Osias v. Decker, in his official capacity as Field Office Director, U.S. Immigration and Customs Enforcement et al
MEMORANDUM OPINION & ORDER: For the foregoing reasons, the Court holds that Petitioner's detention, which has exceeded nine months without an individualized bond hearing, violates due process. The Government is ORDERED to provide Osias with an individualized bond hearing not later than August 11, 2017. Mr. Osias's Petition is GRANTED. The Clerk of Court is respectfully directed to close this case. (Signed by Judge Valerie E. Caproni on 7/28/2017) (kgo)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
THOMAS DECKER, in his official capacity as
Field Office Director, U.S. Immigration and
Customs Enforcement; JOHN F. KELLY, in his
official capacity as Secretary of the U.S.
Department of Homeland Security; JEFFERSON :
B. SESSIONS, in his official capacity as Attorney :
General of the United States,
-------------------------------------------------------------VALERIE CAPRONI, United States District Judge:
DATE FILED: 7/28/2017
OPINION & ORDER
Although the Statue of Liberty welcomes to the United States the “huddled masses
yearning to breathe free,”1 Jocelyn Osias (“Petitioner”) was not so lucky. Petitioner fled Haiti
and sought asylum from the United States. Instead of embracing him, the United States put him
in jail in October 2016 and has refused to grant him an individualized bond hearing since. Osias
petitions for a writ of habeas corpus seeking an individualized bond hearing. For the following
reasons, Petitioner, who has been imprisoned for over nine months, must be promptly given an
individualized bond hearing.2
The material facts in this case are few and undisputed. On October 12, 2016, Petitioner, a
34-year old Haitian citizen, presented himself at the U.S.-Mexico border in California, seeking
Statue of Liberty, NATIONAL PARK SERVICE, https://www.nps.gov/stli/learn/historyculture/colossus.htm.
The relevant statute use the term “detain” rather than “imprison.” The softer import of detain does not
change the hard reality: individuals “detained” by the immigration authorities are confined in prison settings. To
reflect this reality, the Court uses “detained” and “imprisoned” interchangeably throughout this opinion.
asylum. Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (“Pet.”) ¶¶ 1, 31, Dkt.
1. Over a month later, on December 8, 2016, an asylum officer interviewed Petitioner and found
him to have a “credible fear of torture” if he returned to Haiti. Pet. ¶ 32; Pet. Ex. A (Form I-870)
at 5-7. Petitioner was served with a Notice to Appear (“NTA”), the charging document used to
commence removal proceedings, pursuant to which he was charged as an “arriving alien”
without valid entry documents. Pet. Ex. B. Petitioner was then placed in removal proceedings in
New York, New York. Pet. ¶ 13.
Petitioner has been imprisoned since he presented himself on October 12, 2016, and
remains in U.S. Immigration and Customs Enforcement (“ICE”) custody in jail pending
resolution of his removal proceedings. Pet. ¶¶ 1, 3. On April 18, 2017, Osias filed an
application for asylum, withholding of removal and relief under the Convention against Torture.
See Pet. ¶ 36. The merits hearing for Petitioner’s asylum application is scheduled for July 28,
2017. Respondents’ Memorandum of Law in Opposition to the Petition for a Writ of Habeas
Corpus (“Opp.”) 4, Dkt. 12.
On April 28, 2017, Osias filed this habeas petition (“Petition”), arguing that his
imprisonment without a bond hearing violates the Due Process Clause. Dkt. 1. After Osias filed
this Petition, ICE granted him discretionary parole, conditioned on payment of a $5,000 bond.
Dkt. 15. Unfortunately, Petitioner has been unable to post the $5,000 bond and therefore
remains in jail. Dkt. 15.
For the reasons stated herein, the Court concludes that Petitioner’s prolonged
imprisonment, which has exceeded nine months without any individualized assessment of the
risk that he will flee, violates due process. Accordingly, the Court orders that Petitioner be given
an individualized bond hearing.3
Petitioner makes two arguments for why he is entitled to an individualized bond hearing,
one statutory and one constitutional. As a statutory matter, Petitioner argues that he is being
detained pursuant to 8 U.S.C. § 1226(a), not 8 U.S.C. § 1225(b) as the Government contends.
