Gayle v. Aviles et al

Filing 21

MEMORANDUM AND ORDER re: 17 MOTION for Reconsideration re; 16 Order and Request to Stay Pending Decision on This Motion, filed by U.S. Department of Homeland Security, Oscar Aviles, Jeh Johnson, Eric Holder, Christopher Shanahan. The government's motion for reconsideration is DENIED. (As is further set forth in this Order.) (Signed by Judge P. Kevin Castel on 7/10/2015) (spo)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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STEVANO JAVED GAYLE,
Petitioner,
-against-

15-cv-2134 (PKC)
MEMORANDUM
AND ORDER

OSCAR AVILES, in his official capacity as
Director of the Hudson County Correctional
Facility, CHRISTOPHER SHANAHAN, in his
official capacity as New York Field Office
Director for U.S. Immigration and Customs
Enforcement, JEH JOHNSON, in his official
capacity as Secretary of Homeland Security,
ERIC HOLDER, in his official capacity as
Attorney General of the United States, and U.S.
DEPARTMENT OF HOMELAND SECURITY,
Respondents.
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CASTEL, U.S.D.J.
The government moves for reconsideration of this Court’s Memorandum and
Order filed on June 22, 2015 (Dkt. No. 16), 2015 WL 4064630 (S.D.N.Y. June 22, 2015),
familiarity with which is assumed. In that Order, the Court granted petitioner Stevano Javed
Gayle’s petition for a writ of habeas corpus, and ordered the government to provide Gayle with a
bond hearing in accordance with 8 U.S.C. § 1226(a). 1 For the following reasons, the motion is
denied.
Motions for reconsideration are “generally not favored and [are] properly granted
only upon a showing of exceptional circumstances.” Marrero Pichardo v. Ashcroft, 374 F.3d 46,
55 (2d Cir. 2004) (quoting United States v. Int’l Bhd. of Teamsters, 247 F.3d 370, 391 (2d Cir.
On July 7, 2015, the Court denied the government’s request for a stay of the June 22 Order pending the resolution
of this motion. (Dkt. No. 20.)

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2001)). Such exceptional circumstances include “an intervening change of law, the availability
of new evidence, or the need to correct a clear error or prevent manifest injustice.” Kolel Beth
Yechiel of Tartikov, Inc. v. YLL Irrevocable Trust, 729 F.3d 99, 104 (2d Cir. 2013).
“[R]econsideration will generally be denied unless the moving party can point to controlling
decisions or data that the court overlooked—matters, in other words, that might reasonably be
expected to alter the conclusion reached by the court.” Shrader v. CSX Transp., Inc., 70 F.3d
255, 257 (2d Cir. 1995). “[A] motion to reconsider should not be granted where the moving
party seeks solely to relitigate an issue already decided.” Id.
In the June 22 Order, the Court held that 8 U.S.C. § 1226(c), which provides for
mandatory detention of certain “criminal aliens” while their removal proceedings are pending,
does not apply to aliens who were not “released” from a custodial sentence in connection with
their underlying criminal offense. Gayle was convicted of criminal sale of marijuana in the third
degree on November 4, 2010, but received a noncustodial sentence for that offense. The Court
thus concluded that the November 4 conviction could not serve as the basis of Gayle’s detention
under section 1226(c). The government now seeks to premise Gayle’s detention under that
statute on another conviction: Gayle’s October 13, 2010 conviction for criminal possession of
marijuana in the fifth degree, for which Gayle was sentenced to seven days’ imprisonment.
At the outset, the government’s argument that the Court “overlooked” the October
13 conviction mischaracterizes the record. The government’s original opposition to Gayle’s
petition did not rely on the October 13 at all, and it was the Court itself that first raised the issue,
by entering an order (the “May 7 Order”) directing the parties to explain how, if at all, that
conviction (which the government had alluded to in two footnotes) should factor into its
decision. (Order of May 7, 2015 (Dkt. No. 12).)

