Masih v. Aviles et al
Filing
19
MEMORANDUM AND ORDER granting 11 Motion to Amend/Correct 11 MOTION to Amend/Correct 1 Petition for Writ of Habeas Corpus. The petitioner's motion to amend the petition (docket no. 11) is granted. The amended petition is conditionall y granted, and the Government shall release Mr. Masih unless it accords him a bond hearing pursuant to 8 U.S.C. 1226(a) within 30 days of the date of this order. The Clerk of Court is respectfully directed to enter judgment accordingly and close this case. (Signed by Magistrate Judge James C. Francis on 5/19/2014) Copies Mailed By Chambers. (ja)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - - - -:
RAHUL MASIH,
:
:
Petitioner,
:
:
- against :
:
OSCAR AVILES, in his official
:
capacity as Warden of Hudson
:
County Jail, CHRISTOPHER
:
SHANAHAN, in his official capacity :
as New York Field Office Director :
for U.S. Immigration and Customs
:
Enforcement, RAND BEERS, in his
:
official capacity as Acting
:
Secretary of Homeland Security,
:
ERIC HOLDER, in his official
:
capacity as Attorney General of the:
United States, and the U.S.
:
DEPARTMENT OF HOMELAND SECURITY,
:
:
Respondents.
:
- - - - - - - - - - - - - - - - - -:
JAMES C. FRANCIS IV
UNITED STATES MAGISTRATE JUDGE
14 Civ. 0928 (JCF)
MEMORANDUM
AND ORDER
Since January 2014, United States Immigration and Customs
Enforcement (“ICE”) has held petitioner Rahul Masih in detention.
It has done so pursuant to a statute that requires the Government
to detain any alien who is subject to deportation on the basis of
having been
turpitude.
convicted
of
two
or
more
crimes
involving
8 U.S.C. §§ 1226(c)(1)(B), 1227(a)(2)(A)(ii).
moral
Mr.
Masih contends that he is not properly held under that section, and
seeks a bond hearing pursuant to 8 U.S.C. § 1226(a), the general
provision governing detention of removable aliens.
(1)
He argues that
detention under section 1226(c)(1)(B) is authorized only for
an alien who has been released from a custodial sentence imposed
for the conviction that makes him removable, and he did not receive
1
a custodial sentence for any of the crimes that make him removable,
and (2) detention under that section is authorized only for an
alien who is detained at or around the time that he is released
from criminal custody, whereas Mr. Masih was not detained until
years
after
his
convictions
for
the
offenses
that
made
him
removable. Because Mr. Masih’s first argument correctly interprets
the statute, I conditionally grant the writ on that ground.1
Factual Background
The
relevant
facts
are
largely
undisputed.
immigrated to the United States from India in 1991.
Mr.
Masih
([Proposed]
First Amended Petition for Writ of Habeas Corpus (“Am. Pet.”),
attached as Exh. 1 to Motion to Amend Petition for Writ of Habeas
Corpus, at 3).2
3).
He is not a United States citizen.
(Am. Pet. at
In 1998 and 2005, he pled guilty to two crimes involving moral
turpitude; however, he received no jail time as a result of the
convictions.3
(Am. Pet. at 7).
Instead, he was sentenced to a
1
This case was referred to me by consent of the parties for
all purposes up to and including entry of judgment pursuant to 28
U.S.C. § 636(c).
2
The petitioner has filed a motion to amend the petition to
add Yvette Tay-Taylor, Assistant Field Office Director for the
Office of Detention and Removal for U.S. Immigration and Customs
Enforcement as a respondent. The motion is granted, and I will
therefore refer hereafter to the amended petition.
3
There appears to be some dispute about whether Mr. Masih was
detained after his arrests for any of these three crimes.
The
Government has submitted two arrest reports purportedly from the
New Rochelle Police Department which indicate that Mr. Masih was
held following his arrest on November 14, 2003 and released on his
own recognizance following his arrest on May 18, 2004. (Arrest
Report dated Nov. 14, 2003, attached to Letter of Christopher
Connolly dated April 17, 2014 (“Connolly Letter”); Arrest Report
dated May 18, 2004, attached to Connolly Letter). The petitioner
2
one-year conditional discharge on the 1998 conviction and three
years of probation on the two 2005 convictions.
(Am. Pet. at 7;
Conditions of Conditional Discharge dated Dec. 11, 1998, attached
as Exh. 3 to Memorandum of Law in Support of Petition for Habeas
Corpus (“Pet. Memo.”); Certificate of Disposition dated Dec. 5,
2013, attached as Exh. 4 to Pet. Memo.; Certificate of Disposition
dated Dec. 5, 2013, attached as Exh. 5 to Pet. Memo.).
