Opinion
14 Cv. 3483 (MHD)
07-23-2014
ROBINSON TIMOTHY CHARLES, Petitioner, v. OSCAR AVILES, in his official capacity as Director of Hudson County Department of Corrections et al., Respondents.
Xochitl S. Strohbehn, Esq. Quinn Emanuel Urquhart & Sullivan, LLP 51 Madison Avenue 22nd Floor New York, New York 10010 Scott A. Rosenberg, Esq. Adriene Holder, Esq. Jojo Annobil, Esq. Maria Novarro, Esq. Amy Meselson, Esq. The Legal Aid Society 199 Water Street New York, New York 10038 Patricia L. Buchanan, Esq. U.S. Attorney Office, SDNY 86 Chambers Street New York, New York 10007
MEMORANDUM & ORDER
:
Petitioner Robinson Timothy Charles is currently held in detention by the United States Immigration and Customs Enforcement ("ICE"), an arm of the Department of Homeland Security ("DHS"). Petitioner was arrested by ICE on January 27, 2014, pursuant to a warrant issued in anticipation of removal proceedings, for which a hearing is now scheduled for August 22, 2014. Mr. Charles was placed in mandatory detention pursuant to the terms of 8 U.S.C. § 1226(c), which requires the DHS (through ICE) to take into custody aliens convicted of certain crimes, and mandates that this step be taken when those aliens are released from criminal custody following conviction and service of sentence. The statute further provides that, with a narrow exception not applicable here, these individuals may not be released on bail by ICE pending completion of their removal proceedings.
By petition dated May 14, 2014, Mr. Charles seeks habeas corpus relief either (1) requiring his release on reasonable bail conditions or (2) ordering that ICE conduct a hearing to set bail conditions, in light of the asserted fact that he is a good bail risk. He presses this effort on three alternative grounds. First, he contends that the statute, properly read, applies only to individuals who are seized by ICE at the time of their release from criminal custody or perhaps shortly thereafter. On this basis, he asserts that the mandatory detention provision does not apply to him because the conviction that triggered his removal proceeding occurred in 2008 and he was released from custody on that charge in early 2009, many years before his administrative arrest this year. (Pet. ¶¶ 30-36; Pet.'s Mem. 9-17). Second, he argues that the passage of so much time between his conviction and his ICE arrest, as well as his personal characteristics and circumstances, make it clear that his mandatory detention serves no useful purpose since he does not pose a threat of flight or danger to the community if released and, hence, that detention violates his right to substantive due process. (Pet. ¶¶ 38-41; Pet.'s Mem. 17-21). Third, he argues that he has a colorable basis to avoid removal and, as a result, due process commands that he receive a bail hearing. (Pet. ¶¶ 43-44; Pet.'s Mem. 22).
Respondents oppose petitioner's application. They contend that the mandatory-detention provision of the statute applies irrespective of whether DHS complied with the statutory mandate to take petitioner into custody at the time of his release from his criminal sentence. (Resp't's Mem. 11-18). They further argue that due process does not compel a different result. (Id. at 18-19).
For the reasons that follow, we conclude that petitioner is subject to mandatory detention and that he has failed to demonstrate that his due-process rights have been violated or are imminently threatened. Accordingly, we deny the writ and dismiss the petition.
The Petitioner's Pertinent History
Mr. Charles is a national of Grenada. He entered the United States lawfully in 1990 on a visitor visa. (Pet. 1; Return at 2). He married a United States citizen in 1991 and the next year was granted conditional permanent residence status. (Return at 2). On January 20, 1993, Mr. Charles was convicted in New York State Supreme Court on a charge of criminal possession of a weapon in the third degree and was sentenced to five years of probation. (Id. at 2 & Ex. 3). On April 11, 1996, his conditional permanent residence status was terminated, and on April 23, 1998 he was placed in deportation proceedings. The proposed deportation was premised on his conviction on the firearm charge. (Id. at 2 & Ex. 1). On December 14, 1998, the immigration judge terminated the deportation proceeding and granted petitioner an adjustment of status to permanent residency. (Id. at 2 & Ex. 4).
