Mora-Mendoza v. Godfrey et al
Filing
12
OPINION AND ORDER. Petitioner's petition for writ of habeas corpus 1 is denied, and this proceeding dismissed with prejudice. IT IS SO ORDERED. Signed on 1/29/2014 by Judge Anna J. Brown. (gw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
HERMELINDO MORA- MENDOZA,
Petitioner ,
v.
ELIZABETH GODFREYJ Assistant
Field Office Director ,
Portland Field Office , U.S .
Immigrations and Customs
Enf o rcement; NATHALIE ASHER ,
_ICE Seattle Field Office
Director; JOHN SANDWEG , Acting
Director of ICE; and RAND
BEERS , Acting Secretary of the
Department of Homeland
Security ,
Respondents.
MICHAEL T. PURCELL
16771 Boones Ferry Rd. , Suite 1 0 0
Lake Oswego, Oregon 97035
Attorney for Petitioner
S. AMANDA MARSHALL
United States Attorney
JAMES E. COX , JR.
Assistant United States Attorney
1000 S . W. Third Avenue , Suite 600
Portland, Oregon 97204 - 2902
Attorneys for Respondents
1 - OPINION AND ORDER
3:13 - cv- 0 1747-HU
OPINION AND ORDER
BROWN, Judge
Petitioner, currently in the custody of U.S. Immigration and
Customs Enforcement
(ICE) ,
pursuant to 28 U.S.C.
brings this habeas corpus proceeding
Petitioner argues he is in ICE
2241 .
§
custody in violation of 8 U.S .C.
1226(c) because he is currently
§
For the
detained without the opportunity for release on bond.
reasons
set
forth
below,
the
petition
is
DENIED,
and
this
proceeding DISMISSED , with prejudice.
BACKGROUND
Petitioner is a 38-year old citizen of Mexico who came to the
United States without inspection in 1989.
On September 11, 2007,
Petitioner pled guilty to felony Possession of Cocaine in Oregon
state
court.
Admin.
Rec.
(#10 - 3)
sentenced to 18 months of probation.
at
70 -7 9 .
Admin. Rec.
Petitioner
was
(#10 -3 ) at 77 .
Petitioner first came to the attention of ICE on March 14,
2009
after
immigration
Marion County Jail
officials
in Salem,
discovered him lodged
Oregon on misdemeanor
Driving Under the Influence of Intoxicants.
8.
in
charges
the
of
Admin. Rec . (#10-4) at
Immigration officials placed a detainer on Petitioner, who was
subsequently released to ICE custody on March 17, 2009 .
Id.
On
March 31, an immigration judge ( IJ) granted Petitioner release from
custody,
and
set
bond at
$5,000.
Admin.
Rec.
( #10-2)
at
50.
Petitioner's family posted bond the following day and Petitioner
2 - OPINION AND ORDER
was released from custody pending further immigration proceedings.
Admin. Rec.
(#10-4) at 64-73.
ICE issued Petitioner a Notice to Appear f o r August 26, 2009.
Admin.
Rec.
at 30-31.
(#10-2)
On August 20,
however,
2009,
six
days before the date on Petitioner's Notice to Appear 1 an IJ signed
an order stating Petitioner failed to appear at his hearing and
ordered Petitioner removed t o Mexico. 1
Admin. Rec.
( #10-2 ) at 87.
Accordingly,
ICE
a
on
September
1, ·
2 00 9,
Removal / Deportation for Petitioner.
September 11,
issued
Admin. Rec.
-of
( #10-2 ) at 89.
On
Petitioner voluntaril y departed the
20 0 9,
States by walking across the border at Tijuana,
Re c .
Warrant
Mexico.
United
Admin.
( # 10-4 ) at 3 4 . 2
Petitioner subsequently returned t o the United States.
officials
discovered
Petitioner
on
May
30 ,
2 0 13,
when
he
ICE
was
arrested on misdemeanor charges of Giving False Information to a
Police Officer and Using An o ther's License.
2.
Admin. Rec.
( #10-3 ) at
Petitioner pled guilty t o those charges on August 27, 2013, but
apparently did not go into ICE custody at that time.
( #10-3 ) at 8 0 -87.
On September 2 0 ,
2 0 13,
with misdemeanor Driving While Suspended.
Admin. Rec.
Petiti o ner was charged
Admin. Rec.
( #1 0 -3 ) at
1
It is unclear why Petiti o ner's removal hearing was held
six days befo re the date o n the Notice t o Appear.
2
It is also unclear why Petitioner was permitted to
voluntarily depart.
