Martinez-Done v. Tay-Taylor et al
Filing
17
OPINION AND ORDER: Although Martinez was "released" within the meaning of section 236(c), he was not taken into custody "when [he was] released." Furthermore, even if his detention could be reconciled with the statutory language , constitutional concerns remain. Martinez has the right - under section 236(a) of the INA, as well as the Due Process Clause of the Fifth Amendment - to have an impartial adjudicator decide if he may be released during the pendency of his removal proceedings. His request for a bond hearing is GRANTED. (Signed by Judge Shira A. Scheindlin on 10/8/2014) (ja)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------
I
USDCSDN.Y
l
DOCU!\-fENT
)(
DIOMEDES MARTINEZ-DONE,
ELECTRONICALLY FJED
. DOC#:
DATE FILED:
=_;
I
/ob/i:I
Plaintiff,
- against OPINION AND ORDER
DIANE MCCONNELL, in her official
capacity as Assistant Field Office Director
for U.S. Immigration and Customs
Enforcement, et al.,
14 Civ. 3071 (SAS)
Defendants.
-------------------------------------------------------
)(
SHIRA A. SCHEINDLIN, U.S.D.J.:
I.
INTRODUCTION
On March 26, 2014, Diomedes Martinez-Done, a lawful permanent
resident of the United States since 1983, was taken into custody by Immigration
and Customs Enforcement officials ("ICE"). At the time, Martinez was serving
five years of probation in connection with a 2012 state conviction- his secondfor drug possession.
In light of his criminal history, ICE determined that Martinez was
subject to mandatory detention under section 236(c) of the Immigration and
Nationality Act ("IN A"). Section 23 6( c)( 1) provides that the Attorney General
-1-
"shall take into custody" any alien who has committed a qualifying offense as drug possession -
such
"when the alien is released." 1 Aliens taken into custody
pursuant to section 236(c) may not seek review of detention decisions.
Martinez argues that if he is removable, it is not pursuant to section
236(c), as the government contends, but rather to section 236(a). Under the latter
provision, detention is not mandatory; aliens are entitled to individualized bond
hearings to determine whether release is appropriate during the pendency of
removal proceedings. That is the remedy Martinez seeks here.
Martinez offers three theories for why section 236( c) does not govern
his case. 2 First, Martinez argues that he never served a custodial sentence -
and
therefore he was never "released" from custody as section 236( c)(1) requires.
Second, Martinez argues that he was not taken into custody "when [he was]
released," thereby violating the implicit timeliness requirement of section 236( c).
Third, Martinez argues that mandatory detention under section 236( c), as applied
to his case, offends the Due Process Clause of the U.S. Constitution.
8 U.S.C. § 1226(c)(l).
2
Martinez is not the first to make these arguments. A number of
similar habeas cases have been decided in recent years. See, e.g., Araujo-Cortes v.
Shanahan, No. 14 Civ. 4231, 2014 WL 3843862, at *5-6 nn.5 & 6 (S.D.N.Y. Aug.
5, 2014) (collecting recent cases from the Southern District of New York that have
examined the meaning of the "when ... released" clause of section 236( c )).
-2-
For the reasons set forth below, Martinez's request for an
individualized bond hearing is GRANTED.
II.
BACKGROUND
In 1983, at the age of twenty-five, Martinez was admitted to the
United States as a lawful permanent resident. Since then he has lived with his
family in New York.
In 2003, Martinez pled guilty to criminal possession of cocaine in the
third degree -
which was subsequently modified to criminal possession of a
controlled substance in the fourth degree. 3 He was sentenced to five years of
probation. 4 In 2008, Martinez was arrested once again for drug possession, and in
2012, he was found guilty of possession of cocaine in the fifth degree. 5 He was
See 2006 Certificate of Disposition Indictment ("2006 Cert."), Exhibit
("Ex.") 2 to Government's Return to Habeas Petition ("Ret."), at 4. In 2006,
presumably on the advice of counsel, Martinez withdrew his original plea from
2003 and re-pleaded to criminal possession of cocaine in the fourth degree.
Because of the revised plea, there is some imprecision in the parties' references to
Martinez's first conviction. Some submissions call it the "2003 conviction."
Others call it the "2006 conviction." Both formulations are referring to the same
underlying offense: the criminal possession - initially in the third degree, and
after the 2006 revised plea, in the fourth degree - for which Martinez was arrested
in 2002.
4
See id.
See 2012 Certificate of Disposition Indictment, Ex. 3 to Ret., at 3.
-3-
sentenced to five years of probation. 6 Both convictions are grounds for removal
under the INA. 7
In August and September of 2004, while serving his initial
probationary sentence, Martinez was remanded to the New York City Department
of Corrections and spent forty-one days in custody. 8 The reason for the remand is
uncertain. Neither party has been able to produce a document that directly explains
why Martinez was taken into custody. The government argues that it was
"presumably" for violating the terms of his probation9 -
which, if true, would
mean that Martinez's first conviction resulted in a period of custody despite the
fact that his sentence was non-custodial. In the absence of further information, I
conclude that the most likely explanation for the remand is that Martinez violated
his probation. 10
6
See id.
See 8 U.S.C. § 1227(a)(2)(B)(i) ("[a]ny alien who at any time after
admission has been convicted of a violation of (or a conspiracy or attempt to
violate) any law or regulation of a State, the United States, or a foreign country
relating to a controlled substance ... other than a single offense involving
possession for one's own use of 30 grams or less of marijuana" may be deported).
