COX v. ELWOOD et al

Filing 12

OPINION filed. Signed by Judge Peter G. Sheridan on 8/27/2012. (mmh)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ANDERSON J.W. COX,
Petitioner,
v.
BRIAN ELWOOD, et al.,
Respondents.

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Civil Action No. 12-4403 (PGS)
OPINION

APPEARANCES:
Petitioner pro se
Anderson J.W. Cox
Monmouth County Correctional Institution
Freehold, NJ 07728
Counsel for Respondents
Charles Scott Graybow
Assistant U.S. Attorney
District of New Jersey
970 Broad Street, Suite 700
Newark, NJ 07102
SHERIDAN, District Judge
Petitioner Anderson J.W. Cox, an alien presently in the
custody of the Department of Homeland Security (“DHS”) and
confined at Monmouth County Correctional Institution in Freehold,
New Jersey, has submitted a petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2241.1

All Respondents other than Warden

Brian Elwood will be dismissed.2
Petitioner challenges his pre-removal-order mandatory
detention, purportedly pursuant to the Immigration and
Nationality Act, 8 U.S.C. § 1226(c).

For the reasons set forth

below, this Court holds that Petitioner is entitled to a bond
hearing pursuant to 8 U.S.C. § 1226(a)(2).
I.

BACKGROUND

Petitioner Anderson J.W. Cox is a native and citizen of
Trinidad and Tobago.

He was admitted to the United States as a

non-immigrant visitor in October 1987.

In January 1996,

Petitioner adjusted his status to that of a lawful permanent
resident on a conditional basis.

In February 2001, his

conditional status was removed.

1

Section 2241 provides in relevant part:

(a) Writs of habeas corpus may be granted by the
Supreme Court, any justice thereof, the district courts
and any circuit judge within their respective
jurisdictions.
(c) The writ of habeas corpus shall not extend to a
prisoner unless-- ... (3) He is in custody in violation
of the Constitution or laws or treaties of the United
States ... .
2

Petitioner names as Respondents, in addition to Warden
Brian Elwood, various federal immigration officials, the
Secretary of the U.S. Department of Homeland Security, and the
Attorney General of the United States. Such remote federal
officials are not proper respondents; instead, the proper
respondent is the warden of the facility where Petitioner is
detained. See, e.g., Rumsfeld v. Padilla, 542 U.S. 426, 434-436
(2004); Yi v. Maugans, 24 F.3d 500, 507 (3d Cir. 1994).
2

Petitioner’s relevant criminal record includes two
convictions in New York for attempted petit larceny.

In June

2004, Petitioner was convicted in New York state court of
attempted petit larceny in violation of New York Penal Law §§ 110
and 155.25 and was sentenced to a conditional discharge and
community service.

Petitioner failed to perform his community

service, and in March 2005 he was resentenced to 15 days in jail.
In April 2006, Petitioner was convicted in New York state court
of a second attempted petit larceny in violation of New York
Penal Law §§ 110 and 155.25.

Petitioner was sentenced to time

served and was released on April 28, 2006.
Petitioner was taken into custody by immigration officials
on May 23, 2012, more than six years after his release from jail
on his criminal convictions.

Petitioner was served with a Notice

to Appear which charged that he was removable under Immigration
and Nationality Act § 237(a)(2)(A)(ii), 8 U.S.C.
§ 1227(a)(2)(A)(ii), based upon his conviction of two crimes
allegedly involving moral turpitude not arising out of a single
scheme of criminal conduct.

In June 2012, Petitioner moved for,

but has not received, a bond hearing.

Petitioner’s removal

proceedings are ongoing; no final order of removal has yet been
entered.

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II.

RELEVANT STATUTES

Title 8 U.S.C. § 1226(a) provides the Attorney General with
the authority to arrest, detain, and release an alien during the
pre-removal-order period when the decision as to whether the
alien will be removed from the United States is pending.

The

statute provides,
(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.