As a constitutional matter, Petitioner argues that even if his detention were pursuant to Section
1225(b), his prolonged imprisonment without a bond hearing, which has now exceeded nine
months, violates the Due Process Clause. For the following reasons, the Court holds that Osias’s
prolonged detention, which has exceeded nine months, violates the Due Process Clause, and that
Osias must be promptly given an individualized bond hearing.
The parties dispute the statutory provision governing Petitioner’s detention. According to
the Government, Petitioner is being detained pursuant to 8 U.S.C. § 1225(b)(1)(B)(ii), which
provides that an alien with a credible fear of persecution “shall be detained for further
consideration of the application for asylum.” Petitioner argues that once he was determined to
have credible fear, the authority vel non for his detention, which Petitioner acknowledges was
initially pursuant to Section 1225(b)(1)(B)(ii), became Section 1226(a). That shift in authority is
important because Section 1226(a) authorizes immigration judges to review custody decisions
The Supreme Court is currently considering Jennings v. Rodriguez, No. 15-1204, which presents the
question of whether arriving aliens (including asylum-seekers) subject to mandatory detention under
8 U.S.C. § 1225(b) must be afforded bond hearings if their detention exceeds six months. The Second Circuit has
stayed cases pending Jennings. See, e.g., Arias v. Aviles, No. 16-3186 (2d Cir. filed Sept. 12, 2016). Although this
Court might normally be inclined to stay the case pending the Supreme Court and Second Circuit’s consideration of
the very legal issue presented by the Petition, the prolonged deprivation of Petitioner’s liberty, without any
individualized assessment of the risk that he will flee, warrants immediate review.
made by ICE and grant release from detention, see 8 C.F.R. § 1003.19(a), but no analogous
authorization exists for detentions governed by Section 1225(b).
The Government does not dispute that individualized bond hearings are available for
immigrants detained pursuant to Section 1226(a), but it contends that Petitioner is being detained
pursuant to Section 1225(b)(1)(B)(ii). The Government argues that Section 1225(b)(1)(B)(ii)
unambiguously authorizes the mandatory detention of an immigrant such as Petitioner.
Section 1225(b)(1)(B)(ii) provides, “If the officer determines at the time of the interview that an
alien has a credible fear of persecution . . . the alien shall be detained for further consideration of
the application for asylum.” 8 U.S.C. § 1225(b)(1)(B)(ii) (emphasis added).
Petitioner argues that Section 1225(b)(1)(B)(ii) governed Petitioner’s detention only up
until the time he was adjudged to have credible fear; otherwise, the statutory provision titled
“mandatory detention” and authorizing an immigrant’s detention “pending a final determination
of credible fear of persecution” would be superfluous. See 8 U.S.C. § 1225(b)(1)(B)(iii)(IV)
(“Any alien subject to the procedures under this clause shall be detained pending a final
determination of credible fear of persecution and, if found not to have such a fear, until
removed”). According to Petitioner, after he passed the credible-fear interview and was charged
with the NTA, he was placed in general removal proceedings under Section 1226(a), which
provides for an alien’s detention “pending a decision on whether the alien is to be removed from
the United States.” 8 U.S.C. § 1226(a).
The Court declines to resolve at this time the statutory question of whether Petitioner is
being held pursuant to Section 1225(b) or Section 1226(a). In general, “[p]rinciples of judicial
restraint” caution against “reaching constitutional questions when they are unnecessary to the
disposition of a case.” Anobile v. Pelligrino, 303 F.3d 107, 123 (2d Cir. 2002); see also
Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J., concurring) (“The
Court will not pass upon a constitutional question although properly presented by the record, if
there is also present some other ground upon which the case may be disposed of.”). But here, it
is clear that even resolving the statutory question in the Government’s favor would not dispose
of this case.4 For the purposes of this opinion, the Court assumes that the Government is correct
that the Petitioner is being held pursuant to Section 1225(b)(1)(B)(ii).5 Nevertheless, because
Petitioner has been held for more than nine months without an individualized bond hearing, his
continued imprisonment violates due process. To avoid constitutional concerns, 8 U.S.C. §
1225(b)(1)(B)(ii) must be read to include a six-month limitation on the duration of detention
without an individualized bond hearing.
