Opinion
Civil No. 12-5937 (CCC)
02-22-2013
MARCO ANTONIO LOPEZ ALMONTE, Petitioner, v. ROY L. HENDRICKS, Respondents.
PERHAM MAKABI Attorney for Petitioner GISELA A. WESTWATER U.S. Dept. of Justice, Office of Immigration Litigation Attorney for Respondent
NOT FOR PUBLICATION
Hon. Claire C. Cecchi
OPINION
APPEARANCES:
PERHAM MAKABI
Attorney for Petitioner
GISELA A. WESTWATER
U.S. Dept. of Justice, Office of Immigration Litigation
Attorney for Respondent
CECCHI. District. Judge.
Marco Antonio Lopez Almonte, confined at Essex County Jail in Newark, New Jersey, filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241 challenging his pre-removal period mandatory detention, pursuant to 8 U.S.C. § 1226(c), by the Department of Homeland Security ("DHS"). The government filed an Answer admitting the material facts and arguing that § 1226(c) mandates Almonte's pre-removal period detention without the possibility of release on bond because he was convicted of an offense listed in § 1226(c), even though DHS did not take him into custody until thirteen years after he was released from criminal incarceration for that offense. Petitioner filed a Reply and the government filed a motion to file a sur-reply, which Petitioner does not oppose. This Court grants the motion to file a sur-reply. As explained below, this Court holds that Almonte's detention is governed by 8 U.S.C. § 1226(a), rather than § 1226(c), because DHS did not take him into custody when he was released in 1999 from criminal incarceration for the offense underlying the removal charges (but instead waited for thirteen years to take him into custody). Accordingly, a Writ of Habeas Corpus is granted, directing the Immigration Judge to conduct a bond hearing pursuant to 8 U.S.C. § 1226(a)(2) to determine if Almonte is a flight risk or danger to the community.
I. BACKGROUND
Marco Antonio Lopez Almonte, a native and citizen of the Dominican Republic, challenges his detention in the custody of DHS at Essex County Jail. The facts are undisputed. In 1979, Almonte emigrated to the United States from the Dominican Republic as a lawful permanent resident. On February 27, 1996, Almonte pled guilty to an aggravated felony; specifically, one count of second-degree sexual assault, in violation of N.J. STAT. ANN. § 2C:14-2b. Almonte was sentenced to a seven-year term of incarceration and was released from custody In May 1999.
Thirteen years later, on August 15, 2012, DHS served Almonte with a notice to appear for removal pursuant to Section 237(a)(2)(A)(iii) of the Immigration and Nationality Act (the "INA"). The notice was based on the aforementioned 1996 conviction. DHS arrested Almonte on August 15, 2012 and notified him that he would be detained without bond pending a final determination in his removal proceeding. At that time, DHS also advised Almonte that he was not permitted to request a review of the custody determination by an Immigration Judge because the INA prohibited his release.
On September 20, 2012, Almonte filed this § 2241 Petition. In his Petition, Almonte argues that he is not subject to § 1226(c)'s mandatory pre-removal period detention because DHS did not take him into custody when he was released from criminal incarceration in 1999 for the offense which underlies his removal proceeding. In other words, Almonte asserts that, because DHS waited for thirteen years to take him Into custody for removal based on the 1996 conviction, he is not subject to § 1226(c)'s mandatory pre-removal detention. In its Answer, DHS argues that it does indeed retain statutory authority to mandatorily detain Almonte under § 1226(c) thirteen years after he was released from incarceration for the listed offense. DHS claims that § 1226(e)\s statutory language, which provides for the mandatory detention of only those criminal aliens who are taken into custody when they are released from Incarceration, does allow for mandatory detention in this situation. In his Reply, Almonte refutes the arguments of DHS, and argues that his detention is not governed by § 1226(c) because that section only applies to criminal aliens who are immediately taken into the custody of DHS when they are released from incarceration. In its Sur-Reply, the government argues for the first time that § 1226(c) is ambiguous and that this Court should defer to the Interpretation of the statute by the Board of Immigration Appeals ("BIA") in Matter of Rojas, 23 I.&N. Dec. 117 (BIA 2001).
