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finding that Borbot controlled court's conclusion and required court to reject argument that government was required to bear the burden of proof during a § 1226 bond hearing
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Civ. No. 18-17176 (KM)
2019-09-24
JOSE L.P. , Petitioner, v. Matthew WHITAKER et al., Respondents.
Reza Mazaheri, Sethi & Mazaheri LLC, New York, NY, for Petitioner. Enes Hajdarpasic, United States Attorney's Office, Newark, NJ, for Respondents.
Reza Mazaheri, Sethi & Mazaheri LLC, New York, NY, for Petitioner.
Enes Hajdarpasic, United States Attorney's Office, Newark, NJ, for Respondents.
OPINION
KEVIN MCNULTY, United States District Judge
I. INTRODUCTION The petitioner, Jose L.P., is an immigration detainee, currently being held at the Bergen County Jail in Hackensack, New Jersey. He is proceeding by way of counsel with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. For the following reasons, the habeas petition will be denied.
Consistent with guidance regarding privacy concerns in social security and immigration cases by the Committee on Court Administration and Case Management of the Judicial Conference of the United States, Petitioner is identified herein only by his First name and last initial.
II. BACKGROUND
A. Underlying Circumstances
Petitioner, a native and citizen of El Salvador, entered the United States without inspection on October 8, 2014. Very shortly after he entered the country, the Department of Homeland Security, Immigrations and Customs Enforcement ("ICE"), apprehended Petitioner and charged him as being removable. Pursuant to the Trafficking Victims Protection Reauthorization Act of 2008 ("TVPRA"), ICE determined that Petitioner was an Unaccompanied Alien Child ("UAC"), which placed him under the jurisdiction of the Department of Health and Human Services, Office of Refugee Resettlement ("ORR"). On October 17, 2014, the ORR released Petitioner to the care of his father, who already resided in Roosevelt, New York. Immigration proceedings have been pending against Petitioner since that time.
On March 28, 2018, Department of Homeland Security agents arrested Petitioner as part of an operation targeting suspected gang members, and he was placed in immigration detention at the Hudson County Jail in Kearny, New Jersey, Petitioner challenged his custody status and received a custody determination hearing before an immigration judge ("IJ") on June 22, 2018. The IJ, noting that Petitioner was detained under § 236(a) of the Immigration and Nationality Act, 8 U.S.C. § 1226(a), concluded that Petitioner had failed to meet "his burden to show that he does not pose a danger to the community" and, alternatively, found that Petitioner "pose[d] a significant flight risk." (DE 1-1, Ex. 4.) The IJ denied bond based on Petitioner's alleged membership in the gang MS-13 and his failures to appear as required at past immigration hearings. (See id. ) The Board of Immigration Appeals ("BIA") subsequently denied an appeal of the IJ's decision. Meanwhile, Petitioner remains in immigration custody, although he was transferred from Hudson County to the Bergen County Jail in November 2018.
B. Procedural History
Petitioner, by counsel, filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241 in the U.S. District Court for the Southern District of New York. (Pet., DE 2.) The petition asserts five claims for relief: (1) that the government's decision to detain Petitioner in County jails violated the Administrative Procedure Act, as the government failed to "consider placement in the least restrictive setting available" under 8 U.S.C. § 1232(c)(2)(B) ; (2) that the government failed to grant Petitioner adequate process under the Fifth Amendment when it detained him; (3) that the government has also violated Petitioner's due process rights by subjecting him to prolonged detention without an individualized bond hearing, at which it would bear the burden of justifying detention; (4) that the government's detention of Petitioner violates his substantive due process rights; and (5) that the government's denial of release on bail violates the Eighth Amendment prohibition on excessive bail. (Id. ¶¶ 77–107.) Petitioner seeks immediate release or, alternatively, an order compelling a bond hearing at which the government would bear the burden of showing by clear and convincing evidence that Petitioner is a flight risk or a danger to the community. (See at pp. 29–30.) U.S. District Judge George B. Daniels transferred the case to this Court, finding, under the "immediate custodian rule," that habeas jurisdiction lay in this, the district of Petitioner's confinement. (DE 11.)
Upon preliminary screening, 1 permitted the petition to proceed, but substituted the Sheriff of Bergen County as the proper respondent custodian. (See DE 13.) I ordered the respondents to file an answer to the petition and permitted Petitioner to file a reply. (Id. )
The government, on behalf of the respondents, answered the petition. (DE 17.) Respondents argue that Petitioner was not entitled to any consideration of the "least restrictive setting" under 8 U.S.C. § 1232 and generally contend that Petitioner's detention is proper under 8 U.S.C. § 1226(a). (See id. ) Petitioner filed no reply to the answer.