Lora Extends to Section 1225(b)(1)(B)(ii)
In general, 8 U.S.C. § 1225(b) governs the inspection of immigrants seeking “admission”
to the United States.6 An immigrant seeking admission includes “[a]n alien present in the United
States who has not been admitted or who arrives in the United States.” 8 U.S.C. § 1225(a)(1).
Section 1225(b)(1) governs the “[i]nspection of aliens arriving in the United States and certain
other aliens who have not been admitted or paroled,” which includes asylum-seekers such as
Petitioner. Section 1225(b)(2) governs the “[i]nspection of other aliens,” which includes Lawful
Of course, if the Government admits that Petitioner is being held pursuant to Section 1226(a), then
Petitioner must be promptly given an individualized hearing before an immigration judge. See
8 C.F.R. § 1003.19(a) (“Custody and bond determinations made by [ICE] . . . may be reviewed by an Immigration
Judge . . . .”).
The Court notes that The Honorable Paul Engelmayer ruled in favor of the Government on this question.
See Tr. 45, ECF 16, Sammy v. Decker, 17 CV 2615 (PAE) (May 25, 2017) (“The Court rejects Mr. Sammy’s
statutory construction. Mr. Sammy’s detention is squarely governed by Section 1225(b). The statute clearly covers
aliens who, like Mr. Sammy, arrive in the United States at the U.S. border and seek admission based on a fear of
“Admission” is defined as “the lawful entry of the alien into the United States after inspection and
authorization by an immigration officer.” 8 U.S.C. § 1101(a)(13)(A).
Permanent Residents (“LPRs”) and nonresident immigrants. Cf. Saleem v. Shanahan, No. 16CV-808, 2016 WL 4435246 (S.D.N.Y. Aug. 22, 2016). According to the Government, Petitioner
is being detained pursuant to Section 1225(b)(1)(B)(ii), which provides: “If the officer
determines at the time of the interview that an alien has a credible fear of persecution . . . the
alien shall be detained for further consideration of the application for asylum.”
In considering the constitutionality of the prolonged imprisonment of an LPR pursuant to
Section 1225(b)(2)(A),7 the Undersigned concluded that “to avoid constitutional concerns,
section 1225(b) must be read to include a six-month limitation on the length of detention of an
LPR without an individualized bond hearing.” Morris v. Decker, 17-CV-02224 (VEC), 2017
WL 1968314, at *3 (S.D.N.Y. May 11, 2017), appeal docketed, No. 17-2121 (2d Cir. filed July
7, 2017). This Court based its decision on Lora v. Shanahan, 804 F.3d 601 (2d Cir. 2015),
which held that mandatory detention pursuant to 8 U.S.C. § 1226(c) for longer than six months
without a bond hearing violates the Due Process Clause. For the reasons thoughtfully discussed
by Judge Abrams in Arias v. Aviles, No. 15-CV-9249 (RA), 2016 WL 3906738 (S.D.N.Y. July
14, 2016), this Court extended the Second Circuit’s Lora decision to an LPR detained pursuant
to 8 U.S.C. 1225(b)(2)(A) as an “arriving alien.” See Morris, 2017 WL 1968314, at *3-4
Like the Morris petitioner, Osias is also charged as an “arriving alien,” which means “an
applicant for admission coming or attempting to come into the United States at a port-of-entry.”
8 C.F.R. § 1001.1(q). Unlike the Morris petitioner, however, Osias is not an LPR, but an asylum
seeker. As such, his detention, according to the Government, is not governed by Section
8 U.S.C. § 1225(b)(2)(A) provides, in relevant part, “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.” Section 1229a contains provisions regarding “proceedings for
deciding the inadmissibility or deportability of an alien.” 8 U.S.C. § 1229(a)(1).
1225(b)(2)(A), which governed the Morris and Arias petitioners’ detentions, but rather is
governed by Section 1225(b)(1)(B)(ii).
