Young v. Aviles, 14-CV-9531 (JMF)
| Decision Date | 26 March 2015 |
| Docket Number | 14-CV-9531 (JMF) |
| Parties | ALBERT OMAR YOUNG, Petitioner, v. OSCAR AVILES, et al., Respondents. |
| Court | U.S. District Court — Southern District of New York |
This case presents a question that remains unresolved by the United States Court of Appeals for the Second Circuit and has divided the district courts in this Circuit: whether the mandatory detention provision of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1226(c) ("Section 1226(c)"), applies where, as a here, an alien is convicted of an otherwise qualifying offense but is not detained by the immigration authorities immediately upon his or her release from criminal custody. Petitioner Albert Omar Young petitions for the writ of habeas corpus, pursuant to Title 28, United States Code, Section 2241, arguing that he is entitled — either under the INA or as a matter of due process — to an individualized bail determination. Siding with those courts that have held that Section 1226(c) applies without regard for whether an alien is detained immediately upon his or her release from criminal custody, the Court concludes that Young is not entitled to an individualized bail determination, at least not yet. Accordingly, and for the reasons explained below, it denies Young's petition without prejudice to a renewed petition if or when his detention becomes unreasonably prolonged.
The relevant facts are largely undisputed and can be stated briefly. Young is a citizen of Jamaica and permanent resident of the United States. (Am. Verified Pet. (Docket No. 7) ("Pet.") ¶ 1). In October 2013, while driving in Maryland, he was stopped and found to be in possession of approximately twenty pounds of marijuana. (Pet. ¶ 2; Pet'r's Reply Resp't's Opp'n Writ Habeas Corpus (Docket No. 13) ("Petr'r's Ex."), Ex. D. at 28; Govt.'s Return (Docket No. 9) ("Govt.'s Ex."), Ex. B at 8-10).1 As a result of that conduct, he later pleaded guilty to possession with intent to distribute a controlled substance, a felony under Maryland law, and was sentenced to ninety days in jail, with credit for time served. (Govt.'s Ex. B at 1-2, 5; Petr'r's Ex. D. at 26-27). On April 26, 2014, Maryland released Young, but he did not remain at liberty for long. On August 28, 2014, approximately four months after his release from Maryland custody, Young was once again taken into custody — this time by immigration officials who had initiated removal proceedings against him based on his conviction. (Pet. ¶ 5; Govt. Ex. C).
Young remains in federal immigration custody, in New Jersey, having never received a bond hearing. Invoking Section 1226(c), Respondents maintain that Young's Maryland conviction subjects him to mandatory detention for the duration of his immigration proceedings. Young sought a change of custody status from an Immigration Judge ("IJ"), but the IJ rejected that request in December 2014. (Govt.'s Exs. D, E). He has apparently also filed applications for Cancellation of Removal and asylum, and immigration proceedings are ongoing. (Pet'r's Mem. Law Supp. Pet. Writ Habeas Corpus (Docket No. 8) ("Pet'r's Mem.") 5; Petr'r's Ex. G(Docket No. 23)). On December 2, 2014, while temporarily present in this District to attend a hearing in his immigration proceedings, Young filed the present petition. (Docket No. 1).2
Young seeks relief on two primary grounds. First, he contends that because he was not taken into custody by the Department of Homeland Security ("DHS") immediately upon release from Maryland custody, he is not subject to mandatory detention under Section 1226(c), but is instead entitled to a bond hearing under Section 1226(a). (Pet. ¶¶ 23-27; Pet'r's Mem. 7-17). Second, he argues that his continued detention violates the Due Process Clause given both the gap between when he was released by Maryland officials and when he was detained by immigration officials and the total length of time that he has spent in DHS custody. (Pet. ¶¶ 28-30; Pet'r's Mem. 17-20). The Court begins with Young's statutory arguments before turning to his constitutional claims.