II. DISCUSSION
A. Jurisdiction
Under 28 U.S.C. § 2241(c), habeas jurisdiction "shall not extend to a prisoner unless . . . [h]e is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). A federal court has subject matter jurisdiction under § 2241(c)(3) if two requirements are satisfied: (1) the petitioner is "in custody," and (2) the custody is "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3); Maleng v. Cook, 490 U.S. 488, 490 (1989). This Court has subject matter jurisdiction over the Petition under § 2241 because Petitioner was detained within its jurisdiction in the custody of DHS at the time he filed his Petition, see Spencer v. Kemna, 523 U.S. 1, 7 (1998), and he asserts that his mandatory detention is not statutorily authorized by 8 U.S.C. § 1226(c). See Zadwdas v. Davis, 533 U.S. 678, 699 (2001); Diop v. ICE/Homeland Security, 656 F. 3d 221, 226 (3d Cir. 2011).
B. Relevant Statutes
Section 1226 of Title 8 of the United States Code governs the pre-removal-period detention of an alien. Section 1226(a) authorizes the Attorney General to arrest and detain an alien pending a decision on whether the alien is to be removed from the United States, or to release him or her on bond, "except as provided in subsection (c)." See 8 U.S.C. § 1226(a). The exception in § 1226(c) commands that the Attorney General "shall take Into custody any alien [specified in this subsection] 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)(1). Significantly, an alien detained under § 1226(c) must be detained until his removal is final, regardless of whether he is a flight risk or danger to the community, unless the Attorney General determines that the alien should be part of the federal witness protection program, provided detention has not become unreasonably prolonged. See Diop v. ICE/Homeland Sec., 656 F. 3d at 232 ("At a certain point, continued detention becomes unreasonable and the Executive Branch's implementation of § 1226(c) becomes unconstitutional unless the Government has justified its actions at a hearing inquiring into whether continued detention is consistent with the law's purposes of preventing flight and dangers to the community."). Section 1226 provides in full:
(a) Arrest, detention, and release8 U.S.C. § 1226.
On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States. Except as provided in subsection (c) of this section and pending such decision, the Attorney General -
(1) may continue to detain the arrested alien: and
(2) may release the alien on -
(A) bond of at least $1,500 . . ; or(3) may not provide the alien with work authorization . . . unless the alien is lawfully admitted for permanent residence or otherwise would . . . be provided such authorization.
(B) conditional parole; but
(b) Revocation of bond or parole
The Attorney General at any time may revoke a bond or parole authorized under subsection (a) of this section, rearrest the alien under the original warrant, and detain the alien.
(c) Detention of criminal aliens
(1) Custody
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 sentence [d] 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.
(2) Release
The Attorney General may release an alien described in paragraph (1) only if the Attorney General decides pursuant to section 3521 of Title 18 that release of the alien from custody is necessary to provide protection to a witness, a potential witness, a person cooperating with an investigation into major criminal activity, or an immediate family member or close associate of a witness, potential witness, or person cooperating with such an investigation, and the alien satisfies the Attorney General that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding. A decision relating to such release shall take place in accordance with a procedure that considers the severity of the offense committed by the alien.
In this case, Almonte does not argue that his detention since August 15, 2012, has become prolonged under Diop (holding that "[a]t a certain point, continued detention becomes unreasonable and the Executive Branch's implementation of § 1226(c)becomes unconstitutional unless the Government has justified its actions at a hearing inquiring into whether continued detention is consistent with the law's purposes of preventing flight and dangers to the community."). Thus, the outcome of this case depends on the meaning of the exception set forth in § 1226(c)(1) to the possibility of release on bond: "The Attorney General shall take Into custody any alien [specified in this section], 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)(1). This Court will consider each of the government's arguments in support of its contention that § 1226(c) requires Almonte's detention without the possibility of release on bond pending the outcome of his removal proceeding.
