LeBlanc v. Beth et al

Filing 18

ORDER DENYING 1 Petition for Writ of Habeas Corpus filed by Gilbert A LeBlanc signed by Chief Judge William C Griesbach on 05/26/2016. Should further delay in his removal proceedings occur, LeBlanc may have a stronger argument for reconsideration of release on bond. The Court concludes that LeBlanc's detention is mandatory and the immigration proceedings have not been unduly delayed. (cc: all counsel)(Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
GILBERT A. LEBLANC,
Plaintiff,
v.

Case No. 16-C-302

DAVID BETH, et al,
Defendant.

ORDER DENYING PETITION FOR HABEAS CORPUS

Gilbert A. LeBlanc filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241
challenging the constitutionality of his continued detention without bail pending the completion of
removal proceedings. He is currently being held in the Kenosha County Immigration Detention
Facility. For the reasons that follow, LeBlanc’s petition must be denied.
LeBlanc is a citizen of Canada. He is currently a lawful permanent resident of the United
States, and has been so since August 24, 1964. On November 29, 2012, immigration proceedings
were commenced against LeBlanc. The Buffalo, New York Enforcement and Removal Office
(ERO), Immigration’s Custom’s Enforcement (ICE) of the Department of Homeland Security,
(DHS), issued a document alleging that LeBlanc was removable from the United States for having
been convicted of two or more crimes involving moral turpitude after his admission to the United
States.
The charging document was served on the Immigration Court in Cleveland, Ohio and
LeBlanc made several appearances before that court. The charging document alleged that LeBlanc
was convicted of the following misdemeanor offenses: 1) June 28, 1974-Attempted Petit Larceny
in violation of § 110/155.25 of the New York Penal Law; 2) March 26, 1999-Theft in violation of
§ 18-4-401(1)(a) of the Colorado Revised Statutes; 3) May 24, 2001-Breaking into a Motor Vehicle

in violation of § 16-13-160(1)(2) of the South Carolina Code of Laws; and 4) September 7, 2011Possession of Stolen Property in violation of § 2561(b) of the Vermont State Statute. Following
a hearing on November 20, 2013, DHS filed a Form I-261 alleging the following additional charges
of Inadmissibility/Deportability: 1) May 24, 2001-Receiving Stolen Goods in violation of § 16-3180(2) of the South Carolina Code of Laws; 2) July 7 2001-Two counts of Larceny/Petit or Simple
Larceny in violation of § 16-13-30(a) of the South Carolina Code of Laws; and 3) February 1, 2005Introducing Misbranded Drugs into Interstate Commerce in violation of 21 U.S.C. § 331(k). DHS
alleged that these charges also supported the charge of removability for having been convicted of
two or more crimes involving moral turpitude after admission.
On December 18, 2013, the immigration judge issued a written order finding LeBlanc
removable from the United States for having been convicted of two crimes involving moral
turpitude after admission. LeBlanc was not taken into custody, however, and the case was
continued to March 12, 2014, to allow Mr. LeBlanc to file for relief from removal. On March 12,
2012, LeBlanc again appeared pro se before the Cleveland immigration judge. Although he had
been convicted of numerous criminal offenses after his admission as a permanent resident, the
immigration judge found that he was nonetheless eligible to file for a waiver to cancel his removal
from the United States. LeBlanc was provided with an application for cancellation of removal for
certain permanent residents. The matter was reset for LeBlanc to file the completed application.
On May 21, LeBlanc returned to an immigration court with his application and the matter
was scheduled for a final hearing on October 6, 2015. Prior to the final hearing, however, LeBlanc
was arrested in Walworth County, Wisconsin on July 23, 2015, for two counts of Recklessly
Endangering Safety and one count of Possession of a Firearm by a Felon. LeBlanc was detained
in the Walworth County Jail in Wisconsin based on these charges. After being informed of