On April 11, 2008, Charles was arrested on a felony charge of possession of more than ten pounds of marijuana, in violation of N.Y. Penal Law § 221.30. (Id. at 2-3 & Exs. 2, 5). He pled to this charge and was sentenced on September 16, 2008 to ten months of imprisonment. (Id. at 3 & Exs. 2, 5). He was released in or about July 2009. (See id. at Exs. 2, 5).
On September 8, 2010, petitioner was arrested on a charge of marijuana possession under Penal Law § 221.10. (Id. at 3 & Ex. 2 at 3). The court issued a pre-arraignment warrant for petitioner on November 16, 2010. (Id. at 3 & Ex. 2 p. 4). While the charge was pending, Mr. Charles was again arrested, on December 27, 2011, on another charge of marijuana possession under Penal Law § 221.10. (Id. at 3 & Ex. 2 p. 2). Over the course of the following two days, he pled guilty to both marijuana charges, one a misdemeanor count and the other a violation charge. (Id. at 3 & Ex. 2 pp. 2, 6). He was sentenced on his pleas to a brief period of incarceration. (Id. Ex. 6 p. 2).
On January 27, 2014, ICE agents arrested petitioner and detained him at the Hudson County Jail in New Jersey. (Id. at 3 & Ex. 6). They served him with a Notice to Appear, dated November 7, 2013, advising him that he was subject to removal under section 237(a)(2)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(B)(i), based on his 2008 felony marijuana conviction. (Return at 3 & Ex. 7). The Notice was filed with the immigration court on January 30, 2014, and an immigration judge deemed petitioner to be subject to the mandatory-detention provision of 8 U.S.C. § 1226(c). (Id. at 3).
Mr. Charles has remained in detention since that time. We are advised that he has conceded that he is subject to removal, but has filed an application for suspension of removal under 8 U.S.C. § 1129a. (Return at 3). His administrative hearing, which will consider both whether he is removable and whether removal should be suspended, is now scheduled for August 22, 2014. (Tr. 17-18).
ANALYSIS
We first address petitioner's statutory argument and then consider his due-process claims.
We note that although petitioner is being held in New Jersey, he filed his petition while in Manhattan, and accordingly respondents do not challenge venue. (Resp't's Mem. at 7).
I. The Statutory Mandate
The source of the parties' dispute arises from the wording of 8 U.S.C. § 1226(c). For context, we briefly review the pertinent portions of section 1226, which is entitled "Apprehension and detention of aliens." This section incorporates two provisions governing the initial bail status of aliens facing future removal proceedings. Subsection 1226(a), labeled "Arrest, Detention and Release", specifies the generally operative rule that once an immigration arrest warrant is issued and the named alien is arrested, the Attorney General (now DHS) may detain the arrestee or release him either on a bond of at least $1,000.00 or on conditional parole. Subsection 1226(c) provides a limited exception to this grant of discretion, and embodies the mandatory-detention language at issue here. Titled "Detention of Aliens", it states as follows:
(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), (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,
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 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 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.8 U.S.C. § 1226(c).
The statutory references to the Attorney General have been superceded by subsequent legislation, which transferred jurisdiction and responsibility to the Department of Homeland Security. See 6 U.S.C. §§ 202, 251, 557; Vasquez v. Holder, 602 F.3d 1003, 1006 (9th Cir. 2010).
Section 1226 contains three other subsections. Subsection (b) addresses the revocation of bail or conditional parole, insofar as the grant of such status is committed to the Attorney General by subsection (a). Subsection (d) mandates a variety of steps by the Attorney General to assist in tracking aggravated felons who are aliens. Thus it compels the Attorney General to assist federal, state and local law enforcement authorities in identifying any individuals arrested for aggravated felonies who are aliens, to appoint liaison personnel to deal with law-enforcement agencies and to assist those agencies to identify any aliens arrested or convicted for aggravated felonies or released from law-enforcement custody, and to maintain a database of such aliens, which is to be made available to various agencies and used to assist state and local authorities. Finally, subsection (e) precludes judicial review of discretionary decisions of the Attorney General under this section.
