Rodrigques v. Holder et al

Filing 11

MEMORANDUM and ORDER granting 9 Motion for Reconsideration re objections; Clerk of Court is directed to REOPEN case for consideration of objections; OBJECTIONS are OVERRULED ; ADOPTING report and recommendation ; Clerk of Court is directed to CLOSE case; respondents are ordered to file status report re petitioner's appeal to the BIA w/i 20 days of this order.Signed by Honorable James M. Munley on 3/4/10 (sm, )

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA IAN B. RODRIGQUES, Petitioner : No. 3:09cv1764 : : (Judge Munley) : : v. : : ERIC HOLDER, : MARY SABOL, : WARDEN, YORK COUNTY PRISON, : THOMAS R. DECKER, : DISTRICT DIRECTOR, : Respondents : : :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: M E M O R AN D U M B e fo re the court is plaintiff's motion for reconsideration (Doc. 9) of the court's order (Doc. 8) adopting the report and recommendation of Magistrate Judge Martin C . Carlson (Doc. 6) and dismissing his petition for a writ of habeas corpus. Having b e e n fully briefed, the matter is ripe for consideration. B a c k g ro u n d P e titio n e r filed the instant action on September 14, 2009. (See Doc. 1). He is a native and citizen of Jamaica who has resided in the United States for many years. Since completing a Pennsylvania state sentence related to drug trafficking, petitioner h a s been detained by the United States pending his deportation. Petitioner alleges th a t an immigration judge improperly approved his deportation and has filed an appeal. He contends that his continued detention awaiting deportation violates his d u e process rights and seeks release pending the decision of the Board of Im m ig ra tio n Appeals (BIA). The defendants filed a response to the petition on October 7, 2009. (See Doc. 5 ). Magistrate Judge Carlson issued his report and recommendation on October 22, 2 0 0 9 . (See Doc. 6). The magistrate judge found that petitioner's claim should be d e n ie d without prejudice. He noted that petitioner fell within the class of criminal a lie n s whose detention pending completion of removal proceedings is required by fe d e ra l law. See 8 U.S.C. § 1226(c)(1)(B). The court also concluded that petitioner c o u ld not make out a Due Process claim, as the Supreme Court has concluded that d e te n tio n under 8 U.S.C. § 1226(c)(1)(B) does not violate due process. Noting, h o w e ve r, that the Court had also found that detention for an excessive period of time c a n constitute a Due Process violation, Magistrate Judge Carlson examined the fa c ts of the case and found that the delay in petitioner's case was caused by p e titio n e r's actions in appealing to the Board of Immigration Appeals ("BIA"). Moreover, the length of petitioner's custody had been brief­less than six m o n th s ­ a n d would last only until petitioner's appeal concluded. T h e petitioner did not object to the report and recommendation within the time a llo tte d by the court. On November 16, 2009, this court issued an order (Doc. 8) a d o p tin g the report and recommendation in part but not adopting the magistrate ju d g e 's recommendation that the defendant report on petitioner's status in detention 2 by January 25, 2010. (Id.). On November 20, 2009, the petitioner filed objections to th e report and recommendation, which he titled a motion for reconsideration. (Doc. 9 ). The defendants filed a brief in opposition to this motion, bringing the case to its p re s e n t posture. Jurisdiction P e titio n e r brought this action pursuant to 28 U.S.C. § 2241. As such, the court has jurisdiction pursuant to 28 U.S.C. § 1331. ("The district courts shall have original ju ris d ic tio n of all civil actions arising under the Constitution, laws, or treaties of the U n ite d States."). L e g a l Standard H e re , defendant seeks reconsideration of the court's decision adopting the magistrate judge's report and recommendation. "The purpose of a motion for re c o n s id e ra tio n is to correct manifest errors of law or fact or to present newly d is c o ve re d evidence." Harsco Corp. v. Zlotnicki, 799 F.2d 906, 909 (3d Cir.1985); M a x's Seafood Cafe ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1 9 9 9 ). The movant must demonstrate one of three grounds for such a motion to be g ra n te d : (1) an intervening change in controlling law; (2) the availability of new e vid e n c e not previously available; or (3) the need to correct a clear error of law or to p re ve n t manifest injustice. Max's Seafood Cafe, 176 F.3d at 677. A motion for re c o n s id e ra tio n is not a proper vehicle to attempt to convince the court to rethink a d e c is io n it has already made. Glendon Energy Co. v. Borough of Glendon, 836 F. 3 Supp.1109, 1122 (E.D. Pa. 1993). Such motions also may not be used to give a d is s a tis fie d party a chance to "[change] theories and try again," obtaining a "`second b ite at the apple.'" Bhatnagar v. Surrendra Overseas Ltd., 52 F.3d 1220, 1231 (3d C ir. 1995); see also Ogden v. Keystone Residence, 226 F. Supp. 2d 588, 606 (M.D. P a . 