7
See 2006 Cert. at 3. See also id. at 12-13 (the booking detail for
Martinez's forty-one day custodial period).
9
Ret. at 2.
10
The best evidence for this explanation is that the same indictment
number- 468-2003 - appears on (1) the record of Martinez's 2004 remand and
-4-
On March 26, 2014, nearly six years after his most recent arrest, and
nearly ten years since he was released from post-conviction custody, ICE officials
took Martinez into custody and initiated removal proceedings. 11 In light of
Martinez's criminal history, ICE determined that he was subject to mandatory
detention under section 236( c). 12 Accordingly, Martinez has been in detention
since March 2014, awaiting a removal decision. On April 30, 2014, Martinez filed
a petition for a Writ of Habeas Corpus. He seeks an individualized hearing to
determine whether detention should continue.
III.
APPLICABLE LAW
A.
Section 236 of the INA
Section 236 of the INA regulates the detention of aliens who are
facing removal due to past criminal convictions. Section 236(a) lays out a general
framework for detention. It authorizes the Attorney General to "arrest[] and
detain[]" criminal aliens "pending a decision on whether the alien is to be removed
from the United States." 13 It also provides for individualized review of detention
(2) the record of Martinez's 2006 re-sentencing in connection with his revised plea.
See 2006 Cert. at 3-4.
11
See Notice to Appear, Ex. 4 to Ret.
12
See Notice of Custody Determination, Ex. 5 to Ret.
13
8 U.S.C. § 1226(a).
-5-
decisions. Aliens detained pursuant to section 236( a) may be released on bond, 14
or on conditional parole, 15 while their immigration case is resolved.
Section 236(c) carves out an exception to the general framework set
forth in section 236(a). It makes pre-removal detention mandatory- without the
benefit of individualized review -
for aliens who commit particularly serious
crimes. 16 Procedurally, section 236( c) provides that
[t]he Attorney General shall take into custody any alien who [has
been convicted of a qualifying offense] 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. 17
The italicized clause, "when the alien is released," is a source of persistent
confusion. There has been extensive litigation, in this District and elsewhere,
about the meaning of the word "when." 18 Martinez, like other removable aliens
who have sought habeas relief from mandatory detention, maintains that section
14
See id. § 1226(a)(2)(A).
15
See id. § 1226(a)(2)(B).
16
See id. § 1226(c )( 1)(A )-(D) (enumerating the categories of offense
that trigger mandatory detention).
17
Id. § 1226( c)(1) (emphasis added).
18
See Lora v. Shanahan, No. 14 Civ. 2140, 2014 WL 1673129, at *10
(S.D.N.Y. Apr. 29, 2014) (noting that "the meaning of the word 'when' in [section
236( c )] has been litigated extensively in federal courts").
-6-
236( c) contains an implicit timeliness requirement. In essence, Martinez argues
that the word "when" requires that mandatory detention should begin at or around
the time of release from criminal confinement. 19 If ICE unreasonably delays the
process of taking an alien into custody, section 23 6( c) cannot govern the alien's
detention.
The government, on the other hand, relies on a 2001 opinion from the
Board of Immigration Appeals ("BIA") 20 to argue that "when" does not "set a
deadline" for the onset of mandatory detention. 21 Rather, it "creat[ es] a
precondition for the Department of Homeland Security to exercise its mandatory
detention authority," 22 and that such authority, once triggered, extends indefinitely
through time. Judge Paul Engelmayer of this District recently labeled these views
the "time-limiting" construction (Martinez's) and the "duty-triggering"
construction (the government's). 23 I adopt those labels here.
Judges in this District are divided as to which construction of236(c) is
19
See, e.g., Louisaire v. Muller, 758 F. Supp. 2d 229, 236 (S.D.N.Y.
20
See Matter ofRojas, 23 I. & N. Dec. 117 (BIA 2001).
21
Straker v. Jones, 986 F. Supp. 2d 345, 352 (S.D.N.Y. 2013).
22
Id.
23
Id. at 352-53.
2010).
-7-
correct. Six Judges have adopted the "duty-triggering" construction. 24 Five have
adopted the "time-limiting" construction. 25 Meanwhile, the Third and Fourth
Circuits have both endorsed the "duty-triggering" construction, 26 while the First
Circuit has expressed support -
albeit in dictum -
for the "time-limiting"
construction. 27 Despite the split among lower courts, the Second Circuit has yet to
address the question.
The parties also dispute the meaning of the word "release." Martinez
argues that an alien is only "released" for purposes of section 236( c) if he serves -
24
See id. (Judge Engelmayer). See also Johnson v. Orsino, 942 F. Supp.
2d 396 (S.D.N.Y. 2013) (Judge Castel); Santana v. Muller, No. 12 Civ. 430, 2012
WL 951768 (S.D.N.Y. Mar. 21, 2012) (Judge Crotty); Guillaume v. Muller, No. 11
Civ. 8819, 2012 WL 383939 (S.D.N.Y. Feb. 7, 2012) (Judge Griesa); Mendoza v.
Muller, No. 11 Civ. 7857, 2012 WL 252188 (S.D.N.Y. Jan. 25, 2012) (Judge
Sullivan); Gomez v. Napolitano, No. 11 Civ. 1350, 2011 WL 2224768 (S.D.N.Y.
May 31, 2011) (Judge Rakoff).