C. Deferral to Matter of Rojas
DHS argues in its Sur-Reply that § 1226(c) is ambiguous, and that this Court should defer to the BIA's reading of the statute in Matter of Roias, 23 L&N. Dec. 117 (BIA 2001). Matter of Rojas involved the alien's appeal to the BIA of the Immigration Judge's finding that Rojas was subject to mandatory detention under § 1226(c) despite the government's failure to apprehend him at the time of his release from incarceration on parole for an offense covered by § 1226(c). See Matter of Rojas, 23 I. & N. Dec. 117. Instead, the government waited two days before taking him into custody. See Matter of Rojas, 23 1. & N. Dec. 117. The BIA determined that the language in § 1226(c)(1) is not clear, but is susceptible to different readings. Id. at 120. The BIA then construed the statutory language as follows: "We construe the phrasing 'an alien described in paragraph (1),' as including only those aliens described in subparagraphs (A) through (Di of section [1226(c)(1)], and as not including the 'when released' clause." Matter of Roias, 23 I. & N. Dec. at 125. Because the BIA concluded that the "when the alien is released" clause does not describe the alien who is subject to mandatory detention under § 1226(c)(1). the BIA found that Rojas "is subject to mandatory detention pursuant to section [1226(c)], despite the fact that he was not taken into Service custody immediately upon his release from state custody." Matter of Rojas, 23 I. & N.Dec, at 127.
Board member Lory- Diana Rosenberg wrote a dissenting opinion in which six board members joined. Board member Rosenberg saw the statute as clearly requiring mandatory detention only for aliens who were taken into DHS custody when they were released from criminal incarceration for an offense listed in § 1226(c):
The word '"when' [is defined] as 'just after the moment that.'" Alikhani v. Fasano, 70 F. Supp. 2d 1124, 1130 (S.D. Cal. 1999) (quoting Webster's Third New International Dictionary 2602 (3d ed. 1976). Therefore, as one court noted, the clear language of the statute requires that "the mandatory detention of aliens 'when' they are released requires that they be detained at the time of release." Alikhani v. Fasano, supra, at 1130; see also Velasquez v. Reno, 37 F. Supp. 2d 663, 672 (D.N.J. 1999) ("This court cannot simply ignore the plain language of the statute which provides that an alien is to be taken into custody 'when the alien is released.'"). As another court noted, "Congress could have required custody 'regardless of when the alien is released' or 'at any time after the alien is released,'" but did not do so. Alwaday v. Beebe, 43 F. Supp. 2d 1130, 1133 (D. Or. 1999) . . . . These courts have concluded uniformly that "[t]he plain meaning of this language is that it applies immediately after release from incarceration, not to aliens released many year[s] earlier." Pastor-Camarena v. Smith, supra, at 1417-18.Matter of Rojas, 23 I. & N. Dec. at 132-33 (Rosenberg, dissenting).
The Velasquez opinion cited in the dissenting opinion of Board Member Rosenberg was written by then New Jersey District Judge, now Third Circuit Court of Appeals Judge (Senior), Maryanne Trump Barry.
Deference to an agency's interpretation of a statute "is called for only when the devices of judicial construction have been tried and found to yield no clear sense of congressional intent." Gen. Dynamics Land Sys., inc. v. Cline, 540 U.S. 581, 600 (2004). If "Congress has directly spoken to the precise question at issue," then a court (and an agency) "must give effect to the unambiguously expressed intent of Congress." Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc., 467 U.S. 837, 842 (1984). In the Immigration context, "[t]he judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent. If a court, employing traditional tools of statutory' construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect." INS v. Cardoza-Fonseca, 480 U.S. 421, 447-48 (1987) (quoting Chevron, 467 U.S. at 843 n. 9).