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LeBlanc’s Wisconsin Arrest, DHS administratively closed the matter, since LeBlanc would be
unable to appear for his scheduled October 6, 2016 hearing while in custody in Walworth County.
ERO Milwaukee then reviewed the new charges pending against LeBlanc. The criminal
complaint noted that LeBlanc was accused of shooting at a house and garage of a person who lives
in Walworth County. The reported victim had stated that LeBlanc had threatened his life on
multiple occasions and that the victim continues to fear LeBlanc. Based upon the new charges,
ERO Milwaukee determined that LeBlanc no longer merited favorable discretion based on his age
and that he would be detained on his release from local authorities. ERO concluded that, not only
was LeBlanc subject to mandatory detention under 8 U.S.C. § 1226(c) for having been convicted
of two crimes involving moral turpitude, but he was also a danger to the community under 8 U.S.C.
§ 1226(a) based on his new arrest. Accordingly, ERO Milwaukee issued a detainer with Walworth
County on November 16, 2016.
In the meantime, LeBlanc’s trial in Walworth County was delayed beyond the time allowed
under state law for a person held in custody. As a result of the delay, LeBlanc was released on a
signature bond. Thereafter he was transferred to Jefferson County where he faced an additional
charge of Possession of a Firearm by a Felon. LeBlanc posted bond in the Jefferson County case
on January 23, 2016, and was immediately taken into custody by ICE for continued removal
proceedings.
On January 27, 2016, DHS filed a motion to recalendar and change venue with the
Cleveland Immigration Court. DHS requested that the matter be transferred to the Chicago, Illinois
Detained Immigration Court, which handles cases for individuals in ICE custody in Wisconsin. On
March 15, 2016, the Cleveland Immigration Court granted DHS’s motion and the matter was
recalendared with venue changed to the Chicago Detained Immigration Court. LeBlanc’s initial
hearing before the Chicago Detained Immigration Court was held on April 8, 2016. On that date
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a bond hearing was held and the immigration judge found that LeBlanc was subject to mandatory
detention under 8 U.S.C. § 1226(c). LeBlanc reserved appeal from that decision, having in the
meantime commenced this action. LeBlanc’s final hearing on his application for cancellation of
removal is now set for May 26, 2016, before the Chicago Detained Immigration Court. His pending
criminal cases in Walworth and Jefferson Counties are unlikely to be resolved before that time. The
Walworth County case is currently set for a jury trial on August 8, 2016, and the Jefferson County
action has a hearing on a motion to suppress his statement on June 28, 2016. If LeBlanc’s
immigration case does not go forward on May 26, 2016, and if he is subsequently convicted of the
pending criminal charges in Walworth County, he will become statutorily ineligible to seek relief
and cancellation of removal because an alien convicted of an aggravated felony cannot apply for
cancellation of removal as a matter of law. 8 U.S.C. § 1229b(a)(3).
Based upon the foregoing, I conclude that LeBlanc is not entitled to relief from this Court.
Section 236(c) of the Immigration and Nationality Act, 8 U.S.C. § 1226(c), provides that “the
Attorney General shall take into custody any alien who” is removable from this Country because
he has been convicted of one of a specified set of crimes. This statute applies to aliens who have
been convicted of aggravated felonies; two or more crimes involving moral turpitude or one crime
involving moral turpitude that resulted in a sentence of at least one year of imprisonment; a
controlled-substance offense (other than simple possession of 30 grams or less of marijuana); a
firearms offense, espionage, sabotage, treason, or threatening the President, as well as aliens who
have engaged in terrorist activities. See 8 U.S.C. § 1226(c)(1)(A)-(D); see also 8 U.S.C.
§§ 1182(a)(2) and (3)(B), 1227(a)(2)(A)-(D), (a)(4)(B). Although ERO initially exercised its
discretion and concluded that given his age, LeBlanc could be released, ERO’s analysis changed
after the new charges were filed in Walworth County. At that point, Immigration concluded that

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LeBlanc represented a threat to the safety of the community and invoked the mandatory detention
provisions of § 1226(c).
In Denmore v Kim, 538 U.S. 510 (2003), the Supreme Court upheld a mandatory detention
feature of 8 U.S.C. § 1226(c). The plain language of the section and its legislative purpose, the
Court held, requires the mandatory detention of certain criminal and terrorist aliens without a bond
hearing for the duration of their removal proceedings. LeBlanc has been found removable under
this section and remains detained under the authority of Immigration and Naturalization only
because he seeks cancellation of his removal. His country of origin, Canada, would undoubtedly
accept his return. Thus, he is not in the position of those aliens who challenge the mandatory
detention provisions in Zadvydas v Davis, 533 U.S. 678 (2001). There the Supreme Court held that
detention under 8 U.S.C. § 1231 is presumptively valid for at least six months. Thereafter,
however, aliens could not be held if removal was no longer practically attainable. Here there is no
reason to believe that removal is not practically attainable once the proceedings are completed.
Indeed, Immigration has moved swiftly to schedule a final hearing on LeBlanc’s application for
cancellation of removal once the criminal proceedings in Walworth County were delayed. Should
further delay in his removal proceedings occur, LeBlanc may have a stronger argument for
reconsideration of release on bond. At this point, however, the Court concludes that his detention
is mandatory and the immigration proceedings have not been unduly delayed. Accordingly, the
motion is denied.
Dated this

26th

day of May, 2016.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

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