Castaneda v. Souza
Filing
29
Judge William G. Young: ORDER entered. MEMORANDUM : The motion to dismiss the habeas petition, ECF No. 6 , was DENIED on June 10, 2013. The petition for writ of habeas corpus, ECF No. 1 , was GRANTED on that same day. Order, June 10, 2013 ECF No. 24. (Paine, Matthew)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
___________________________________
)
)
)
Petitioner,
)
)
v.
)
)
STEVE SOUZA, Superintendent of
)
Bristol County House of Correction,)
)
Respondent.
)
)
LEITICIA CASTANEDA,
CIVIL ACTION
NO. 13-10874-WGY
MEMORANDUM
YOUNG, D.J.
I.
July 3, 2013
INTRODUCTION
In this case, this Court determined that petitioner
Leiticia Castaneda (“Castaneda”) did not fall within the scope
of the mandatory detention provisions set forth at 8 U.S.C.
section 1226(c).
Castaneda, a native and citizen of Brazil,
sought a writ of habeas corpus challenging her detention by U.S.
Immigration and Customs Enforcement (“ICE”) of the U.S.
Department of Homeland Security.
Castaneda claimed that her
detention violated the law and her Fifth Amendment due process
rights because she was being detained without having received an
individualized detention hearing.
No hearing was given because,
ICE claimed, Castaneda was subject to the mandatory detention
1
provisions of Immigration and Nationality Act (“INA”) section
236(c), 8 U.S.C. § 1226(c) (“section 1226(c)”).1
Castaneda
argued she was not subject to these mandatory detention
provisions and thus must be granted an individualized bond
hearing.
Castaneda had been detained at the Bristol County House of
Correction since March 18, 2013.
Steve Souza (“Souza”), as the
superintendent of that facility, was the respondent in this
case.
Souza moved to dismiss the petition for failure to state a
claim.
Because the only issue in dispute in this case was the
legal interpretation of 8 U.S.C. section 1226(c), this Court was
in a position to resolve the merits of this case.
On June 10, 2013, this Court denied Souza’s motion to
dismiss, granted Castaneda’s petition, and ordered that she be
provided with an individualized bond hearing by June 19, 2013.2
Order, ECF No. 24.
The Court also noted that this memorandum
would follow to explicate the reasoning which led to that order.
Id.
1
The Court will refer to this provision by its U.S. Code
section: section 1226(c).
2
This Court notes that the government has complied with its
order by first scheduling a bond hearing for June 17, 2013, and
then by ICE choosing to release Castaneda on her own
recognizance and pursuant to GPS monitoring. See Notice
Release, ECF No. 25.
2
A.
Procedural Posture
Castaneda filed her petition for a writ of habeas corpus on
April 12, 2013.
Pet. Writ Habeas Corpus Pursuant 28 U.S.C.
§ 2241 (“Pet.”), ECF No. 1.
Souza moved to dismiss the case for
failure to state a claim on May 1, 2013.
Resp’t’s Mot. Dismiss,
ECF No. 6; Resp’ts’ Mem. Supp. Mot. Dismiss (“Souza Br.”), ECF
No. 7.
Castaneda filed in opposition to the motion to dismiss
on May 15, 2013.
Pet’r’s Mem. Opp’n Resp’t’s Mot. Dismiss
(“Castaneda Br.”), ECF No. 14.
After seeking leave to file an amicus brief, Mot. Leave
File Amicus Curiae Br., ECF No. 12, and receiving permission to
file such a brief, see Elec. Order, May 20, 2013, ECF No. 16,
the American Civil Liberties Union of Massachusetts
(“ACLU-Mass”) filed an amicus brief on May 22, 2013, Amicus
Curiae Br. Am. Civil Liberties Union Mass. (Leave File Granted
May 20, 2013), ECF No. 18.
Souza filed a reply to Castaneda’s
opposition and a response to the ACLU-Mass amicus brief on May
29, 2013.
Resp’t’s Reply Pet’r’s Opp’n Resp’t’s Mot. Dismiss
(Leave File Granted May 20, 2013) (“Reply”), ECF No. 19.
On June 3, 2013, the Court heard oral argument and took the
matter under advisement.
No. 21.
Elec. Clerk’s Notes, June 3, 2013, ECF
On June 10, 2013, this Court denied the motion to
dismiss and granted the writ of habeas corpus, ordering that
Castaneda receive an individualized bond hearing by June 19,
3
2013.
Order, June 10, 2013, ECF No. 24.
This memorandum
further explicates the reasons for that order.
B.
Facts
Castaneda is a native and citizen of Brazil who entered the
United States in 2000 when she was seventeen.
Pet. ¶ 14.
On
October 6, 2008, Castaneda was placed on probation in Lowell
District Court for drug possession class B.
Id. ¶ 15.
discharged from probation on February 5, 2010.
Id.
