Pazmino v. Aviles et al

Filing 6

OPINION fld. Signed by Judge Claire C. Cecchi on 5/20/15. (sr, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

JOHANNA PAZM1NO,

Civil Action No. 15-1911 (CCC)
Petitioner,
v.

:

OPINION

OSCAR AVILES, et al.,
Respondents.

CECCHI, District Judge

Presently before the Court is Petitioner Johanna Pazmino’s (“Petitioner”) Petition for a
Writ of Habeas Corpus pursuant to 18 U.S.C.

§ 2241 (“Petition”). The Petition was originally

filed in the Southern District of New York, and per that court’s March 13, 2015 order, the case
was transferred to this Court. Petitioner is challenging her detention by immigration officials
pursuant to the mandatory detention statute, 8 U.S.C.

§ 1226(c). At this time, the Court must

screen the Petition in accordance with Rule 4 of the Rules Governing Section 2254 Cases,
applicable to

§ 2241 cases through Rule 1(b), to determine whether the Petition should be

dismissed because Petitioner is not entitled to relief. For reasons stated below, the Court will allow
Claim III to proceed, and will dismiss the remainder of the Petition.
I.

FACTUAL BACKGROUND

Petitioner alleges in the Petition that she was detained by immigration officials on
December 31, 2014, pursuant to the mandatory detention statute, 8 U.S.C.

§

1226(c).’

The

There is an inconsistency within Petitioner’s allegations as to when she was taken into
custody by Respondents. Early in her Petition, Petitioner alleges that she was arrested by ICE “on
or about January 31, 2014 at her home.” (FCF No. 1 at 1.) Later in the Petition, however,
Petitioner alleges that “{e]arly in the morning of December 31, 2014, ICE agents arrived at

underlying offense giving rise to the mandatory detention was a federal criminal conviction for
conspiracy to launder monetary instruments in violation of 18 U.S.C.

§ 1956(h). (ECF No. 1 at

1.) Petitioner also alleges that she was arrested for that offense, spent one day in custody, and on
the following day, was sentenced to time served and three years of supervised release for that
offense. Id. Petitioner further alleges that her detention by ICE was more than one year afier her
conviction and release from the qualifying offense. Id. There is no allegation that Petitioner’s
removal proceedings have been finalized and a final order of removal issued.
II.

STANDARD OF REVIEW

This Court has subject matter jurisdiction over the Petition under § 2241 because Petitioner
was detained within its jurisdiction in the custody of the DHS at the time she filed her Petition, see
Spencer v. Kemna, 523 U.S. 1, 7 (1998), and she asserts that her detention violates federal law and
her constitutional rights. See Bonhometre v. Gonzales, 414 f.3d 442, 445—46 (3d Cir. 2005).
“Federal courts are authorized to dismiss summarily any habeas petition that appears
legally insufficient on its face.” Mcfarland v. Scott, 512 U.S. 849, 856 (1994); United States v.
Thomas, 221 F.3d 430, 437 (3d Cir. 2000). Habeas Rule 4 requires a district court to examine a
habeas petition prior to ordering an answer and “[i]f it plainly appears from the petition and any
attached exhibits that the petitioner is not entitled to relief in the district court, the judge must
dismiss the petition and direct the clerk to notify the petitioner.” 28 U.S.C.

§ 2254 Rule 4,

applicable through Rule 1(b). Dismissal without the filing of an answer is warranted “if it appears
on the face of the petition that petitioner is not entitled to relief.” Id.; see also Mcfarland, 512

Petitioner’s home and took both Petitioner and the father of her children into custody.” Id. at 5.
Petitioner also alleges that she was employed full time as an assistant manager by the General
Nutrition Center, and had an income of $31,589.78 in 2014, more than her income in any of the
previous five years. Id. Thus, it appears based on her income in 2014 that Petitioner could not
have been detained by ICE in January of 2014 and that this may have been a typographical error.
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U.S. at 856; Thomas, 221 F.3d at 437 (habeas petition may be dismissed where “none of the
grounds alleged in the petition would entitle [the petitioner] to relief’).
III.

DISCUSSION

Petitioner makes three claims for relief. In Claim I, Petitioner argues that she was never
“released” for the purposes of § 1226(c), since she was never sentenced to a term of imprisonment
for her underlying conviction. In Claim II, Petitioner cites Southern District of New York law for
the proposition that “the plain language of the statute

.

.

.

manifests Congress’ clear intent that

there must be a nexus between the date of release and the removable offense.” Louisaire v. Muller,
758 F. $upp. 2d 229, 236 (S.D.N.Y. 2010) (quoting Garcia v. Shanahan, 615 F. Supp. 2d 175, 182
(S.D.N.Y. 2009)). Because Petitioner’s detention came more than a year after she was released
from the underlying offense, Petitioner asserts that her detention is contrary to federal law. In
Claim III, Petitioner claims her detention is in violation ofher Fifth Amendment due process rights.
The Court addresses each of these claims separately below.
A. “Release”

Petitioner claims that she was never “released” for the purposes of § 1226(c), and therefore
that she should not be subject to mandatory detention under that statute. Petitioner reasons that
because she was given “time served” for her underlying conviction, which consisted of spending
exactly one day in custody, and because she received only three years of supervised release and
no term of imprisonment, she was not “released” for the purpose of

§ 1226(c) since she never

served a custodial sentence. The Court disagrees.
Section 1226(c) states that “[t]he Attorney General shall take into custody any alien

.

