MORRISON v. ELWOOD et al
Filing
13
OPINION filed. Signed by Judge Peter G. Sheridan on 11/21/2012. (eaj)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
:
CORDELIO VALENTINO MORRISON, :
Petitioner,
:
:
v.
:
:
BRIAN ELWOOD et al.,
:
:
Respondents. :
:
Civil Action No. 12-4649 (PGS)
O P I N I O N
Sheridan, District Judge:
This matter comes before the Court by way of Cordelio
Valentino Morrison's ("Petitioner") application seeking a writ of
habeas corpus, pursuant to 28 U.S.C. § 2241 ("Petition").1
Docket Entry No. 1.
See
Petitioner claims that he is unlawfully held
in custody as a result of Respondents' erroneous interpretation
of the mandatory detention provision contained in § 236(c) of the
Immigration and Nationality Act ("INA"), codified as 8 U.S.C. §
1226(c).2
1
Petitioner duly prepaid his filing fee.
See Docket Entry
No. 1.
2
Respondents argue that the Court should dismiss the
Petition as to all Respondents except for Brian Elwood,
Petitioner's immediate custodian. Since the only proper
respondent to a petition for a writ of habeas corpus is the
warden of the facility where the prisoner is being held, see
Rumsfeld v. Padilla, 542 U.S. 426, 434-35, 124 S. Ct. 2711,159 L.
Ed. 2d 513 (2004) ("The federal habeas statute straightforwardly
provides that the proper respondent to a habeas petition is 'the
person who has custody over [the petitioner']"), Respondents'
application to that effect will be granted, and the Petition will
be dismissed as to all Respondents except for the warden.
Having carefully considered the submissions made in support
of and in opposition to the Petition, the Court will grant
Petitioner habeas relief.
I.
BACKGROUND
The relevant facts appear undisputed.
Petitioner, a native
and citizen of Costa Rica, has been a lawful permanent resident
in the United States since 1966.
Petitioner's life in the United Stated resulted in a rather
extensive criminal history.
1989 on assault charges.
His first conviction took place in
It was followed by three different
convictions rendered on the bases of various controlled-substance
offences; these convictions took place in 1993, in 2001 and in
2007.
Moreover, in 2008, Petitioner was convicted on the charges
of operating a motor vehicle while being impaired by drugs and,
in addition, on unlawful imprisonment charges.
In September
2011, Petitioner was arrested on petit larceny charge and, it
appears, detained in connection with the same on March 26, 2012.
Following his first, that is, 1993 conviction on drugrelated offenses, the Government instituted his original removal
proceedings; those proceedings resulted in grant of waiver by the
immigration judge who presided over that matter.
His second
round of removal proceedings was commenced shortly after his
March 26, 2012, detention, that is, on April 2, 2012, when he was
issued a Notice to Appear on the grounds of his 2001 and 2007
2
controlled-substance convictions.
This second round of
Petitioner's removal proceedings is currently underway.
Being
deemed a § 1226(c) pre-removal-period alien detainee, Petitioner
is held without a bond hearing before his immigration judge.
His Petition could, effectively, be reduced to a statement
that the Government erred in classifying him as a § 1226(c) alien
detainee and, as a result of this erroneous classification,
Petitioner is unduly denied an individualized bond hearing before
an immigration judge.
II.
DISCUSSION
A.
Jurisdiction
Under 28 U.S.C. § 2241(c), habeas jurisdiction "shall not
extend to a prisoner unless . . . he is in custody in violation
of the Constitution or laws or treaties of the United States."
28 U.S.C. § 2241(c)(3).
Federal courts have subject matter
jurisdiction under 28 U.S.C. § 2241(c)(3) if two requirements are
satisfied, namely, that (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); see
also
Maleng v. Cook, 490 U.S. 488, 490 (1989).
In this case, Petitioner is in custody within this Court's
jurisdiction, and has alleged that his mandatory detention
without an individualized bond hearing is not statutorily
authorized.
3
Accordingly, the Court will exercise subject matter
jurisdiction over the instant Petition.
Accord Zadvydas v.
Davis, 533 U.S. 678, 699 (2001); Diop v. ICE/Homeland Security,
656 F.3d 221, 226 (3d Cir. 2011).
B.
Mandatory Detention
Section 1226(a) authorizes the Attorney General of the
United States to issue a warrant for the arrest and detention of
an alien pending a decision on whether the alien is to be removed
from the United States.
See 8 U.S.C. § 1226(a).
Except as
provided in § 1226(c), the Attorney General may release the alien
on "bond of at least $1,500."
8 U.S.C. § 1226(a)(2)(A).
By contrast, INA § 236(c), codified at 8 U.S.C. § 1226(c),
mandates detention of specified criminal aliens, without bond,
during removal proceedings.