In January
2014, ICE detained him without a bond hearing pursuant to section
1226(c).
(Notice of Custody Determination dated Jan. 15, 2014,
attached as Exh. 8 to Return to Habeas Petition (“Return”)).
Proceedings are now underway to effect his removal.
(Notice of
Hearing in Removal Proceedings dated April 1, 2014, attached as
Exh. 10 to Return).
Discussion
A.
Legal Standards4
This case requires me to interpret part of the Immigration and
Naturalization Act (the “INA”), which is administered by the Board
of Immigration Appeals (the “BIA”).
See Chery v. Ashcroft, 347
objects, noting that the records “lack all indicia of reliability,”
as they are “neither signed, nor authenticated/certified, and it is
impossible to tell when in fact they were actually created.”
(Letter of Michael Z. Goldman dated April 17, 2014). As explained
below, whether Mr. Masih was detained following his arrests would
not change the outcome here, and it is therefore unnecessary to
decide the admissibility of the records.
4
It is clear that the Court has jurisdiction over this
petition. See, e.g., Straker v. Jones,
F. Supp. 2d
,
, 2013
WL 6476889, at *3 (S.D.N.Y. 2013). Exhaustion of administrative
remedies is similarly not at issue, as the respondents have not
raised it as a defense and the petitioner’s failure to exhaust
would, in any case, be excused as futile.
Id. at
, 2013 WL
6476889, at *15.
3
F.3d 404, 407 (2d Cir. 2003). The statute includes two subsections
directed at the detention of potentially removable aliens. Section
1226(a)
provides
that,
pursuant
to
a
warrant,
immigration
officials5 may arrest an alien and, pending a decision on whether
the alien is removable, may detain him, release him on bond, or
release him on conditional parole.
8 U.S.C. § 1226(a).
Section
1226(a) thus contemplates that detained aliens will be provided a
bond hearing.
Section 1226(c), on the other hand, applies to only
a subset of aliens -- denominated “criminal aliens” -- and denies
them a right to a bond hearing:
The [Department of Homeland Security] 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
[which primarily governs admissibility of aliens
convicted of an offense (including a conspiracy or
attempt) involving moral turpitude or a controlled
substance],
(B) is deportable by reason of having committed any
offense covered in section 1227(a)(2)(A)(ii) [which
governs deportability of aliens convicted of two or more
crimes of moral turpitude], (A)(iii), (B), (C), or (D) of
this title, [which primarily govern deportability of
aliens convicted of aggravated felonies, crimes involving
controlled substances or firearms, and certain other
5
The statute confers authority on the Attorney General. 8
U.S.C. § 1226(a). However, the Attorney General’s duties under the
statute now belong to the Secretary of the Department of Homeland
Security, see Straker,
F. Supp. 2d at
, 2013 WL 6476889, at *4
(citing 6 U.S.C. §§ 202, 251, 557; Vazquez v. Holder, 602 F.3d
1003, 1006 (9th Cir. 2010); and United States v. Rios-Zamora, 153
F. App’x 517, 520-21 (10th Cir. 2005)), whose department includes
Immigration and Customs Enforcement, Monter v. Gonzales, 430 F.3d
546, 548 n.1 (2d Cir. 2005) (“On March 1, 2003, the Immigration and
Naturalization Service was reconstituted as the Bureau of
Immigration and Customs Enforcement [] and the Bureau of U.S.
Citizenship and Immigration Services, both within the Department of
Homeland Security.”).
4
crimes],
(C) is deportable . . . on the basis of an offense for
which the alien has been sentence[d] to a term of
imprisonment of at least 1 year, or
(D) is inadmissible under section 1182(a)(3)(B) of this
title or deportable under section 1227(a)(4)(B) of this
title [which govern admissibility and deportability of
those involved in terrorist activity],
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.
8 U.S.C. § 1226(c)(1) (footnote omitted).
An alien otherwise
subject to mandatory detention under section 1226(c)(1) may be
released
only
protection.
B.
in
limited
circumstances
related
to
witness
8 U.S.C. § 1226(c)(2).
Analysis
Mr. Masih argues that the term “released” as used in section
1226(c) requires release from a custodial sentence imposed as a
result of a conviction for the criminal conduct that makes the
alien removable, and thus does not apply to him because he has not
been “released” in this manner.6
To determine the meaning of a provision of the INA, a court
begins with the “statutory text, considering the ordinary or
natural meaning of the words chosen by Congress, as well as the
placement and purpose of those words in the statutory scheme.”