3 - OPINION AND ORDER
3.
-Petitioner was delivered into ICE custody on September 30,
2013.
Admin. Rec.
(#10 -3) at 2.
Although Petitioner was initially denied an opportunity for a
bond hearing because he was the subject of an outstanding order of
removal
from · his prior immigration proceedings,
on October 29,
2013 , the IJ reopened Petitioner's prior removal proceedings.
now maintains
ICE
Petitioner is not entitled to an opportunity for
release on bond because Petitioner's 2007 conviction for Possession
of Cocaine subjects him to mandatory detention under 8 U.S.C.
122 6 (c) ( 1 ) .
§
Petitioner filed the instant petition seeking an order
instructing ICE to hold a bond hearing or release him, arguing that
ICE cannot rely on 8 U.S.C. § 1226(c) (1) as grounds for mandatory
detention.
DISCUSSION
As relevant to this case , the Immigration and Nationality Act
(INA) provides that ICE "shall take into custody any alien who" is
deportable by reason of having committed a qualifying offense "when
the alien is released."
8 U.S. C . § 1226 (c) (1)
(emphasis added ) .
The parties agree that Petitioner 's 2007 cocaine
qualifying offense.
Thus,
convic~ion
is a
the only question is whether an alien
who is not taken into custody at the time of his release from state
custody ~ay nonetheless be subject to mandatory detention under
Section 1226 (c) (1).
4 - OPINION AND ORDER
The Board of Immigration Appeals
1226(c)
(BIA)
interpreted Section
to provide that an alien who has committed a qualifying
crime is subject to mandatory detention regardless of whether ICE
took the alien into custody "immediatel y upon his
state custody."
release from
In re Rojas, 23 I. & N. Dec. 117, 127 (BIA 2001).
Thus, the BIA interpieted Section 1226(c) (1) , including the "when
released" language, to not limit the timeframe during which
ICE may take an alien into custod¥ and detain the alien pursuant to
Section 1226(c)(l).
"The BIA's construction of ambiguous statutory terms in the
INA through
case-by-case adjudication is
under Chevron U.S.A.,
Inc."
Inc. v. Natural Resources Defense Council,
Henriquez-Rivas v.
2013)
entitled to deference
(citing Chevron,
Holder,
467 U.S.
707 F.3d 1081,
837 ,
844
1'087
(1984)) .
(9th Cir.
The Chevron
analysis requires the Court to examine the agency's interpretation
of the statute in two sequential steps.
whether the statute is
. issue.
amb~guous
First, the Court considers
as to the precise question at
Second, if the statute is ambiguous,
the Court considers
whether the agency's interpretation is reasonable.
See Chevron,
467 U.S. at 842 - 43 .
Since In re Rojas, courts have been split on whether mandatory
detention under Section 1226(c) (1 ) requires ICE to take the alien
into custody immediately upon the alien's release from criminal
custody.
A majority of district courts to consider the issue,
5 - OPINION AND ORDER
released" provision
including this Court, have held the "when .
unambiguously restricts ICE's authority to detain an alien pursuant
t ·o Section 1226 (c)
to those situations in which they immediately
take custody of the alien upon release from criminal custody.
~'
Boonkue
v.
Ridge ,
No .
3:04 - cv- 00566-PA ,
2004
WL
See,
1146525
(D . Or . May 7, 2004); Vicencio v . Shanahan, Civ. No. 12-7560 (JAP)
(D.N.J . Feb . 26 , 2013) ; Castillo v. ICE Field Office Director , 907
F.
Supp.
2d 1235
(W . O. Wa.
2012) .
On the other hand , a growing
number _of courts, recentlY. including two courts of appeals,
have
reached the opposite conclusion and found that an alien may be
subject to mandatory detention under Section 1226 (c) (1) even if ICE
does not immediately take the alien into custody upon release from
criminal
custody .
United States,
F. 3d 375
See,
e.g .,
714 F. 3d 150
Sylvain v .
(3d Cir.
Attorney Gen.
of the
2013); Hash v . Lucero,
(4th Cir . 2012) ; Johnson v. Orsino ,
680
942 F. Supp . 2d 396
(' S . D. N. Y. 2013).
Although I appreciate the difficulty of this question, under
Chevron I defer to the BIA 's interpretation of Section 1226(c) (1) .