The Third Circuit has yet to rule on this issue, but the First Circuit and the vast majority of Judges in this District have rejected the government's argument that § 1226(c) is ambiguous. See, e.g., Savsana v. Gillen, 590 F.3d 7, 16 (1st Cir. 2009); Kerr v. Elwood, No. 12-6330 (Wolfson), 2012 WL 5465492 (D.N.J. Nov. 8, 2012); Baguidv v. Elwood, No. 12-4635 (Wolfson), 2012 WL 5406193 (D.N.J. Nov. 5, 2012); Charles v. Shanahan, No. 12-4160 (Pisano), 2012 WL 4794313, at *6 (D.N.J. Oct. 9, 2012); Kporlor v. Hendricks, No. 12-1775 (Cavanaugh), 2012 WL 4900918, at *6 (D.N.J. Oct. 9, 2012); Campbell v. Elwood, No. 12-4226 (Sheridan), 2012 WL 4508160 (D.N.J. Sept. 27. 2012); Martinez v. Muller, No. 12-1720 (Linares), 2012 WL 4505895, at *4 (D.N.J. Sept. 25, 2012); Kot v. Elwood, No. 12-1720 (Wolfson), 2012 WL 1565438 (D.N.J. May 2, 2012); Christie v. Elwood, No. 11-7070 (Wolfson), 2012 WL 266454 (D.N.J. Jan. 30, 2012).
The issue is pending before the Third Circuit in Sylvain v. Holder, C.A. No. 11-3357 (3d Cir. docketed Aug. 31, 2011) (DHS appealed Judge Pisano's order granting habeas relief and ordering a bond hearing), and Desrosiers v. Hendricks, C.A. No. 12-1053 (3d Cir. docketed Jan. 11, 2012) (petitioner's appeal of Judge Hochberg's order denying habeas relief).
This Court agrees with the majority of Judges in this District, and finds the First Circuit's rationale and holding in Savsana persuasive. In Saysana, the First Circuit held that deference to the BIA's reading of § 1226(c) was not called for because the "when the alien is released" language is clear: "The 'when released' provision immediately follows the list of enumerated offenses, indicating that the former modifies the latter. Additionally, § 1226(c) provides that the alien shall be detained upon release regardless of whether he is subsequently arrested for the 'same offense,' reinforcing the notion that the entire clause applies to the list of enumerated offenses immediately preceding it." Savsana, 590 F.3d at 14 (citation and internal quotation marks omitted). The Saysana court further "concluded that the text of the statute is clear. Consequently, because the 'when released' language Is unambiguous, there is nothing for the agency to interpret - no gap for it to fill - and there is no justification for resorting to agency interpretation to address an ambiguity." Savsana, 590 F.3d at 16.
The government's reading of § 1226(c) in this case is inconsistent with the rationale of Saysana in another way, as the First Circuit read § 1226(c) as envisioning (and requiring) a continuous chain of custody of dangerous aliens, without any return of the alien to the community. Saysana, 590 P.3d at 13 ("In our view, a natural reading of the statutory provision from top to bottom makes clear that the congressional requirement of mandatory detention is addressed to the situation of an alien who is released from custody for one of the enumerated offenses. The statutory language embodies the judgment of Congress that such an individual should not be returned to the community pending disposition of his removal proceedings."). The Saysana court was "not persuaded that the legislature was seeking to justify mandatory immigration custody many months or even years after an alien had been released from state custody." Id. at 16 (quoting Quezada-Bucio v. Ridge, 317 F.Supp. 2d 1221, 1230 (W.D. Wash. 2004)). DHS further fails to note that, in Diop v. ICE/Homeland Sec., 656 F.3d 221 (3d Cir. 2011), the Third Circuit also intimated that § 1226(e) envisions a continuous chain of custody of dangerous criminal aliens. See Diop, 656 F.3d at 231 ("Congress was concerned with the immigration authorities' 'wholesale failure' to 'deal with the increasing rates of criminal activity by aliens.' Section 1226(c) was intended to remedy this perceived problem by ensuring that aliens convicted of certain crimes would be present in their removal proceedings and not on the loose in their communities, where they might pose a danger.").