6
The Government does not dispute that the release making an
alien eligible for mandatory detention must be from custody imposed
in relation to the conduct that brings the alien within the ambit
of section 1226(c) -- that is, conduct referred to in subsections
(1)(A) through (D). See Saysana v. Gillen, 590 F.3d 7, 14-15 (1st
Cir. 2009); In re Garcia Arreola, 25 I. & N. Dec. 267, 271 (BIA
2010).
5
Cruz-Miguel v. Holder, 650 F.3d 189, 195 (2d Cir. 2011) (internal
quotation marks omitted); see also Castaneda v. Souza, 952 F. Supp.
2d 307, 311 (D. Mass. 2013). “[W]here the [statute] clearly speaks
to the point in question,” that is the end of the inquiry.
Boluk
v. Holder, 642 F.3d 297, 301 (2d Cir. 2011) (internal quotation
marks omitted).
However, where a provision of the statute is
ambiguous, a court must generally defer to “the BIA’s published,
precedential interpretations of the [INA],” if any, as long as they
are reasonable. Baraket v. Holder, 632 F.3d 56, 58 (2d Cir. 2011);
see also Boluk, 642 F.3d at 301.
Section 1226(c) does not define the term “released,” which can
be interpreted to mean release from any kind of custody -- pretrial, post-conviction, or both.
In light of this ambiguity, a
court must look to the interpretation of the BIA, which has twice
stated that the word “released” in section 1226(c)(1) can refer to
release
from
pre-trial
physical
custody,
thus
subjecting
to
mandatory detention a covered alien who was released from custody
preceding a conviction.
In re Kotliar, 24 I. & N. Dec. 124, 125
(BIA 2007) (“[W]e have held that an alien who is released from
criminal custody (including from an arrest preceding a conviction
. . . )” is “subject to mandatory detention”); In re West, 22 I. &
N. Dec. 1405, 1410 (BIA 2000) (“‘Released’ [in section 1226(c)(1)]
. . . can [] refer to release from physical custody following
arrest.”).
However, neither opinion engages in detailed analysis
of the question, so they are of limited utility and do not merit
deference on this issue.
See, e.g., Straker, __ F. Supp. 2d at __,
6
2013 WL 6476889, at *12 (“The BIA’s decisions are particularly
unworthy of deference, in that West contained little reasoning in
support of its conclusion on this point, and Kotliar none.”);
accord Lora v. Shanahan, __ F. Supp. 2d
__, __, 2014 WL 1673129,
at *10-11 (S.D.N.Y. 2014).
Straker provides the most thorough and persuasive analysis of
this question.
Examining the structure of section 1226(c), that
opinion notes that the statute requires mandatory detention for an
alien who has committed a covered offense -- that is, who has been
convicted of such an offense -- “‘when the alien is released.’”
Straker, __ F. Supp. 2d at __, 2013 WL 6476889, at *10 (quoting 8
U.S.C. § 1226(c)(1)(B)).
Because “the four categories of aliens
listed in § 1226(c)(1)(B) all refer to aliens who have been
convicted of covered offenses,” “[t]he statute’s text [] naturally
fits the paradigm in which the alien (1) is convicted of an offense
enumerated in § 1226(c)(1)(B), (2) serves a prison sentence for
such
a
conviction,
and
thereafter
Department of Homeland Security.
Id.
(3)
is
released”
to
the
Thus, the “when released”
language cannot create a duty to detain upon release from pre-trial
detention.
See id.; accord Lora, __ F. Supp. 2d at __, 2014 WL
1673129, at *11.
The Government contends that
Straker’s finding that if pre-conviction arrests may
satisfy the release requirement, then ‘a mere arrest for
a qualifying offense’ would trigger mandatory detention,
is incorrect because it fails to recognize that the
language of [section 1226(c)] also requires a conviction
for a qualifying offense. In other words, Straker rests
on a flawed premise: an alien would not fall within the
mandatory detention statute if he were not convicted of
7
an offense under the provisions that render an alien
removable based on a conviction.
(Respondents’ Memorandum of Law in Opposition to the Petition for
a
Writ
of
Habeas
misunderstands
the
Corpus
argument.
(“Resp.
Memo.”)
Because
the
at
21).
provision
This
requires
mandatory detention of an alien when he is released from custody
imposed in connection with the offense that makes him removable, it
cannot be directed at pre-conviction release from such custody
precisely because mandatory detention is premised on a conviction.
Straker also addresses a related question (not raised by the
Government here): whether termination of non-physical custody -such as at the conclusion of Mr. Masih’s probation -- constitutes
“release” subjecting a qualified alien to mandatory detention under
section 1226(c).