25
See Araujo-Cortes, 2014 WL 3843862 (Judge Hellerstein). See also
Louisaire, 758 F. Supp. 2d at 235-37 (Judge McMahon); Lora, 2014 WL 1673129
(Judge Peck); Aparicio v. Muller, No. 11 Civ. 437 (S.D.N.Y. Apr. 7, 2011) (oral
decision) (Judge Kaplan); Jean v. Orsino, No. 11 Civ. 3682 (S.D.N.Y. Jun. 30,
2011) (oral decision) (Judge Swain). This split is not unique to the Southern
District. It is reflected in district courts throughout the country. See Straker, 986
F. Supp. 2d at 352-53 (collecting cases).
26
See Hash v. Lucero, 680 F.3d 375 (4th Cir. 2012). See also Sylvain v.
Attorney Gen., 714 F.3d 150 (3d Cir. 2012).
27
See Saysana v. Gillen, 590 F.3d 7, 16-18 (1st Cir. 2009) (expressing
skepticism about the government's sweeping interpretation of mandatory detention
power under section 23 6( c) ).
-8-
and is released from -
a custodial sentence. Therefore, mandatory detention is
inappropriate for aliens who serve purely non-custodial sentences for removable
offenses. Two courts in this District have recently adopted this interpretation. 28
The government disagrees. Relying on BIA opinions from 2000 and 2007, it
argues that the word "release" refers not only to release from physical custody
following a sentence, but also to release from "physical custody following
arrest." 29 In other words, if an alien was arrested for a removable offense, that
alone is sufficient to satisfy that "release" requirement of section 236( c) - and the
alien may be subject to mandatory detention.
B.
Chevron Deference
Agency interpretations of federal statutes are reviewed under the
deferential framework set out in Natural Resources Defense Council v. Chevron. 30
The first prong of Chevron asks whether a statutory provision is ambiguous: that
See Straker, 986 F. Supp. 2d at 357-60; Lora, 2014 WL 1673129, at
* 10-12. But see Gonzalez-Ramirez v. Secretary of US. Dep 't ofHomeland Sec.,
529 Fed. App'x 177, 181 (3d Cir. 2013) (holding that "because [the alien] was
released from pre-conviction custody following his arrest, he was subject to
mandatory detention" under section 236( c)).
28
29
Matter of West, 22 I. & N. Dec. 1405, 1410 (BIA 2000).
30
467 U.S. 837 (1984).
-9-
is, "whether Congress has directly spoken to the precise question at issue." 31 If so,
Congressional will controls. If not, the analysis proceeds to Chevron's second
prong: whether the agency has construed the provision "reasonabl[y]." 32 To
abrogate an agency's interpretation, it is not enough for the Court to disagree.
Rather, it must find the agency's interpretation "[im]permissible."33
C.
The Due Process Clause of the Fifth Amendment
Although constitutional protections are more attenuated for aliens than
they are for citizens, 34 removal proceedings must respect the requirements of due
process. 35 Detention is a "constitutionally permissible part of [the removal]
process." 36 But detention cannot persist indefinitely without review.
Nwozuzu v. Holder, 726 F.3d 323, 327 (2d Cir. 2013) (citing Chevron,
467 U.S. at 842).
31
32
Chevron, 467 U.S. at 843.
33
National Cable & Telecom. Ass 'n v. Brand X, 545 U.S. 967, 984
(2005).
See Demore v. Kim, 538 U.S. 510, 521 (2003) ("In the exercise of its
broad power over naturalization and immigration, Congress regularly makes rules
that would be unacceptable if applied to citizens.") (citing Mathews v. Diaz, 426
U.S. 67, 79-80 (1976)).
34
35
See id. at 523 ("It is well established that the Fifth Amendment
entitles aliens to due process of law in deportation proceedings.") (citing Reno v.
Flores, 507 U.S. 292, 306 (1993)).
36
Aikens v. Reno, 330 F.3d 547, 547 (2d Cir. 2003) (citing Demore, 538
U.S. at 531 ).
-10-
In Zadvydas v. Davis, 37 the Supreme Court held that post-removal
detention offends the Due Process Clause if it exceeds six months. The Court
expressed concern that post-removal detention - which typically occurs while the
government is having difficulty finding placement for an alien abroad -
could
easily become "indefinite" in the absence of constitutional constraint. 38 It settled
on a six-month window because at that point, "there is [no longer a] significant
likelihood of removal in the reasonably foreseeable future." 39 As a result, the
Court held that after six months, it should become the government's burden to
offer "sufficient evidence" demonstrating that imminent removal is still likely. 40
Two years after Zadvydas, in Demore v. Kim, the Supreme Court
addressed an analogous challenge with respect to pre-removal detention. After
spending six months in mandatory detention pursuant to section 236( c), Kim
petitioned for a Writ of Habeas Corpus, requesting an individualized bond hearing.
He argued that it would violate Zadvydas's six-month rule for his detention to
continue without review.
37
533 U.S. 678 (2001).
38
Id. at 682.
39
Id. at 701.
40
Id.
-11-
The Court rejected Kim's argument. Emphasizing the fact that in
most cases pre-removal detention only lasts between one and a half and five
months, 41 the Court held that pre-removal detention does not pose the same danger
of "indefinite[ness]" as post-removal detention. 42 Unlike the post-removal
detention, pre-removal detention has a natural stopping point: the determination
that an alien is or is not removable. Therefore, bright-line constraints are
unnecessary to ensure expediency. 43
IV.
JURISDICTION
This Court is authorized to review petitions for a Writ of Habeas
Corpus under 28 U.S.C. §§ 1331 and 2241, and ultimately under Article I,§ 9 of
the U.S. Constitution. 44
41
See Demore, 538 U.S. at 530.