I
alternatively
find
that
even
if
the
"when
released"
provision requires ICE to immediately take custody of an alien upon
release from criminal custody ,
deprive
it
ICE's failure t o do so does not
of the authority to subject
detention under Section 1226 (c) .
the alien to mandatory
Accordingly, I conclude the delay
between Petitioner's release from criminal custody on his cocaine
6 - OPINION AND ORDER
possession charges and ICE taking Petitioner into custody does not
deprive ICE of ihe authority to detain Petitioner under Section
1226 (c) (1).
I.
Chevron Analysis
A.
step One
As indicated above, at ·step One of the Chevron analysis, the
Court considers whether the statute is ambiguous as to the precise
question at issue.
See Chevron, 467 U.S. at 842 .
"If the intent
of Congress is clear, that is the end of the matter; for the court,
as
well
as
the
agency,
must
expressed intent of Congress."
give
Id.
effect
to
the
unambiguously
The Court determines whether
a statute is ambiguous by "applying the normal 'tools of statutory
construction.'"
Blandino-Medina v .
Holder,
712 F.3d 1338,
1343
(9th Cir. 2013) .
In doing so, the Court first engages in a textual
analysis of the relevant statutory provision, including a reading
of the words of the statute in their context and "'with a view of
their place in the overall statutory scheme.'"
v.
Wilcox,
633 F.3d 766 ,
773
(9th Cir .
2011)
N. Cal . River Watch
(quoting Resident
Councils of Wash. v. Leavitt, 500 F. 3d 1025, 1031 (9th Cir. 2007)) .
"If
the
analysis,
proper
the
interpretation
is
not
clear
legislative history offers
insight into Congressiona.l intent."
Ill
Ill
7 - OPINION AND ORDER
Id.
from
the
textual
valuable guidance
and
1.
Textual
Analysi~
Whether the statute is clear as to the precise question at
issue turns on whether the "when .
. released" language clearly
commands ICE to take an alien into custody immediately upon release
from criminal custody.
As relevant here, however, "when" has two
different usages that suggest different answers to this question.
Without a doubt, as Petitioner suggests, "when" can be used to mean
·"at or during the time that" or "just after the moment that" the
triggering event takes place.
Dictionary Unabridged
2602
Webster's Third New International
(1981).
Such
a
definition
clearly
implicates a temporal limitation on ICE's authority to take custody
of an alien under Section 122 6 (c) ( 1) .
On the other hand, "when" can mean "in the event that" or " on
condition that;" a usage that does not bear the strictly temporal
implication of the first usage discussed above.
Id.
If Congress
·intended the second usage of "when," ICE's power to subject an
alien to mandatory detention may not be limited to where it takes
the alien into custody at the jailhouse door.
3
3
An example illustrates this point.
If, at the conclusion
of a hearing, a judge said, "The Court shall issue its opinion
when the parties-' supplemental briefing is completed," few would
interpret the judge's statement to mean the Court must issue jts
opinion at the moment the briefing is completed and could ·not do
so at any time thereafter. While there are certainly differences
between this example and the statutory phrase at issue, the
example demonstrates that the operative combination of "when" and
a passive past participle does not necessarily bear as rigid a
meaning as Petitioner suggests.
8
~
OPINION AND
ORD~R
In add i tion ,
bo t h usages produce plausible read i ngs of the
statute when r ead in the context
of · the p r ovision as
a whole .
Applying the temporal usage of " when ," Section 1226(c) (1) mandates
t hat ICE detain any alien deportable by reason of having committed
a qualifying offense as long as ICE takes the alien into custody at
th~
moment the al i en is released from criminal custody .
Applying
the conditional usage of " when ," however , the provision instructs
ICE
to
take
custody
of
and
detain
aliens
who
have
committed
qualifying offenses , but only "in the event that " they are released
from criminal custody .
Thus ,
" when ," Section 1226 (c) (1)
detain
qualifying
aliens ,
applying the conditional usage of
requires
but
released from criminal custody . 4
only
ICE to take custody of and
if
and
after
the
alien
is
So understood , the " when .
released " language is effectively a mandate to ICE not to interfere
with criminal custodial sentences .
Thus ,
after performing the
textual analysis , I conclude both readings of " when
. released"
are plausible and the statute remains ambiguous as to the precise
question at issue.
2.
Leqis~tive
History and Statutory Purpose
Because ambiguity remains after the textual analysis , I turn
to the legislative history and purpose of the statute to discern
4
Notably , the qualifying offenses in Section 122 6 (c) ( 1)
include some very serious offenses fo r which some aliens may
never be released from criminal custody . See , e .g., 8 U. S . C. §
1227 (a) (2) (A) ( i ii) (providing that aliens who commit agg r avated
felonie s are deportable).
9 - OPINION AND ORDER
whether the statute is ambiguous.
