detain individuals "immediately after" or "at the time of" their release. (Doc. No. 1) Because he was neither subject to postconviction physical custody nor arrested and detained by ICE at the time of his 2007 convictions, Sutherland argues that he is eligible for a bond hearing under 8 U.S.C. § 1226(a). He further argues that his continued detention without an individualized hearing violates his due process rights. (Id. )

The government filed its opposition to the Petition on April 23, 2015, and Sutherland filed a reply on April 30, 2015. The Court has reviewed and considered these and other submissions from the Parties.

III. JURISDICTION

This Court has subject matter jurisdiction over Sutherland's petition pursuant to 28 U.S.C. § 2241(c)(3). See, e.g., Reynoso v. Aviles,

87 F.Supp.3d 549, 551–52, No. 14–CV–9482 (PAE), 2015 WL 500182, at *2 (S.D.N.Y. Feb. 5, 2015) ; Cruz v. Shanahan, 84 F.Supp.3d 267, 268–69, No. 14–CV–9736 (VEC), 2015 WL 409225, at *1 (S.D.N.Y. Jan. 30, 2015) ; Martinez–Done v. McConnell, 56 F.Supp.3d 535, 540–42 (S.D.N.Y.2014) ; Araujo–Cortes v. Shanahan, 35 F.Supp.3d 533, 537 (S.D.N.Y.2014) ; Lora v. Shanahan, 15 F.Supp.3d 478, 482 (S.D.N.Y.2014) ; Straker v. Jones, 986 F.Supp.2d 345, 350 (S.D.N.Y.2013). Although the INA precludes judicial review of the Attorney General's discretionary judgments regarding the detention and release of noncitizens, see § 1226(e), the United States Supreme Court has held that the INA "does not deprive the federal courts of jurisdiction to grant habeas relief to aliens challenging their detention under § 1226(c)." Demore v. Kim, 538 U.S. 510, 511, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003). The government does not dispute this Court's jurisdiction over Sutherland's Petition. (Doc. No. 15)

IV. APPLICABLE LAW

A. 8 U.S.C. § 1226 ; INA Section 236

8 U.S.C. § 1226 regulates the detention of noncitizens who are facing removal because of past criminal convictions. 8 U.S.C. § 1226 ; INA Section 236. Section 1226(a) describes the overall framework for detention, authorizing the Attorney General to arrest and detain noncitizens "pending a decision on whether the alien is to be removed from the United States." See id. Section 1226(a) also provides for individualized review of detention decisions and dictates that noncitizens may be released on bond or on conditional parole while they await removal proceedings. See id. Section 1226(c) creates an exception to this default structure and sets forth a class of noncitizens who are ineligible for individualized review because they have been convicted of certain enumerated offenses. See id. These individuals are subject to mandatory detention while they await removal proceedings. See id.

Section 1226(c) states:

The Attorney General shall take into custody an alien who [has been convicted of the offenses enumerated herein] 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.

Id.

"The mandatory detention provision does not reflect a general policy in favor of detention; instead, it outlines specific, serious circumstances under which the ordinary procedures for release on bond at the discretion of the immigration judge should not apply." Lora, 15 F.Supp.3d at 483 (quoting Saysana v. Gillen, 590 F.3d 7, 17 (1st Cir.2009) ). At the time Congress enacted the mandatory detention provision, it was faced with "INS's near-total inability to remove deportable criminal aliens" and was "concerned with evidence that deportable criminal aliens who are not detained continue to engage in crime and fail to appear for their removal hearings in large numbers." Demore, 538 U.S. at 511, 123 S.Ct. 1708. In efforts to reduce recidivism and facilitate the removal of those most likely to flee, Congress enacted the mandatory detention provision. Lora, 15 F.Supp.3d at 483.

B. Statutory Interpretation

Questions of statutory interpretation require the Court to "begin with the text of the statute to determine whether the language at issue has a plain and unambiguous meaning." Louis Vuitton Malletier S.A. v. LY USA, Inc., 676 F.3d 83, 108 (2d Cir.2012) (citations omitted)....