Ortiz v. Holder et al
MEMORANDUM DECISION AND ORDER: Petition for Writ of Habeas Corpus is GRANTED in part and DENIED in part; denying 24 Motion to Dismiss. Signed by Judge Dale A. Kimball on 3/14/12 (alt)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
ERIC H. HOLDER, Jr., United States
Attorney General; JANET
NAPOLITANO, Secretary of the
Department of Homeland security;
JAMES O. TRACY, Utah County Utah
Sheriff; STEVEN BRANCH, Field Office
Director for the Salt Lake City Office of
Enforcement and Removal (ICE), and all
other persons exercising direct legal
custody over the Petitioner,
Case No. 2:11CV1146 DAK
This matter is before the court on the (1) Petition for Writ of Habeas Corpus Pursuant to
28 U.S.C. § 2241, (2) Order to Show Cause why the Writ of Habeas Corpus should not be issued;
and (3) Respondent’s Motion to Dismiss. A hearing was held on January 12, 2012. At the
hearing, Petitioner was represented by Aaron Tarin and Hakeem Ishola. Respondents were
represented by Erez Reuveni and Jared C. Bennett. The court has carefully considered the
memoranda and other materials submitted by the parties, including the Motion to Expedite
Decision and the Response thereto, which were recently filed. Now being fully advised, the
court renders the following Memorandum Decision and Order.
Petitioner, Sergio Ortiz, is currently in the physical custody of the Department of
Homeland Security, U.S. Immigration and Customs Enforcement (ICE), at the Utah County Jail
located in Spanish Fork Utah. He has challenged the Respondent’s position that he is subject to
mandatory detention pursuant to 8 U.S.C. § 1226(c).1
Petitioner is a citizen of Mexico but has been a legal permanent resident of the United
States since approximately March 30, 1999, when he was eighteen years old. From 1999 through
2009, Mr. Ortiz has pleaded guilty to various crimes and then was required to pay a fine and/or
was sentenced to probation. For at least one of the crimes, he received a sentence in abeyance
and then completed the terms of his plea, and the case was dismissed. The most recent criminal
conviction subjecting him to mandatory detention without a bond hearing under § 1226(c), were
two Class B Misdemeanors, to which Petitioner pleaded guilty on August 30, 2007.
Over three years later, in January 2011, Petitioner filed a Form I-90 Application to
Replace Permanent Resident Card. The United States Customs and Immigration Services
(“USCIS”) approved that application May 6, 2011. Following approval of Petitioner’s Form
I-90, USCIS referred his case to ICE for review. Respondents contend that it was not until July
22, 2011 that ICE became aware of Petitioner and his removability. Four days after learning of
Petitioner’s identity and removability, ICE added Petitioner’s name to a list of individuals subject
to “Operation Cross Check 2,” a seven-day long, nationwide enforcement operation conducted by
Petitioner’s removability is not at issue in this case.
ICE Enforcement and Removal Operations, targeting previously unapprehended criminal aliens
in September, 2011. As a result of Operation Cross Check 2, Petitioner was arrested on
September 20, 2011, outside his residence. On November 22, 2011, an Immigration judge
ordered Petitioner removed from the United States. Petitioner the appealed his removal order on
December 21, 2011. That appeal remains pending. Petitioner remains mandatorily detained
pursuant to 8 U.S.C. § 1226(c)(1).
The issue in this case is not whether Petitioner should be deported or whether he should
be detained during the removal process.2 Rather, the issue in this case is whether Petitioner is
subject to mandatory detention without a bond hearing during his removal proceedings, the
answer to which turns on the appropriate reading of the mandatory detention statute contained in
the Immigration and Nationality Act § 236, 8 U.S.C. § 1226, and, in particular, the meaning of
the phrase “when . . . released” in § 1226(c).
Section 1226(a) authorizes immigration officials to arrest, detain, and ultimately release
immigrants pending their removal proceedings upon an individualized assessment for bond,
parole, or other forms of supervised release. 8 U.S.C. § 1226(a). Section 122(c), however, is an
exception to this broad authority for detention and release, delimiting a narrow class of people
who are subject to no-bond, mandatory detention- namely, individuals whom immigration
officials detain "when . . . released" from criminal custody for qualifying offenses. See §
Although the Petition seeks release from custody, Petitioner’s counsel clarified
at the hearing that the primary issue is whether Petitioner is entitled to a bond hearing.
Specifically, Section 1226(c)(1) provides:
(c) Detention of criminal aliens.