2002) (finding that "The simple fact that Ogden is unhappy with the result of the A p ril 19, 2001 opinion is an insufficient basis to grant her relief."). T h e court will grant the motion for reconsideration and consider petitioner's filin g to be objections to the report and recommendation. In disposing of objections to a magistrate judge's report and recommendation, the district court must make a d e novo determination of those portions of the report to which objections are made. 28 U.S.C. § 636 (b)(1)(C); see also Henderson v. Carlson, 812 F.2d 874, 877 (3d C ir. 1987). This court may accept, reject, or modify, in whole or in part, the findings o r recommendations made by the magistrate judge. The district court may also re c e ive further evidence or recommit the matter to the magistrate judge with in s tru c tio n s . Id. D is c u s s io n T h e government filed a brief in opposition to the defendant's motion. (See D o c . 10). Defendants, pointing to the standard for a motion for reconsideration, a rg u e that because there was no intervening change in the controlling law, petitioner h a s introduced no previously unavailable evidence and no clear error of law, the m o tio n should be denied. In his motion for reconsideration, petitioner avers that he 4 was transferred from the York County, Pennsylvania prison to the W illa c y Detention C e n te r in Texas on October 23, 2009. (See Doc. 8 at 2). The magistrate judge is s u e d his report and recommendation on October 22, 2009. (Id.). Petitioner in fo rm e d the court that his address had changed, but he did not receive a copy of th e magistrate judge's opinion until November 3, 2009. (Id.). The Clerk of Court d o c k e te d the instant motion on November 20, 2009. (Id.). It thus appears that p e titio n e r attempted to raise his objections in a timely fashion, but delays in the p ris o n mail system prevented him from doing so. The court finds that failing to consider the petitioner's objections under these c irc u m s ta n c e s would amount to manifest injustice, and reconsideration is thus w a rra n te d . Indeed, it appears that the petitioner's filing may be inappropriately title d . After informing the court of the circumstances that led to his delay in receiving m a il, petitioner asserts that "this Document is submitted in reply to this Courts [sic] o rd e r that any party may object to the Magistrate Judge's proposed finding within ten (1 0 ) days `after' being served with a copy thereof." (See Doc. 9 at 2). Plaintiff is a p p a re n tly arguing that he should be given extra time to submit his objections, as th e re was a delay in serving him with the magistrate judge's order. Though plaintiff's p ro se filing is titled "motion for reconsideration," the motion is more in the nature of o b je c tio n s to the report and recommendation and a motion for an extension of time to provide those objections. In the interest of doing justice to the plaintiff, the court w ill treat petitioner's motion as his objections to the report and recommendation and 5 decide the case on those grounds. Petitioner objects to the magistrate judge's recommendation that the court d is m is s the action. He contends that his detention is improper under 8 U.S.C. § 1 2 2 6 (c ) and that the length of his detention pending a final removal decision violates h is due process rights. The question before the court, then, is whether the m a g is tra te judge correctly recommended that this court dismiss the petition because th e petitioner was subject to mandatory detention under 8 U.S.C. § 1226(c)(1)(B) a n d the length and fact of his detention awaiting deportation did not violate his c o n s titu tio n a l rights. Federal law provides that the "Attorney General shall take into custody any a lie n who­(B) is deportable by reason of having committed any offense covered in s e c tio n 237(a)(2)(A)(ii), (A)(iii), (B), (C), or (D)." 8 U.S.C. § 1226(c)(1)(B). An alien "c o n vic te d of an aggravated felony at any time after admission is deportable." 8 U .S .C . § 1227 (a)(2)(A)(iii). Under the Immigration and Nationality Act, an "a g g ra v a te d felony" includes "illicit trafficking in a controlled substance, including a d ru g trafficking crime (as defined in section 924(c) of title 18, United States Code). Further, "Any alien who at any time after admission has been convicted of a violation o f (or a conspiracy or attempt to violate) any law or regulation of a State, the United S ta te s , or a foreign country relating to a controlled substance (as defined in section 1 0 2 of the Controlled Substances Act (21 U.S.C. 802)), other than a single offense in vo lvin g possession for one's own use of 30 grams or less of marijuana, is 6 deportable. 