Neither party argues that the “shall be detained” directive contained in Section
1225(b)(2)(A) has a different meaning from the “shall be detained” directive contained in
Section 1225(b)(1)(B)(ii). Indeed, it would make little sense to interpret identical phrases
differently when applied to different provisions of the same statute. A statute “should not be
read as a series of unrelated and isolated provisions. . . . [T]he ‘normal rule of statutory
construction’ [is] that ‘identical words used in different parts of the same act are intended to have
the same meanings.’” Gustafson v. Alloyd Co., 513 U.S. 561, 570 (1995) (quoting Dep’t of
Revenue of Ore. v. ACF Indus., Inc. 510 U.S. 332, 342 (1994)).
The question for the Court is whether Lora’s six-month limitation on imprisonment
without an individualized bond hearing extends to a nonresident arriving alien, such as
Petitioner. In Saleem v. Shanahan, No. 16-CV-808 (RA), 2016 WL 4435246 (S.D.N.Y. Aug. 22,
2016), appeal docketed, No. 16-3587 (2d Cir. filed Oct. 21, 2016), Judge Abrams extended
Arias, which concerned an LPR, and held that the six-month limitation on detention also applied
to nonresident arriving aliens detained pursuant to Section 1225(b)(2)(A). Saleem, 2016 WL
4435246, at *5.8 In so holding, Saleem relied on Clark v. Martinez, 543 U.S. 371 (2005), which
concluded that the same immigration detention statute could not be construed differently
depending on the detained alien’s immigration status. Id. at *4. “To interpret the statute one
way for LPRs and another way for non-resident arriving aliens ‘would render [the] statute a
In Saleem, Judge Abrams did not distinguish between Section 1225(b)(2)(A) and Section 1225(b)(1)(B)(ii),
but rather referred to the detention statute as “section 1225(b).” Nevertheless, the facts in Saleem make clear that
Saleem’s detention was pursuant to Section 1225(b)(2)(A).
chameleon, its meaning subject to change depending on the presence or absence of constitutional
concerns in each individual case.’” Id. (quoting Clark, 543 U.S. at 382).
Saleem found persuasive the Ninth Circuit’s reasoning in Rodriguez v. Robbins
(hereafter, “Rodriguez II”), 715 F.3d 1127 (9th Cir. 2013), which construed Section 1225(b) to
include a six-month limitation on detention to avoid constitutional concerns.9 Rodriguez II
rejected the Government’s reliance on Shaughnessy v. United States ex rel. Mezei (“Mezei”), 345
U.S. 206 (1953), which held that aliens seeking initial entry were entitled to fewer constitutional
protections than those who already had entered the United States:
[A]liens who have once passed through our gates, even illegally,
may be expelled only after proceedings conforming to traditional
standards of fairness encompassed in due process of law. . . . But
an alien on the threshold of initial entry stands on a different
footing: Whatever the procedure authorized by Congress is, it is
due process as far as an alien denied entry is concerned.
Mezei, 345 U.S. at 212 (internal quotation marks omitted).10 Rodriguez II concluded that Mezei
was inapposite because it was decided under a prior immigration statutory regime that
considered immigration in terms of “entry” and “exclusion,” rather than the current statutory
regime’s consideration of “admission.” Rodriguez II, 715 F.3d at 1140-41 (discussing the
replacement of the Immigration and Nationality Act (“INA”) with the Illegal Immigration and
Immigrant Responsibility Act of 1996 (“IIRA”)); see also id. at 1141 (IIRA replaced the INA’s
term of “excludability” with “inadmissibility”). In addition, Rodriguez II reasoned that in light
of Clark, Section 1225(b) must be construed to consider the due process rights of LPRs returning
Rodriguez II is the only Court of Appeals case to have considered the due process implications of
mandatory indefinite detention pursuant to Section 1225(b).