It provides:
The Attorney General shall take into custody any alien
who —
(A)
(B)
(C)
(D)
is inadmissible by reason of having committed any
offense covered in Section 1182(a)(2) of this
title,
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,
is deportable under Section 1227(a)(2)(A)(i) of
this title on the basis of an offense for which
the alien has been sentenced to a term of
imprisonment of at least 1 year, or
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
4
probation, and without regard to whether the alien may
be arrested or imprisoned again for the same offense.
8 U.S.C. § 1226(c) (emphasis supplied).
C.
Petitioner's Application Merits Habeas Relief
Here, Petitioner seemingly does not dispute that the
controlled-substance offenses underlying his 2001 and 2007
convictions could, as a theoretical matter, trigger mandatory
detention pursuant to § 1226(c).
No. 1.
See, generally, Docket Entry
Rather, he asserts that § 1226(c) does not apply to him
personally because the Government failed to detain him
immediately upon his release from criminal incarceration
underlying his current removal proceedings.3
See id. Petitioner,
thus, urges this Court to hold that he is detained pursuant to §
1226(a) and, consequently, that he is entitled either to an
individualized bond hearing before an immigration judge.
See id.
Respondents argue that pursuant to the BIA's decision in
Matter of Rojas, 23 I. & N. Dec. 117 (BIA 2001), and limited
federal case law that adopted Rojas reasoning, Petitioner is
properly detained under Section § 1226(c).
Docket Entry No. 9.
See, generally,
Respondents further contend that the BIA's
interpretation of the "when the alien is released" language in
3
Petitioner was released from the latest confinement
underlying his current removal proceedings (that is, from penal
confinement resulting from his 2007 conviction) in 2008. Thus,
his current removal proceedings, instituted in 2012 upon issuance
of the Notice to Appear, were commenced four years after the
release relevant to the Court's analysis.
5
Rojas is entitled to deference under the principles the Supreme
Court set forth in Chevron U.S.A., Inc. v. Nat'l Res. Def.
Council, Inc., 467 U.S. 837 (1984), because the language of §
1226(c) is ambiguous.4
See id. at 9-17.
While Respondents' reliance on Rojas and federal case law
building on that administrative determination is duly noted, this
Court finds such reliance unwarranted.
In Rojas, the BIA held that the "when the alien is released"
language of § 1226(c) mandates that aliens who have been
convicted of certain enumerated offenses be detained without the
possibility of bail "regardless of when they were released from
criminal confinement and regardless of whether they had been
living within the community for years after their release."
See
id., 23 I. & N. Dec. at 121.
As noted supra, Respondents are arguing that this Court
should accord deference to the BIA's interpretation of the "when
the alien is released" language and rely on a rather small number
of district court opinions and a recent decision of the Fourth
4
In Chevron, the Supreme Court established a two-step
framework for reviewing an administrative agency's interpretation
of a statute. See Cheveron 467 U.S. at 842-43. Under the first
step, the Court must consider "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." Id. If,
however, "the statute is silent or ambiguous with respect to the
specific issue," then the Court must proceed to the second step
and determine whether the agency's determination was "based on a
permissible construction of the statute." Id.
6
Circuit which accorded deference to the BIA's interpretation in
Rojas (holding that an alien may be subject to mandatory
detention even if there is a gap between the time of release from
criminal incarceration and the time of detention by immigration
authorities).
See, e.g., Hosh v. Lucero, 680 F.3d 375, 384 (4th
Cir. 2012) (holding "that the BIA's interpretation of § 1226(c)
was reasonable, and must be accorded deference"); Sulayao v.
Shanahan, No. 09 Civ. 7347, 2009 U.S. Dist. LEXIS 86497 (S.D.N.Y.
Sept. 15, 2009) (same).
The Third Circuit has yet to rule on whether § 1226(c)
contains an immediacy requirement,5 and this Court is mindful
that federal courts have yet to reach a consensus as to the
proper interpretation of § 1226(c).
Compare, e.g., Hosh, 680
F.3d at 384 (finding the "when the alien is released" language
ambiguous, and holding that detention pursuant to § 1226(c) does
not require the Government to act immediately upon a criminal
alien's release), with, e.g., Saysana v. Gillen, 590 F.3d 7, 18
(1st Cir. 2009) (finding the "when the alien is released"
language unambiguous, and holding, albeit in a different context,
that "[t]he statutory language embodies the judgment of Congress
5
The issue of how the "when the alien is released"
language of § 1226(c) should be interpreted is pending before the
Third Circuit. See Sylvain v. Holder, U.S.C.A. Index No.
11-3357, (3d Cir., docketed Aug. 31, 2011), and Desrosiers v.
Hendricks, U.S.C.A. Index No. 12-1053 (3d Cir., docketed Jan. 11,
2012). To date, however, the Third Circuit has not issued a
ruling in either of these cases.
7
that such an individual should not be returned to the community
pending disposition of his removal proceedings").
However, the
bulk of relevant decisions entered within this District have held
that the "when the alien is released" language requires the
Government to act immediately upon an alien's release from
criminal custody and, when it does not, said alien is properly
considered to be held under § 1226(a), which entitles him or her
to a bond hearing.
