Blake v. Mechkowski et al

Filing 13

OPINION & ORDER: Because the Court is persuaded that the reasoning in Straker is correct with respect to the meaning of "released" in § 236(c), Blake is properly detained only under § 236(a), not § 236(c). He is thus statutor ily entitled to a bond hearing and his habeas corpus petition must be GRANTED. The Government is directed to provide Petitioner with an individualized bond hearing by July 7, 2015, when he is scheduled for a conference before an immigration judge. SO ORDERED. (As further set forth in this Order.) (Signed by Judge Ronnie Abrams on 6/30/2015) (ajs)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

USDC-SDNY
DOCUMENT
ELECTRO NI CALLY FILED
DOC#:
DATE FILED: 06/30/2015

DUWA YNE BLAKE,
Petitioner,
No. 15-CV-2724 (RA)

v.

SCOTT MECHKOWSKI, CHRISTOPHER
SHANAHAN, JEH JOHNSON, AND
LORETT A E. LYNCH,

OPINION & ORDER

Respondents.

RONNIE ABRAMS, United States District Judge:
Duwayne Blake petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. 1 Blake,
a lawful permanent resident, has been in immigration detention since September 2014, when he
was arrested by U.S. Immigration and Customs Enforcement ("ICE") in connection with removal
proceedings. ICE determined that he is subject to mandatory detention under § 236(c) of the
Immigration and Nationality Act ("INA"), 8 U.S.C. § 1226(c). Blake argues, however, that he
may be detained only under the more permissive INA§ 236(a), 8 U.S.C. § 1226(a), and that he is
entitled under § 236(a) and the Constitution to a bond hearing before an immigration judge. For
the reasons that follow, the petition will be granted.

BACKGROUND
Blake, who is a Jamaican citizen, became a lawful permanent resident of this country in
2011.

Petition~

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23 and Ex. D (Order of the Immigration Judge). On April 18, 2012, he was

Pursuant to Fed. R. Civ. P. 25(d), the Clerk of Court is directed to terminate Eric H. Holder as a defendant
and substitute Loretta E. Lynch.

arrested on a narcotics charge and was released on his own recognizance less than I 0 days later.

Id.

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25. On October 3, 2012, Blake pleaded guilty to criminal possession of a controlled substance

in the seventh degree, in violation of N. Y.P.L. § 220.03. Id., Ex. E (Certificate of Disposition).
He was sentenced to a conditional discharge-a non-incarceratory sentence, see N.Y.P.L. §
65.05(2)-plus one year of rehabilitative treatment.

Id.~

25. He successfully complied with the

terms of his conditional discharge and completed the rehabilitation program. Id.
Some two years later, on September 25, 2014, ICE took Blake into custody and served him
with a Notice to Appear ("NTA"), a document used to commence removal proceedings. Id.

~

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& Ex. T (Notice to Appear). The NTA alleges that Blake's conviction makes him deportable

pursuant to INA § 237(a)(2)(B)(i), which concerns offenses "relating to a controlled substance."

See id., Ex. T at 3. ICE informed Blake that he was subject to mandatory detention without bond
under§ 236(c). See id., Ex.Tat 4 (Notice of Custody Determination).
Blake filed this petition on April 8, 2015. His removal proceedings are ongoing and he
remains in immigration detention. After several adjournments made at his counsel's request,
Blake's next appearance before an immigration judge is scheduled for July 7, 2015.

DISCUSSION
While Blake makes several arguments in support of his petition, the Court need only focus
on his argument concerning the meaning of "released" in the mandatory detention statute. That
statute reads in relevant part:
The Attorney General shall take into custody any alien who [has
been convicted of one or more of certain enumerated offenses or
engaged in certain other specified 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.