42
Id. at 529 ("[P]ost-removal-period detention, unlike detention pending
a determination of removability, has no obvious termination point.") (citing
Zadvydas, 533 U.S. at 697).
43
At the same time, Justice Anthony Kennedy - casting the fifth vote
in Demore - noted in his concurrence that the Court's holding should not be read
to foreclose due process challenges to pre-removal detention. See id. at 531-33
(Kennedy J., concurring) ("Were there to be an unreasonable delay by [ICE] in
pursuing and completing deportation proceedings ... it could be necessary [] to
inquire whether the detention is not to facilitate deportation, or to protect against
risk of flight or dangerousness, but to incarcerate for other reasons.").
44
Section 236 of the INA does not contravene this authority. See
Demore, 538 U.S. at 516-17 (clarifying that although section 236( e) of the INA
-12-
V.
DISCUSSION
A.
Was Martinez "Released"?
Because neither of his convictions resulted in a custodial sentence,
Martinez maintains that he was never "released" within the meaning of section
236(c). Consequently, he argues that his case is governed by section 236(a). The
government reads the statute differently. It argues that "release" under section
236( c) does not require release from a custodial sentence. Rather, the requirement
can be satisfied by the custodial period -
and subsequent release -
that
accompanies arrest. For support, the government relies on a 2000 BIA opinion,
Matter of West, which held that "release" refers not only to release from physical
custody following conviction, but also to release from "physical custody following
arrest."4s
precludes review of the Attorney General's "discretionary judgment," it does not
preclude review of habeas petitions). See also Louisaire, 758 F. Supp. 2d at 234;
Henderson v. I.N.S., 157 F.3d 106, 119-22 (2d Cir. 1998) (discussing the
presumption against stripping courts of habeas jurisdiction).
45
West, 22 I. & N. Dec. at 1410 (emphasis added). Accord Matter of
Kotliar, 24 I. & N. Dec. 124 (BIA 2007). The BIA found support for this
interpretation in one of the phrases modifying the release requirement: "without
regard to whether the alien may be arrested or imprisoned again for the same
offense." 8 U.S.C. § 1226( c)(1 ). Although the BIA did not explicate its reasoning,
presumably the logic was that because "only an alien who has not yet been
convicted could be arrested again for the same offense," release must include
release following an arrest (as opposed to release following a sentence).
Straker, 986 F. Supp. 2d at 359.
-13-
In Martinez's case, both interpretations produce the same result.
Because he spent time in custody in connection with a removable offense - the
2004 remand -
Martinez was "released" even under his interpretation of the
requirement. That being said, the meaning of "release" still bears on the ultimate
disposition of the case, because the issue of when Martinez was released depends,
in the first instance, on what qualifies as "release." In other words, to fully address
Martinez's grievance about delay in the onset of his immigration custody, it is
necessary to decide when the clock began to run. 46
According to the government, the BIA's construction of "release" in
Matter of West warrants Chevron deference. But even assuming that Chevron
applies here -
which is far from clear given the threadbare nature of the
Two other considerations counsel in favor of addressing the "release"
issue, despite the fact that it does not control the outcome of Martinez's case.
First, the facts here truly are ambiguous - even after numerous letters and
conferences, neither party has been able to furnish conclusive proof of the basis for
Martinez's 2004 remand. See 9/10/14 Transcript of Telephone Conference. See
also 9117114 Letter from Plaintiff to the Court; 9/17114 Letter from Defendant to
the Court. Second, there is a continuing split of authorities on the question. Two
recent opinions from this District have adopted the narrow construction urged by
Martinez. See Straker, 986 F. Supp. 2d at 357-60; Lora, 2014 WL 1673129, at
* 10-12. But the Third Circuit has sided with the government's interpretation. See
Gonzalez-Ramirez, 529 Fed. App'x at 181 ("[B]ecause [the alien] was released
from pre-conviction custody following his arrest, he was subject to mandatory
detention."); Sylvain, 714 F.3d at 151 (holding that an alien's release from the[]
arrest that led to his conviction ... fulfill[ s] the release requirement [of section
236( c)]").
46
-14-
underlying BIA opinion47 -
deference is only appropriate for "reasonable"
constructions of ambiguous statutes. 48
The word "release" appears twice in section 236( c )( 1). First, it
appears in the clause "when the alien is released." Second, it appears in the clause
"without regard to whether the alien is released on parole, supervised release, or
probation." It is a cardinal rule of statutory interpretation that "[a] term appearing
in several places in a statutory text is generally read the same way each time it
appears." 49 In other words, "released" should have a consistent meaning in both
the "when ... released" clause and the "without regard" clause.
The government's position cannot meet this requirement. While its
47
See Straker, 986 F. Supp. 2d at 358 (noting that "[t]he BIA's
decisions are particularly unworthy of deference, in that West contained little
reasoning in support of its conclusion"). Beyond being threadbare, the BIA's
reasoning is also flawed. Although it is conceivable that the "arrested ... again for
the same offense" language tilts in favor of construing "release" to include postarrest release, that is not the only plausible interpretation of the clause. In fact,
there are some circumstances in which the "arrested ... again for the same
offense" language is compatible with the post-conviction understanding of
"release." For example, certain offenses incorporated into section 236(c) trigger
removal even if they were committed prior to the alien's entry into the United
States. See id. at 359. Under section 236(c)(l)(B), mandatory detention is
compulsory for aliens convicted of certain crimes inforeign jurisdictions - even
if those aliens could be (at least theoretically) "arrested ... again for the same
offense" in the United States. See id. See also 8 U.S.C. § 1227(a)(2)(D).