773.
N. Cal. River Watch, 633 F.3d at
. With regard to Section 1226 (c),
the Supreme Court
noted
"Congress adopted this provision against a backdrop of wholesale
failure
by the
INS
to
activitY by aliens."
deal
with
increasing
rates
of
criminal
Demore v. Kim, 538 U.S. 510, 518 (2003) .
The
Court noted that at the time of passage, Congress was considering
evidence of the significant number of crimes committed by criminal
aliens,
and further considered evidence that "more than 20% of
deportable
criminal
hearings."
In
aliens
failed
to
appear
for
their
removal
Id. at 519 (citing S. Rep. No. 104-48, p. 2 (1995)).
addition,
the
Court
found
Congress
considered
studies
that
"suggested that detention of criminal aliens during their removal
proceedings
might
be
the
best
way
to
ensure
their successful
removal from this county," and "[i]t was following these Reports
that
Congress
enacted 8 U.S. C.
§
122 6,
requiring the Attorney
General to detain a subset of deportable criminal aliens pending a
determination of their removability."
mandatory
process,
detention
under
Section
Id.
1226 (c)
at 521.
consistent
In finding
with
due
the Court concluded that "[s]uch detention necessarily
serves the purpose of preventing deportable criminal aliens from
fleeing
prior
to
or
during
their
removal
proceedings,
thus
increasing the chance that, if ordered removed, the aliens will be
successfully removed."
10 - OPINION AND ORDER
Id. at 528.
Although
I
find
Section 1226 (c) (1)
remains
ambiguous,
the
statutory purpose and legislative history lend additional credence
to
the
viability
of
the
interpretation of "when .
conditional ,
rather
released."
than
temporal,
As the Court . thoroughly
discussed in Kim , in light of a high percentage of criminal aliens
failing to appear for their removal
bond,
Congress
sought
to
proceeding~
facilitate
the
when released on
speedy
and
efficient
deportation of criminal aliens by subjecting a specific class of
such aliens to mandatory detention.
Kim,
538 U.S. at 518-20.
A
reading of "when . . . released" that places a very strict temporal
limitation on ICE's authority to take criminal deportable aliens
into mandatory custody is incongruent with Congress 's clear purpose
in passing Section 12 2 6 (c ) .
See Hosh,
680 F.3d at 381 .
Simply
put, giving otherwise qualifying criminal aliens the opportunity to
be released on bond simply because of a delay in taking the alien
into ICE custody frustrates the Congressional purpose in passing
Section 1226 (c ) .
Although I recognize that Petitioner's reading of "when .
released" is plausible on the face of the statute, considering the
text,
context,
legislative
history,
and
statutory
purpose,
I
conclude that Petitioner's interpretation is not the clear intent
of Congress.
Thus, I find the statute is ambiguous and move on to
Step Two of the Chevron analysis.
Ill
11 - OP INI ON AND ORDER
B.
Step Two
At
Step
provision
Two,
if
ambiguous
the
after
Court
finds
undergoing
the
the
relevant
above
statutory
analysis ,
the
administrative interpretation is entitled to deference so long as
it is a reasonable construction of the statute .
at 843 .
Chevron , 467 U.S.
"This test is satisfied if the agency's interpretation
' reflects a plausible construction of the statute ' s plain language
and does not otherwise conflict with Congress ' expressed intent.'"
Oregon Trollers Ass ' n v. Gutierrez , 452 F . 3d 1104, 1116 (9th Cir .
2006)
(quoting Rust v . Sullivan ,
500 U. S . 173 ,
183
(1991)).
An
agency's decision will not be overturned at the second step "unless
it
is
arbitrary,
statute. "
capricious,
Ramos-Lopez v .
or
manifestly
Holder,
563
contrary
F.3d 855 ,
859
to
the
(9th Cir.
2009) .
As discussed above , I find the BIA ' s conclusion that Section
122 6 (c) ( 1)
does
not
restrict
when
ICE
may
take
a
qualifying
criminal alien into custody and subject the alien to mandatory
detention
is
a
plausible
reading
Moreover,
the BIA's interpretation is consistent with Congress 's
intent in passing Section 1226(c)
of
the
text
of
the
statute.
insofar as it provides for the
mandatory detention of the qualifying criminal aliens Congress was
concerned would not appear for removal proceedings if released on
12 - OPINION AND ORDER
There f ore ,
bond .
I
conclude
that
the
BIA ' s
inte r pretation of
Section· 122 6 (c) i s r easonabl e and entitled to deference . 5
II.
