Cisneros v. Napolitano et al

Filing 17

ORDER ADOPTING REPORT AND RECOMMENDATION 13 - Dominguez's Petition for Writ of Habeas Corpus is DENIED. This case is DISMISSED WITH PREJUDICE. (Written Opinion) Signed by Judge Joan N. Ericksen on July 3, 2013. (CBC)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Robert Dominguez Cisneros,
Petitioner,
v.

Civil No. 13-700 (JNE/JJK)
ORDER

Janet Napolitano, Secretary of
the Department of Homeland
Security; Eric Holder, Attorney
General of the United States;
Scott Baniecke, Field Office
Director, Immigration and
Customs Enforcement; Bob
Kindler, Freeborn County
Sheriff,
Respondents.
This case is before the Court on a Report and Recommendation issued by the Honorable
Jeffrey J. Keyes, United States Magistrate Judge, on April 22, 2013. The magistrate judge
recommended that Petitioner Robert Dominguez Cisneros’s Petition for Writ of Habeas Corpus
be denied. Dominguez objected to the Report and Recommendation, and the Government
responded. The Court has conducted a de novo review of the record. See D. Minn. LR 72.2(b).
Under 8 U.S.C. § 1226(c), Immigration and Customs Enforcement (“ICE”) is required to
detain certain categories of aliens “when the alien is released” from state custody. Dominguez,
having been convicted in state court of a drive-by shooting, is included in one of those
categories, and he does not dispute his conviction. He argues that the statutory mandate of
detention does not apply to him because ICE did not immediately take custody of him upon his
release from prison. The Court recognizes that district courts are split on whether the detention
requirement of § 1226(c) applies if the alien is not taken into ICE custody immediately upon
release from state custody as opposed to at some later time. Compare Gomez-Ramirez v. Asher,
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No. C13-196-RAJ, 2013 WL 2458756, at *5 (W.D. Wash. June 5, 2013); Baquera v. Longshore,
No. 13-cv-543-RM-MEH, 2013 WL 2423178, at *4 (D. Colo. June 4, 2013); with Johnson v.
Orsino, No. 12 Civ. 6913 (PKC), 2013 WL 1767740, at *6–7 (S.D.N.Y. Apr. 24, 2013)
(collecting cases); Khetani v. Petty, 859 F. Supp. 2d 1036, 1038–39 (W.D. Mo. 2012). Only two
circuit courts have addressed this issue, and both have held that a criminal alien who was not
immediately taken into immigration custody after release from state custody is still subject to
mandatory detention under § 1226(c). See Sylvain v. Attorney General of the United States, 714
F.3d 150, 161 (3d Cir. 2013); Hosh v. Lucero, 680 F.3d 375, 381 (4th Cir. 2012). The Court
finds the reasoning in these circuit cases to be persuasive. Section 1226(c) is ambiguous, and
applying Chevron deference to the interpretation of the statute by the Board of Immigration
Appeals in In re Rojas, 23 I. & N. Dec. 117 (BIA 2001), the statute subjects to mandatory
detention aliens who have not been detained immediately upon their release from state custody.
Hosh, 680 F.3d at 380.
The Report and Recommendation’s analysis hinges on applying Chevron deference to the
BIA’s interpretation of the statute in Rojas; the Court agrees with the Report and
Recommendation that Chevron deference is appropriate. Moreover, § 1226(c) mandates
detention of certain categories of criminal aliens who are not immediately detained upon leaving
state custody because the statute’s text “does not explicitly remove that [mandatory detention]
authority if an alien has already left custody.” Sylvain, 714 F.3d at 157; see Hosh, 680 F.3d at
382. The statute was written to protect the public. See Sylvain, 714 F.3d at 161; Hosh, 680 F.3d
at 381. Nothing in its terms confers substantive rights of release on an alien covered by
§ 1226(c)(1)(A)–(D).
Therefore, IT IS ORDERED THAT:

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1. Dominguez’s Petition for Writ of Habeas Corpus [Docket No. 1] is DENIED.
2. This case is DISMISSED WITH PREJUDICE.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: July 3, 2013
s/Joan N. Ericksen

JOAN N. ERICKSEN
United States District Judge

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