48
See Chevron, 467 U.S. at 843.
49
Ratzlaf v. United States, 510 U.S. 135, 143 (1994).
-15-
reading of "released" is compatible with the "when ... released" clause (because
the clause can be read as "when the alien is [released from arrest]"), the same is not
true of the "without regard" clause. There, the government's position makes no
sense. An alien cannot be "[released from arrest] on parole, supervised release, or
probation." To the contrary, release "on parole [or] supervised release" occurs
only after a custodial sentence (or a portion of a custodial sentence). The principle
of consistent meaning demands that "released" be construed that way in the "when
. . . released" clause as well. 50
50
Even if the "released from arrest" construction were reconciled with
the phrase "released on probation, supervised release, or parole," the government
would still face a surplusage problem. If pre-conviction custody is enough to
satisfy the "when ... released" clause, then every alien convicted of a qualifying
offense under section 236( c) will have been "released," because the definition of
"release" includes an event - pre-conviction custody - that necessarily precedes
conviction. This makes it difficult to explain the role played by the "without
regard to whether the alien is released on parole, supervised release, or probation"
clause. If all aliens convicted of a qualifying offense have necessarily been
"released," there is no reason to specify that particular classes of aliens - defined
by the form of state supervision into which they are released - are included in the
general set. See Sacirbey v. Guccione, 589 F.3d 52, 66 (2d Cir. 2009) (quoting
Filler v. Hanvit Bank, 378 F.3d 213, 220 (2d Cir. 2004)) ("A basic canon of
statutory interpretation ... is to avoid readings that 'render statutory language
surplusage' or 'redundant.'"). See also Cooper Indus. v. Aviall Svcs., 543 U.S.
157, 166 (2004) ("[Defendant's] reading would render part of the statute entirely
superfluous, something we are loath to do."). In this light, the "without regard"
clause more naturally sounds in a post-conviction rather than pre-conviction
understanding of release. On that construction, the clause would have a clear
purpose: to clarify that even aliens who are released from a custodial sentence into
another form of (non-custodial) state supervision are "released" for the purpose of
section 236( c).
-16-
The government's position also leads to a second "absurd
conclusion. " 51 If its interpretation of "release" were correct, the implication would
be that section 236(c) obligates ICE "to take[] alien[s] into mandatory detention
before [they have] definitively qualified for mandatory detention" on the basis of a
conviction. 52 Apart from defying common sense, this would also give rise to the
possibility of an alien "elud[ing] criminal punishment altogether, either by being
[placed into immigration detention] so as to prevent the criminal trial from
commencing, or by being removed from the United States before a criminal
sentence was imposed or served." 53
The government argues that this concern - the foundation of Judge
Engelmayer's reasoning in Staker v. Jones -
"rest[s] on a flawed premise." 54
According to the government, the notion that a "pre-conviction arrest[] [could]
satisfy the release requirement," thereby triggering mandatory immigration
detention, "fails to recognize that the language of [section 23 6( c)] also requires a
51
Straker, 986 F. Supp. 2d at 359.
52
Id. (emphasis added).
53
Id. at 358.
54
Government Memorandum of Law in Opposition to Habeas Corpus,
at 21.
-17-
conviction for a qualifying offense. " 55 In other words, the government argues that
Judge Engelmayer's position misses that the "obligation to detain a criminal alien
pursuant to [section 236(c)] does not arise until the latter of [the alien's] conviction
or his release from [criminal] custody." 56
But the government's response does not truly resolve the problem. If
detention under section 236( c) must wait for a conviction, but "release" precedes
conviction, why would the Attorney General be commanded to take aliens into
custody "when [they are] released"? In other words, why would a statute whose
application depends on the presence of a conviction direct the immigration
authorities to apply the statute before conviction could possibly have occurred?
This problem evaporates if "release" refers, instead, to release from a custodial
sentence. Because the latter necessarily occurs after a conviction, the policy of
taking aliens into custody "when ... released" makes perfect sense. 57
55
Id. at 20.
56
Id. at 21.
The government also offers a policy argument in favor of construing
the "when ... released" clause to include post-arrest release. According to the
government, it would "run[] contrary to the statute's purpose" if mandatory
immigration detention depended on "the nature of an underlying sentence" rather
than "the nature of the underlying conviction," because it would mean that two
aliens "convicted of the same underlying removable offense" would be "subject to
differing immigration detention [] based solely on whether a judge sentenced [each
alien] to a custodial or non-custodial sentence." Id. at 22.
57
-18-
I conclude, therefore, that Martinez was only "released" once within
the meaning of section 236( c): after his forty-one days in custody following his
remand in 2004. Accordingly, the delay between Martinez's release from criminal
custody and the onset of immigration custody was nine and a half years - the
period from September 2004 until March 2014.
B.
Was Martinez Taken Into Custody" When ... Released"?