(1) The Attorney General shall take into custody any alien who
(A) is inadmissible by reason of having committed any offense covered in section
1182(a)(2) of this title,
(B) is deportable by reason of having committed any offense covered in section
1227(a)(2)(A)(ii), (A)(iii),(B), (C), or (D) of this title,
(C) is deportable under section 1227(a)(2)(A)(I) of this title on the basis of an
offense for which the alien has been sentenced to a term of imprisonment of at
least 1 year, or
(D) is inadmissible under section 1182(a)(3)(B) of this title or deportable under
section 1227(a)(4)(B) of this title,
when the alien is released, without regard to whether the alien is released on parole,
supervised release, or probation, and without regard to whether the alien may be
arrested or imprisoned again for the same offense.
8 U.S.C. § 1226(c)(l) (emphasis added). Those individuals, described in §1226(c)(l), are subject
to mandatory, no-bond detention pending their removal.
Respondents contend that, regardless of whether ICE detained Petitioner immediately
following his release from state custody for any of his crimes enumerated in the statute, or at
some point later (in this case, approximately four years later) he is subject to mandatory detention
during his removal proceedings under 8 U.S.C. § 1226 and is not entitled to a bond hearing.3
Respondents also seek dismissal of all respondents except for James Tracy,
Utah County Sheriff, who is currently charged with custody over Petitioner. The court declines
to dismiss the other respondents because James Tracy presumably has no authority to obtain a
bond hearing before an Immigration Judge.
Petitioner, however, argues that the individuals described in §1226(c)(l) are subject to
mandatory, no-bond detention pending their removal only if they are detained by ICE
immediately or within a reasonably short period of time following release from state custody for
an offense enumerated in the statute. In other words, he contends that Congress did not intend for
mandatory detention to apply to immigrants who are detained by immigration officials months or
years after their re-entry into society following a criminal conviction. Instead, he argues, those
immigrants are subject to discretionary detention–with the potential for release on bond-while
they pursue their case against removal. Petitioner contends that he was never taken into custody by
ICE “when” he was released from state custody for an enumerated offense, and thus it is illegal to
deny him a bond hearing.
Respondents base their contrary view on Matter of Rojas, 23 I&N Dec.117 (BIA 2001).
In Matter of Rojas, the Board of Immigration Appeals ("BIA" or "the Board") held that the
mandatory detention statute applies to any noncitizen with an enumerated offense regardless of
whether they were detained when released from criminal custody. See id. at 127. The BIA
concluded that the "when ... released" clause in § 1226(c) "does direct the Attorney General to
take custody of aliens immediately upon their release from criminal confinement." Id. at 122.
However, the BIA held that the "when ... released" clause was a "statutory command" rather
than a "description of an alien who is subject to detention," and therefore mandatory detention
could apply to noncitizens days, months, or even years after their release from criminal custody.4
The dissent in Matter of Rojas, however, found this distinction implausible. See
id. at 135 (Rosenberg, dissenting) ("[T]he majority fails to provide any reason why characterizing
See id. at 121-22.
Respondents urge the court to defer to the agency’s position, pursuant to Chevron US.A.,
Inc. v. Nat'! Res. Def Council, Inc., 467 U.S. 837 (1984). Under step one of Chevron, a court
must analyze the plain language of a statute and apply the "traditional tools of statutory
construction" to determine if the intent of Congress is clear. Id. at 842-43. "If the intent of
Congress is clear, that is the end of the matter; for the court, as well as the agency, must give
effect to the unambiguously expressed intent of Congress." Id. If Congress's intent is
ambiguous, a court will proceed to step two of Chevron, and assess whether the agency's
interpretation of the ambiguous terms is reasonable. Id at 844. On issues of statutory
construction, the judiciary is the final authority and must reject administrative constructions
which are contrary to clear congressional intent. Id. at 843 n.9. Respondents emphasize that
many district courts have found the statute ambiguous and have therefore given Chevron
deference to the Board’s interpretation of the statute.5 Respondents also point out that the very
the language as a directive makes it any less a description, particularly when that description is
communicated as part of a mandate to the Attorney General."). Based on the plain language of
the statute, the dissent concluded that Congress unambiguously intended for mandatory detention
to apply only to individuals detained at the time of their release from criminal custody for an
enumerated offense. See id. at 130-134 (Rosenberg, dissenting). The dissent explained that the
word “ ‘when’ [is defined] as ‘just after the moment that.’” Id. (quoting Alikhani v. Fasano, 70
F.Supp.2d 1124, 1130 (S.D.Cal.1999)). Six board members joined Rosenberg’s dissent.
See Mendoza v. Muller, 2012 WL 252188, at *3 (S.D.N.Y. Jan. 25, 2012)
(finding that the mandatory detention provision is ambiguous and giving deference to Matter of
Rojas); Diaz v. Muller, 2011 WL 3422856, at *2 (D.N.J. Aug. 4, 2011) (finding "when ...
released" to be ambiguous); Gomez v. Napolitano, 2011 WL 2224768 (S.D.N.Y. May 31, 2011)
(same); Sulayao v. Shanahan, 2009 WL 3003188 (S.D.N.Y. Sept. 15, 2009) (same); Serrano v.