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The government’s response was equivocal. Although it asserted (without citing
any supporting authority) that both of Gayle’s convictions qualified as predicate offenses, and
that Gayle was thus subject to mandatory detention under either (Resp’ts’ May 14 Letter, at 2 n.2
(Dkt. No. 13)), it also stated, despite the implicit invitation in the May 7 Order, that “[t]he Court
need not determine, under these facts, whether Gayle’s October 2010 post-conviction release, in
and of itself, qualifies as a ‘release’ within the meaning of [section 1226(c)]” (id. at 2), and
reaffirmed its reliance on the November 4 conviction. The government’s belated and halfhearted
embrace of the October 13 conviction did not provide a basis for denying the petition. The
Court, however, did not “overlook” the October 13 conviction.
In any event, the government’s reliance on the October 13 conviction fails on the
merits. Under 8 U.S.C. § 1227(a)(2)(B)(i), an alien is removable if he has been convicted of a
controlled substance offense “other than a single offense involving possession for one’s own use
of 30 grams or less of marijuana” (emphasis added). The parties agree that Gayle’s October 13
conviction was for “a single offense involving possession for one’s own use of 30 grams or less
of marijuana,” and thus could not, standing alone, serve as the basis for Gayle’s removal.
(Resp’ts’ May 14 Letter, at 2.) But the government argues (once again with no supporting
authority) that, after the November 4 conviction, the October 13 conviction retroactively became
a basis for removability—because it was then no longer a “single” controlled substance
conviction—and that his release from incarceration on the October 13 conviction triggered the
government’s duty to detain him.
The reasoning in the June 22 Order forecloses this argument. In that Order, the
Court explained that, because section 1226(c) directs the government to detain an alien “when
the alien is released,” an alien “must be removable at the time of [his] release” from non-

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immigration custody for mandatory detention to apply. 2015 WL 4064630, at *3. Reading the
statute otherwise leads to the absurd result that the government’s duty to detain the alien can
arise before the alien is removable. Id. But, the parties agree, Gayle was not removable until his
November 4 conviction. Thus, Gayle’s release from his sentence on the October 13 conviction
can serve as the release triggering the government’s duty to detain Gayle under section 1226(c)
only if it occurred on or after November 4. The record shows that Gayle was sentenced to seven
days’ imprisonment on October 13. (Return Ex. 3, at 4.) This supports the conclusion that he
was released from that sentence of imprisonment on or about October 20; nothing in the record
supports the conclusion that he was released on or after November 4. Thus, Gayle’s detention
under section 1226(c) cannot be premised on the October 13 conviction.
The Court’s conclusion finds further support in Matter of Deanda-Romo, 23 I. &
N. Dec. 597 (BIA 2003), a Board of Immigration Appeals (“BIA”) decision in an analogous
context that cast doubt on the notion that a later offense can render an earlier offense a basis for
removal. The immigration statutes provide that an alien is inadmissible if he has been convicted
of a crime involving moral turpitude (“CIMT”), except in the case of a single CIMT for which
the maximum possible penalty does not exceed one year’s imprisonment and for which the
alien’s actual sentence did not exceed six months’ imprisonment. 8 U.S.C.
§§ 1182(a)(2)(A)(i)(I), (ii)(II). This is known as the “petty offense exception.” See, e.g., Reyes
v. Holder, 714 F.3d 731, 735 (2d Cir. 2013). In Deanda-Romo, the BIA considered whether a
second CIMT conviction retroactively caused a first “petty offense” CIMT conviction to make
the petitioner inadmissible. The respondent in that case sought cancellation of removal pursuant
to 8 U.S.C. § 1229b(a), eligibility for which is premised on seven years’ continuous residence in
the United States. 8 U.S.C. § 1229b(a)(2). Under what is known as the “stop-time rule,”

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however, the continuous residence period is deemed to end “when the alien has committed an
offense referred to in section 1182(a)(2) of this title that renders the alien inadmissible.” 8
U.S.C. § 1229b(d)(1)(B). In Deanda-Romo, the respondent’s first CIMT conviction, which fell
under the petty offense exception, occurred before the expiration of the seven years, and his
second CIMT conviction occurred after. Thus, if the second conviction retroactively caused the
first to “render[] [the respondent] inadmissible,” he would be ineligible for cancellation of
removal.
The BIA rejected that argument, explaining: “[B]y the time [the respondent]
committed [the second] offense, which only at that point rendered him inadmissible, he had
already accrued the necessary 7 years of continuous residence. We find that this subsequent
commission of a [CIMT] had no effect on his admissibility during the 7-year period during
which he was required to establish continuous residence.” Deanda-Romo, 23 I. & N. Dec. at
600. Here, similarly, Gayle’s second controlled substance conviction did not have the effect of
retroactively making Gayle removable at the time of his release from his seven-day prison
sentence.
For the foregoing reasons, the government’s motion for reconsideration is
DENIED.
SO ORDERED.

Dated: New York, New York
July 10, 2015

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