The parties do not dispute the fact that petitioner comes within the wording of subparagraph 1226(c)(1)(B) by virtue of his 2008 felony drug conviction. In arguing for relief from the effect of paragraph (c)(2), Mr. Charles points to the term "when the alien is released", found in (c)(1), and he argues that this language limits the universe of aliens who are subject to mandatory detention -- and thus denied a bail hearing -- under the terms of subparagraphs (A) to (D). Thus, since ICE did not take Mr. Charles into custody "when [he was] released" in 2009, he asserts that the mandatory-detention provision codified in paragraph (c)(2) does not apply to him and that ICE has the discretion, under subsection 1226(a) to release him on bail -- a discretion that must be exercised through a bail hearing. Petitioner further presses upon us the fact that numerous district courts have agreed with his interpretation of the statutory language, which he contends is unambiguous on this point. Finally, given his desired reading of the statute, he argues that since he has close ties to the community and poses no danger to its inhabitants, he should be released, either by order of this court or by way of an agency hearing.
Among the reported decisions, both in this district and elsewhere, we note, for example, Thompson v. Napolitano, 2014 WL 1778009, *4-5 (S.D.N.Y. May 5, 2014)(Report & Recommendation); Lora v. Shanahan, 2014 WL 1673129, *3-9 (S.D.N.Y. April 29, 2014); Castaneda v. Souza, 952 F. Supp. 2d 307, 316-17 (D. Mass. 2013); Baquera v. Longshore, 948 F. Supp. 2d 1258, 1261-665 (D. Colo. 2013); Gomez-Ramirez v. Asher, 2013 WL 2458756, *3 (W.D. Wash. June 5, 2013); Louisaire v. Muller, 758 F. Supp. 2d 229, 236 (S.D.N.Y. 2010); Monestine v. Reilly, 704 F. Supp. 2d 453, 458 (S.D.N.Y. 2010); Garcia v. Shanahan, 615 F. Supp. 2d 175, 182 (S.D.N.Y. 2009).
The DHS proposes a different reading of the statutory language. Agreeing that paragraph 1226(c)(1) imposes a duty on the agency to arrest any alien with the specified criminal history after he is released from criminal custody, the respondents assert that the language "when the alien is released" does not speak to whether the alien may avoid mandatory detention if the agency delays in taking him into custody. Rather, they say that the mandatory-detention requirement -- found in paragraph (c)(2) -- applies to all aliens who meet the criteria of any of subparagraphs (A) to (D), irrespective of how soon ICE takes them into custody after their release by criminal law enforcement authorities. We note as well that this interpretation has been adopted by the Board of Immigration Appeals, see In re Rojas, 23 I. & N. Dec. 117 (BIA 2001), and respondents argue that even if the statutory language is ambiguous and the competing interpretations are in arguable equipoise, the interpretation of the BIA is entitled to judicial deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), and its progeny.
As respondents note, there are a substantial number of court decisions -- at both the circuit and the district court level -- either agreeing with the reading of the BIA or else granting its interpretation controlling deference. See, e.g., Sylvain v. Attorney General, 714 F.3d 150, 156-61 (3d Cir. 2013); Hosh v. Lucero, 680 F.3d 375, 378-84 (4th Cir. 2012); Debel v. DuBois, 2014 WL 1689042, *4 (S.D.N.Y. April 24, 2014)(declining to adopt 2014 WL 708556 (S.D.N.Y. Feb. 25, 2014)); Gutierrez v. Holder, 2014 WL 27059, *3-8 (N.D. Cal. Jan. 2, 2014); Straker v. Jones, 2013 WL 6476889, *4-9 (S.D.N.Y. Dec. 10, 2013); Johnson v. Orsino, 942 F. Supp. 2d 396, 401-07 (S.D.N.Y. 2013); Santana v. Muller, 2012 WL 951768, *4 (S.D.N.Y. March 21, 2012); Mendoza v. Muller, 2012 WL 252188, *3 (S.D.N.Y. Jan. 25, 2013).
