Perez v. Aviles et al.
Filing
22
OPINION & ORDER: that Perez's petition for a writ of habeas corpus is denied. The Clerk of the Court is directed to close this case. (Signed by Judge John F. Keenan on 5/24/2016) (tn)
Case 1:09-md-02013-PAC Document 57
Filed 09/30/10 Page 1 of 45
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: 05/24/2016
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
UNITED STATES DISTRICT COURT
-----------------------------------X
SOUTHERN DISTRICT OF NEW YORK
ALEXIS -----------------------------------------------------------x
PEREZ,
:
In re FANNIE MAE 2008 SECURITIES :
:
08 Civ. 7831 (PAC)
Petitioner,
:
LITIGATION
:
09 MD 2013 (PAC)
:
: No. 15 Civ. 5089 (JFK)
-against:
:
OPINION & ORDER
:
OPINION & ORDER
-----------------------------------------------------------x
OSCAR AVILES, JEH JOHNSON,
:
LORETTA E. LYNCH, CHRISTOPHER
:
SHANAHAN, and the U.S. DEPARTMENT :
OF HOMELAND SECURITY,
:
HONORABLE PAUL A. CROTTY, United States District Judge:
:
Respondents.
:
-----------------------------------X
BACKGROUND1
JOHN F. KEENAN, United States District Judge:
The early years of this decade saw a boom in home financing which was fueled, among
Petitioner Alexis Perez, a non-citizen who is currently in
other things, by low interest rates and lax credit conditions. New lending instruments, such as
the custody of the Department of Homeland Security (“DHS”),
subprime mortgages (high credit risk loans) and Alt-A mortgages (low-documentation loans)
petitions this Court for a writ of habeas corpus under 28 U.S.C.
kept the boom going. Borrowers played a role too; they took on unmanageable risks on the
§ 2241, challenging DHS’s authority to detain him without bond.
assumption that the market would continue to rise and that refinancing options would always be
For the reasons set forth below, Perez’s petition is denied.
available in the future. Lending discipline was lacking in the system. Mortgage originators did
Background
not hold these high-risk mortgage loans. Rather than carry the rising risk on their books, the
Perez is a 46-year-old citizen of the Dominican Republic.
originators sold their loans into the secondary mortgage market, often as securitized packages
(Notice to Appear, ECF No. 9-1, at 1, 3 [hereinafter NTA].) On
known as mortgage-backed securities (“MBSs”). MBS markets grew almost exponentially.
April 27, 1999, Perez was granted status as a lawful permanent
But then the housing bubble burst. In 2006, the demand for housing dropped abruptly
resident (“LPR”) of the United States. (Id. at 3.) In 2001, he
and home prices began to fall. In light of the changing housing market, banks modified their
pleaded guilty in New York State Supreme Court to attempted
lending practices and became unwilling to refinance home mortgages without refinancing.
criminal sale of a controlled substance in the third degree and
petit larceny and was sentenced to nine months’ imprisonment in
1
Unless otherwise indicated, all references cited as “(¶ _)” or to the “Complaint” are to the Amended Complaint,
dated June 22, 2009. For purposes of this Motion, all allegations in the Amended Complaint are taken as true.
1
connection with each offense, to run concurrently. (Id.; ECF No.
18-1 at 4-5, 8.)
On December 29, 2012, Perez arrived at JFK International
Airport (“JFK Airport”) from the Dominican Republic seeking
admission as a lawful permanent resident. (Id.)
Perez asserts
that, prior to his arrival, he had been gone from the country
for 29 days. (Letter from Paul B. Grotas, Esq. to Hon. John F.
Keenan (Mar. 4, 2016), ECF No. 19, at 1 [hereinafter Grotas
letter].)
Immigration officials at JFK Airport allowed Perez to
physically enter the country through the legal mechanism of
parole, but denied him admission. (Letter from Assistant U.S.
Attorney Shane Cargo to Hon. John F. Keenan (Mar. 4, 2016), ECF
No. 18, at 2.)
Following his parole into the country, the New York Police
Department arrested Perez on unrelated criminal charges and held
him at Riker’s Island Prison. (Grotas letter at 2.)
The charges
were subsequently dismissed and Perez was transferred to the
custody of DHS on May 15, 2013. (Id.)
DHS charged Perez with
being an inadmissible “arriving alien” based on his 2001
convictions and detained him for removal proceedings. (NTA at 1,
3.)
On July 12, 2013, Perez filed an application with the
Executive Office of Immigration Review (the “Immigration Court”)
for asylum and withholding of removal. (See Decision of Thomas
2
J. Mulligan, Immigration Judge (Jan. 12, 2016), ECF No. 15-2, at
2 [hereinafter January 12, 2016 decision].)