She was
On March
18, 2013, ICE took Castaneda into custody and issued a Notice to
Appear charging her with inadmissibility under INA section
212(a)(2)(A)(i)(II), as an alien convicted of, or who admits
having committed, a controlled substance offense.
Id. ¶¶ 16-17.
An immigration hearing officer denied Castaneda an
individualized bond hearing, ruling that she was subject to
mandatory detention under section 1226(c).
C.
Id. ¶ 18.
Federal Jurisdiction and Venue
“Writs of habeas corpus may be granted by . . . the
district courts . . . within their respective jurisdictions.”
28 U.S.C. § 2241(a).
Here, the writ of habeas corpus may extend
to Castaneda if she, as she claims, “is in custody in violation
of the Constitution or laws or treaties of the United States.”
Id. § 2241(c)(3); see also Maleng v. Cook, 490 U.S. 488, 490
(1989) (per curiam).
4
Venue is proper in the District of Massachusetts under 28
U.S.C. section 1391(e) because the petitioner is being held
within the district at the Bristol County House of Corrections
where Souza, being sued in his official capacity, is the
superintendent.
See Rumsfeld v. Padilla, 542 U.S. 426, 447
(2004) (“Whenever a § 2241 habeas petitioner seeks to challenge
his present physical custody within the United States, he should
name his warden as respondent and file the petition in the
district of confinement.”).
II.
ANALYSIS
As the parties confirmed during oral argument, resolving
this case requires no factual findings.
Rather, this Court is
tasked with determining whether Castaneda falls within the scope
of the mandatory detention provisions set forth at 8 U.S.C.
section 1226(c).3
3
This question has resulted in two circuit court opinions
of which this Court is aware. Sylvain v. Att’y Gen., 714 F.3d
150 (3d Cir. 2013); Hosh v. Lucero, 680 F.3d 375 (4th Cir.
2012). Those two opinions were recently criticized by Judge
Raymond Moore. See Baquera v. Longshore, No. 13-cv-00543-RMMEH, 2013 WL 2423178, at *4-6 (D. Colo. June 4, 2013)
(criticizing both circuit opinions, aggregating cases, and
noting that “the clear majority of the district courts that have
ruled on this issue” have interpreted mandatory detention not to
apply to aliens taken into ICE custody long after their previous
release, id. at *4). This Court recognizes the ongoing judicial
debate and hopes that its contribution can push the debate
toward resolution.
5
A.
Legal Framework
When interpreting a statute, the administration of which
has been entrusted to an agency, courts must answer two
questions: (1) has Congress spoken clearly on the issue; (2) if
not, is the agency’s interpretation reasonable?
See Chevron,
U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837,
842-43 (1984).
“If the intent of Congress is clear, that is the
end of the matter; for the court, as well as the agency, must
give effect to the unambiguously expressed intent of Congress.”
Id.
On the other hand, where Congress has left a gap, “a court
may not substitute its own construction of a statutory provision
for a reasonable interpretation made by the . . . agency.”
Id.
at 844.
When interpreting a potentially ambiguous statute, the
court must determine whether a clear congressional intent exists
using all of the “traditional tools of statutory construction.”
INS v. Cardoza–Fonseca, 480 U.S. 421, 448 (1987) (quoting
Chevron, 467 U.S. at 843 n.9); see also id. (“If a court,
employing traditional tools of statutory construction,
ascertains that Congress had an intention on the precise
question at issue, that intention is the law and must be given
effect.” (quoting Chevron, 467 U.S. at 843 n.9) (internal
quotation mark omitted)).
To determine whether a clear
congressional intent exists, courts both look to “the most
6
natural reading” of the statute and use other interpretive
tools.
Succar v. Ashcroft, 394 F.3d 8, 22 (1st Cir. 2005).
As
always, this Court must begin with the text of the statute
itself, see id., but remember that “the ‘plain meaning’ of a
statutory provision is often made clear not only by the words of
the statute but by its structure as well,” Saysana v. Gillen,
590 F.3d 7, 13 (1st Cir. 2009).
In construing the meaning of a
particular word, courts must consider the context in which it
appears.
See Leocal v. Ashcroft, 543 U.S. 1, 9 (2004).
Finally, if clear congressional intent cannot be discerned based
on the words alone (including their structure and context), then
courts can rely on the conventional tools of statutory
interpretation such as the purpose and history of the statute,
see In re Hill, 562 F.3d 29, 34 (1st Cir. 2009), standard
presumptions, see, e.g., Kucana v. Holder, 558 U.S. 233, 251
(2010), and legislative history and purpose, see General
Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581, 597-600 (2004).
Should the court determine that despite the application of
these traditional tools “the statute is silent or ambiguous with
respect to the specific issue, [then] the question for the court
is whether the agency’s answer is based on a permissible
construction of the statute.”
Chevron, 467 U.S. at 843.
The
second step of Chevron analysis is reached only if no clear
7
congressional intent emerges at step one.
See Harvey v.
Veneman, 396 F.3d 28, 33-34 (1st Cir. 2005).
B.