Finding the term “release” ambiguous, Straker
defers to the BIA’s interpretation of this question in In re West.7
The analysis in In re West is entirely convincing.
The BIA noted
that the statute directs immigration officials to detain aliens
subject to the provision “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.”
7
8 U.S.C. §
The Government asserts that Straker is “internally
inconsistent” because it defers to In re West’s determination that
a qualifying release must be from physical custody but rejects the
opinion’s assertion “that pre-conviction arrests can satisfy the
‘release’ requirement.”
(Resp. Memo. at 21).
There is no
inconsistency, internal or otherwise.
No deference is due the
first proposition because it is a largely unreasoned ipse dixit.
The second determination, however, is the product of reasoned
analysis. See In re West, 22 I. & N. Dec. at 1408-10; see also
Straker, __ F. Supp. 2d at __, 2013 WL 6476889, at *13-15.
8
1226(c); In re West, 22 I. & N. Dec. at 1408.
“The natural reading
of the words ‘released on’ within the context of these clauses . .
. suggests that Congress is referring to the release of an alien
from a restrictive form of criminal custody involving physical
restraint to a less restrictive form of criminal custody without
physical restraint.”
In re West, 22 I. & N. Dec. at 1409.
Similarly, the concluding clause invoking arrest and imprisonment
indicates a return to physical custody.
Id.
Because the statute
bookends the “release” at issue between prior physical custody and
possible future physical custody, the mandatory duty to detain an
alien is not triggered by “release from non-physical restraints.”
Straker, __ F. Supp. 2d at __, 2013 WL 6476889, at *15.
This interpretation also comports with congressional intent.
Congress passed section 1226(c) to remedy difficulties in deporting
criminal aliens and to address recidivism among deportable aliens
who were released after criminal conviction.
538 U.S. 510, 518-20 (2003).
See Demore v. Kim,
The Government insists that “an
interpretation [of section 1226(c)] that turns on the precise
nature of an underlying sentence and periods of confinement -rather than the nature of the underlying conviction -- [] runs
contrary to the statute’s purpose.”
(Resp. Memo. at 22).
On the
contrary, it merely (and sensibly) defers to the sentencing court’s
calculation of the risks involved, which include those factors
about which Congress was concerned when it passed section 1226(c).
In
sum,
because
Mr.
Masih
was
not
released
from
post-
conviction physical custody, the Government is not authorized to
9
hold him in mandatory detention pursuant to section 1226(c)
8
Conclusion
The petitioner's motion to amend the petition (docket no. 11)
is granted.
The amended petition is conditionally granted, and the
Government shall release Mr.
Masih unless it accords him a bond
hearing pursuant to 8 U.S.C. 1226(a) within 30 days of the date of
this order.
The Clerk of Court is respectfully directed to enter
judgment accordingly and close this case.
SO ORDERED.
~ C·~tl\Mvf, TV'
JAMES C. FRANCIS IV
UNITED STATES MAGISTRATE JUDGE
Dated: New York, New York
May 19, 2014
As to Mr. Masih's second argument, the BIA has held that an
alien who has engaged in the criminal conduct described in section
1226 (c) (1) is subject to mandatory detention even if he is not
immediately taken into custody by immigration officials when
released from criminal custody.
In re Rojas, 23 I. & N. Dec. 117
(BIA 2001).
The courts, however, are divided on this question,
with many holding that if ICE fails to detain an alien promptly
following his release from post-conviction custody, it loses the
authority to do so under section 1226(c) and must provide him with
a bond hearing.
See, e.g., Lora,
F. Supp. 2d at
, 2014 WL
1673129, at *6-7 (noting disagreement among the district courts
addressing this issue); Baguera v. Longshore, 948 F. Supp. 2d 1258,
1262-63 (D. Colo. 2013) (same); Johnson v. Orsino, 942 F. Supp. 2d
396, 404-05 (S.D.N.Y. 2013) (Game); Valdez v. Terry, 874 F. Supp.
2d 1262, 1264 (D.N.M. 2012) (same).
In light of my determination
that Mr. Masih is not subject to section 1226(c) because he has not
been released from a custodial sentence, I need not reach this
8
issue.
10
Copies mailed this date:
Michael Z. Goldman, Esq.
Law Offices of Michael Z. Goldman
875 6th Ave., Suite 2302
New York, NY 10001
Christopher Connolly, Esq.
Assistant United States Attorney
US Attorney's Office, SDNY
86 Chambers Street
New York, NY 10007
11
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