We start with the language of the statute. See, e.g., Sciallaba v. Cuellar de Osorio, 134 S.Ct. 2191, 2203-04 (2014)(Kagan, J). Contrary to the contention of petitioner, the wording may permissibly be read in several crucially different ways. Most notably, paragraph (c)(2), in imposing mandatory detention, refers to "an alien described in paragraph (1)". That can be read to refer -- as petitioner would have it -- to aliens whose criminal records match the criteria of subparagraphs (A), (B), (C) or (D) and who have been taken into custody at the time of their release from criminal custody (or shortly thereafter). However, the phrase could also be read to refer solely to the alien's criminal status as defined under subparagraphs (A) to (D). Necessarily, then, the statute is ambiguous in this respect. In addition, the use of the term "when released" in paragraph (c)(1) can be read in at least two ways -- either as setting a deadline (however vague) for the Attorney General to act or as simply specifying that the seizure of the alien should occur after his release from criminal custody.
Indeed, the BIA has adopted this reading of the statute, concluding that the reference to "when the alien is released" creates a pre-condition for the immigration authorities to act, and does not itself set a deadline for them to do so. See In re Rojas, 23 I. & N. 117, 121 (BIA 2001).
Such linguistic uncertainties render these aspects of the statutory language ambiguous, at least when read in isolation. However, given both the language and structure of section 1226, as well as the intentions of Congress in enacting these provisions, as reflected in the legislative history, we view the reading suggested by respondents as more plausible than petitioner's reading.
Petitioner's focus on the phrase "when the alien is released" fails to come to grips with where that phrase appears in paragraph (c)(1) and the distinction between paragraph (c)(1) and the separate terms specified in paragraph (c)(2). Paragraph (c)(1) refers to the obligation of the Attorney General (now the DHS) to take into custody all aliens who meet the criteria of subparagraphs (A) to (D). It does not itself speak to whether these aliens are subject to mandatory detention, and it does not offer the slightest hint that a failure of the agency to promptly seize the alien following his or her release from criminal custody would entitle the alien to a bail hearing. Rather, it is paragraph (c)(2) that imposes mandatory detention (subject to an exception for cooperating witnesses, which does not apply here), stating simply that aliens defined in paragraph (c)(1) must be detained.
That bifurcation of requirements concerning who is eligible for detention in the first place and when, as a secondary matter, DHS may exercise its discretion to release such individuals is consistent with, and indeed reflects, the focus of Congress on a "wholesale failure by the INS to deal with increasing rates of criminal activity by aliens." Demore v. Kim, 538 U.S. 510, 518 (2003)(citing Criminal Aliens in the United States: Hearings Before the Permanent Subcommittee on Investigations of the Senate Committee on Governmental Affairs, 103d Cong., 1st Sess. (1993); S. Rep. No. 104-48, 104th Cong., 1st Sess. p. 1 (1995)). Of particular note, as the Supreme Court has observed, was evidence before Congress reflecting "the failure [of INS] to detain those aliens [committing crimes] during their deportation proceedings." Id. at 519 (citing Dep't of Justice, Office of the Inspector General, Immigration & Naturalization Service, Deportation of Aliens After Final Orders Have Been Issued, Rep. No. 1-96-03 (Mar. 1996); H.R. Rep. No 104-469, 104th Cong., 2d Sess. p. 123 (1995)). As the 1995 Senate Report noted, despite the discretion granted to the Immigration and Naturalization Service ("INS"), the agency lacked sufficient space to house all of the aliens who posed risks of non-appearance or danger to the community and, due at least in part to that shortage of space, INS had opted to release a significant number of criminal aliens on bond, of whom more than twenty percent had subsequently failed to appear for their deportation hearings. See S. Rep. No. 104-48 at 2, 23 (cited in Demore, 538 U.S. at 519).
INS was abolished in 2003 and its functions were assigned to three agencies within DHS -- ICE, the United States Citizenship and Immigration Services ("USCIS"), and Customs and Border Protection ("CBP").
The current statute was part of a continuing and increasingly pointed effort by Congress to address the perceived problem of repeated criminal conduct by significant numbers of aliens, see, e.g., Demore, 510 U.S. at 520-21 (referring to 1988 and 1990 immigration law amendments), and it reflects a focus on the fact that many aliens with serious criminal records were failing to appear for deportation proceedings after their initial immigration arrest and their release on bail. To address that difficulty, the legislators imposed a duty on the agency to monitor the status of serious alien offenders in the criminal justice system (§ 1226(d)), to take them into custody upon their release (§ 1226(c)(1)), and to require that the Government hold those offenders without bail pending deportation (§ 1226(c)(2)). See Demore, 538 U.S. at 519 (noting the justified concern of Congress "that, even with individualized screening, releasing deportable criminal aliens on bond would lead to an unacceptable rate of flight").