8 U.S.C. § 1227(a)(2)(B)(i). As such, an alien convicted of a drug o ffe n s e involving more than a small amount of marijuana for personal use is subject to deportation, and detention of such deportable aliens pending removal is m a n d a to ry . Cinchilla-Jimenez v. Immigration and Nationality Service, 226 F.Supp. 2 d 680, 684 (E.D. Pa. 2002) (finding that "[p]etitioner was convicted of conspiracy to im p o rt cocaine. Thus, he is deportable."); 8 U.S.C. § 1226(c). Evidence supplied by th e government indicates that petitioner's detention pending removal is based on his c o n vic tio n in a 2002 Ohio for trafficking marijuana, an aggravated felony. (See Exh. 1 to Government's Reponse (Doc. 5)). No final order of deportation has issued, and petitioner's detention thus falls under Section 1226(c). See, by contrast, 8 U.S.C. § 1 2 3 1 (a )(1 )(A -B ) (establishing that the Attorney General must remove an alien o rd e re d deported from the United States within 90 days of the date when the order is fin a l, either administratively or by the decision of a court). Detention is therefore p ro p e rly analyzed under that statute. H e re , plaintiff also complains that fact of his continued detention during his re m o va l proceedings violates his due process rights. Under these circumstances, th e court must investigate whether plaintiff's continued detention itself violates his c o n s titu tio n a l rights. See Bakhtriger v. Elwood, 360 F.3d 414, 424 (3d Cir. 2004). Section 1226(c), under which petitioner is detained, is itself constitutional. The U n ite d States Supreme Court has found that "[d]etention during removal proceedings is a constitutionally permissible part of that process." Demore v. Hyung Joon Kim, 7 538 U.S. 510, 531 (2003). "Congress," the court found, was "justifiably concerned th a t deportable criminal aliens who are not detained continue to engage in crime and fa il to appear for their removal hearings in large numbers," and thus did not violate th e Constitution by mandating a brief detention before removal for such aliens. Id. at 5 1 3 . The court emphasized that detention under Section 1226(c) was usually brief a n d had a definite termination. Id. at 528. This finding distinguished the case from th e Court's earlier holding in Zadvydas v. Davis, 533 U.S. 678 (2001), which found th a t the Constitution "limits an alien's post-removal-period detention to a period re a s o n a b ly necessary to bring about that alien's removal from the United States. It d o e s not permit indefinite detention." Id. at 689. The court's holding in Demore, then, e m p h a s iz e s that detention pursuant to Section 1226(c) is normally constitutional, u n le s s the custody to which a petitioner is subjected is unreasonably extended or in d e fin ite . The task for the instant court, then, is to determine whether the facts of p e titio n e r's detention constitute a violation of his due process rights. The court in Demore did not offer a broad test to determine when detention p u rs u a n t to Section 1226(c) became unconstitutional. The Third Circuit Court of A p p e a ls has not laid out a specific standard for the court to follow, but other courts w h ic h have examined the question have noted a "growing consensus within this d is tric t, and indeed it appears throughout the federal courts, that prolonged detention o f aliens under § 1226(c) raises serious constitutional concerns." Alli v. Decker, 644 F . Supp. 2d 535, 539 (M.D. Pa. 2009) (citing Tijani v. W illis , 430 F.3d 1241, 1242 (9th 8 Cir. 2005); Ly v. Hansen, 351 F.3d 263, 267-68 (6th Cir. 2003); Prince v. Mukasey, 5 9 3 F. Supp. 2d 727, 734 (M.D. Pa. 2008)). Those courts have developed a variety o f methods for determining when pre-removal detention becomes unreasonable. See, e.g., Casas-Castrillon v. Dep't of Homeland Security, 535 F.3d 942, (9th Cir. 2 0 0 8 ) (finding that detention after completion of removal proceedings requires a bond h e a rin g for continued detention); Ly v. Hansen, 351 F. 3d 263, 271 (6th Cir. 2003) (fin d in g that to determine whether the length of detention under Section 1226(c) is u n re a s o n a b le , "courts must examine the facts of each case, to determine whether th e re has been unreasonable delay in concluding removal proceedings."); Hussain v. M u k a s e y , 510 F.3d 739, 743 (7th Cir. 2007) (finding that "[i]nordinate delay before the o rd e r [of removal] was entered might well justify relief, with habeas corpus the a p p ro p ria te vehicle for obtaining it.") (citations omitted). The court will adopt the approach used by the court in Alli v. Decker, 644 F. S u p p . 