Alternatively, Martinez argues that because he was not taken into
custody "when ... released," mandatory detention is inappropriate. This argument
turns on the proper construction of "when." On the duty-triggering construction,
This argument misunderstands the goals of section 236( c). The norm
during removal proceedings - reflected in section 236(a) - is that aliens are
entitled to individualized bond hearings. See Lora, 2014 WL 1673129, at *3
("[I]ndividualized bond hearings are the norm and mandatory detention is the
exception in section 1226") (citing Castaneda v. Souza, 952 F. Supp. 2d 307, 316
(D. Mass. 2013)). See also Saysana, 590 F.3d at 17 (describing mandatory
detention as the exception to "the ordinary procedures for release on bond at the
discretion of the immigration judge"). Section 236( c) carves out an exception to
this norm for certain classes of aliens who either ( 1) present a heightened bail risk,
or (2) pose a danger to the community. See Demore, 538 U.S. at 519 (identifying
the question of whether an alien "present[ s] an excessive flight risk or threat to
society" as the key variable in immigration detention decisions). See also Sylvain,
714 F.3d at 160 ("Congress designed [section 236(c)] to keep dangerous aliens off
the street"). Given these justifications for mandatory detention, it is hardly
remarkable that section 236( c) would track sentencing disparities in addition to
convictions. If anything, the government's position is the remarkable one. It
would make detention mandatory for every alien convicted of a qualifying offense,
without regard to manifest differences in dangerousness or flight risk. That is not
the calibrated detention scheme that Congress envisioned.
-19-
the Attorney General's mandatory detention power is indefinite. On the timelimiting construction, by contrast, that power expires if it is not exercised within a
reasonable window of time. Martinez was taken into custody nearly ten years after
his release from the 2004 remand. If the time-limiting construction is correct, that
delay is far too long to abide. 58
Courts that have addressed this question have focused on a 2001 BIA
opinion, Matter ofRojas, which appears to lend support to the duty-triggering
construction. Rojas was taken into immigration custody -
under section 236( c)
two days after release from prison for a narcotics offense. Rojas contested his
mandatory detention on the theory that section 236( c) only applies if detention
begins immediately after the termination of criminal custody. In other words,
because the immigration authorities waited two days to pick Rojas up, section
236( c) no longer applied. The BIA disagreed with Rojas. Reading the section
58
It is worth noting that even under the government's theory of
"release," the minimum possible delay would be the time between (1) Martinez's
2008 arrest (leading to his 2012 conviction) and (2) the onset of removal
proceedings - which is almost six years. This, too, would violate the timelimiting construction of the "when ... released" clause. However, there is no need
to resolve that question, given my holding that Martinez has only been "released"
once within the meaning of section 236( c): from his 2004 remand, almost ten
years before removal proceedings began.
-20-
holistically, and in light of predecessor statutes, 59 the BIA concluded that
"Congress was not attempting to restrict mandatory detention to criminal aliens
taken immediately into [] custody [by ICE] at the time of their release from a state
or federal correctional institution." 60
The government maintains that Rojas warrants Chevron deference,
and that it therefore compels the duty-triggering construction of section 236( c). In
similar cases, some judges have agreed with this conclusion, and others have not.
But even among those who have disagreed, the basic premise -
that Rojas sets out
a rebuttable presumption in favor of the duty-triggering construction - has gone
unquestioned. Judges who have rejected the duty-triggering construction have
done so only after determining that Rojas is unworthy of Chevron deference. 61
These opinions misread Rojas. In reality, the BIA has not weighed in,
one way or the other, on the tension between the duty-triggering construction and
the time-limiting construction. In Rojas, the BIA rejected a third, wholly distinct,
construction of section 236(c)- one that, in the BIA's words, would require
59
See Rojas, 23 I. & N. Dec. at 122-24 (tracing the history of section
236(c)).
60
Id. at 124.
61
See, e.g., Araujo-Cortes, 2014 WL 3843862, at
1673129, at *6-7.
-21-
*5-8~
Lora, 2014 WL
aliens to be "taken immediately into [immigration] custody ... at the time of their
release from [prison]." 62 This construction, which could be labeled the "immediate
transfer construction," is the inverse of the duty-triggering construction. Whereas
the latter gives ICE blanket authority that never expires -
it would sanction any
mandatory detention that begins after the alien is released from custody, even
decades later -
the immediate transfer construction gives ICE almost no authority.
It would proscribe any mandatory detention that begins after the precise moment of
the alien's release, even just a few minutes later. Both of these constructions,
however, are distinct from the time-limiting construction. The latter strikes a
balance. It gives immigration authorities flexibility to take removable aliens into
custody, while also requiring that custody begin within a reasonable time frame.
The government takes the view that Rojas, by rejecting the immediate
transfer construction, supports the duty-triggering construction. But the actual
opinion does no such thing. On the face of it, the BIA's rejection of the immediate
transfer construction does not mean that the BIA endorsed the duty-triggering
construction. If anything, the result in Rojas points the other way. There, the
delay was only two days. That fact alone belies the notion that the BIA adopted a
bright-line rule, justifying any delay in the onset of immigration detention, no
62
Rojas, 23 I. & N. Dec. at 124.
-22-
matter how long. The more natural interpretation is that the BIA sought to ensure
that ICE has sufficient flexibility to carry out its statutory mandate. 63 In doing so,
the BIA had no opportunity to address under what circumstances delay might
become unreasonable.
The BIA' s articulation of the line-drawing problem at the heart of the
immediate transfer construction supports this interpretation. As the BIA explained:
"[I]t is not clear where the line would be drawn under [Rojas'] reading of the
statute. Would mandatory detention apply only if an alien were literally taken into
custody 'immediately' upon release, or would there be a greater window of
perhaps 1 minute, 1 hour, or 1 day?" 64 Minutes, hours, and days are a far cry for
the nine and a half years that elapsed here. In light of the factual distinctions
between this case and Rojas, the most reasonable interpretation is that the BIA has
not addressed the more difficult question presently before this Court: whether to
adopt the duty-triggering or the time-limiting constructions of section 236( c).
