CAMPBELL v. ELWOOD et al
Filing
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OPINION filed. Signed by Judge Peter G. Sheridan on 9/27/2012. (mmh)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
TYRONE LLOYD CAMPBELL,
Petitioner,
v.
BRIAN ELWOOD, et al.,
Respondents.
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Civil Action No. 12-4726 (PGS)
OPINION
APPEARANCES:
Petitioner pro se
Tyrone Lloyd Campbell
Monmouth County Correctional Institution
Freehold, NJ 07728
Counsel for Respondents
Kirsten Lee Daeubler
U.S. Department of Justice
Civil Division
450 5th Street, N.W.
Room 6031
Washington, DC 20001
SHERIDAN, District Judge
Petitioner Tyrone Lloyd Campbell, 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 Tyrone Lloyd Campbell is a native and citizen of
Jamaica who entered the United States without inspection on an
unknown date.
Petitioner became a temporary resident of the
United States on July 6, 1988, pursuant to 8 U.S.C. § 1255(a).
On March 13, 1991, Petitioner filed a Form I-698 Application to
Adjust Status from Temporary Permanent Resident, but he failed to
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
appear for his scheduled interview, and no action was taken on
the For, I-698 Application at that time.
On April 29, 2011, Petitioner was convicted in the U.S.
District Court for the Eastern District of New York, pursuant to
a guilty plea, of money laundering in violation of 18 U.S.C.
§ 1956(a)(2).
The court sentenced him to 364 days’ imprisonment
to be followed by three years’ supervised release.
Campbell was
released from criminal custody on either April 29, 2011, or May
12, 2011.
He was not taken into custody, at that time, by
immigration officials.
On July 1, 2011, U.S. Citizenship and Immigration Services
denied Petitioner’s Form I-698 Application.
On July 5, 2011,
USCIS issued to Petitioner a Notice of Intent to Terminate his
temporary resident status.
On September 6, 2011, USCIS issued to
Petitioner a Notice of Termination of temporary residence, at
which time Petitioner’s immigration status reverted to his former
unlawful status.
On March 26, 2012, Immigration and Customs Enforcement
officials arrested Petitioner and took him into custody.
The
same day, ICE determined that Petitioner was eligible for release
on bond, and set bond at $5,000.
The next day, ICE determined
that Petitioner was subject to mandatory detention under 8 U.S.C.
§ 1226(c) and that, therefore, he was not eligible for release on
bond.
3
On March 28, 2012, ICE initiated removal proceedings against
Petitioner by issuing a Notice to Appear which charged Petitioner
as being removable as an inadmissible alien present without
admission or parole (under 8 U.S.C. § 1182(a)(6)(A)(i)) and as an
inadmissible alien who committed an offense relating to money
laundering (under 8 U.S.C. § 1182(a)(2)(I)(i)).
Petitioner first appeared before an immigration judge on
April 2, 2012.
The proceedings have been adjourned several
times, most recently until September 18, 2012.
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
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(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.
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 (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, ...
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.”
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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
jurisdiction 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)(1)(A), based upon his moneylaundering conviction, because DHS did not immediately place him
into custody when he was released from criminal incarceration for
that offense in the spring of 2011.
That is, Petitioner argues
that district courts have interpreted “when ... released” under
Section 1226(c) to mean that immigration authorities are required
to detain an alien immediately upon release from criminal
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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.3
Because
of this ambiguity, the government argues, this Court should defer
to the Board of Immigration Appeals' (“BIA”) interpretation of
this language as decided in Matter of Rojas.4
See Chevron
3
Respondent also argues that Petitioner has failed to
exhaust his administrative remedies by failing to request a
“Joseph” hearing, to challenge his detention under § 1226(c)
either because he is not an alien or was not convicted of a crime
that falls under § 1226(c). As there is no dispute among the
parties regarding these facts, and in light of the decision of
the BIA in Matter of Rojas, discussed more fully, above, it is
clear that exhaustion of administrative remedies would be a
futile exercise.
4
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.
7
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
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 approximately a year before being
taken into custody by ICE.
Finally, Respondent argues that the
government is entitled to detain Petitioner under § 1226(c), even
it if is interpreted to require detention immediately upon
release, because the statute does not indicate that the
consequence for the government’s non-compliance should be the
deprivation of its power of mandatory detention under § 1226(c).
Chevron, 467 U.S. at 842-43 (footnotes omitted).
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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
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
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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.
The
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
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
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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 Tyrone Lloyd Campbell
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.
Dated: September 27, 2012
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