2d 535 (M.D. Pa. 2009), as the test used there represents a flexible inquiry into th e circumstances of the case, even as it applies the principle established in Demore th a t extended detention can be unreasonable and contrary to the intent of congress. See Patel v. Zemski, 275 F. 3d 299, 304 (3d Cir. 2001) (finding that "[t]he current im m ig ra tio n laws reflect part of a growing effort by Congress to expedite the removal o f criminal aliens"). In Alli, the court suggested a series of "considerations" which c o u ld guide a determination of whether detention was reasonable. First, the court s h o u ld ask "whether detention has continued beyond the average times necessary 9 for completion of removal proceedings which were identified in Denmore," since they h e lp to define "the `brief' and limited period during which mandatory detention is c o n s titu tio n a l." Alli, 644 F. Supp. 2d at 543. Next, the court should examine "the p ro b a b le extent of future removal proceedings," noting that "[w]here the end of re m o va l proceedings is relatively near, continued detention is more likely to be re a s o n a b le ." Id. Third, the court should determine "the likelihood that removal p ro c e e d in g s will actually result in removal." Id. at 544. Fourth, the court should e xp lo re the conduct of the government and the petitioner in causing the delay in re m o va l proceedings. Id. W h e re the court finds it likely that the alien has raised frivo lo u s objections to his removal in order to avoid that event, continued detention is m o re likely reasonable. Id. On the other hand, where delays in removal proceedings a re the result of the government's dilatory conduct, continued detention could be u n r e a s o n a b le . The magistrate judge, applying a similar set of factors, found that the length of p e titio n e r's detention did not raise constitutional concerns, especially because the d e la y in his deportation was due to his actions. He had litigated bail requests before th e immigration judge, postponed hearings as he sought counsel, filed appeals of his c o n vic tio n in Ohio which led to three continuances and filed a motion to dismiss the re m o va l proceedings. Petitioner also appealed his removal order to the BIA, which h a s likewise caused delay. Finally, the court concluded that the detention had a d e fin ite conclusion, since the BIA's determination of plaintiff's appeal would lead 10 either to his release or deportation. The magistrate judge therefore recommended th a t the court dismiss the petition on these grounds. T h e court finds that petitioner's detention is not unreasonable based on the c irc u m s ta n c e s . Applying the first of the factors outlined above, the court notes that p e titio n e r has been in INS custody since February 25, 2009. The Department of H o m e la n d Security ("DHS") informed petitioner on February 24, 2009 that he would b e detained pending his removal. (Exh. E to Petition for W rit of Habeas Corpus (Doc. 1 ) (hereinafter "Petition")). DHS issued petitioner a Notice to Appear under Section 2 4 0 of the Immigration and Nationality Act on February 25, 2009, alleging that p e titio n e r was removable because he had been convicted of trafficking marijuana in 2 0 0 2 in violation of Ohio law. (Exh. D to Petition). W h ile awaiting a hearing before a n immigration judge, petitioner filed several actions that delayed proceedings. First, h e sought bail or release pending a decision on his removal in a motion filed July 10, 2 0 0 9 . (See Exh. B. to Petition). Next, he sought dismissal of his order of removal, a lle g in g that proceedings on state charges in Pennsylvania had violated his rights, a n d that federal officials had violated his rights by holding him on an INS detainer w h e n a state-court judge had ordered his release on bail pending trial. (See Exh. C to Petition). Petitioner also sought two delays in the proceedings before the im m ig ra tio n judge while he attempted to engage counsel. (Petition at ¶ 32). Finally, p e titio n e r's demand that the court obtain proof of a conviction in Ohio led to a monthlo n g delay in the proceedings. (Id. at ¶ 33). An immigration judge ordered 11 petitioner's deportation on August 11, 2009. (Id. at ¶ 34). Petitioner appealed that d e c is io n to the BIA on September 2, 2009. (See Exh. 7 to Response to Petition for W rit of Habeas Corpus (Doc. 5)). An opinion from the BIA is still pending. T h is period of detention for the petitioner appears to exceed the average times fo r 1226(c) detainees described in Demore. In Demore, the court found that d e te n tio n in 1226(c) cases typically lasted less than 90 days, a period of time "p re s u m p tiv e ly valid" under earlier precedent. 