On February 7,
2014, Perez’s 2001 conviction for criminal sale of a controlled
substance in the third degree was vacated upon his motion in New
York State Supreme Court. (Id.)
was not affected. (Id.)
The petit larceny conviction
That same day, Perez pleaded guilty to
criminal possession of a controlled substance in the fourth
degree. (Id.)
On April 16, 2014, DHS amended the charges of
removability against Perez, substituting Perez’s new conviction
for the 2001 drug conviction. (Id.)
On August 12, 2014, the Immigration Court denied Perez’s
applications for relief, found him inadmissible based on his
criminal convictions, and issued a written decision ordering him
removed. (See Decision of the Board of Immigration Appeals (May
27, 2015), ECF No. 4-1, at 1 n.1 [hereinafter May 27, 2015
decision].)
Perez appealed that decision to the Board of
Immigration Appeals (“BIA”), which dismissed the action on the
basis that Perez had knowingly and voluntarily waived his right
to appeal. (Id.)
Perez then filed a motion to reopen his case
with the Immigration Court, which DHS joined for the purpose of
allowing Perez to appeal the Immigration Court’s August 12, 2014
decision. (Id.)
The Immigration Court reopened the case on
December 16, 2014, and reissued its prior decision, allowing
Perez to appeal. (Id.)
While the appeal was pending, DHS denied
3
Perez’s application for discretionary release from custody on
parole. (See Letter from Christopher Shanahan, Field Office
Dir., Immigration and Customs Enforcement to Paul Grotas, Esq.
(Feb. 12, 2015), ECF No. 12-1.)
On appeal, the BIA remanded the case to the Immigration
Court for clarification of its decision and consideration of a
recently issued precedential BIA decision. (See May 27, 2015
decision at 3.)
On January 12, 2016, the Immigration Court
again found Perez inadmissible and ordered him removed to the
Dominican Republic. (See January 12, 2016 decision.)
The BIA
dismissed Perez’s appeal of that order on May 11, 2016.
Discussion
Perez challenges his continued detention without bond under
8 U.S.C. § 1225(b) by way of habeas corpus review under 28
U.S.C. § 2241, which “authorizes a district court to grant a
writ of habeas corpus whenever a petitioner is ‘in custody in
violation of the Constitution or laws or treaties of the United
States.’” Wang v. Ashcroft, 320 F.3d 130, 140 (2d Cir. 2003)
(quoting 28 U.S.C. § 2241(c)(3)).
Specifically, Perez contends
that DHS is detaining him without statutory authority and in
violation of his constitutional right to due process.
As a preliminary matter, the Court notes that in a letter
dated May 19, 2016 (ECF No. 21), the Government contends that
Perez’s arguments challenging his detention under § 1225(b) are
4
moot in light of the BIA’s May 11, 2016 dismissal of Perez’s
appeal of his removal order.
According to the Government,
authority for Perez’s petition has now shifted to 8 U.S.C.
§ 1231(a), which requires detention during a 90-day “removal
period” for aliens ordered removed. See § 1231(a)(2).
Section 1231(a)(1)(B) governs the determination of when
detention during removal proceedings ends and the “removal
period” begins.
That provision states:
The removal period begins on the latest of the
following:
(i) The date the order of removal becomes
administratively final.
(ii) If the removal order is judicially
reviewed and if a court orders a stay of
the removal of the alien, the date of the
court's final order.
(iii) If the alien is detained or
confined (except under an immigration
process), the date the alien is released
from
detention
or
confinement.
Id. § 1231(a)(1)(B) (emphasis added).
In this case, Perez’s order of removal became
administratively final on May 11, 2016, when the BIA dismissed
his appeal. See 8 C.F.R. § 1241.1(a).
However, Perez retains
the right to seek judicial review and a stay of that order from
the Second Circuit Court of Appeals within 30 days of the BIA
dismissal. See 8 U.S.C. § 1252(b)(1).
Thus, pursuant to
§ 1231(a)(1)(B)(ii), it is not clear that the removal period has
begun.
In light of this procedural posture, the Court proceeds
5
to address Perez’s arguments challenging his detention under
§ 1225(b).
Section 1225(b) sets forth procedures for the inspection
and detention of aliens who are “applicants for admission” to
the United States. See 8 U.S.C. § 1225(a)(1), (b).
Under
§ 1225(b), “if the examining immigration officer determines that
an alien seeking admission is not clearly and beyond a doubt
entitled to be admitted, the alien shall be detained for a
proceeding under section 1229a of this title [i.e., a removal
proceeding].” 8 U.S.C. § 1225(b)(2)(A) (emphasis added).