Applying the Legal Framework
1.
Statutory Text
As it always must, this Court begins its analysis with the
statutory text, see Leocal, 543 U.S. at 8, which reads:
(a) Arrest, detention, and release
On a warrant issued by the Attorney General, an alien
may be arrested and detained pending a decision on
whether the alien is to be removed from the United
States. Except as provided in subsection (c) of this
section and pending such decision, the Attorney
General -(1) may continue to detain the arrested alien;
and
(2) may release the alien on -(A) bond of at least $1,500 with security
approved
by,
and
containing
conditions
prescribed by, the Attorney General; or
(B) conditional parole; but
(3)
may
not
provide
the
alien
with
work
authorization
(including
an
“employment
authorized” endorsement or other appropriate work
permit), unless the alien is lawfully admitted
for
permanent
residence
or
otherwise
would
(without
regard
to
removal
proceedings)
be
provided such authorization.
(b) Revocation of bond or parole
The Attorney General at any time may revoke a bond or
parole authorized under subsection (a) of this
section, rearrest the alien under the original
warrant, and detain the alien.
8
(c) Detention of criminal aliens
(1) Custody
The Attorney General shall take into custody any
alien who -(A) is inadmissible by reason of having
committed any offense covered in section
1182(a)(2) of this title,
(B) is deportable by reason of having
committed any offense covered in section
1227(a)(2)(A)(ii), (A)(iii), (B), (C), or
(D) of this title,
(C)
is
deportable
under
section
1227(a)(2)(A)(i) of this title on the basis
of an offense for which the alien has been
sentence[d] to a term of imprisonment of at
least 1 year, or
(D)
is
inadmissible
under
section
1182(a)(3)(B) of this title or deportable
under section 1227(a)(4)(B) of this title,
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.
(2) Release
The Attorney General may release an alien
described in paragraph (1) only if the Attorney
General decides pursuant to section 3521 of Title
18 that release of the alien from custody is
necessary to provide protection to a witness, a
potential witness, a person cooperating with an
investigation into major criminal activity, or an
immediate family member or close associate of a
witness, potential witness, or person cooperating
with such an investigation, and the alien
satisfies the Attorney General that the alien
will not pose a danger to the safety of other
9
persons or of property and is likely to appear
for any scheduled proceeding.
A decision
relating to such release shall take place in
accordance with a procedure that considers the
severity of the offense committed by the alien.
(d) Identification of criminal aliens
(1) The Attorney General
implement a system --
shall
devise
and
(A) to make available, daily (on a 24-hour
basis),
to
Federal,
State,
and
local
authorities the investigative resources of
the Service to determine whether individuals
arrested by such authorities for aggravated
felonies are aliens;
(B) to designate and train officers and
employees of the Service to serve as a
liaison to Federal, State, and local law
enforcement and correctional agencies and
courts
with
respect
to
the
arrest,
conviction, and release of any alien charged
with an aggravated felony; and
(C)
which
uses
computer
resources
to
maintain a current record of aliens who have
been convicted of an aggravated felony, and
indicates those who have been removed.
(2) The record under paragraph (1)(C) shall be
made available -(A) to inspectors at ports of entry and to
border patrol agents at sector headquarters
for purposes of immediate identification of
any alien who was previously ordered removed
and is seeking to reenter the United States,
and
(B) to officials of the Department of State
for use in its automated visa lookout
system.
(3) Upon the request of the governor or chief
executive officer of any State, the Service shall
10
provide assistance to State courts in the
identification of aliens unlawfully present in
the United States pending criminal prosecution.
(e) Judicial review
The
Attorney
General's
discretionary
judgment
regarding the application of this section shall not be
subject to review. No court may set aside any action
or decision by the Attorney General under this section
regarding the detention or release of any alien or the
grant, revocation, or denial of bond or parole.
8 U.S.C. § 1226 (footnote omitted).
The language most pertinent
to the case at bar is “[t]he Attorney General shall take into
custody any alien who [fits one of four categories of criminal
aliens] when the alien is released.”
Id. § 1226(c)(1).
Castaneda argues that when Congress enacted these
provisions, it intended “when . . . released” to mean
“immediately upon release.”
See Castaneda Br. 2.
Because she
was not taken into custody immediately upon release, Castaneda
argues that her current detention is not under section 1226(c),
but rather under 1226(a).
See id. at 6.
Under section 1226(a),
she is entitled to an individualized bond hearing.
See Pet.
¶ 31(b).
On the other hand, Souza argues that “when . . . released”
is ambiguous.
While acknowledging that the phrase could mean
immediately after release, Souza argues that another reasonable
interpretation of the phrase, one adopted by the Board of
Immigration Appeals (“BIA”) in In re Rojas, 23 I. & N. Dec. 117
11
(B.I.A. 2001), is that it “describ[es] the time when the
Government’s duty to detain the specified criminal aliens
arose.”
Souza Br. 6.