Mezei established the “entry fiction” that “although aliens seeking admission into the United States may
physically be allowed within its borders pending a determination of admissibility, such aliens are legally considered
to be detained at the border and hence as never having effected entry into this country.” Rodriguez II, 715 F.3d at
1140 (citing Barrera-Echavarria v. Rison, 44 F.3d 1141, 1450 (9th Cir. 1995) (discussing Mezei)).
after a brief period overseas; such LPRs are entitled to the same due process protections as LPRs
physically present within the United States (and do not fall within the ambit of Mezei’s lesser
constitutional protections for aliens seeking initial entry). Id. at 1141-42. Therefore, Rodriguez
II concluded that to avoid constitutional concerns, Section 1225(b) must be construed to
incorporate a six-month limitation. Rodriguez v. Robbins (hereafter, “Rodriguez III”), 804 F.3d
at 1060, 1082-83 (9th Cir. 2015) (citing Rodriguez II, 715 F.3d at 1142).11
The Government argues that Rodriguez II is distinguishable because Rodriguez II was a
class action that required consideration of the constitutional protections for “the class’s most
sympathetic member,” which included LPRs. Opp. 16. Because Petitioner is not an LPR, the
Government argues, the Court need not consider the due process implications for LPRs detained
pursuant to Section 1225(b). Opp. 16. Similarly, the Government argues that Saleem was
incorrectly decided because Section 1225(b) usually does not govern the detention of returning
LPRs, and, in any event, even if a returning LPR were treated as an arriving alien, the detention
of that alien for a period of 21 months as in Mezei. Opp. 19-20. The Government further asserts
that Saleem relied on unreported decisions relating to an immigration detention regime that is no
longer in effect. Opp. 20-21.
The Government’s arguments are unavailing. In light of Clark’s instruction that “where
one possible application of a statute raises constitutional concerns, the statute as a whole should
be construed through the prism of constitutional avoidance,” see Rodriguez II, 715 F.3d at 1141
(citing Clark), the fact that Section 1225(b) does not usually concern returning LPRs does not
foreclose this Court from construing the statute to avoid constitutional concerns. Similarly, the
Rodriguez II noted that Section 1225(b) provided for mandatory detention under both Section
1225(b)(2)(A) and Section 1225(b)(1)(B)(ii), but, in reaching its holding, Rodriguez II did not distinguish between
those two provisions; rather, Rodriguez II concluded that Section 1225(b), generally, must be construed to impose a
six-month limitation to avoid constitutional concerns. See Rodriguez II, 715 F.3d at 1132.
fact that Petitioner is not an LPR does not save the statute from its unconstitutional implications,
for the same statute must be construed similarly as applied to all categories of immigrants
captured under the statute. Saleem, 2016 WL 4435246, at *4 (citing Clark). Moreover, and as
discussed by Rodriguez II, Mezei is inapposite because the statutory scheme considered in Mezei
is no longer in force and effect; the category of “excludable aliens” that was considered in Mezei
was eliminated by the passage of the IIRA, the statute implicated by Osias’s petition.
Therefore, this Court joins Judge Abrams in holding that Lora extends to the prolonged
detention of a nonresident immigrant imprisoned pursuant to Section 1225(b) without an
individualized bond hearing. Because Lora extends to Section 1225(b)(2)(A), Saleem, 2016 WL
4435246, at *5,12 and Section 1225(b)(2)(A) and Section 1225(b)(1)(B)(ii) must be read
consistently because both include the identical “shall be detained” directive, the Court holds that
Lora also extends to Section 1225(b)(1)(B)(ii). Thus, the detention of an asylum-seeker such as
Petitioner pursuant to Section 1225(b)(1)(B)(ii) for longer than six months without an
individualized bond hearing violates due process. See Nadarajah v. Gonzales, 443 F.3d 1069,
1076 (9th Cir. 2006) (holding that 8 U.S.C. § 1225(b)(1)(B)(ii) “do[es] not authorize [the
petitioner’s] indefinite detention”).13
The Political Branches’ Plenary Power over Immigration
As in Morris, the Government argues that “the political branches’ broad power over
immigration is at its zenith at the international border” and that “[t]he power to admit or exclude
aliens is a sovereign prerogative vested in the political branches” that is entitled to deference.
