Valdez v. Terry

• Decision Date: 18 April 2012
• Docket Number: No. CV 11–0897 JP/LAM.,CV 11–0897 JP/LAM.
• Citation: 874 F.Supp.2d 1262
• Parties: Sebastian Melero VALDEZ, Petitioner, v. Ray TERRY, Warden, Respondent.
• Court: U.S. District Court — District of New Mexico

874 F.Supp.2d 1262

Sebastian Melero VALDEZ, Petitioner,

v.Ray TERRY, Warden, Respondent.

No. CV 11–0897 JP/LAM.

United States District Court,

D. New Mexico.

April 18, 2012.

Amber Lea Weeks, Olsi Vrapi, Noble & Vrapi, PA, Albuquerque, NM, for Petitioner.

Ravi Sinha, United States Attorney's Office, Las Cruces, NM, for Respondent.

ORDER ADOPTING PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

JAMES A. PARKER, Senior District Judge.

THIS MATTER is before the Court on the Magistrate Judge's Proposed Findings and Recommended Disposition (Doc. 14) (hereinafter “PF & RD”), filed on February 2, 2012. The United States filed objections to the PF & RD on February 14, 2012 [ Doc. 15,] and Petitioner filed objections to the PF & RD on February 16, 2012 [ Doc. 16.] On March 1, 2012, Petitioner filed a response to the United States' objections. [ Doc. 17 ] No response to Petitioner's objections has been filed and the deadline for doing so has passed. The Court has reviewed the PF & RD, the parties' respective objections to the PF & RD, and Petitioner's response to the United States' objections, and finds that the objections are without merit. Accordingly, the Court will: (1) overrule the United States' and Petitioner's objections; (2) adopt the PF & RD; (3) grant Petitioner's Petition For Writ Of Habeas Corpus And Immediate Release From Custody(Doc. 1); and (4) enter a judgment dismissing this case with prejudice.

Background

As explained in the PF & RD, § 1226(a) governs the detention of an alien pending a decision on whether the alien is to be removed from the United States, and provides that the Attorney General may release the alien on bond or conditional parole if he or she does not pose a danger to the community and is not a flight risk. 8 C.F.R. § 236.1(c)(8). Section 1226(c)(1), however, mandates detention of specified criminal aliens pending a decision on their removal without an opportunity for a bond hearing before an immigration judge, including those who are deportable for having committed offenses under § 1227(a)(2)(A)(ii).¹Section 1226(c) states that “[t]he Attorney General shall take into custody [specific criminal aliens] ... 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.” In the PF & RD, the Magistrate Judge found that Petitioner is not subject to mandatory detention under § 1226(c)because he was not detained immediately upon his release on probation. [ Doc. 14 at 10].

United States' Objections

A. Rejection of the Holding of Matter of Rojas

The United States' first objection to the PF & RD is that the Magistrate Judge erred by declining to follow the Board of Immigration Appeals' (hereinafter “BIA”) decision in Matter of Rojas, 23 I. & N. Dec. 117 (BIA 2001), which held that Immigration and Custom Enforcement (hereinafter “ICE”) does not have to detain a person immediately after release from criminal custody in order for mandatory detention under § 1226(c) to apply [ Doc. 15 at 3–13]. As the Magistrate Judge pointed out, neither this Court nor the Tenth Circuit Court of Appeals has addressed whether the mandatory detention provision of § 1226(c) should apply to an alien who was not taken into custody immediately upon release. [ Doc. 14 at 6]. In its objections, the United States contends that the Magistrate Judge's recommendation is not in line “with an ever-growing number of district courts that correctly defer to the [BIA's construction of the statute],” and that “[c]ourts nationwide have dealt with this issue and have repeatedly, though not unerringly, found that Matter of Rojas is entitled to Chevron deference.” Id. at 1–2.