Given that “more than one interpretation
is plausible,” id. at 10, Souza urges “this Court [to] defer to
the [BIA’s] interpretation,” id. at 13.
The language of section 1226(c) is indeed susceptible to
multiple interpretations.
The most natural reading of
“when . . . released” is the one that comports with the most
common understanding of “when.”
time.”
“When” typically means “at the
Thus, this Court holds that the most natural reading of
“when . . . released” is “at the time of release” or
“immediately upon release.”
This determination, however, does not end this Court’s
inquiry.
Instead, the Court now examines whether the other
interpretive clues point in the same direction as the most
natural reading and whether this Court can conclude from the
language and the other interpretive tools that a clear
congressional intent exists.
2.
See Succar, 394 F.3d at 22.
Context
Having determined that the most natural reading of the
“when . . . released” provision is “immediately upon release,”
this Court now turns to the context within which those words are
used.
12
Analyzing the context allows this Court to determine not
only the function of the “when . . . released” phrase, but also
to examine more closely how it fits in the statutory scheme.
The context provides clues for Congress’s intent in using these
particular words.
Statutory interpretation must not render words superfluous
within their context.
See Platt v. Union Pac. R.R. Co., 99 U.S.
48, 58 (1878) (noting that “Congress is not to be presumed to
have used words for no purpose” and that “rules of statutory
construction declare that a legislature is presumed to have used
no superfluous words”).
Judge Brinkema in Waffi v. Loiselle,
527 F. Supp. 2d 480 (E.D. Va. 2007), abrogated by Hosh v.
Lucero, 680 F.3d 375 (4th Cir. 2012), determined that if the
phrase “‘when the alien is released’ does not describe the class
of aliens who are to be detained . . . it would doom that clause
to removable surplusage.”
Id. at 488.
Because such a result is
highly disfavored by traditional tools of statutory
construction, this analysis suggests that the phrase “when the
alien is released” must describe the group of aliens subject to
mandatory detention.4
Souza’s best argument in response is that this
“language . . . serves the purpose of clarifying that
4
An analysis of the structure of section 1226(c) strongly
supports such a conclusion as well. See infra section II.B.3.
13
immigration authorities should not assume responsibility for
aliens before their criminal incarceration has ended, but need
not wait for the completion of non-custodial punishments.”
Souza Br. 13.
This Court rejects this contention because the
word “after” rather than “when” would communicate such a meaning
much more clearly.
Moreover, Judge Brinkema found that any argument for
understanding “when” as a conditional in this context fails
because “[s]uch a construction appears more properly placed upon
the term ‘whenever’ or perhaps the phrase ‘in the event that.’”
Waffi, 527 F. Supp. 2d at 488.
This Court agrees that “when” is
highly unlikely to be serving as a conditional in this context
because such a condition can be more clearly communicated
through a different, simple construction.
If “when” is not a conditional, then it must specify a
temporal element.
“When,” however, cannot mean “any time after”
both because “after” would communicate such an intention more
clearly and because “it would be contrary to the plain language
of section [1226](c)’s command that the Attorney General take
into immigration custody certain criminal aliens ‘when’ those
aliens are released from state custody to include those aliens
who had ‘already’ been released from state custody,” id.
The context within which “when” is situated strongly
suggests that it is intended as a timing element that means at
14
“a specific time,” rather than “after,” and begins a phrase
further describing the group of aliens subject to mandatory
detention.
3.
Structure
Having determined that the most natural reading of the
“when . . . released” provision is “immediately upon release”
and that the context around that language supports such a
reading, this Court now turns to the structure of section 1226.
There are two structural elements in this statute which are
worth explicating.
Both suggest to this Court that Congress
intended the “when . . . released” language to mean immediately
upon release.
First, the statute begins, not with provisions for
mandatory detention, but rather with those for arrest and
detention subject to an individualized bond hearing and
potential release.
8 U.S.C. § 1226(a).
1226(c) is an exception.
It states that section
Id. (“Except as provided in subsection
(c) of this section. . . .”).
Section 1226(c), the exception
for certain aliens, identifies those aliens in 1226(c)(1).
Congress requires the Attorney General to take these specific
criminal aliens into custody “when the alien is released.”
Congress’s structuring of section 1226 in this way is no
accident.
Congress intended that aliens taken into custody
typically receive a bond hearing; it then provided an exception
15
in certain cases –- certain criminal aliens who have been picked
up by ICE immediately upon release from their custodial sentence
should not be bonded out or paroled into our communities no
matter the circumstances.
See Saysana, 590 F.3d at 17 (“The
mandatory detention provision . . . outlines specific, serious
circumstances under which the ordinary procedures for release on
bond at the discretion of the immigration judge should not
apply.”).
The mandatory detention provision is, thus, a limited
exception.
In making this observation, this Court is guided by First
Circuit precedent.
In Saysana v. Gillen, 590 F.3d 7, the First
Circuit examined the “when . . . released” language of section
1226(c)(1) to determine whether it meant when an alien was
released from any type of government custody or whether it meant
when the alien was released from custody for one of the
enumerated offenses.