Therefore, Chevron does not apply. 65
63
Rojas' argument leaves open the possibility that if an ICE official was
stuck in traffic, ICE's section 236(c) detention power might dissipate.
64
Rojas, 23 I. & N. Dec. at 124.
65
To be clear, the conclusion is not that Rojas is unworthy of Chevron
deference. The conclusion is that Chevron is inapplicable in the first instance,
because Rojas is not on point with the question presented in this case. Cf Araujo-23-
From there, the textual analysis is simple. The duty-triggering
construction takes "when" to mean any time after. But ordinary usage undermines
this view. In everyday English, "when" clearly "connote[s] immediacy." 66 The
best that can be said for the duty-triggering construction is that the word "when" is
ambiguous. In Hosh v. Lucero, for example, the Fourth Circuit pointed out that
'"when' ... can be read, on the one hand, to refer to 'action or activity occurring
'at the time that' or 'as soon as' other action has ceased or begun ... [But on] the
other hand, 'when' can also be read to [mean] 'at or during the time that,' 'while,'
or 'at any or every time that. "' 67
But even if these alternative definitions overcome the ordinary usage
problem, they still fail to bolster the duty-triggering construction of section 236( c).
At best, the Fourth Circuit's analysis casts doubt on the immediate transfer
construction: it suggests that "when ... released" does not (necessarily) refer to
the exact moment of release. But for the same reasons set forth above, to say that
the immediate transfer construction is wrong is not to say that the duty-triggering
Cortes, 2014 WL 3843862, at *9 n.7 (arguing that Chevron does not apply to Rojas
on other grounds).
66
Straker, 986 F. Supp. 2d at 354.
67
680 F .3d at 3 79-80 (internal citations omitted). Accord Straker, 986
F. Supp. 2d at 355.
-24-
construction is right. Nor is it to say that the time-limiting construction is wrong.
In fact, one of the alternative definitions offered by the Fourth Circuit - "at or
during the time that" - actually lends itself to the time-limiting construction.
Even if "when" does not mean "as soon as," it can still mean "at or during the time
that": it can still carry an implicit requirement of temporal proximity. That is
exactly the interpretation that Martinez urges here.
To give "when" its ordinary meaning also serves the statute's
underlying purpose. Read in tandem with section 236(a), section 236( c) designates
certain removable aliens for a more stringent detention scheme. As the Supreme
Court has explained, the imposition of different forms of detention on different
classes of removable aliens stems from concern that some aliens "present an
excessive flight risk or threat to society." 68 Section 236( c) was Congress's solution
to this concern. 69 As far as dangerousness is concerned, there is often very little
evidence that a removable alien ever was dangerous, much less that he continues,
years after release and reincorporation into the community, to "threat[ en] society."
Furthermore, "[b ]y any logic, it stands to reason that the more remote in time a
conviction becomes and the more time after a conviction an individual spends in a
68
Demore, 538 U.S. at 519.
69
See id. at 518-21.
-25-
community, the lower his bail risk is likely to be." 70
Finally, the Supreme Court has made clear that "ambiguities in
deportation statutes" are to be construed "in favor of the alien." 71 Therefore, even
if the word "when" can plausibly be read to mean "at any point after," this Court
must adopt the interpretation of section 236( c) that favors removable aliens: the
time-limiting construction. 72 In Martinez's case, the delay was plainly too long.
C.
Due Process
Martinez's detention also raises constitutional concerns. Martinez has
spent nearly six months in mandatory detention. This stretches well beyond the
"month and a half [to] five months" of pre-removal confinement predicted in
Demore, 73 and it also runs up against the six-month rule set forth in Zadvydas. 74
On similar facts, some judges (in this District and elsewhere) have
70
Saysana, 590 F.3d at 17-19.
71
INS v. Cardoza-Fonseca, 480 U.S. 421, 449 (1987).
72
The Fourth Circuit has declined to follow the rule of lenity in this
context because - in its view - the rule clashes with the requirements of
Chevron. See Hash, 680 F.3d at 383. Even assuming the Fourth Circuit is right
that "the rule of lenity and Chevron pull in opposite directions," and even
assuming that it has resolved the tension correctly, there is no need to reach this
issue here, because I conclude that Rojas does not warrant Chevron deference.
73
Demore, 538 U.S. at 530.
74
See Zadvydas, 533 U.S. at 701.
-26-
held that pre-removal detention exceeding six months violates due process. 75 This
conclusion -
while understandable -
is hard to square with Supreme Court
precedent. Although Demore certainly announces an expectation that pre-removal
detention often lasts for fewer than five months, the opinion also makes it clear that
the Due Process concern at the heart of Zadvydas detention -
the specter of indefinite
is more attenuated in the context of pre-removal detention. Indeed,
the alien in Demore had been in detention for six months, but the Court
nevertheless declined to grant his habeas petition. This makes it difficult to
conclude that Martinez's detention of the same length violates due process. 76
Nevertheless, it would be wrong to conclude that the principle at play
in Zadvydas and Demore - the prohibition against "indefinite" constraints on
liberty -
is inapplicable here. In the context of speedy trial claims, the Supreme
Court has rejected the argument that delay of prosecution imposes no limitation on
liberty simply because, during the period of delay, a defendant is free to "go
75
See Monestime v. Reilly, 704 F. Supp. 2d 453, 458-59 (S.D.N.Y.