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Certain criminal aliens are subject to mandatory detention
pending the outcome of removal proceeding pursuant to 8 U.S.C.
§ 1226(c)(1)(B), which provides in relevant part that
The Attorney General shall take into custody any alien
who ...
(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, ... 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. (emphasis
added).
(emphasis added).

Section 1226(c)(2) permits release of criminal

aliens only under very limited circumstances not relevant here.
III.
A.

DISCUSSION

Jurisdiction
Under 28 U.S.C. § 2241(c), habeas jurisdiction “shall not

extend to a prisoner unless ... [h]e is in custody in violation
of the Constitution or laws or treaties of the United States.”
28 U.S.C. § 2241(c)(3).

A federal court has subject matter

jurisdiction under § 2241(c)(3) if two requirements are
satisfied: (1) the petitioner is “in custody,” and (2) the
custody is “in violation of the Constitution or laws or treaties
of the United States.”

28 U.S.C. § 2241(c)(3); Maleng v. Cook,

490 U.S. 488, 490, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989).
This Court has subject matter jurisdiction over this
Petition under § 2241 because Petitioner was detained within its

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jurisdiction in the custody of DHS at the time he filed his
petition.

See Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978,

140 L.Ed.2d 43 (1998).

Petitioner also asserts that his

mandatory detention is not statutorily authorized by 8 U.S.C.
§ 1226(c), and that it violates his due process rights.

See

Zadvydas v. Davis, 533 U.S. 678, 699, 121 S.Ct. 2491, 150 L.Ed.2d
653 (2001); Bonhometre v. Gonzales, 414 F.3d 442, 445–46 (3d
Cir.2005).
B.

Statutory Authority for Petitioner's Detention
Petitioner argues that he should not be subject to mandatory

detention under Section 1226(c), based upon his petit larceny
convictions, because DHS did not immediately place him into
custody when he was released from criminal incarceration for that
offense six years ago.

That is, Petitioner argues that district

courts have interpreted “when ... released” under Section 1226(c)
to mean that DHS is required to detain an alien immediately upon
release from criminal incarceration, which did not occur here.
Petitioner asserts that the statutory authority for his detention
lies under § 1226(a), which permits release under more liberal
circumstances.
Respondent argues that the language “when ... released” is
ambiguous based on district court splits on this issue.

Because

of this ambiguity, the government argues, this Court should defer
to the Board of Immigration Appeals' (“BIA”) interpretation of

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this language as decided in Matter of Rojas.3

See Chevron

U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837,
104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); Matter of Rojas, 23 I. &
N. Dec. 117 (BIA 2001).

Specifically, in Matter of Rojas, the

BIA held that the Bureau of Immigration and Customs Enforcement
has mandatory detention authority over an alien that has been
released from criminal custody for an enumerated offense, and the
detention does not need to be immediate based on the objective
and design of the statute as a whole.
N. Dec. 117 at 122.

Matter of Rojas, 23 I. &

Respondent also relies on a recent Fourth

Circuit decision in which that court held that the BIA's
interpretation of “when ... released” is permissible and

3

The standards set forth in Chevron U.S.A. Inc. v. Natural
Resources Defense Council, Inc., 674 U.S. 837 (1984), control a
court’s review of an agency’s construction of its governing
statutes.
When a court reviews an agency’s construction of the
statute which it administers, it is confronted with two
questions. First, always, is the question whether
Congress has directly spoken to the precise question at
issue. If the intent of Congress is clear, that is the
end of the matter; for the courts, as well as the
agency, must give effect to the unambiguously expressed
intent of Congress. If, however, the court determines
Congress has not directly addressed the precise
question at issue, the court does not simply impose its
own construction on the statute, as would be necessary
in the absence of an administrative interpretation.
Rather, if the statute is silent or ambiguous with
respect to the specific issue, 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 842-43 (footnotes omitted).
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plausible and should be given deference.
F.3d 375, 378 (4th Cir.2012).