The First Circuit ruled that under the
circumstances in that case, the statute was unambiguous and that
“when . . . released” related to the offenses listed directly
above.
Id. at 16.
In reaching that conclusion, the First
Circuit described the “system of mandatory detention created by
Congress” as “limited.”
Id. at 17 n.6.
Second, section 1226(c)(1), the “Custody” provisions, does
not by itself provide for mandatory detention.
§ 1226(c)(1).
8 U.S.C.
Rather, these provisions merely require ICE to
16
take into custody a certain category of criminal aliens “when
the alien[s] [are] released.”
It is section 1226(c)(2), the
“Release” provisions, that provide only one circumstance, not at
issue in this case, under which an alien taken into custody
under section 1226(c)(1) may be released.
Id. § 1226(c)(2).
Thus, it is section 1226(c)(2) that actually makes detention
mandatory on (nearly) all aliens taken into custody under
section 1226(c)(1).
When this Court asks “which aliens are
subject to the mandatory detention provisions created by section
1226(c)(2)?”, the structure of the provisions suggests it is
only those aliens identified in section 1226(c)(1)(A)-(D) who
are taken into custody “when the alien[s are] released.”
This
statutory structure suggests to this Court that, when evaluating
a specific case, it should make the general assumption that an
alien taken into ICE custody should receive an individualized
bond hearing, and only if that alien committed an offense listed
in section 1226(c)(1)(A)-(D) and was detained by ICE “when the
alien is released” from custody for that offense is that alien
subject to mandatory detention.
This group of aliens, who have committed a qualifying
offense and are detained immediately upon completing their
custodial sentence, makes up the limited exception to the
general bond hearing requirements found in section 1226(a).
Thus, this interplay between section 1226(c)(1) and (2) comports
17
well with the “limited system of mandatory detention created by
Congress.”
See Saysana, 590 F.3d at 17 n.6.
Together, this Court reads these two structural elements as
forming a whole that allows ICE to detain aliens subject to a
removal decision.
Detained aliens typically must receive an
individualized bond hearing when detained.
The exception is
that certain criminal aliens who go directly from jailhouse to
immigration detention must not be allowed to return to the
community.
This structure is also the reason why this Court must
reject the Fourth Circuit’s reasoning in Hosh v. Lucero, 680
F.3d 375 (4th Cir. 2012).
In that case, the Fourth Circuit
reversed a district court’s grant of an alien’s habeas petition
for a bond hearing.5
Id. at 377.
In its decision, the Fourth
Circuit ruled that “when” can be read in more than one way,
applied Chevron deference, and determined that the BIA’s
interpretation was permissible.
Id. at 379-80.
The Fourth
Circuit’s opinion focused on the ambiguity of the word “when.”
See id. at (discussing various dictionary definitions of
“when”).
The court then concluded that because there are
5
In doing so, the Fourth Circuit explicitly noted that the
district judge “[r]eli[ed] on three prior Eastern District of
Virginia cases,” id. at 378, and that “in the time since the
district court granted Hosh’s petition, other Eastern District
of Virginia cases implicating § 1226(c) have also held in favor
of petitioning aliens,” id. at 378 n.1.
18
multiple dictionary definitions of “when,” it “must therefore
consider the BIA’s interpretation.”
Id. at 380.
Having started
with the conclusion that “[t]he meaning of § 1226(c) is not
plain to us,” id. at 379, and provided the dictionary discussion
as the only support, the Hosh court applied Chevron deference.
Id. at 379-80.
The Hosh court failed to determine whether a clear
congressional intent exists using all of the conventional tools
of statutory construction.6
See Cardoza–Fonseca, 480 U.S. at
444–48; Chevron, 467 U.S. at 843 n.9; see also Succar, 394 F.3d
at 22.
For example, the Fourth Circuit does not mention context
until its discussion of whether the BIA’s construction is
reasonable.
See Hosh, 680 F.3d at 380.
The Supreme Court,
however, has made clear that to determine the meaning of a
particular word, such as “when” in this case, courts must
consider context.
See Leocal, 543 U.S. at 9.
The Hosh court neglected to examine the structure of
section 1226 and failed to note that mandatory detention is the
6
As discussed, the Hosh court determined only whether
“when” could have multiple dictionary meanings, not whether
clear congressional intent exists. This lack of analysis in
Hosh is startling and likely the reason why the Hosh decision
has had little impact as a persuasive precedent outside of the
Fourth Circuit. See Baquera, 2013 WL 2423178, at *5
(“Presumably because of the inadequacy of the analysis in Rojas
and the dearth of analysis in Hosh itself, Hosh has had little
persuasive impact beyond the Fourth Circuit, where it is binding
precedent.”).
19
exception to the general rule of detention with individualized
bond hearings.