Although Saleem involved an immigrant detained pursuant to Section 1225(b)(2)(A), the Government does
not argue that Saleem should be distinguished because it concerned Section 1225(b)(2)(A) rather than Section
1225(b)(1)(B)(ii), and the Court would not find such an argument to be persuasive for the reasons discussed above.
Judge Engelmayer similarly held that for the reasons discussed by Judge Abrams in Arias and Saleem,
Lora’s six-month limitation extends to an asylum-seeker detained pursuant to Section 1225(b)(1)(B)(ii). Tr. 48-51,
ECF 16, Sammy v. Decker, 17 CV 2615 (PAE) (May 25, 2017).
Opp. 10 (internal quotation marks and citations omitted). The Government also argues, as it did
in Morris, that the Court should not upset Congress’s “detailed statutory scheme” that provides
immigrants with different immigration statuses with “varying degrees of process” on issues of
admission and detention. Opp. 13. The Government further contends, as it did in Morris, that
the availability of discretionary parole “lessens any possible due process concerns.” Opp. 16-17.
The Court rejects these arguments for the same reasons discussed in Morris. See Morris, 2017
WL 1968314, at *4-5.
In addition, although dicta in Zadvydas v. Davis, 533 U.S. 678 (2001), suggested that the
entry of an alien into the United States might invoke different political considerations so as to
“leave no ‘unprotected spot in the Nation’s armor,’” Zadvydas, 553 U.S. at 696 (citation
omitted), this Court’s holding granting Petitioner a bond hearing will not effect Petitioner’s entry
into the United States; whether Petitioner is admitted remains at the discretion of the executive
branch’s representative, the immigration officer who will consider Petitioner’s application. See
8 U.S.C. § 1101(a)(13)(A) (the term “admission” means, “with respect to an alien, the lawful
entry of the alien into the United States after inspection and authorization by an immigration
officer.”). In addition, any release pursuant to a bond hearing will be subject to mandatory
supervision upon release requirements. See Zadvydas, 533 U.S. at 696 (“The choice . . . is not
between imprisonment and the alien ‘living at large.’ It is between imprisonment and
supervision under release conditions that may not be violated.”).
Petitioner’s Detention Violates Due Process
The Government argues that Petitioner’s detention does not violate due process because
his detention serves a valid statutory purpose of ensuring Petitioner’s appearance at his removal
proceedings, as well as his availability for removal. Opp. 23. The Court, however, is not
questioning the Government’s authority to detain Petitioner; rather, the Court’s concern is with
the length of Petitioner’s detention without an individualized bond hearing. The Court finds
nothing in Section 1225(b) “that clearly demonstrates a congressional intent to authorize
indefinite, perhaps permanent, detention.” See Zadvydas, 533 U.S. at 699.
Lastly, the Court notes that the circumstances particular to this Petitioner heighten the
due process concerns in this case. The Court has been presented with no facts that would
warrant a legitimate concern that Osias may not appear at his removal proceedings. Osias is
seeking asylum in the United States because he is afraid that he will be tortured if he is sent back
to Haiti; he is unlikely to jeopardize his opportunity to receive asylee status in the United States
by absconding. Indeed, because discretionary parole is available only if, among other things,
“the alien presents neither a security risk nor a risk of absconding,” Dkt. 14 at 3 (ICE letter
granting parole), the fact that Osias was granted parole, albeit with financial conditions he is
unable to meet, implies that the Government, too, is not really concerned that Petitioner will
Whether Petitioner is actually released on bond or granted admission to the United States
is at the discretion of the immigration judge. But his detention, which has exceeded nine
months, without an individualized bond hearing violates the core protections guaranteed by the
Due Process Clause. Zadvydas, 533 U.S. at 690 (“Freedom from imprisonment—from
government custody, detention, or other forms of physical restraint—lies at the heart of the
liberty that [the Due Process] Clause protects.”)).
For the foregoing reasons, the Court holds that Petitioner’s detention, which has exceeded
nine months without an individualized bond hearing, violates due process. The Government is
ORDERED to provide Osias with an individualized bond hearing not later than August 11,
Mr. Osias’s Petition is GRANTED. The Clerk of Court is respectfully directed to close
United States District Judge
Date: July 28, 2017
New York, New York
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