Hosh v. Lucero, 680

Accordingly, Respondent argues

that Petitioner is subject to mandatory detention, based on
enumerated offenses in Section 1226(c), even though he was
released from incarceration six years before being taken into
custody by ICE.
Thus, the proper statutory authority governing petitioner's
detention depends on interpretation of “when ... released” under
Section 1226(c).

District courts in this Circuit have held that

the statutory language, “when ... released,” is not ambiguous and
the plain meaning of this language is that “when” means
“immediately” after release from incarceration, and does not
apply to aliens who have been released for years before being
taken into immigration custody.

See Parfait v. Holder, No.

11–4877, 2011 WL 4829391 at *9 (D.N.J. Oct.11, 2011); see also
Christie v. El–Wood, No. 11–7070, 2012 WL 266454 (D.N.J. Jan.30,
2012); Beckford v. Aviles, No. 10–2035, 2011 WL 3515933 (D.N.J.
Aug.9, 2011); Sylvain v. Holder, No. 11–3006, 2011 WL 2580506
(D.N.J. June 28, 2011); but see Diaz v. Mutter, No. 11–4029, 2011
WL 3422856 (D.N.J. Aug.4, 2011) (finding the statutory language
ambiguous and deferring to BIA's interpretation of the statute).
To reach this conclusion, those courts rely on step one of the
Chevron analysis, where “[i]f the intent of Congress is clear,
that is the end of the matter; for the court, as well as the

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agency, must give effect to the unambiguously expressed intent of
Congress.”

Chevron, 467 U.S. at 842–43.

Thus, district courts

have held that it was Congress' intent for “when ... released” to
mean immediate, whereas “any time after” would be contrary to
Congress' intent, as Congress could have expressly required
custody “at any time after” or “regardless of when the alien is
released.”

See, e.g., Parfait, 2011 WL 4829391 at *5 (quoting

Alwaday v. Beebe, 43 F.Supp.2d 1130, 1133 (D.Or.1999)).

Thus,

the district courts in this Circuit have primarily declined to
defer to the BIA's interpretation that “when” essentially means
“any time after” and does not require immediacy.

Id.

Chevron's step one analysis can be applied to the present
matter where Petitioner was taken into custody six years after
his most recent release from incarceration for a predicate
offense.

The Court finds that “when ... released” means

“immediately” and not “any time after” release as determined by
the BIA's interpretation.

Matter of Rojas, 23 I. & N. Dec. 117

at 127.
This Court is also not persuaded by the Fourth Circuit's
decision in Hosh to defer to the BIA's interpretation of “when
... released” as it is not binding authority on this Court.
court in Hosh acknowledged that
numerous district courts previously considering
§ 1226(c) have reached different conclusions. Some
district courts have agreed with the holding we reach
herein, finding ambiguity in the statute and giving
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The

deference to the BIA's prior interpretation of
§ 1226(c) in Rojas. Other district courts, however,
including several courts within the Fourth Circuit,
have held that the plain meaning of § 1226(c) requires
a decision in the detainee's favor.
Hosh, 680 F.3d at 379 (internal citations omitted).
Until the Third Circuit decides this issue, this Court will
rely on the plain meaning of § 1226(c) as other district courts
within this district have ruled.

See, e.g., Parfait v. Holder,

No. 11–4877, 2011 WL 4829391 at *9 (D.N.J. Oct.11, 2011).
Therefore, Petitioner is subject to detention under Section
1226(a) and is entitled to an individualized bond hearing under
Section 1226(a)(2).
IV.

CONCLUSION

For the reasons set forth above, the Court grants a Writ of
Habeas Corpus, and directs that Petitioner Anderson J.W. Cox be
provided with an individualized bond hearing before an
immigration judge, within seven days, pursuant to 8 U.S.C.
§ 1226(a)(2).

An appropriate Order follows.

s/Peter G. Sheridan
Peter G. Sheridan, U.S.D.J.
United States District Judge
Dated:

August 27, 2012

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