As a result, it concluded:
Thus, while we agree that Congress’s command to the
Attorney
General
to
detain
criminal
aliens
“when . . . released” from other custody connotes some
degree of immediacy, we cannot conclude that Congress
clearly intended to exempt a criminal alien from
mandatory detention and make him eligible for release
on bond if the alien is not immediately taken into
federal custody.
Hosh, 680 F.3d at 381 (alteration in original).7
This conclusion
simply fails to reflect the structure of section 1226 as a
whole.
As discussed earlier, individualized bond hearings are the
norm and mandatory detention is the exception in section 1226.
See supra.
The Fourth Circuit searched for a congressional
intent “to exempt a criminal alien from mandatory detention and
make him eligible for release on bond if the alien is not
immediately taken into federal custody.”
Not surprisingly, it found no such intent.
Hosh, 680 F.3d at 381.
Id.
This flawed
reasoning, however, completely reverses the structure of section
1226.
Congress created a detention system where individualized
bond hearings are the norm: “The mandatory detention provision
does not reflect a general policy in favor of detention;
7
In briefing, Souza significantly relies on this conclusion
by the Fourth Circuit, quoting it as the holding of the Hosh
court. See Reply 7. At oral argument, however, counsel
representing Souza relied primarily and almost exclusively on
the more recent Sylvain v. Att’y Gen., 714 F.3d 150, decision
from the Third Circuit.
20
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.”
at 17.
Saysana, 590 F.3d
This provision is the exception that subjects some
aliens to mandatory detention.
Rather than look for
congressional intent to exempt a criminal alien from mandatory
detention, courts should look for congressional intent to
subject a particular criminal alien to mandatory detention.
This Court can find no support for the idea that Congress
intended to subject criminal aliens already released to
mandatory detention.
After all, Congress chose not to make the
provisions retroactive and require mandatory detention of those
criminal aliens who had completed their custodial sentence
before the effective date of the provision.
See id. at 17 n.6.
These criminal aliens, already in the community, could be
detained by ICE, but would receive individualized detention
hearings.
See id.
In determining whether Congress intended to subject
criminal aliens already released to mandatory detention, this
Court relies on the First Circuit’s guidance from Saysana.
That
court, though it interpreted the “when . . . released” language
for a different purpose, stated that “the ‘when released’
language serves [the] more limited but focused purpose of
21
preventing the return to the community of those released in
connection with the enumerated offenses.”
Id. at 17.
Castaneda has already returned to her community.
See Pet.
¶¶ 15-16 (noting that Castaneda was placed on probation for her
offense on October 6, 2008, completed probation on February 5,
2010, and was not detained by ICE until March 18, 2013, over
three years later).
The congressional “purpose of preventing
the return to the community of those released in connection with
the enumerated offenses,” Saysana, 590 F.3d at 17, does not
apply to Castaneda as she has lived in the community for three
years.
Given that mandatory detention would not satisfy the
congressional purpose of this provision, as recognized by the
First Circuit, this Court is at a loss as to what other purpose
mandatory detention could serve.8
This Court simply sees no
reason why Congress would have intended for her to be picked up
years after she has reintegrated back into her community and to
8
The Court recognizes that mandatory detention also
facilitates actual removal, as immigration authorities have
struggled often to find, detain, and physically remove aliens
who are not in custody. See Demore v. Kim, 538 U.S. 510,
518-19, 528 (2003). This Court, however, is not persuaded that
this potential benefit is enough. After all, by detaining
Castaneda this time, ICE has actually demonstrated its ability
to do so. Moreover, reading the “when . . . released” language
to mean immediately upon release or within a reasonable period
of time does not mean Castaneda goes free. Instead, she is
entitled merely to a bond hearing. Her likelihood of complying
with a deportation order is a factor in whether she is to be
granted bond and released by an immigration hearing officer.
22
be held without presentment before an immigration judge for a
bond determination.9
4.
Clarity of Congressional Intent
Having determined that the most natural reading of the
“when . . . released” provision is “immediately upon release,”
that the context supports such a reading, and that the structure
of section 1226 further confirms such a narrow reading, this
Court now turns to determining whether anything suggests a
differing congressional intent.
If nothing supports a differing
congressional intent, this Court is comfortable in concluding
that a clear congressional intent existed to hold without a bond
hearing only those criminal aliens who were detained immediately
upon release from custody.
Here, this Court looks to the purpose of section 1226(c).
In Saysana, the First Circuit emphasized the importance of
“finding that the ‘when released’ language serves [the] more
9
It is instructive to this Court that it cannot find a
reason why Congress would distinguish between aliens like
Saysana, who were convicted and released before the enactment of
these provisions, and Castaneda, who were convicted and released
after their enactment. Both Saysana and Castaneda had been
living out in the community for a significant period of time
before they were picked up by immigration authorities. Nothing
suggests that Castaneda is a greater flight risk or more
dangerous than the individuals whose release in connection with
an offense listed in section 1226(c)(1)(A)-(D) occurred before
the mandatory detention provision went into effect. In Saysana,
the First Circuit cautioned against interpretations that “would
treat similarly situated individuals differently on the basis of
a factor not logically connected to the mandatory detention
provision.” Id. at 16.