See, e.g., Kerr v. Elwood, 2012 U.S. Dist.
LEXIS 160250 (D.N.J. Nov. 8, 2012); Charles v. Shanahan, 2012
U.S. Dist. LEXIS 145072 (D.N.J. Oct. 9, 2012); Kporlor v.
Hendricks, 2012 U.S. Dist. LEXIS 145387 (D.N.J. Oct.9, 2012);
Martinez v. Muller, 2012 U.S. Dist. LEXIS 1384763 (D.N.J. Sept.
25, 2012); Nimako v. Shanahan, 2012 U.S. Dist. LEXIS 133110
(D.N.J. Sept. 18, 2012); Dimanche v. Tay-Taylor, 2012 U.S. Dist.
LEXIS 116432 (D.N.J. Aug. 9, 2012); Gonzalez-Ramirez v.
Napolitano, 2012 U.S. Dist. LEXIS 108227 (D.N.J. July 30, 2012);
Kot v. Elwood, 2012 U.S. Dist. LEXIS 61346 (D.N.J. May 2, 2012);
Parfait v. Holder, 2011 U.S. Dist. LEXIS 117053 (D.N.J. Oct. 11,
2011); Sylvain v. Holder, 2011 U.S. Dist. LEXIS 69591 (D.N.J.
June 28, 2011).
This Court has found that position persuasive and, indeed,
expressly and consistently shared in that position.
See Campbell
v. Elwood, 2012 U.S. Dist. LEXIS 139203 (D.N.J. Sept. 27, 2012);
Cox v. Elwood, 2012 U.S. Dist. LEXIS 122017 (D.N.J. Aug. 28,
8
2012); Martial v. Elwood, 2012 U.S. Dist. LEXIS 114476 (D.N.J.
Aug. 14, 2012); Munoz v. Tay-Taylor, 2012 U.S. Dist. LEXIS 109601
(D.N.J. Aug. 6, 2012); Nunez v. Elwood, 2012 U.S. Dist. LEXIS
49458 (D.N.J. Apr. 5, 2012).6
Consequently, at this juncture,
absent a directive from the Third Circuit, this Court is not
inclined to depart from the principles it has consistently
articulated in its prior decisions.
Since the Government did not detain Petitioner in connection
with his removal proceedings until four years after he was
released from penal confinement underlying said removal, this
Court holds that Petitioner cannot be properly classified as an
alien detainee held under § 1226(c), and his current detention
should be reclassified by the Government as a detention resulting
from operations of § 1226(a).
As a § 1226(a) detainee,
Petitioner should be entitled to an individualized bond hearing
before an immigration judge.7
6
Respondents seem to be well aware of this Court's
position. See Docket Entry No. 9, at 6 (making an express
reference to this Court's prior rulings).
7
Respondents put a great deal of emphasis on Petitioner's
extensive criminal history. However, Respondents' argument to
that effect is inapposite to the issue at bar. While Petitioner's
immigration judge may find that Petitioner's criminal history
presents a basis to deny him release, Petitioner's eligibility
for a bond hearing is not affected by such possibility. In other
words, while not every § 1226(a) detainee gets released on bond,
every Section 1226(a) detainee is entitled to be considered for
such release. This Court takes no position as to Petitioner's
suitability for release: that issue falls within exclusive
discretion of Petitioner's immigration judge and the entities
9
III. CONCLUSION
For the foregoing reasons, Petitioner's application seeking
a writ of habeas corpus will be granted.
Respondents will be ordered to ensure that an immigration
judge provides Petitioner with an individualized bond hearing
within fourteen days from the date of entry of this Court's Order
accompanying this Opinion: so the immigration judge would
determine whether, and under which conditions, Petitioner may be
released from custody pending resolution of his removal
proceeding.8
The Government will bear the burden of proving that
Petitioner's continued detention is warranted at that bond
hearing.
The Petition will be dismissed as to all Respondents except
for Petitioner's warden.
holding mandate to conduct appellate review of the decisions
rendered by immigration courts.
8
While Congress stripped district courts of habeas
jurisdiction to consider most immigration issues, district courts
retained jurisdiction to review habeas aspects of immigration
cases, if such aspects are unrelated to removal proceedings. See,
e.g., Clark v. Martinez, 543 U.S. 371 (2005); Zadvydas, 533 U.S.
at 699; Demore v. Kim, 538 U.S. 510, 528-29 (2003). Therefore,
district courts (having neither an appellate mandate over
immigration courts nor mandate to direct actions by immigration
judges in the matters where such judges are not parties) can
ensure compliance with their orders through directing actions by
the parties. Here, the party charged with the duty to ensure
proper compliance with this Court's habeas Order is Respondents.
10
An appropriate Order accompanies this Opinion.
s/Peter G. Sheridan
Peter G. Sheridan,
United States District Judge
Dated: November 21, 2012
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