These statements are misleading in that they fail to acknowledge, as the Magistrate Judge pointed out, that the majority of federal district courts that have ruled on this issue have agreed that the language “when the alien is released” in § 1226(c) unambiguously means immediately after their release and have rejected the BIA's interpretation of § 1226(c) in Matter of Rojas. See [ Doc. 14 at 6–8] (citing Louisaire v. Muller, 758 F.Supp.2d 229, 236 (S.D.N.Y.2010) (“Matter of Rojas, however, is wrong as a matter of law and contrary to the plain language of the statute. The clear purpose of § 1226(c)(1) is to authorize the mandatory detention of immigrants who have committed offenses enumerated within § 1226(c)(1)(A)-(D)immediately upon their release from criminal sentences for those same offenses, even if they are still serving part of their sentence ... under parole, supervised release, or probation.”) (citations and internal quotation marks omitted); Khodr v. Adduci, 697 F.Supp.2d 774, 774–75 (E.D.Mich.2010) (finding that because § 1226(c) “clearly and unambiguously requires the Attorney General to take into custody certain aliens without delay in order to make applicable the mandatory detention provisions of 8 U.S.C. § 1226(c), the Court does not defer to the Board of Immigration Appeals' decision to the contrary in Matter of Rojas ”); Scarlett v. Dept. of Homeland Sec., ICE, 632 F.Supp.2d 214, 219 (W.D.N.Y.2009) (holding that § 1226(c) does not apply because the petitioner was not taken into immigration custody until more than eighteen months from the time of his release from incarceration on the underlying criminal charges); Waffi v. Loiselle, 527 F.Supp.2d 480, 488 (E.D.Va.2007) (finding that § 1226(c) does not apply to an alien who was taken into immigration custody over a month after his release from state custody); Quezada–Bucio v. Ridge, 317 F.Supp.2d 1221, 1231 (W.D.Wash.2004) (“[T]he Court agrees ... that the mandatory detention statute, [§ 1226(c) ], does not apply to aliens who have been taken into immigration custody several months or several years after they have been released from state custody.”) (footnote omitted); Parfait v. Holder, Civil No. 11–4877(DMC), 2011 WL 4829391 at *6 (D.N.J. Oct.11, 2011) (unpublished) (holding that because “taking the alien into custody more than two and one-half years after the alien is released does not fall within the command to take the alien into custody when the alien is released, the BIA's interpretation is contrary to the plain meaning of the statute”); Beckford v. Aviles, Civil Action No. 10–2035(JLL), 2011 WL 3515933 at *7–9 (D.N.J. Aug. 9, 2011) (unpublished) (rejecting reasoning of Matter of Rojas and finding that the phrase “when the alien is released” is unambiguous and held that an alien who was taken into immigration custody nearly three years after he was released from incarceration was not subject to mandatory detention under § 1226(c)(1)); Keo v. Lucero, No. 1:11cv614, 2011 WL 2746182 *3–5 (E.D.Va. July 13, 2011) (unpublished) (holding that § 1226(c) does not apply when alien was released from incarceration eight years prior to being detained for removal proceedings); Sylvain v. Holder, Civil No. 11–3006(JAP), 2011 WL 2580506 at *7 (D.N.J. June 28, 2011) (unpublished) (holding that § 1226(c) does not apply when alien was released from incarceration four years prior to being detained for removal proceedings); Dang v. Lowe, Civil No. 1:CV10–0446, 2010 WL 2044634 (M.D.Pa. May 20, 2010) (unpublished) (same interpretation of § 1226(c)); Bromfield v. Clark, No. C06–757RSM, 2007 WL 527511 at *4–5 (W.D.Wash. Feb. 14, 2007) (unpublished); Boonkue v. Ridge, No. CV 04–566–PA, 2004 WL 1146525 at *2 (D.Or. May 7, 2004) (unpublished)).

The United States' assertion that “an ever-growing number of district courts that correctly” have deferred to the BIA's construction of § 1226(c) is misleading because: (1) the number of cases that have rejected the BIA's interpretation of § 1226(c) is also growing; (2) there are published decisions rejecting the BIA's interpretation of the statute, while the cases deferring to it are only unpublished; and (3) the cases on both sides are equally recent. Moreover, as both the Magistrate Judge and the court in Beckford have noted, the majority of district courts that have ruled on the issue have rejected the holding of Matter of Rojas.See [ Doc. 14 at 6] and Beckford, 2011 WL 3515933 at *8 (“[M]ost District Courts considering the issue have rejected the BIA's interpretation of § 1226(c)(1) in Matter of Rojas.”) (citations omitted).

Nevertheless, regardless of how many district courts have followed or rejected the BIA's decision in Matter of Rojas, those decisions are not binding on this Court and the Court agrees with the Magistrate Judge that the mandatory detention provision in § 1226(c) does not apply to Petitioner. The Court agrees with the Magistrate Judge that § 1226(c) is not ambiguous and the word “when” in the context of release from custody means immediately upon release. As the Magistrate Judge explained, if the term “when the alien is released” means that the Attorney General shall take into custody any aliens who have committed offenses enumerated within § 1226(c)(1)(A)-(D) without regard to the timing of that alien's release from custody, then the phrase “when the alien is released” becomes meaningless surplusage. See [ Doc. 14 at 9]. The Court finds that this interpretation of § 1226(c) comports with the Congressional intent behind the statute to prevent problems locating criminal aliens for deportation after their release, because, if those aliens are immediately detained, they pose no flight risk and the intent behind mandatory detention is attained. See [ Doc. 15 at 4–5] (citing Demore v. Kim, 538 U.S. 510, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003)). This interpretation further comports with the Congressional intent to detain the most dangerous criminals because their immediate detention provides more protection to the community. See Demore, 538 U.S. at 531, 123 S.Ct. 1708 (“[T]he justification for 8 U.S.C. § 1226(c) is based upon the Government's concerns over the risks of flight and danger to the...