538 U.S. at 529. In the 15% of cases w h e re the petitioner appeals the decision of the Immigration Judge, cases typically re s o lve themselves in four months. Id. Thus, absent other facts, the court might c o n c lu d e that petitioner's nearly year-long detention is constitutionally troubling and re q u ire s a hearing to determine whether petitioner should be released. See, e.g., P rin c e v. Mukasey, 593 F. Supp. 2d 727, 736 (M.D. Pa. 2008) (finding sixteenthm o n th delay reasonable, but ordering that the propriety of continued detention be d is c u s s e d at an upcoming immigration hearing); Mandrane v. Hogan, 520 F.Supp. 2d 6 5 4 , 667 (M.D. Pa. 2007) (finding three years of ICE detention was unconstitutional); W ilk s v. DHS, No. 1:07cv2171, 2008 W L 4820654 (M.D. Pa. Nov. 3, 2008) (hearing re q u ire d after two-and-one-half years of detention). The second and third factors cited by the Alli court counsel against finding a constitutional violation. Plaintiff has appealed an order of removal issued by th e immigration judge and the matter is presently before the BIA. That matter has b e e n pending since September 2009. Given the four-month period cited by the 12 Supreme Court as typical in appeals, a decision from the BIA should issue soon, and w ill resolve the matter of pre-removal detention for the petitioner. For that reason, c o n tin u e d detention pending removal is not unreasonable. Likewise, removal fo llo w in g these proceedings is likely. The evidence of record indicates that petitioner w a s convicted of crimes that mandate removal, and petitioner has not argued that he c o u ld not be deported to Jamaica, his home country. Fourth, most of the delay in removal proceedings can be charged to the p e titio n e r, who filed two motions for release before the immigration judge issued a d e c is io n and caused other delays to the proceedings as well. He has also chosen to a p p e a l that judge's decision to the BIA. Petitioner's removal order is not yet final, but m o s tly because he has acted to prevent that finality. W h ile the court recognizes that a litigant should not be punished for making use of the process available to him, use o f that process should also not be a means of circumventing the demands of the law, w h ic h requires detention pending a final removal decision. See Prince, 593 F. Supp. 2 d at 735-36 (noting that "W h ile this Court would not, in any way, even infer that p e titio n e rs should not file appropriate documents challenging their detention or the re a s o n s for detention, petitioners such as Prince must know that their own conduct h a s to be included in determining whether or not a `reasonable time' was exercised b y the authorities in determining the proper response to any assertions made either b y Petitioner or the Government."). There does appear to be a delay in issuance of a final decision from the BIA, however, and that delay has extended beyond the 13 period described as typical in Demore. For that reason, though the court will deny p e titio n e r's constitutional claim, the court will also order the respondents to provide th e court will an update on the status of petitioner's appeal within 20 days of the date o f this order. If the respondents fail to provide this update, or fail to provide an a d e q u a te explanation for continued delays in the resolution of this matter, the court w ill order that a hearing be held to determine whether petitioner's continued detention p u rs u a n t to Section 1226(c) is reasonable. C o n c lu s io n F o r the reasons stated above, the court will construe the petitioner's motion for re c o n s id e ra tio n as objections to the report and recommendation of Magistrate Judge C a rls o n . The court will overrule those objections and adopt the report and re c o m m e n d a tio n . The court will also order the government to report within twenty d a ys on the status of petitioner's appeal. Failure to do so or failure to provide an a d e q u a te explanation for delays in the appeal will cause the court to convene a h e a rin g on the appropriateness of continued detention. 14 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA IAN B. RODRIGQUES, Petitioner : No. 3:09cv1764 : : (Judge Munley) : : v. : : ERIC HOLDER, : MARY SABOL, : WARDEN, YORK COUNTY PRISON, : THOMAS R. DECKER, : DISTRICT DIRECTOR, : Respondents : : :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: ORDER AN D NOW, to wit, this 4th day of March 2010, the petitioner's motion for re c o n s id e ra tio n (Doc. 9), which the court has construed as objections to the Report of R e c o m m e n d a tio n of Magistrate Judge Martin C. Carlson (Doc. 6) are hereby a d d re s s e d as follows: 1 . The motion for reconsideration is GRANTED to the extent that it seeks to ra is e objections to the report and recommendation; 2 . The Clerk of Court is directed to RE-OPEN the case for the consideration of p e titio n e r's objections; 3 . Petitioner's objections to the report and recommendation are hereby 15 OVERRULED; 4 . The report and recommendation is ADOPTED; 5 . The Clerk of Court is directed to CLOSE the case; AND 6 . The Respondents are hereby ORDERED to file a report with the court on th e status of petitioner's appeal to the Board of Immigration Appeals within tw e n ty (20) days of the date of this order. B Y THE COURT: s / James M. Munley JUDGE JAMES M. MUNLEY U N IT E D STATES DISTRICT COURT 16

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