Estrada, 2002 WL 485699 (N.D. Tex. Mar. 6, 2002) (holding that mandatory detention was
fact that district courts have disagreed about the meaning of the statute highlights the fact that the
statute is ambiguous.
Having considered the law and the facts pertaining to this issue, this court disagrees with
Respondent’s position. In light of the plain language of the statute at issue, traditional tools of
statutory construction, and the legislative history, the court concludes that the intend of Congress
is unambiguous: Congress intended for mandatory detention to apply only to noncitizens who
are detained at the time of their release from criminal custody for an enumerated offense under 8
U.S.C. § 1226(c).6 Moreover, even if Congress's intent were ambiguous, the Board’s
interpretation of the statute is not reasonable because it leads to arbitrary and manifestly unjust
results. Thus, the court will not give deference to the Board’s decision in Matter of Rojas.7
unconstitutional but noting in dicta that § 1226(c) is ambiguous); Garcia Valles v. Rawson, 2011
WL 4729833 (E.D. Wis. October 7, 2011) (finding § 1226(c) to be ambiguous); Sidorov v. Sabol,
2010 WL 1805690, at *3-4 (M.D. Pa. May 5, 2010) (same); Hernandez v. Sabol, 2011 WL
4949003 (M.D. Pa. Oct. 18, 2011) (same); Saucedo-Tellez v. Perryman, 55 F. Supp. 2d 882, 885
(N.D. Ill. 1999) (same).
The court expresses no opinion on whether “when ... released” means at the
exact moment of release or at some reasonable number of hours or days after release. See Khodr
v. Adduci, 697 F. Supp. 2d 774, 774–75 (E.D. Mich.2010) (concluding that immediacy
contemplates a reasonable period of time for the Attorney General to take the alien into custody).
In the instant case, the amount of time after release was several years and was therefore not
reasonable under any definition of the phrase “when . . . released.” Accordingly, the court need
not resolve what a reasonable amount of time would be under the statute.
Because of the number of courts that have previously explained their reasoning
pertaining to the unambiguous nature of the statutory language and the clear intent of Congress,
the court will not re-invent the analysis; rather, the court adopts the reasoning of the courts in
Jaghoori v. Lucero, 2012 WL 604019, at *2-5 (E.D. Va. Feb. 22, 2012), Harris v. Lucero, 2012
WL 603949, at *2-3 (E.D. Va. Feb. 23, 2012), and Parfait v. Holder, 2011 WL 4829391 (D.N.J.
To the contrary, this court joins the vast majority of federal courts that have addressed
this issue (and the dissent in Matter of Rojas) and finds that, because Petitioner was not taken
into immigration custody when he was released by state officials from his qualifying offense(s), §
1226(c) does not apply, and he is entitled to an individualized bond hearing with an Immigration
See, e.g., Harris v. Lucero, 2012 WL 603949, at *2 (E.D. Va. Feb. 23, 2012)
(determining that government’s reading of the statute extends section 1226(c)(1) beyond the
plain meaning of its language as well as the clear context of its intended application); Jaghoori v.
Lucero, 2012 WL 604019, at *2-3 (E.D. Va. Feb. 22, 2012) (joining the “majority of district
court considering the issue” and declining to give deference to Matter of Rojas because the
language of the statute is unambiguous); Christie v. Elwood, 2012 WL 266454 (D.N.J. Jan. 30,
2012 (noting that “almost every federal court considering the issue” has concluded that Matter of
Rojas is contrary to the plain language of 1226(c)); Rosario v. Prindle, 2011 WL. 6942560, at *2
(E.D. Ky. Nov. 28, 2011) (rejecting Matter of Rojas’s application of § 1226(c) to aliens who
were not immediately detained upon release from custody), adopted by 2012 WL 12920 (E.D.
Ky. Jan. 4, 2012); Parfait v. Holder, 2011 WL 4829391 (D.N.J. October 11, 2011) (concluding
that taking an alien into custody more than two and one-half years after the alien is released does
not fall within the command to take the alien into custody “when” the alien is released, and
finding that the overwhelming majority of federal district courts have agreed that the Board’s
interpretation is contrary to the plain meaning of the statute); Rianto v. Holder, 2011 WL
3489613 (D. Ariz. Aug. 9, 2011) (holding that because petitioner was not taken into custody until
seven years after he was released from custody for the crimes found as the basis for removability,
mandatory detention under § 1226(c) is not authorized); Beckford v. Aviles, 2011 WL 3444125,
at *7 (D.N.J. Aug. 5, 2011) (holding that § 1226(c)(1) applies only to noncitizens detained at the
time of their release from criminal custody for their specified removable offense); Keo v.