In addition, Savsana expressly rejected the government's argument, also made in this case, that a broad reading of § 1226(c) is "consistent with Congress'[s] longstanding intent to detain certain criminal aliens." Rather, the First Circuit found that the "when released" language serves a "more limited but focused purpose of preventing the return to the community of those released in connection with the enumerated offenses, as opposed to the amorphous purpose the Government advances." Id. at 17. As the First Circuit noted, aliens like Almonte who have remained crime-free for thirteen years are those who are among the least likely to pose a flight risk or danger to the community, the presumed reasons for mandatory detention. See Savsana, 590 F.3d at 17-18 ("By any logic, it stands to reason that the more remote in time a conviction becomes . . . the lower his bail risk is likely to be.").
Moreover, if the "when the alien is released" language does not limit the class of aliens who are subject to mandatory detention, and a thirteen-year time gap is irrelevant to whether Almonte is an alien subject to pre-removal period detention without the possibility of release, then there would have been no reason for Congress to have enacted the Transition Period Custody Rules ("TPCR"), which delayed implementation of the mandatory detention provision of § 1226(c) for two years after its effective date. Section 303(b)(1) of the Illegal Immigration Reform and Immigrant Responsibility Act (the "IIRIRA") expressly provides that the mandatory detention provision of § 1226(c) applies to aliens who are "released after" its effective date. See IIRIRA Pub. L. No. 104-28, 110 Stat. 3009-546, § 303(b)(1). However, § 303(b)(2) of IIRIRA provided that, "[i]f the Attorney General, not later than 10 days after the date of the enactment of this Act, notifies in writing the Committees . . . that there is insufficient detention space and . . . personnel available to carry out [the mandatory detention provision of § 1226(c)], the Transition Period Custody Rules" (TPCR) shall be in effect for up to two years. Id. at § 303(b)(2). "After the end of such 1-year or 2-year periods, the provisions of [§ 1226(c)] shall apply to individuals released after such periods." Id. The TPCR required DHS to take into custody a criminal alien specified in the section "when the alien is released," but allowed DHS to release some of these aliens on bond if the alien "will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding." Id.
The TPCR expired on October 8, 1998, Both the TPCR and § 1226(c) include the "when the alien is released" language. As Judge Martini reasoned, "[I]f § 1226(c) subjected aliens to mandatory detention even where there was a gap of several years between the alien's release from criminal Incarceration (after its effective date) and his Immigration detention, then there was no need for Congress to have delayed implementation of § 1226(c) for two years, since DHS could have simply waited for as many years as it needed to take aliens into custody who were released from criminal incarceration after the effective date of IIRIRA." Davis, 2012 WL 6005713 at * 10.
The Court does note that the Fourth Circuit and two Judges in this District have held that § 1226(c) is ambiguous, and have deferred to the BIA's interpretation of the statute in Mutter of Rojas. See Hosh v. Lucero, 680 F.3d 375 (4th Cir. 2012); Desrosiers v. Hendricks, No. 11-4643 (Hochberg) 2011 U.S. Dist. LEXIS 154971, on appeal, C.A. No. 12-1053 (3d Cir. docketed Jan. 11, 2012); Diaz v. Muller, No. 11-4029 (Chesler), 2011 WL 3422856 (D.N.J. Aug 04, 2011). Specifically, based on the following analysis, the Fourth Circuit held that § 1226(c) is ambiguous:
The meaning of § 1226(c) is not plain to us. To be sure, "when" in § 1226(c) can be read, on one hand, to refer to "action or activity occurring 'at the time that' or 'as soon as' other action has ceased or begun." Waffi v. Loiselle, 527 F. Supp. 2d 480, 488 (E.D. Va. 2007) (citing The Oxford English Dictionary 209 (2d ed. 1989); The American Heritage Dictionary of the English Language (4th ed. 2000)). On the other hand, "when" can also be read to mean the temporally broader "at or during the time that," "while," or "at any or every time that. . . ." Free Merriam-Webster Dictionary, available at http://www.merriam-webster.com/dictionaiw/ when (last visited April 30, 2012). We must therefore consider the BIA's interpretation.Hosh, 680 F.3d at 380.