.

when the alien is released [from an enumerated offense], without regard to whether the alien is
released on parole, supervised release, or probation.” 8 U.S.C.

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§ 1226(c). The Third Circuit has

held that a release from pre-conviction arrest, even if the arrestee receives no custodial sentence
in the subsequent conviction, fulfills the release requirement under

§ 1226(c). Sylvain v. Attorney

General, 714 f.3d 150, 161 (3d Cir. 2013); Gonzalez-Ramirez v. Sec y of US. Dep ‘t ofHomeland
Sec., 529 F. App’x 177, 180-8 1 (3d Cir. 2013).
Here, Petitioner admits that she was arrested and was in custody for exactly one day. The
next day, she was convicted of a qualifying offense subject to mandatory detention, and sentenced
to “time-served.”

Contrary to Petitioner’s contention, the Court construes the one-day

incarceration as a custodial sentence, because the sentencing court sentenced her to time served,
even if the time served was only a single day. Nothing in

§ 1226(c) requires a minimal length of

incarceration prior to release. See Christie v. Elwood, No. 11-7070, 2012 WL 266454, at *2
(D.N.J. Jan. 30, 2012) (finding that release from a one-day criminal incarceration for a removable
offense is sufficient to trigger

§ 1226(c)).

Even if the Court agrees with Petitioner that she never served a custodial sentence, and that
the one-day incarceration was only for pre-trial purposes, as Sylvain and Gonzalez-Ramirez make
clear, a release from pre-conviction arrest, followed by a subsequent conviction, fulfills the release
requirement under

§ 1226(c). See Gonzalez-Ramirez, 529 F. App’x at 180-181 (agreeing with the

government’s contention that because the petitioner “was at one point in pre-conviction custody
following his 2007 arrest in New York, []that release from pre-conviction custody was sufficient
to trigger ‘mandatory detention”). As such, because Petitioner was arrested and released for a
removable offense, and Petitioner was convicted of that removable offense, that is sufficient to
trigger mandatory detention under

§ 1226(c). Accordingly, Petitioner is not entitled to relief on

this ground.
B. Mandatory Detention

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In her second claim, Petitioner relies on Southern District of New York precedent that
requires detention to be contemporaneous with release from the underlying offense that gave rise
to mandatory detention under

§ 1226(c). See Louisaire, 75$ F. Supp. 2d at 236. However, that is

not Third Circuit precedent, which binds this Court.
Instead, in Sylvain, the Third Circuit held that DHS retains the authority to take aliens into
mandatory detention under
criminal custody.

§ 1226(c) even if it does not do so immediately upon their release from

714 F.3d at 156-57.

“[M]andatory detention does not require immediate

detention.” Id. at 156. “Even if the statute calls for detention ‘when the alien is released,’ and
even if ‘when’ implies something less than four years, nothing in the statute suggests that
immigration officials lose authority if they delay.” Id. at 157.
Here, as stated above, Petitioner was convicted, sentenced, and released from an
enumerated crime under

§ 1226(c), and she was detained by DHS because of that conviction. Even

though Petitioner’s detention occurred more than a year after her release, under Sylvain, DHS
retains full authority to detain Petitioner pursuant to

§ 1226(c) no matter how much time has

passed. Therefore, Petitioner is not entitled to relief on this ground.
C. Due Process

Petitioner further alleges that her detention is unconstitutional in violation of her Fifth
Amendment due process rights. Mainly, Petitioner argues that her continued detention requires
an individualized bond hearing. In Chavez-Alvarez v. Warden York Cnty. Prison, No. 14-1402,
2015 WL 1567019 (3d Cir. Apr. 9, 2015) (precedential), the Third Circuit held that “beginning
sometime after the six-month timeframe considered by Demote, and certainly by the time
[petitioner] had been detained for one year, the burdens to [petitioner]’s liberties outweighed any
justification for using presumptions to detain him without bond to further the goals of the statute.”

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Id. at *7 “We conclude that the underlying goals of the statute would not have been, and will not
now be undermined by requiring the Government to produce individualized evidence that
[petitioner]’s continued detention was or is necessary.” Id.
Here, the Court finds the Petition has facially stated a claim that requires an answer from
Respondent pursuant to Rule

42

By the time Respondent’s answer is due per the Court’s

accompanying Order, six months will have passed from the time Petitioner was initially detained.
Therefore, the Court finds it prudent to direct Respondent, at this time, to produce individualized
evidence that Petitioner’s continued detention is necessary.

As such, the Court will require

Respondent to file an answer on the issue of Petitioner’s continued detention.
IV.

CONCLUSION

For the reasons set forth above, Claim I and II of the Petition are DISMISSED. All
Respondents other than Oscar Aviles are DISMISSED. The Respondent shall file an Answer with
the Court justifying Petitioner’s continued detention under

§ 1226(c).

Dated: ‘\ °i

c—
Claire C. Cecchi, U.S.D.J.

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The Court hereby dismisses all Respondents other than Oscar Aviles from the case. “[I]n
habeas challenges to present physical confinement ‘core challenges’ the default rule is that the
proper respondent is the warden of the facility where the prisoner is being held, not the Attorney
General or some other remote supervisory official.” Rumsfeld v. Padilla, 542 U.S. 426, 435
(2004).
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