The Congress also appeared to recognize that the federal immigration authorities could easily lose track of alien aggravated-felony offenders while they were in the toils of the various criminal justice systems, both state and federal. See, e.g., S. Rep. 104-48 at 14-18. Accordingly, it included provisions requiring the immigration authorities to undertake substantial liaison efforts with those criminal justice agencies and to develop a database system to attempt to ensure that these aliens were not allowed to disappear back into the community before obtaining a final resolution of their immigration status. See 8 U.S.C. § 1226(d).
Given the legislative assessment of the underlying problem and the objectives that Congress set to address it, petitioner's reading of the statute would yield a surprising, if not perverse, result. Should DHS fail in a given case to promptly locate and take into custody an alien who fit the criteria of subparagraphs 1226(c)(1)(A)-(D) -- a failing that might be attributable to a host of different circumstances, ranging from agency sloth or indifference to a failure by the criminal-justice counterparts to cooperate, and possibly compounded by the alien's intentional effort post-release to disappear into the community and evade arrest -- the stated goal of Congress would then be doubly defeated. ICE would first have failed to take the alien promptly into custody, leaving him free to pursue criminal activity in the interim, and then, as a perverse consequence of that failing, the alien would have the benefit of a bail hearing, the very result that Congress unmistakably sought to deny him.
See Julia Preston, Sheriffs Limit Detention of Immigrants, N.Y. Times, Apr. 18, 2014; Michelle R. Smith, R.I. Will Require Warrant to Hold Federal Immigration Detainees, Providence J., July 17, 2014.
Petitioner's counter to this point -- that in such circumstances ICE would likely detain him even after a bail hearing (Tr. 6-8) -- gains no traction here. As noted, the legislative history reflects a focus by Congress on the fact that a large percentage of convicted aliens placed on immigration bail were failing to appear for their deportation hearings. See S. Rep. No. 104-48 at 2, 23. By requiring mandatory detention without a hearing, Congress was plainly reflecting its skepticism as to the ability of the immigration authorities to make reliable bail decisions for this universe of aliens. See Demore, 510 U.S. at 528 ("in adopting § 1226(c), Congress had before it evidence suggesting that permitting discretionary release of aliens pending their removal hearings would lead to large numbers of deportable criminal aliens skipping their hearings and remaining at large in the United States unlawfully.").
The specific wording of paragraph 1226(c)(1) also suggests that petitioner's reading is not plausible. That provision simply says that the Attorney General must take the alien into custody "when" he is released. Even petitioner concedes that this language does not foreclose the mandatory detention requirement if the agency picks up the alien some time after his release from criminal custody. (Tr. 9-10)(agreeing that delay of six months up to "anything under a year" would not trigger right to bail hearing). Indeed, that concession seems compelled by the real-world understanding that prompt immigration seizure depends upon a host of circumstances, many not in the control of the immigration authorities (including the cooperation of state and local law-enforcement systems and budgetary constraints). In view of the obvious potential logistical problems involved -- for which Congress added the cited requirements of subsection 1226(d) -- it would be wholly unreasonable to read the law as requiring a bail hearing in any case in which the alien was not directly handed over from such state or local authorities to the immigration system.
See S. Rep. 104-48 at 28-30; see also supra 15 n.8.
Given that conceded fact, the language utilized in the statute, if read as petitioner suggests, seems extremely ill-designed to achieve a workable system, that is, one that offers clear specification concerning which aliens are to be subjected to mandatory detention. Using only the word "when", the statute provides no guidance as to how much or little time may be allowed to pass between release from criminal custody and seizure by the immigration authorities while still preserving mandatory detention. Is it an hour, a day, a week, a month, three months? Should it vary depending upon the circumstances that led to the delay (whether ICE inefficiency, lack of sufficient immigration personnel to keep up with the volume of business, local law-enforcement errors, contributory efforts by the alien to conceal his whereabouts right after release)? This obscurity -- which contrasts dramatically with the specificity of the statutory definition of categories of aliens subject to mandatory detention, see 8 U.S.C. § 1226(c)(1)(A)-(D), strongly suggests that petitioner's reading is implausible.