After finding § 1226 to be ambiguous, the Fourth Circuit deferred to the BIA's interpretation of the statute in Rojas because the interpretation was not "'arbitrary, capricious, or manifestly contrary to the statute.'" Hosh, 680 F.3d at 378 (quoting Chevron, 467 U.S. at 844).
This Court's research shows that only one district court outside the Fourth Circuit has been persuaded to follow Hosh. See Silent v. Holder, No. 12-0075 (1PJ), 2012 WL 4735574 (N.D. Ala. Sept. 27, 2012); but see e.g., Davis v. Hendricks, No. 12-6478 (Martini), 2012 WL 6005713, at *8 (D.N.J. Nov. 30, 2012) ("This Court agrees with the First Circuit's rationale and holding in Saysana and is not persuaded by the Fourth's Circuit's decision in Hosh"); Nimako v. Shanahan, No. 12-4909 (Wolfson), 2012 WL 4121102, at *1 (D.N.J. Sept. 18, 2012) ("This Court joins these above-cited district courts in finding that Hosh is not persuasive. Rather, the Court has found . . . that the First Circuit's rationale and holding in Savsana v. Gillen . . . comport with this Court's reading of the statute."); Cox v. Elwood, No. 12-4403 (Sheridan), 2012 WL 3757171, at *4 (D.N.J. Aug. 28, 2012) ("This Court is also not persuaded by the Fourth Circuit's decision in Hosh to defer to the BIA's interpretation of 'when . . . released' as it is not binding authority on this Court . . . . Until the Third Circuit decides this Issue, this Court will rely on the plain meaning of § 1226(c)."); Bogarin-Flores v. Napolitano, No. 12-0399 J AH (WMC) 2012 WL 3283287, at *3 (S.D. Cal. Aug. 10, 2012) ("The Fourth Circuit. . . found Rojas was decided correctly but did not present any independent reasoning or statutory construction, instead giving deference to the BIA's decision . . . . This Court finds that the plain language of the statute is not ambiguous and clearly applies the mandatory detention provision to those aliens who are detained upon release from criminal custody."); Munoz v. Tav-Tavlor, No. 12-3764 (Sheridan), 2012 WL 3229153, at*3 (D.N.J. Aug. 6, 2012) ("This Court is also not persuaded by the Fourth Circuit's decision in Hosh to defer to the BIA's interpretation."); Gonzalez-Ramirez v. Napolitano, No. 12-2978 (Linares), 2012 WL 3133873, at * n.8 (D.N.J, July 30, 2012) ("The Court recognizes the recent decision by the Court of Appeals for the Fourth Circuit . . . . Absent a directive from the Third Circuit, the Court respectfully declines to adopt the Hosh holding and will instead follow the reasoning utilized by the First Circuit in Saysana.").
Judges Hochberg and Chesler deferred to Rojas in post-Hosh decisions, but these Judges were following their own pre-Hosh holdings.