2010) (holding that eight months in pre-removal detention, without a showing of
likely imminent release, violated due process). See also Araujo-Cortes, 2014 WL
3843862, at *9-14.
76
See Adler v. US. Dep 't ofHomeland Sec., No. 09 Civ. 4093, 2009
WL 3029328 (S.D.N.Y. Sept. 22, 2009) (holding that fifteen months in preremoval custody is not unconstitutional under Demore). See also Johnson v.
Orsino, 942 F. Supp. 2d 396 (S.D.N.Y. 2013) (same).
-27-
whithersoever he will." 77 As the Court explained in Klopfer v. State ofNorth
Carolina, even if a person retains many important freedoms during the period prior
to prosecution, "[its] pendency ... may subject him to public scorn and deprive
him of employment, and almost certainly will force curtailment of his speech,
associations, and participation in unpopular causes." 78 Furthermore, it is irrelevant
whether the government finds it "convenient" to delay the prosecution. 79 Under
certain circumstances, delay in the onset of prosecution can give rise to
independent due process harm.
The same reasoning should apply to removal proceedings. Living in
the shadow of mandatory detention that could begin at any moment invariably
takes its toll. In the speedy trial context, the Supreme Court has used the language
of "anxiety" to describe the constitutional harm at work. It has spoken not only of
the defendant's anxiety, but also of the anxiety that the ongoing threat of
77
Klopfer v. State ofNorth Carolina, 386 U.S. 213, 221 (1967). Accord
United States v. Marion, 404 U.S. 307, 320 (1971); Smith v. Hooey, 393 U.S. 374,
3 77 ( 1969) (extending the logic of Klopfer to prisoners facing prosecution for a
distinct offense). For a more recent application of the principle, see Doggett v.
United States, 505 U.S. 647 (2002) (holding that an eight and a half year delay
between indictment and arrest violated the speedy trial guarantee).
78
Klopfer, 386 U.S. at 221-22.
79
United States v. Haggett, 438 F.2d 396, 401 (2d Cir. 1971).
-28-
prosecution can create for his "family and [] friends." 80
This is especially true in the immigration context. As of 2009, ICE
detained nearly four hundred thousand aliens ever year, two-thirds of whom are
subject to mandatory detention. 81 In many cases, aliens taken into custody under
section 23 6( c) have long since "reintegrated into [their communities], " 82 and their
mandatory detention leaves family members emotionally and economically
devastated. 83 Furthermore, the magnitude of delay in Martinez's case - nearly a
decade -
is not an isolated example. ICE frequently waits many years to take
aliens into custody under section 236( c ), 84 despite the fact that, with so much time
80
Marion, 404 U.S. at 320.
81
See Dora Schriro, U.S. Department of Homeland Security,
Immigration and Customs Enforcement, Immigration Detention Overview and
Recommendations 2 (Oct. 6, 2009).
Araujo-Cortes, 2014 WL 3843862, at *1. Accord Brief for Amici
Curiae in Support of Petitioner-Appellant, Gomez v. Napolitano, No. 11-2682 (2d
Cir.) ("Amicus Brief'), available at
http://immigrantdefenseproject.org/wp-content/uploads/2012/02/11-2682-Gomez-v
-Napolitano_Amici-Curiae-Brief_08-19-2011.pdf, at 11-15.
82
83
See Amicus Brief at 20-24.
84
See Monestime (ICE placed alien into mandatory detention eight years
after his removal offense); Araujo-Cortes (five years); Dang v. Lowe, No. 10 Civ.
446, 2010 WL 2044634 (M.D. Pa. May 20, 2010) (ten years).
-29-
elapsed, they often pose little to no risk of flight, 85 and even less danger to "public
safety." 86 Unsurprisingly, once habeas petitions are granted, and bond hearings are
afforded, many aliens originally taken into custody under section 236(c) are
released. 87
In short, the government's construction of section 236( c) would
confer limitless authority on the Attorney General to pluck immigrants from their
families and communities with no hope of release pending removal -
even
decades after criminal confinement. This construction threatens immigrants'
statutory and constitutional rights.
VI.
CONCLUSION
Although Martinez was "released" within the meaning of section
23 6( c), he was not taken into custody "when [he was] released. " 88 Furthermore,
even if his detention could be reconciled with the statutory language, constitutional
concerns remain. Martinez has the right -
under section 236(a) of the INA, as
See Saysana, 590 F.3d at 17-18 ("By any logic, it stands to reason that
the more remote in time a conviction becomes and the more time after a conviction
an individual spends in a community, the lower his bail risk is likely to be.").
Accord Garcia v. Shanahan, 615 F. Supp. 2d 175, 183 (S.D.N.Y. 2009).
85
86
Monestime, 704 F. Supp. 2d at 458. See Amicus Brief at 11-15.
87
See Amicus Brief at 15-18.
88
8 U.S.C. § 1226( c)(1) (emphasis added).
-30-
well as the Due Process Clause of the Fifth Amendment -
to have an impartial
adjudicator decide if he may be released during the pendency of his removal
proceedings. His request for a bond hearing is GRANTED.
Dated:
New York, New York
October 8, 2014
-31-
- Appearances For Plaintiff:
Paul B. Grotas, Esq.
450 Seventh Avenue, Suite 2303
New York, NY 10123
(646) 581-9537
For Defendants:
Patricia L. Buchanan
Assistant U.S. Attorney
U.S. Attorney's Office for the Southern District of New York
86 Chambers Street
New York, NY 10007
(212) 637-3274
-32-
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