As noted, petitioner's counsel proposed a one-year (or just under one-year) deadline (Tr. 9-10), although she was unable to offer any rationale for that line-drawing.
In addition, we observe that the language used in paragraph (c)(2) is oddly worded if intended to imply the meaning ascribed to it by petitioner. As noted, in creating a mandatory-detention rule, it says that the Attorney General "may release an alien described in paragraph (1) only" if certain exceptions -- not relevant here -- apply. The words "an alien described in paragraph (1)" appear most naturally to refer to the provisions of subparagraphs (A) to (D), which describe certain specific characteristics of the alien, namely, his criminal history. In contrast, the "when" language in paragraph (1), which Mr. Charles would ask us to include as a necessary characteristic of "an alien described in paragraph (1)", seems not to describe the alien but rather the actions that the immigration authorities must take vis-à-vis the alien. In short, this wording seems an awkward fit for the legislative purpose that petitioner attempts to ascribe to it.
Finally, as we have observed, the use of the term "when the alien is released" is a singularly opaque means of phrasing a requirement for a deadline. This is true not only because there is no specified deadline, but also because the terminology lends itself to the very different reading adopted by the BIA in Rojas, that is, that the alien's "release" is a condition precedent to his seizure by ICE that triggers the agency's duty to effectuate an arrest, not a deadline after which mandatory detention becomes inapplicable at some unspecified time. That reading is both plausible and consistent with the congressional focus on the need to eliminate the danger posed by aliens with serious criminal records being left free in the local community during the pendency of their deportation proceedings.
In light of the noted wording difficulties in section 1226(c), we observe that if Congress -- notwithstanding its stated intention to mandate detention for a universe of seriously criminal aliens -- had also intended to condition such mandatory detention on the swiftness with which the immigration authorities seized the alien, it could easily and clearly have accomplished that goal. Among numerous potential variants, it could have written the pertinent provisions to say not only that the Attorney General must take the targeted aliens into custody at the time of release (or within a specified time period), but also that the aliens meeting the criteria of subparagraphs (A) to (D) are subject to mandatory detention only if the Attorney General takes them into custody within the specified time period. That Congress chose not to adopt wording of this sort, or some functional equivalent, is a strong indicator that Congress did not intend the result that petitioner advocates, particularly since that result would substantially undercut the legislators' indisputedly central goal in legislating on this topic and leave no discernible guide for a temporal cut-off. Moreover, the Supreme Court has indicated that courts should "not readily infer congressional intent to limit an agency's power to finish a mandatory job merely from a specification to act by a certain time," Barnhart v. Peabody Coal Co., 537 U.S. 149, 150 (2003), and has noted that "if a statute does not specify a consequence for noncompliance with statutory timing provisions, the federal courts will not in the ordinary course impose their own coercive sanction." United States v. James Daniel Good Real Property, 510 U.S. 43, 63 (1993); see Gutierrez, 2014 WL 27059, at *5-*8 (applying "better-late-than-never principle" to ICE's authority for mandatory detention).
We note that the original 1952 version of the provision required the Attorney General to take the relevant alien into custody "upon release" -- a phrase that we believe connotes immediacy more evidently than does the current statutory language, see "Upon," Merriam-Webster Online Dictionary (July 22, 2014 at 11:45 am) http://www.merriam-webster.com/dictionary/upon ("used to sat that... something is very close or has arrived"), and which suggests that had immediate action been Congress's guiding purpose for the provision there were alternative means of more clearly articulating that requirement. See 8 U.S.C. § 1226(e)(1) (1952).
Given the practical and linguistic difficulties of petitioner's interpretation, we need not even reach the Chevron question. That said, we conclude, largely for the reasons stated here as well as the analyses found in a host of decisions by other courts, see, e.g., Hosh, 680 F.3d at 378-83; Debel, 2014 WL 1689042 at *3-*4; Straker, 2013 WL 6476889 at *6-*9, that the BIA interpretation of the ambiguous provision is entirely reasonable and provides yet another basis for adopting the respondents' reading of the statute.