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Despite the existence of some contrary authority, this Court agrees with the First Circuit and the majority of district courts that § 1226(c) is not ambiguous, and holds that the "when the alien is released" language in § 1226(c) clearly limits the class of criminal aliens subject to mandatory detention to those who are taken into custody "when the alien is released" from criminal incarceration for an offense listed in § 1226(c)(1). See, e.g., Charles v. Shanahan, No. 12-4160 (Pisano), 2012 WL 4794313, at *6 (D.N.J. Oct. 9, 2012) ("[t]he plain language of § 1226(c) unambiguously requires an alien to be detained immediately when released from criminal custody to be subject to mandatory detention"); Kporlor v. Hendricks, No. 12-2755 (Cavnaugh), 2012 WL 4900918, at *6 (D.N.J. Oct. 9, 2012) ("Because taking the alien into custody approximately a decade after the alien is released does not fall within the command to take the alien into custody when the alien is released, the BIA's Interpretation is contrary to the plain meaning of the statute"); Campbell v. Elwood, No. 12-4226 (Sheridan), 2012 WL 4508160, at *4 (D.N.J. Sept. 27, 2012) ("The Court finds that 'when . . . released' means 'immediately' and not 'any time after' release"); Martinez v. Muller, No. 12-1731 (Linares), 2012 WL 4505895, at *4 (D.N.J. Sept, 25, 2012) ("Absent a directive from the Third Circuit, this Court is not inclined to depart from the principles set forth in [prior opinions], namely, that the unambiguous language of the mandatory detention statute requires immediate action upon an alien's release from criminal incarceration,"). Almonte is not subject to mandatory pre-removal period detention under § 1226(c) because DHS did not take him into custody in 1999, when he was released from incarceration for an offense listed in § 1226(c)(1), but instead took him into custody thirteen years later. Accordingly, § 1226 authorizes DHS to detain Almonte, but he Is entitled to a bond hearing before an Immigration Judge and the possibility of release if the Immigration Judge determines that he is neither a flight risk nor danger to the community.
D. The "When the Alien is Released" Clause is a Non-Binding Temporal Deadline
DHS also argues that this Court is bound to adopt DHS's new interpretation of § 1226(c). Under the logic of this new argument, § 1226(e) expresses a "preference for expeditious agency action," but does not "extinguish!] the agency's authority to act . . . in cases of delayed action . . . [and] in the absence of an explicit sanction in the text of 8 U.S.C. § 1226(c), this Court must apply the default rales articulated by the Supreme Court in French v. Edwards, 80 U.S. 506, 511 (1872) and Brock v. Pierce Co., 476 U.S. 253, 262-63 (1986) and find that [DHS] may mandatorily detain criminal aliens [thirteen years] after their release by criminal authorities." [Dkt. 8 at 21-22.] DHS explains its new interpretation of § 1226(c) as follows:
Contrary to Almonte's contention, however, the lawfulness of his detention by U.S. Immigration and Customs Enforcement ("ICE") does not turn on whether ICE apprehended him "when" he was released by criminal authorities. Rather, regardless of "when" Almonte was detained, the lawfulness of Almonte's detention turns on whether 8 U.S.C. § 1226(c) expresses a directory deadline or a jurisdictional deadline for action by ICE. The default rule is that a statutory deadline, even an unambiguous one, is directory (non-binding) unless Congress explicitly provided an alternative rule to apply when the deadline is missed. Then, and only then, may courts consider the deadline to be jurisdictional (one beyond which the agency's authority to act ceases). Because Congress did not explicitly provide a consequence for failure to apprehend an alien "when" he is released by criminal authorities, the default rale applies and the "when . . . released" clause in section 1226(c) must be interpreted as expressing, at most, an aspirational deadline beyond which ICE authority to mandatorily detain criminal and terrorist aliens does not expire . . . .[Dkt. 8 at 8.]
DHS argues that Congress has not explicitly provided an alternative rule to apply, even though § 1226 expressly provides that criminal aliens who were not apprehended when they were released from criminal incarceration are nevertheless subject to pre-removal period detention under § 1226(a). [Dkt. 8 at 8.] To support its new interpretation of § 1226(c), DHS cites Supreme Court and Third Circuit cases, which it contends are "binding precedent," i.e., French v. Edwards, 80 U.S. 506, 51 1 (1872); Brock v. Pierce Co., 476 U.S. 253 (1986); Barnhart v. Peabody Coal Co., 537 U.S. 149 (2003); Dolan v. United States, 130 S.Ct. 2533 (2010); Cvberworld Enter. Technologies, Inc. v. Napolitano, 602 F.3d 189, 198 (3d Cir. 2010).