When an alien is arrested and detained pending a decision on removal, DHS generally has the discretion to release him on bond. See 8 U.S.C. § 1226(a).3 DHS has no discretion,however, to release aliens who have committed certain enumerated offenses. See id. § 1226(c). Instead, under Section 1226(c)(1), DHS "shall take into custody any alien who" has committed certain offenses enumerated in Sections 1226(c)(1)(A) through (c)(1)(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." Id. § 1226(c)(1). Section 1226(c)(2) does grant DHS authority to "release an alien described in paragraph [c](1)," but only in certain limited circumstances related to the protection of witnesses in criminal cases. Id. §1226(c)(2). The question here — which has long divided courts nationwide — is whether the language in Section 1226(c)(1) requiring DHS to take qualifying aliens into custody "when . . . released" means that an alien who, like Young, is not detained by DHS immediately after his release from criminal custody, is subject to mandatory detention pursuant to Section 1226(c) or entitled to an individualized bond hearing pursuant to Section 1226(a). See Straker v. Jones, 986 F. Supp. 2d 345, 352-53 (S.D.N.Y. 2013) ().
Significantly, the Court does not confront that question on a blank slate. Separate and apart from the many courts that have weighed in on the question, the Board of Immigration Appeals ("BIA") has held that the "when released" clause of Section 1226(c) "create[s] a pre-condition for DHS to exercise its mandatory detention authority," and does not "set[] a deadline for its use." Id. at 352 (citing In re Rojas, 23 I & N Dec. 117 (BIA 2001)). In Rojas, the BIA concluded that the "when released" clause does in fact "direct [DHS] to take custody of aliens immediately upon their release from criminal confinement." 23 I & N Dec. at 122. But lookingat the language of Section 1226(c)(2) (), and relying on the statute's text and context, the BIA concluded that the "when released" language merely "impose[s] a duty on [DHS] to assume the custody of certain criminal aliens and specifie[s] the point in time at which that duty arises." Id. at 121 (). Further, that "duty to detain is not affected by the character of an alien's release from criminal incarceration or the possibility that an alien may be rearrested on criminal charges." Id. "In other words, the 'when released' clause is irrelevant for all other immigration purposes," including an alien's eligibility for a bond hearing. Id. at 122.
It is well established that the BIA is entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). See, e.g., Negusie v. Holder, 555 U.S. 511, 516-17 (2009); Lanferman v. Bd. of Immigration Appeals, 576 F.3d 84, 88 (2d Cir. 2009). Thus, the relevant question is not how the Court, if it were writing on a blank slate, would interpret Section 1226(c). Instead, the relevant question — at least in the first instance — is whether the statute is ambiguous. More specifically, under Chevron, the Court must first ask 467 U.S. at 842-43. If, however, "the statute is silent or ambiguous with respect to the specific issue," the Court proceeds to the second step of the Chevron analysis, asking "whether the agency's answer is based on a permissible construction of the statute." Id. at 843. A court may not defer to an interpretation that is "arbitrary, capricious, or manifestly contrary to the statute." Kar Onn Lee v. Holder, 701 F.3d 931, 936 (2d Cir. 2012) (internal quotation marks omitted). But "[i]f the agency interpretation isreasonable, then [a court] must defer to it." Id. (internal quotation marks omitted). This framework "is rooted in a background presumption of congressional intent" and "provides a stable background rule against which Congress can legislate: Statutory ambiguities will be resolved, within the bounds of reasonable interpretation, not by the courts but by the administering agency." City of Arlington v. FCC, 133 S. Ct. 1863, 1868 (2013); see Negusie, 555 U.S. at 517 ().
Applying that analysis here, the Court agrees with Respondents that the BIA's interpretation is entitled to deference.4 As an initial matter, the Court concludes that Section 1226(c) is, at a minimum, ambiguous. On the one hand, "'when' can include the characteristic of immediacy, referring in its primary conjunctive sense, to action or activity occurring at the time that or as soon as other action has ceased or begun." Sulayao v. Shanahan, No. 09-CV-7347 (PKC), 2009 WL 3003188, at *4 (S.D.N.Y. Sept. 15, 2009) (internal quotation marks omitted). But "'[w]hen' can also mean 'at or during the time that.'" Id. (quoting Concise Oxford English Dictionary (11th ed. 2008)). Or, as Judge Engelmayer recently explained, ...
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