We note that in challenging the reasonableness of the BIA's interpretation, Mr. Charles makes the unarguable point that an alien who has reintegrated himself into the community over an extended period of time is likely a better bail risk. (Pl. Mem. at 22-23). According to petitioner, by ignoring the bona fides of aliens who have lived peaceful and productive lives long after their release from criminal custody, respondents' reading of the statute "would lead to absurd and anomalous results." (Pl. Reply Mem. at 7). The short answer, however, is that a case-by-case assessment of the bail credentials of aliens with serious criminal records was precisely what Congress chose to preclude. The Supreme Court in Demore held that the legislative choice to impose a categorical bar on bail for specified categories of so-called criminal aliens was permissible, and that is the choice that the Legislative Branch has made. It may be harsh, but that is not the equivalent of an "absurd" result, and is therefore not a basis to deem the Government's reading unreasonable. See, e.g., Straker, 2013 WL 6476889 at *8 ("Immigration and deportation laws have long had features denounced as harsh... Straker's claim that harsh results were contrary to Congress's intent in passing [IIRIRA] is an ipse dixit. It is not a substantiated argument.") (quoting cases).
Since we agree that the extended delay by ICE in taking Mr. Charles into custody did not alter the applicability of the mandatory-detention provision of subparagraph 1226(c)(2), this aspect of his petition must be rejected.
II. The Due-Process Questions
Petitioner presses two challenges to his detention premised on theories of due process. One is that, given his long history in the community and his strong ties to his family here, his detention would not serve the purposes for which it is being imposed, and that this disconnect requires his release, presumably as a matter of substantive due process. (Pl. Mem. at 18-20)(citing Zadvydas v. Davis, 533 U.S. 678 (2001); Demore, 510 U.S. at 533 (Kennedy, J., concurring)).
Petitioner's due-process argument depends on considerations that, in a bail hearing, might well justify his release. Thus he notes that he has been in the community since 1990 and has maintained close ties with his daughter and former wife, that he has never harmed anyone here, that his convictions since his felony drug case were for minor marijuana offenses, and that he has a medical condition that requires significant treatment. (Pl. Mem. at 19-20; Pet. Ex. C (Decl. Of Deborah Penn); id. Ex. D (Decl. Of Sheba Naomi Charles); Meselson Decl. ¶¶ 7-17). In view of the fact that plaintiff is assertedly a good bail risk, he argues that the purposes of mandatory detention -- to ensure against the risk of flight and danger to the community posed by aliens with a serious criminal record -- are not served by his remaining in detention.
This argument amounts, in substance, to a disagreement with the result in Demore, in which the Supreme Court held that Congress could, consistent with the Due Process Clause, require the categorical imposition of mandatory detention -- that is, detention without regard to the personal circumstances and characteristics of the alien -- predicated solely on the alien having a criminal record that matched the criteria in paragraph (c)(1). 510 U.S. at 521-22, 528-31.
In citing Justice Kennedy's concurring opinion in Demore, petitioner misreads the substance of the Justice's observations and ultimately cannot demonstrate the factual predicate that might trigger the due-process scrutiny to which the Justice's remarks were directed. In concurrence, Justice Kennedy made two essential points. First, he observed that due process requires "individualized procedures to ensure that there is at least some merit to the [INS] charge and, therefore sufficient justification to detain a permanent resident alien". Id. at 531. Indeed, Justice Kennedy observed that "[w]hile the justification for 8 U.S.C. § 1226(c) is based upon the Government's concerns over the risks of flight and danger to the community, the ultimate purpose behind the detention is premised upon the alien's deportability," Demore, 538 U.S. at 531 (Kennedy, J. concurring) (emphasis added), and, thus, due process requires a "minimal, threshold" showing that a lawful permanent resident alien who is detained by ICE is in fact deportable. That was not an issue in Demore since the petitioner had conceded deportability while pursuing an application for discretionary relief, id. at 532, and it is not an issue here since Mr. Charles has conceded removability while also seeking cancellation of removal. (See Pet. ¶ 28; Tr. 31). Second, Justice Kennedy observed that "since the Due Process Clause prohibits arbitrary deprivations of liberty, a lawful permanent resident alien such as respondent could be entitled to an individualized determination as to his risk of flight and dangerousness if the continued detention became unreasonable or unjustified." 510 U.S. at 532 (emphasis added). Specifically, "[w]ere there to be an unreasonable delay by the INS in pursuing and completing deportation proceedings, it could become necessary then to inquire whether the detention is not to facilitate deportation, or to protect against risk of flight or dangerousness, but to incarcerate for other reasons." Id.; cf. United States v. Melendez-Carrion. 790 F.2d 984, 996-1004 (2d Cir. 1986)(Newman, C.J.)(addressing Bail Reform Act); id. at 1005-09 (Feinberg, J.); United States v. Gonzales-Claudio, 806 F.2d 334, 338 (2d Cir. 1986)(addressing Bail Reform Act). That was not the case in Demore, see 510 U.S. at 533, and is not the case here, since petitioner's removal hearing is scheduled to take place in one month, only seven months after the start of his detention.