23
limited but focused purpose of preventing the return to the
community of those released in connection with the enumerated
offenses” and that this “avoids attributing to Congress the
sanctioning of [an] arbitrary and inconsequential
factor . . . becoming the controlling factor for mandatory
detention.”
Id. at 17.
The government suggests that an immediate detention-afterrelease requirement would result in a fortuitous benefit, see
Souza Br. 9-10, or an arbitrary windfall, see id. at 14-15, to a
criminal alien due to ICE missing a deadline, see id.
This
Court, however, can understand why Congress would distinguish
between those criminal aliens who have been detained immediately
after their criminal custody concluded and aliens who have
integrated back into their communities after ICE failed to
detain them, even if that failure was simply an oversight.10
Congress clearly intends not to take a chance with bond for all
of the criminal aliens in this group.
Thus, in section 1226(c),
it requires their immediate detention upon completion of their
10
In this Court’s experience, there is something
drastically different between ordering an individual in custody
to remain in custody and ordering the detention of an individual
who had been free. No doubt the experience of having one’s
liberty stripped away is drastically different from the
experience of not having it restored. An alien who is plucked
out of his community should receive an individualized bond
hearing to sanction this detention.
24
criminal sentence.
If members of this group do return to the
community, however, then the calculus must change.
Two circuit court opinions have analyzed what the effect
should be when ICE fails to detain an alien immediately upon
release.
See Sylvain v. Att’y Gen., 714 F.3d 150 (3d Cir.
2013); Hosh, 680 F.3d 375.
Both the Third and Fourth Circuits
ruled that the missed deadline for detaining the alien has no
effect on the alien being subject to mandatory detention.
Sylvain, 714 F.3d at 157-61; Hosh, 680 F.3d at 381-83.
This
Court must, respectfully, disagree.
The Fourth Circuit presents this analysis as an alternative
basis for its conclusion.
See Hosh, 680 F.3d at 381-82.
It
reasons that because the statute does not provide a sanction for
failure to comply with its timing, courts should not impose one.
Id.
It then relied most heavily on the Supreme Court’s decision
in United States v. Montalvo-Murillo, 495 U.S. 711 (1990).
See
Hosh, 680 F.3d at 382-83.
The Third Circuit relied entirely on the analysis that a
missed detention deadline has no effect on whether the alien is
subject to mandatory detention.
at 157-61.
See Sylvain, 714 F.3d
While its opinion develops the line of cases more
thoroughly, see id. at 157-58, it still relies primarily on
Montalvo-Murillo, see id. at 158-59.
25
The mistake both courts make is to treat section 1226(c)(1)
as a grant of authority, see id. at 157, or power, see Hosh, 680
F.3d at 381.
Treating the provision as such a grant of
authority or power led both circuit courts to liken their cases
to Montalvo-Murillo.
In Montalvo-Murillo, the Supreme Court
examined a magistrate judge’s failure to provide a detention
hearing during a suspect’s first appearance in court.
at 713-14.
495 U.S.
The Bail Reform Act required such a hearing.
Id.
The Supreme Court held that the failure to hold the hearing at
the first appearance as required “does not defeat the
Government’s authority to seek detention of the person charged.”
Id. at 717.
Montalvo-Murillo is not applicable here because section
1226(c) is not a grant of power or authority to the Attorney
General.
Montalvo-Murillo argued that without following the
rules for a first appearance, the government had no power to
hold him.
The Supreme Court rejected this argument.
1226 is not about the authority to hold an alien.
Section
Even if ICE
misses the deadline for detaining the alien under section
1226(c), it still has the power to hold him under section
1226(a) subject to a bond hearing.11
11
Thus, the power to hold is
This Court rules that the difference between the result
in Montalvo-Murillo -– where the alien was seeking outright
release –- and this case –- where the alien is seeking an
individualized bond hearing -– is also significant. After all,
26
not what is at stake.
Rather, what is at stake is the power to
exercise discretion.
If the Attorney General complies with the timing
requirements of section 1226(c), then the alien will not receive
an individualized bond hearing.
Thus, the Attorney General,
acting through an immigration hearing officer, loses the
discretion to release the alien when he complies with Congress’s
immediacy requirement.
On the other hand, failure to take an alien into custody at
the moment of release or within a reasonable period of time does
not result in a loss of power or authority.
The Attorney
General must grant the alien an individualized bond hearing, but
can still deny bond and hold the alien.
No power or authority
has been lost.12
Because no power or authority is lost when the Attorney
General fails to detain an alien immediately upon release, this
“the public interest[] [is] prejudiced,” Montalvo-Murillo, 495
U.S. at 718 (quoting Brock v. Pierce Cnty., 476 U.S. 253, 260
(1986)), if a suspect goes free due to a magistrate judge’s
oversight, but a missed deadline under 1226(c) will not affect
the public interest if an individualized bond hearing is held.