In response, Almonte argues that the Pierce County line of cases Is legally inapposite because § 1226(c) is not a statutory deadline but limits the class of criminal aliens who are subject to mandatory detention. He maintains that "the requirement that the noncitizen be taken into custody at a certain time is part of the referenced description . . . of who Is subject to detention without possibility of bond. This requirement is not a procedural one only, separate and distinct from the mandator detention statute's substantive portion . . . . [T]he 'when the alien is released' clause is part and parcel of the substantive detention standard provision, and grammatically the 'when . . . released' phrase modifies the other text contained with that provision." [Dkt. 11 at 1445.]
This Court has examined the cases cited by DHS, and rejects the notion that the legal issue in this case concerns "the remedy for missing a statutory deadline." Dolan, 130 S.Ct. at 2537. Moreover, Almonte correctly points out that Chevron deference (supra p. 9) does not apply to "an agency counsel's interpretation of a statute." Bowen v. Georgetown University Hosp., 488 U.S. 204, 212 (1988). The "when the alien is released" language in § 1226(c) limits the class of criminal aliens subject to detention without the possibility of release on bond to those who are taken into custody "when the alien is released" from criminal Incarceration for the specified removable conviction, but does not also Include those taken into DHS custody some thirteen years later. Indeed, Saysana expressly rejected the government's argument that the "when the alien is released" language is "a mere temporal triggering mechanism." Saysana, 590 F-3d at 15. See, also, e.g., Charles v. Shanahan, No. 12-4160 (Pisano), 2012 WL 4794313, at *6 (D.N.J. Oct. 9, 2012) ("[t]he plain language of § 1226(c) unambiguously requires an alien to be detained immediately when released from criminal custody to be subject to mandatory detention"); Kporlor v. Hendricks, No. 12-2755 (Cavanaugh), 2012 WL 4900918, at *6 (D.N.J. Oct. 9, 2012) ("Because taking the alien into custody approximately a decade after the alien is released does not fall within the command to take the alien into custody when the alien is released, the BIA's interpretation is contrary to the plain meaning of the statute."); Campbell v. Elwood, No. 12-4726 (Sheridan), 2012 WL 4508160, at *4 (D.N J. Sept. 27, 2012) ("The Court finds that 'when . . . released' means 'immediately' and not 'any time after' release."); Martinez y. Muller, No. 12-173 (Linares), 2012 WL 4505895, at *4 (D.N.J. Sept. 25, 2012) ("Absent a directive from the Third Circuit, this Court is not inclined to depart from the principles set forth in [prior opinions], namely, that the unambiguous language of the mandatory detention statute requires immediate action upon an alien's release from criminal incarceration.").
This Court also rejects the government's argument that this Court's reading of the plain language of § 1226 imposes a "sanction" on the government and the public. Under this Court's reading of the statute, Congress has protected the public, since aliens who are dangerous to the community or a flight risk cannot be released under § 1226(a). In any event, even if the French line of cases applied (and this Court finds that it does not), § 1226 contains Its own "remedy:" aliens who do not fall within the limited exception of § 1226(c) are subject to pre-removal period detention under § 1226(a).
To summarize, this Court joins the majority of courts in this district and finds that the language of § 1226(c) requires immediate action upon an alien's release from criminal incarceration. Accordingly, Almonte is not subject to detention without the possibility of release on bond set forth in the exception under § 1226(c) because DHS did not take him into custody when he was released from criminal incarceration in 1999, but allowed him to live in the community for thirteen years before taking him into custody in August 2012. Almonte's pre-removal-period detention is necessarily governed by 8 U.S.C. § 1226(a), which authorizes the Immigration Judge to release him on bond if he is neither a flight risk nor a danger to the community. This Court grants a Writ of Habeas Corpus and directs that an Immigration Judge provide Almonte with an individualized bond hearing, pursuant to 8 U.S.C. § 1226(a)(2), to determine if he is a flight risk or danger to the community, within ten days of the date of the entry of the Order accompanying this Opinion.
III. CONCLUSION
This Court grants a Writ of Habeas Corpus and directs that an Immigration Judge must provide Petitioner with an individualized bond hearing pursuant to 8 U.S.C. § 1226(a).
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CLAIRE C. CECCHI , U.S.D.J.