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8 U.S.C. § 1226(c)(l) (emphasis added). Blake's argument, in a nutshell, is that because he never
served a custodial sentence as a result of his narcotics conviction, he was never "released" in the
relevant sense-and thus that he is not captured by the mandatory detention statute. See Pet.' s
Mem. at 16-22. While he agrees that he may be detained by ICE, he argues that any detention
must be pursuant to§ 236(a), which unlike§ 236(c) would afford him the opportunity for a bond
hearing (and thus the prospect of living in the community pending his removal proceedings).
In response, the Government points to the fact that the Board of Immigration Appeals
("BIA"), whose reasonable interpretations of the INA receive judicial deference, has determined
that the word "release" in § 236( c) can include release from a pre-conviction arrest. See Gov't
Opp. at 17 (citing Matter of West, 22 I. & N. Dec. 1405 (BIA 2000); Matter of Kot liar, 24 I. & N.
Dec. 124 (BIA 2007)); see also INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25 (1999) (holding
that principles of Chevron deference are applicable to the BIA's interpretations of the INA). In
other words, the Government argues that because Blake was arrested in April 2012, and was
subsequently "released" on his own recognizance, it is of no consequence that he was not also
incarcerated as part of his sentence to be "released" yet again. For purposes of the mandatory
detention statute, the initial "release" is enough.
The difficulty with the Government's reasoning has been well explained by Judge
Engelmayer. See Straker v. Jones, 986 F.Supp.2d 345, 357-63 (S.D.N.Y. 2013). After thoroughly
canvassing the relevant statutory language and interpretive principles, Judge Engelmayer
concluded that the mandatory detention statute is not triggered "where there has been no antecedent
term of imprisonment from which the alien has been released." Id at 362. "[A] release following
an arrest, where the alien has not [yet) been convicted of the offense, does not qualify as a 'release'

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under§ 1226(c)." Id. at 363. To the extent the BIA has concluded otherwise, Judge Engelmayer
reasoned that such an interpretation was "unworthy of deference." Id. at 358.
Straker is not alone in reaching that conclusion. "[A]lthough the Second Circuit has yet to
resolve this issue, see Lora v. Shanahan, No. 14-2343 (oral argument held in pending appeal on
April 20, 2015), the emerging consensus in this District, following Straker, is that § 1226(c) applies
only to aliens who were incarcerated or otherwise subjected to physical restraint pursuant to a
conviction for an enumerated offense." Cruzeta-Bueno v. Aviles, No. 15-CV-1640 (PAE), 2015
WL 2117848, at *2 (S.D.N.Y. May 5, 2015) (collecting cases). Indeed, "[a]ll of the courts in this
District that have addressed the meaning of the word 'release' in the IN A's mandatory detention
statute have held that only a post-conviction release from physical custody constitutes a 'release'
for the purposes of 8 U.S.C. § 1226(c)." Sutherland v. Shanahan, No. 15-CV-2224 (RLE), 2015
WL 3540870, at *11 (S.D.N.Y. June 5, 2015).
The Government continues to believe Straker was wrongly decided. See Gov't Mem. at
18-21. The criticisms that the Government levels at that decision, however, have already been
addressed by other judges in this District. See, e.g., Martinez-Done v. McConnell, 56 F. Supp. 3d
535, 541--44 (S.D.N.Y. 2014); Reynoso v. Aviles, No. 15-CV-3933 (JPO), 2015 WL 3917569, at
*2-3 (S.D.N.Y. June 25, 2015). The Court cannot improve upon those thoughtful responses. And
while the Court does not ignore the Government's reasonable arguments about what Congress may
well have intended in crafting the mandatory detention statute, in light of the statute's text, context,
and structure, the most appropriate forum for those arguments is Congress itself.

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CONCLUSION
Because the Court is persuaded that the reasoning in Straker is correct with respect to the
meaning of "released" in § 236(c), Blake is properly detained only under§ 236(a), not§ 236(c).
He is thus statutorily entitled to a bond hearing and his habeas corpus petition must be GRANTED.
The Government is directed to provide Petitioner with an individualized bond hearing by July 7,
2015, when he is scheduled for a conference before an immigration judge.
SO ORDERED.
Dated:

June 30, 2015
New York, New York
brams
U ited States District Judge

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