Moreover, while failing to provide a bond hearing at a first
appearance does not change the calculus of whether bond should
be granted or denied, failing to detain an alien immediately
after release may allow that alien to build up equities that
reveal release on bond as a better option than detention.
12
If anything, the Attorney General gains power when he
misses the deadline because it is now within his discretion
either to hold the alien or to release the alien on bond.
27
Court must reject the analysis that concludes that such a
failure does not affect whether the alien is subject to
mandatory detention.13
Finally, this Court notes that the rule of lenity supports
a conclusion that section 1226(c) should be read narrowly.14
This rule suggests that ambiguities in deportation statutes
ought be construed in favor of the alien “because deportation is
a drastic measure and at times the equivalent of banishment or
exile.”
Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948).
Thus,
“courts are reluctant to construe [ambiguous] statutes against
individuals whose rights would be affected without an
affirmative indication from Congress that courts should do so.”
Hosh, 680 F.3d at 383.
While the potentially ambiguous provision in this case
relates to detention rather than deportation, such pre-hearing
13
Note that this Court also rejects treatment of the
“when the alien is released” language as a deadline. While
there is a temporal element to “when,” the context and structure
of the provision suggest that the phrase is being used to
describe a class of aliens subject to mandatory detention.
14
This Court recognizes the potential conflict between
Chevron deference and the rule of lenity. See Elliot
Greenfield, A Lenity Exception to Chevron Deference, 58 Baylor
L. Rev. 1, 41 (2006) (“Court of appeals decisions indicate a
split of opinion on the issue of how Chevron interacts with the
rule of lenity.”); Brian G. Slocum, The Immigration Rule of
Lenity and Chevron Deference, 17 Geo. Immigr. L.J. 515, 517
(2003) (“[T]he role of the immigration rule of lenity in
deportation proceedings is not clear due to the competing
[Chevron] deference doctrine. . . .”).
28
detention is also quite onerous.
Not only are immigration
detainees often held in prisons and jails or conditions
indistinguishable from them, but one study has found that
whether an alien is detained also has a tremendous impact on
whether the alien’s removal case has a successful outcome.
Vera
Institute of Justice, The New York Immigrant Representation
Study: Preliminary Findings (2011), available at
http://graphics8.nytimes.com/packages/pdf/nyregion/050411immigra
nt.pdf (finding that aliens are successful 74% of the time when
represented but not detained, but only 18% of the time when
represented and detained).15
Because of the significant role
that detention plays in the outcome of deportation proceedings,
this Court once again has to reject the Fourth Circuit’s
reasoning in Hosh which downplayed the drastic nature of
mandatory detention.
See Hosh, 680 F.3d at 384 (“After all, a
criminal alien in Hosh’s position would be subject to
deportation proceedings whether or not § 1226(c) existed; the
provision merely withdraws the Attorney General’s discretion to
release such an alien on bond pending those proceedings.”).
15
This Court recognizes that there are many confounding
factors to such a study –- particularly the provision at issue
in this case which makes detention mandatory for those aliens
who are most likely to be ordered deported. This Court also
notes that detention and representation are likely linked.
After all, a detained alien cannot work to earn money to pay for
representation, cannot help an attorney gather evidence (making
the attorney more expensive), and cannot solicit help from
family and friends in person to help pay for an attorney.
29
Mandatory detention ought not be taken so lightly both because
it has such a dramatic effect on the outcome of deportation
proceedings and because an individual’s liberty is at stake.
The rule of lenity thus supports a reading of section 1226(c)
that limits mandatory detention only to situations where
Congress has clearly called for it.
III. CONCLUSION
This opinion does not prevent ICE from detaining even a
single criminal alien.
ICE can detain even those aliens like
Castaneda who were not detained by ICE immediately upon release
from their custodial sentence.
This opinion merely makes that
detention subject to an individualized bond hearing.
Moreover,
this opinion does not frustrate ICE’s efforts to subject
currently confined criminal aliens to mandatory detention and
prevent them from returning to our communities; ICE must merely
detain them “when [they are] released,” as the statutory
language requires.
This Court rules that section 1226(c) applies only to those
criminal aliens detained immediately upon release from criminal
custody or within a reasonable period of time thereafter.
While
it has no occasion in this case to determine what constitutes a
reasonable period of time, this Court would suggest that any
alien who has reintegrated back into his community has not been
detained within such a reasonable period of time.
30
Castaneda,
having lived in her community for three years after even her
probationary period was complete, must certainly receive an
individualized bond hearing.
For the foregoing reasons, the motion to dismiss the habeas
petition, ECF No. 6, was DENIED on June 10, 2013.
The petition
for a writ of habeas corpus, ECF No. 1, was GRANTED on that same
day.
Order, June 10, 2013 ECF No. 24.
/s/ William G. Young
WILLIAM G. YOUNG
DISTRICT JUDGE
31
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