De La Rosa LaFontaine v. Mechkowski et al

Filing 11

OPINION & ORDER: Before the Court is Petitioner Jacqueline De la Rosa Lafontaine's habeas corpus petition pursuant to 28 U.S.C. § 2241. She seeks immediate release from detention or, in the alternative, an individualized bond hearing. F or the following reasons, Lafontaine's petition is granted in part. The Court grants Lafontaine's petition because, joining the growing consensus in this district, it holds that Lafontaine's pre-conviction release on her own recog nizance is not a qualifying "release[]" within the meaning of § 1226(c). See, e.g., Blake v. Mechkowski, No. 15 Civ. 2724, 2015 WL 4006193, at *2 (S.D.N.Y. June 30, 2015); Reynoso v. Aviles, No. 15 Civ. 3933, 2015 WL 3917569, at *23 (S .D.N.Y. June 25, 2015); Gayle v. Aviles, No. 15 Civ. 2134, 2015 WL 4064630, at *26 (S.D.N.Y. June 22, 2015) (collecting cases and noting unanimity); Escrogin v. Tay-Taylor, No. 14 Civ. 2856, 2015 WL 509666, at *36 (S.D.N.Y. Feb. 5, 2015); Straker v . Jones, 986 F. Supp. 2d 345, 35663 (S.D.N.Y. 2013). In particular, Judge Engelmayer's analysis of this issue in Straker, as other courts in this district have recognized, is methodically reasoned and entirely persuasive. Straker, 986 F. Supp. 2 d at 35663. Having concluded that Lafontaine was not "released" under § 1226(c), the Court need not consider her other arguments. The Court, however, will not order Petitioner released. Instead, Respondents are ordered to provide Ms. Lafontaine with an individualized bond hearing under § 1226(a) by August 27, 2015. (As further set forth in this Opinion.) (Signed by Judge John F. Keenan on 8/17/2015) (mro)

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: Aug. 17, 2015

UNITED STATES DISTRICT COURT
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OF NEW YORK
SOUTHERN DISTRICT NEW YORK
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JACQUELINE DE MAEROSA SECURITIES
In re FANNIE LA 2008 LAFONTAINE, : :
08 Civ. 7831 (PAC)
::
LITIGATION
09 MD 2013 (PAC)
Petitioner,
::
::
No. 15 Civ.ORDER (JFK)
OPINION & 4251
-against:
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:
OPINION & ORDER
SCOTT MECHKOWSKI, CHRISTOPHER
:
SHANAHAN, JEH JOHNSON, and LORETTA :
LYNCH,
:
HONORABLE PAUL A. CROTTY, United States District Judge:
:
Respondents.
:
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BACKGROUND1

JOHN F. KEENAN, United States District Judge:
The early years of this decade saw a boom in home financing which was fueled, among
Before the Court is Petitioner Jacqueline De la Rosa
other things, by low interest rates and lax credit conditions. New lending instruments, such as
Lafontaine’s habeas corpus petition pursuant to 28 U.S.C.
subprime mortgages (high credit risk loans) and Alt-A mortgages (low-documentation loans)
§ 2241. She seeks immediate release from detention or, in the
kept the boom going. Borrowers played a role too; they took on unmanageable risks on the
alternative, an individualized bond hearing. For the following
assumption that the market would continue to rise and that refinancing options would always be
reasons, Lafontaine’s petition is granted in part.
available in the future. Lending discipline was lacking in the system. Mortgage originators did
The relevant facts, which are undisputed, can be briefly
not hold these high-risk mortgage loans. Rather than carry the rising risk on their books, the
stated. Lafontaine came to this country from the Dominican
originators sold their loans into the secondary mortgage market, often as securitized packages
Republic in 1986. She met Michael Lafontaine that summer, and
known as mortgage-backed securities (“MBSs”). MBS markets grew almost exponentially.
the two were wed by December. Ms. Lafontaine was admitted as a
But then the housing bubble burst. In 2006, the demand for housing dropped abruptly
conditional permanent resident, see 8 U.S.C. § 1186a, in April
and home prices began to fall. In light of the changing housing market, banks modified their
1988, and Mr. Lafontaine later applied for an immigration visa
lending practices and became unwilling to refinance home mortgages without refinancing.
for his wife. In 1990, the Lafontaines applied to remove the
conditions of her residency.
1

Her petition was denied for

Unless otherwise indicated, all references cited as “(¶ _)” or to the “Complaint” are to the Amended Complaint,

dated June 22, evidence to support allegations in the Amended a bona taken as
insufficient2009. For purposes of this Motion, allthe existence ofComplaint are fide true.

marriage, perhaps owing to Mr. Lafontaine’s then–incarceration.
1

In March 2007, Ms. Lafontaine was arrested and charged for
criminal possession of a controlled substance and released on
her own recognizance after two days in custody.