The
only prescribed mechanism for release from § 1225(b) custody is
under 8 U.S.C. § 1182(d)(5)(A), which provides in pertinent part
that “[t]he Attorney General may . . . in his discretion parole
into the United States temporarily under such conditions as he
may prescribe only on a case-by-case basis for urgent
humanitarian reasons or significant public benefit any alien
applying for admission to the United States . . . .”
As an arriving alien determined to be inadmissible based on
a prior criminal conviction, Perez is regarded as “seeking an
admission,” see 8 U.S.C. § 1101(a)(13)(C)(v), and is therefore
subject to § 1225(b).
Because he is “not clearly and beyond a
doubt entitled to be admitted,” Perez has been detained under
§ 1225(b) during his removal proceedings.
Perez has sought
release on parole, but DHS denied his request.
6
Perez argues that his continued detention is beyond the
scope of § 1225(b) and unconstitutional.
In so arguing, Perez
relies on Lora v. Shanahan, 804 F.3d 601 (2d Cir. 2015), which
construed a separate provision, 8 U.S.C. § 1226(c), to authorize
detention only for a period of six months, after which time an
alien is entitled to a bond hearing. Id. at 613-16.
Based on
Lora, Perez argues that § 1225(b) should be interpreted to
require a bond hearing in connection with his further detention.
Alternatively, Perez contends that § 1225(b) is unconstitutional
as applied.
In either case, Perez seeks an order from this
Court directing that he be afforded an individualized bond
hearing.
Perez is not entitled to the relief he seeks.
Perez points
to, and the Court has found, no case within this Circuit holding
that detention under § 1225(b) is implicitly time limited or
requires a bond hearing.
Rather, courts within this Circuit
have, both before and after Lora, consistently found that
§ 1225(b) authorizes the detention of inadmissible arriving
aliens during the pendency of their removal proceedings. See
Cardona v. Nalls-Castillo, No. 15-CV-9866 (SAS), 2016 WL
1553430, at *1 (S.D.N.Y. Apr. 14, 2016) (denying LPR’s petition
for bond hearing under Lora and holding that § 1225(b)(2)(A)
authorized his continued detention during removal proceedings);
Salim v. Tryon, No. 13-CV-6659-JTC, 2014 WL 1664413, at *2
7
(W.D.N.Y. Apr. 25, 2014) (finding LPR was lawfully detained
during removal proceedings under § 1225(b)(2)(A)); Ferreras v.
Ashcroft, 160 F. Supp. 2d 617, 622-27 (S.D.N.Y. 2001) (holding
the same with respect to LPR detained for over 15 months); see
also Viknesrajah v. Koson, No. 09-CV-6442 CJS, 2011 WL 147901,
at *5-6 (W.D.N.Y. Jan. 18, 2011) (finding that a different
subsection of § 1225(b) authorized continued detention of alien
in custody for 27 months during removal proceedings).
Further, Perez’s detention under § 1225(b) does not violate
due process.
An alien has a substantive due process right to be
free from arbitrary or unreasonable confinement during removal
proceedings. See Demore v. Kim, 538 U.S. 510, 532 (2003)
(Kennedy, J., concurring) (“[S]ince the Due Process Clause
prohibits arbitrary deprivations of liberty, a lawful permanent
resident alien such as respondent could be entitled to an
individualized determination as to his risk of flight and
dangerousness if the continued detention became unreasonable or
unjustified.”); Doherty v. Thornburgh, 943 F.2d 204, 209 (2d
Cir. 1991).
That right extends to arriving aliens previously
granted lawful permanent residence, at least where the alien’s
absence from the country is brief. See Ferreras, 160 F. Supp. 2d
at 629; see also Landon v. Plasencia, 459 U.S. 21, 33-34 (1982)
(recognizing that LPR had procedural due process rights in
connection with exclusion proceedings following brief trip
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abroad).
Here, however, Perez's detention has not been
arbitrary or unreasonable.
While Perez's detention has been
lengthy, there is no indication of an "unreasonable delay" by
DHS in pursuing or completing Perez's removal. Demore, 538 U.S.
at 532
(Kennedy, J., concurring).
Rather, the length of Perez's
detention has largely been due to his own appeals.
Although
Perez has acted within his rights in challenging his removal
orders, he "may not rely on the extra time resulting therefrom
to claim that his prolonged detention violates substantive due
process." Doherty, 943 F.2d 204, 211
(2d Cir. 1991); see also
Abassi v. Sec'y, Dep't of Homeland Sec., No. 09 CIV. 7605(PKC),
2010 WL 199700, at *4
(S.D.N.Y. Jan. 11, 2010).
Accordingly, Perez's petition for a writ of habeas corpus
The Clerk of the Court is directed to close this
is denied.
case.
SO ORDERED.
Dated:
New York, New York
May 24, 2016
()-kl~
JOHN F. KEENAN
United States District Judge
9
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