In Demore, Mr. Kim had been in INS custody for a period of six months. 510 U.S. at 530.
Under the impression that petitioner was seeking, in part, to argue that there has been undue delay that might trigger Justice Kennedy's stated concerns from Demore, at oral argument we invited the parties to document the course of Mr. Charles's removal proceeding. (Tr. 33-35). In response, however, petitioner eschewed any such contention. (See July 10, 2014 letter from all counsel). --------
Finally, to the extent that petitioner seems to be arguing that the delay in his seizure itself triggers due-process protections, we note that the concurrence of Justice Kennedy in Demore does not support that proposition. As noted, the delay over which Justice Kennedy expressed concern is that which occurs while the alien is detained, and thus while his liberty is restricted. If anything, in this case, the delay in petitioner's arrest worked in his favor, affording him more than four years during which he was free in the community and able to spend time with his family. Had he been promptly taken into custody in 2009, it is entirely likely that he would have been detained for at least some period of time and then removed to Grenada, where he would have been separated from his family and from the life to which he had become accustomed since 1990.
Petitioner's final due-process argument also relies on the concurrence of Justice Kennedy, but again misreads that opinion. Invoking the Justice's comment that "individualized procedures" would be needed "to ensure that there is at least some merit to the [INS] charge and, therefore sufficient justification to detain a permanent resident alien", id. at 1332, Mr. Charles asserts that he has "a substantial challenge to his removability" because he is eligible for cancellation of removal, and accordingly is entitled to release from detention. (Pl. Mem. at 22). There are two short answers to this argument.
First, Justice Kennedy was referring to colorable grounds for the alien to demonstrate that he is not removable, and petitioner here has conceded that he is indeed removable. (Tr. 31). That Mr. Charles has sought cancellation of removal, an application that is contingent on the discretion of the immigration authorities, does not distinguish him from the alien in Demore who had conceded deportability but had applied for withholding of removal. Demore, 510 U.S. at 522-23 n.6; id. at 541 (Souter, J. dissenting). Notably, notwithstanding the petitioner's pending application for withholding of removal in Demore, Justice Kennedy found that no due-process concerns had been triggered in light of the petitioner's concession of deportability. See id. at 532-33.
Second, in the cited passage in Demore, Justice Kennedy was referring to the potential need for a hearing about the underlying charge of deportability, not release on bail. See id. at 532 (noting requirement of need for "individualized procedures to ensure that there is at least some merit to [the INS] charge" and therefore justification to hold the alien "pending a more formal hearing"). The only circumstances in which Justice Kennedy suggested a possible due-process override of mandatory detention was if there was "unreasonable delay by INS in pursuing and completing deportation proceedings", id. at 533, a circumstance that petitioner has now explicitly disavowed claiming.
CONCLUSION
For the reasons stated, the writ is denied and the petition is dismissed. Dated: New York, New York
July 23, 2014
/s/_________
MICHAEL H. DOLINGER
UNITED STATES MAGISTRATE JUDGE Copies of the foregoing Memorandum and Order have been mailed today to: Xochitl S. Strohbehn, Esq.
Quinn Emanuel Urquhart & Sullivan, LLP
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Adriene Holder, Esq.
Jojo Annobil, Esq.
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Amy Meselson, Esq.
The Legal Aid Society
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U.S. Attorney Office, SDNY
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