On November 13,

2008, she was convicted of New York Penal Law § 220.09(1),
fourth degree criminal possession of a controlled substance, and
sentenced to five years’ probation.
On March 13, 2015, Ms. Lafontaine was detained by
immigration officers and sent to the Hudson County Correctional
Facility in New Jersey.

The Department of Homeland Security’s

notice to appear charged her with deportability based on the
termination of her conditional permanent residency, see 8 U.S.C.
§ 1227(a)(1)(D)(i), and her 2008 drug conviction, see 8 U.S.C. §
1227(a)(2)(B)(i).

Her request for a bond hearing was denied

because the immigration judge found that she was subject to
mandatory detention, see 8 U.S.C. § 1226(c).

Her hearing to

cancel her removal is scheduled for September 2, 2015.
This Court has jurisdiction because Ms. Lafontaine filed
her petition while she was within this district at the Varick
Street Immigration Court in Manhattan. See Figueroa v. Aviles,
No. 14 Civ. 9360, 2015 WL 464168, at *1 n.2 (S.D.N.Y. Jan. 29,
2015) (“As Respondents concede, the Court has jurisdiction over
Figueroa’s habeas corpus petition pursuant to 28 U.S.C. §§ 2241
and 1331, as Figueroa was present in the Southern District of
New York when the petition was filed.”); Martinez-Done v.
2

McConnell, 56 F. Supp. 3d 535, 540 (S.D.N.Y. 2014).

The parties

agreed to a briefing schedule, which they followed, and the
Court now considers Lafontaine’s petition.
Lafontaine asserts three reasons why her petition should be
granted:

(1) she was not “released” within the meaning of

§ 1226(c) because she did not serve a post-conviction custodial
sentence and was released pre-conviction on her own
recognizance; (2) the Government did not take her into custody
“when [she was] released” as provided by § 1226(c) because she
was detained more than six years after her conviction and nearly
eight years after being released on her own recognizance; and
(3) her detention violates her due process rights because (a) it
is arbitrary, (b) she has a substantial challenge to her
removability, and (c) her detention is, or will become,
impermissibly prolonged.
The Court grants Lafontaine’s petition because, joining the
growing consensus in this district, it holds that Lafontaine’s
pre-conviction release on her own recognizance is not a
qualifying “release[]” within the meaning of § 1226(c). See,
e.g., Blake v. Mechkowski, No. 15 Civ. 2724, 2015 WL 4006193, at
*2 (S.D.N.Y. June 30, 2015); Reynoso v. Aviles, No. 15 Civ.
3933, 2015 WL 3917569, at *2–3 (S.D.N.Y. June 25, 2015); Gayle
v. Aviles, No. 15 Civ. 2134, 2015 WL 4064630, at *2–6 (S.D.N.Y.
June 22, 2015) (collecting cases and noting unanimity); Escrogin
3

v. Tay-Taylor, No. 14 Civ. 2856, 2015 WL 509666, at *3–6
(S.D.N.Y. Feb. 5, 2015); Straker v. Jones, 986 F. Supp. 2d 345,
356–63 (S.D.N.Y. 2013).1

In particular, Judge Engelmayer’s

analysis of this issue in Straker, as other courts in this
district have recognized, is methodically reasoned and entirely
persuasive. Straker, 986 F. Supp. 2d at 356–63.
The Court finds the Government’s arguments challenging
Straker’s rationale unavailing. See Reynoso, 2015 WL 3917569, at
*2 (considering and rejecting the Government’s argument that its
obligation to detain an individual arises at the time of
conviction or release from custody, whichever is later); Gayle,
2015 WL 4064630, at *4 (considering and rejecting the
Government’s argument that aliens convicted of the same offense
would face “differing detention schemes” based on whether they
received a custodial or non-custodial sentence); Masih v.
Aviles, No. 14 Civ. 928, 2014 WL 2106497, at *3 (S.D.N.Y. May
20, 2014) (noting that the Government’s contention that a
subsequent conviction means that pre-conviction detention is
based on more than a mere arrest “misunderstands” Straker).

The

Court also notes that Lafontaine’s release after two days

1

A recent report and recommendation, Giron v. Shanahan, No. 15 Civ. 2951,
2015 WL 4609769 (S.D.N.Y. July 20, 2015), expressed doubt about this view in
dicta. Although concluding that due to the “unusual course of petitioner’s
criminal proceeding” the petitioner had been detained post-conviction, it
went on to suggest that the statute “does not preclude application of
mandatory detention when release precedes conviction.” Id. at *13–15.

4

without even having to post bond does not serve as a useful
proxy for risk of flight or danger to society the way a postconviction custodial sentence does.
Having concluded that Lafontaine was not "released" under §
1226(c), the Court need not consider her other arguments.
Court, however, will not order Petitioner released.

The

Instead,

Respondents are ordered to provide Ms. Lafontaine with an
individualized bond hearing under§ 1226(a) by August 27, 2015.
SO ORDERED.

Dated:

New York, New York
August 17, 2015

,~r~~

I~
JOHN F. KEENAN
United States District Judge

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