Lucero, 2011 WL 2746182 at *3 (E.D. Va. July 13, 2011) (concluding that “[t]he term ‘when’
includes the characteristic of ‘immediacy,’ referring in its primary conjunctive sense, to action or
activity occurring ‘at the time that’ or ‘as soon as' other action has ceased or begun”) (citations
omitted); Sylvain v. Holder, 2011 WL 2580506, at *5-7 (D.N.J. June 28, 2011) (rejecting
respondents’ argument regarding § 1226(c) that “when” means “after”); Hosh v. Lucero, 2011
WL 1871222, at *2-3 (E.D. Va. May 16, 2011) (determining that Section 1226(c)(2) does not
apply to petitioner because he was not taken into custody at the time he was released from
custody pertaining to a designated offense and therefore he was entitled to an individualized bond
hearing); Khodr v. Adduci, 697 F. Supp. 2d 774, 774–75 (E.D. Mich. 2010) (holding that
“[b]ecause the Court finds that the statute at issue clearly and unambiguously requires the
Accordingly, for the foregoing reasons and good cause appearing, IT IS HEREBY
ORDERED that Petitioner’s Petition for Writ of Habeas Corpus is GRANTED in part and
DENIED in part, and Respondents’ Motion to Dismiss is DENIED. Respondents are directed to
Attorney General to take into custody certain aliens without delay in order to make applicable the
mandatory detention provisions of 8 U.S.C. § 1226(c), the Court does not defer to the Board of
Immigration Appeals' decision to the contrary in Matter of Rojas”); Louisaire v. Muller, 758 F.
Supp. 2d 229, 236 (S.D.N.Y. Dec. 1, 2010) (finding that "Matter of Rojas ... is wrong as a matter
of law and contrary to the plain language of the statute" and that “[a] majority of courts that have
examined this issue have held that the mandatory statute is unambiguous.”); Burns v. Cicchi, 702
F. Supp. 2d 281 (D.N.J. 2010) (holding that § 1226(c) does not apply where alien was taken into
immigration custody more than 15 years after release from incarceration for covered offense);
Dang v. Lowe, 2010 WL 2044634 (M.D. Pa. May 20, 2010) (holding that § 1226(c)(1) does not
apply where alien was not taken into immigration custody until 10 years after release from
incarceration for an enumerated offense); Gonzalez v. Dep't of Homeland Sec., 2010 WL
2991396, at *1 (M.D. Pa. July 27, 2010)(disagreeing with Respondents’ position that Matter of
Rojas should be followed); Bracamontes v. Desanti, 2010 WL 2942760, at *5-6 (E.D. Va. June
16, 2010) (noting that a “large majority of district courts agree” that “when . . . released” means
immediately upon release from a qualifying conviction and noting), adopted by 2010 WL
2942760 (E.D. Va. July 26, 2010); Dang v. Lowe, 2010 WL 2044634, at *2 (M.D. Pa. May 20,
2010); Oscar v. Gillen, 595 F. Supp. 2d 166, 169-70 (D. Mass 2009) (same); Monestime v.
Reilly, 704 F. Supp. 2d 453, 458 (S.D.N.Y. 2010) (same); Khodr v. Adduci, 697 F. Supp. 2d 774,
778 (E.D. Mich. 2010) (same); Scarlett v. DHS, 632 F. Supp. 2d 214, 219 (W.D.N.Y.2009)
(concluding that “the statute does not apply when the alien was not taken into immigration
custody at the time of his release from incarceration on the underlying criminal charges”); Garcia
v. Shanahan, 615 F.Supp.2d 175, 182 (S.D.N.Y.2009) (holding that “the plain language of the
statute ... manifests Congress' clear intent that there must be a nexus between the date of release
eand the removable offense”); Waffi v. Loiselle, 527 F. Supp. 2d 480, 488 (E.D. Va. 2007)
(holding that petitioner detained by ICE over one month after his release from criminal custody
was not subject to § 1226(c)); Bromfield v. Clark, 2007 WL 527511, at *4 (W.D. Wash. Feb. 14,
2007) (same); Zabadi v. Chertoff, 2005 WL 3157377, at *5 (N.D. Cal. Nov. 22, 2005) (same).
Quezada- Bucio v. Ridge, 317 F. Supp. 2d 1221, 1231 (W.D. Wash 2004) (holding that an alien
who was taken into immigration custody months or years after their release from state custody
was entitled to an individualized hearing on release pending removal proceedings).
provide Petitioner with an individualized bond hearing with an Immigration Judge as soon as
possible and, in any event, by no later than March 28, 2012.
DATED this 14th day of March, 2012.
BY THE COURT:
DALE A. KIMBALL
United States District Judge
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