Authority for Mandatory Detention
In the alternative , even assuming Section 1226(c) requires ICE
to take a qualifying criminal alien into custody immediately upon
release from criminal custody , I conclude that ICE ' s failu r e to do
so
does
not
deprive
it
of
the
power
to
subject
qualifying criminal alien to mandatory detention .
directing
official
action
needs
more
than
a
an
otherwise
" [A]
mandatory
statute -' shall '
before the grant of power can sensibly be read to expire when the
job is supposed to be done ."
U. S . 1 49 , 161 (2003) .
Barnhart v . Peabody Coal Co .,
537
Accordingly , " if a sta t ute does not sp e cify
a consequence for noncompliance with statutory timing provis i ons ,
the federal courts will not in the ordinary course impose their own
coercive sanction ."
510
u.s .
I
United States v . James Daniel Good Real Prop . ,
43 , 63 (1993) .
find
the
rationale
of the
Third and
Fourth Circuits
in
Sylvain and Hosh persuasive in concluding that even if Section
5
Because I conclude that the BIA ' s interpretation of
Section 1226 (c) is reasonable , I reject Petitioner ' s argument
that the rule of lenity justifies granting the writ.
" The rule
of lenity .
. does not prevent an agency from resolving
statutory ambiguity through a valid regulation. " Pacheco - Camacho
v . Hood , 272 F . 3d 1266 , 1271 (9th Cir . 2001).
Beca u se the BIA ' s
decision is entitled to Chevron deference , I conclude " [t]o the
extent that there is any ambiguity in " Section 1226(c) , the BIA
" has resolved it through a r easonable interpretation , and the
rule of lenity does not apply ." Id . at 1272.
13 - OPINION AND ORDER
1226(c) provides a time limit for taking a qualifying alien into
custody,
the
authority
expiry of
to
subject
that
the
time
does
alien . to
not
deprive
mandatory
ICE
of
detention.
Sylvain, 714 F.3d at 157-61; Hosh, 680 F.3d at 381-83.
the
See
As the Hosh
and Sylvain courts noted, in United States v. Montalvo-Murillo, 495
U.S. 711 (1990), the Supreme Court refused to strip the government
of the authority to detain a criminal defendant pending trial when
a judge sua sponte continued the detention hearing in v iolation of
495 U.S. at 714-i8.
the Bail Reform Act.
There, the Bail Reform
Act provided that before a defendant could be detained, a judicial
officer "sha ll " hold a bond hearing "immediately upon the person's
first appearance before the judicial officer".
18
u.s.c.
§
3142 (f)).
The
Id. at 714 (quoting
Montalvo-Murillo
Court
reasoned, ,
" [a]ssessing the situation in realistic and practical terms, it is
inevitable
that,
despite
the
Government and the courts,
time
requirements
situations,
of
there is
§
no
most
diligent
efforts
of
the
some errors in the application of the
3142(f)
will
occur .
In
these
reason to bestow upon the defendant a
windfall and to visit upon the Government and the citizens a severe
penalty by mandating release of possibly dangerous defendants every
time some deviation from the strictures of§ 3142(f) occurs ."
Id.
at 720.
The
Court's
present situation.
rationale
in
Montalvo-Murillo
applies
to
the
As discussed above and at length by the Court
14 - OPINION AND ORDER
in Kim, in passing Section 1226(c), Congress sought to protect the
public from a certain class of criminal aliens who failed to appear
for their removal proceedings at a high rate by mandating that ICE
take
such
efficient
aliens
into
removal.
custody
Kim ,
538
to
U.S.
facilitate
at
518 - 20 .
their
As
speedy
and
in Montalvo-
Murillo , the criminal alien should not receive the windfall of the
opportunity for release on pond, and the public should not bear the
penalty of the possibility of the alien's release pending
re~oval
proceedings, simply because ICE did not timely take the alien into
custody .
Thus,
See Sylvain, 714 F.3d at 159 ; Hosh,
I conclude even if Section . 1226 (c)
qualifying
crimi ~ al
680 F . 3d at 382 - 83 .
requires ICE to take a
alien into custody at the moment the alien is
released from criminal custody, failure to do so does not deprive
ICE of the authority to subject the alien to mandatory detention.
CONCLUSION
Based on the
habeas corpus
foregoing ,
(#1)
Petitioner's petition for writ
is denied , and this proceeding dismissed with
prejudice.
IT IS SO ORDERED .
DATED this
;).C,
of
~
day of January, 2014 .
Anna J. Brown
United States District Judge
15 - OPINION AND ORDER
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