III. ANALYSIS
Under 28 U.S.C. § 2241, a district court may exercise jurisdiction over a habeas petition when the petitioner is in custody and alleges that this custody violates the constitution, laws, or treaties of the United States. 28 U.S.C. § 2241(c) ; Maleng v. Cook , 490 U.S. 488, 490, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989). Generally, a petitioner may seek § 2241 relief only in the district in which he is in custody. United States v. Figueroa , 349 F. App'x 727, 730 (3d Cir. 2009). To the extent that Petitioner alleges that his detention is unlawful or unconstitutional, this Court has jurisdiction over such claims as he is detained within this district.
Although Petitioner divides his petition into five claims, his two primary contentions are that the provisions of 8 U.S.C. § 1232 required the government to consider the "least restrictive setting" when deciding whether to detain him pending further immigration proceedings and that the process he received in conjunction with his arrest and detention were constitutionally insufficient. I address those arguments in turn.
A. Applicability of 8 U.S.C. § 1232
When Petitioner entered the country in 2014, he was classified as an unaccompanied alien child ("UAC"). The Homeland Security Act of 2002 ("HSA") defined a UAC as a person who
(A) has no lawful immigration status in the United States;
(B) has not attained 18 years of age; and
(C) with respect to whom—
(i) there is no parent or legal guardian in the United States; or
(ii) no parent or legal guardian in the United States is available to provide care and physical custody.
6 U.S.C. § 279(g)(2). While the HSA transferred responsibility for the bulk of immigration functions from the old Immigration and Naturalization Service to the newly created Department of Homeland Security ("DHS"), it transferred responsibility for the care and placement of UACs to the Office of Refugee Resettlement ("ORR"), within the Department of Health and Human Services ("HHS"). See 6 U.S.C. § 279 ; see also 8 U.S.C. § 1232(b)(1) ("[T]he care and custody of all unaccompanied alien children, including responsibility for their detention, where appropriate, shall be the responsibility of the Secretary of Health and Human Services."); Flores v. Sessions , 862 F.3d 863, 870 (9th Cir. 2017).
Pursuant to this statutory scheme, once a person who enters the country as a UAC turns 18, jurisdiction passes to DHS. Therefore, UACs who are in ORR custody when they reach 18 years of age must be transferred to the custody specified by DHS (generally, for these purposes, Immigration and Customs Enforcement ("ICE")). See, e.g. , Flores , 862 F.3d at 873 ("Byron remained in [a juvenile facility specified by ORR] until his eighteenth birthday, at which point he was transferred to Immigration and Customs Enforcement (ICE) custody and moved to an adult jail."); see also Ramirez v. ICE , 338 F. Supp. 3d 1, 15 (D.D.C. 2018) ("When Ms. Hernandez Alfaro turned eighteen, ORR transferred her to ICE's custody."); Saravia v. Sessions , 280 F. Supp. 3d 1168, 1200 (N.D. Cal. 2017) ("[I]f the [UAC] putative class members are still in detention when they turn eighteen, they will be transferred to ICE custody and lose the protections afforded to juveniles."), aff'd , 905 F.3d 1137 (9th Cir. 2018).
The TVPRA further included special provisions for the placement of UACs, stating that "an unaccompanied alien child in the custody of the Secretary of Health and Human Services shall be promptly placed in the least restrictive setting that is in the best interest of the child. In making such placements, the Secretary may consider danger to self, danger to the community, and risk of flight." Pub. L. No. 110-457, § 235(c)(2), 122 Stat. 5044, 5078 (2008) (codified, as amended, at 8 U.S.C. § 1232(c)(2)(A) ). The Violence Against Women Reauthorization Act of 2013 amended this provision, adding instructions concerning placement of UACs who are transferred from ORR custody to DHS custody. Pub. L. No. 113-4, § 1261, 127 Stat. 54, 156 (2013). As the effect of this amendment is the central question in the present analysis, I quote it in full:
(B) ALIENS TRANSFERRED FROM DEPARTMENT OF HEALTH AND HUMAN SERVICES TO DEPARTMENT OF HOMELAND SECURITY CUSTODY.—If a minor described in subparagraph (A) reaches 18 years of age and is transferred to the custody of the Secretary of Homeland Security, the Secretary shall consider placement in the least restrictive setting available after taking into account the alien's danger to self, danger to the community, and risk of flight. Such aliens shall be eligible to participate in alternative detention programs, utilizing a continuum of alternatives based on the alien's need for supervision, which may include placement of the alien with an individual or an organizational sponsor, or in a supervised group home.
Id. (codified at 8 U.S.C. § 1232(c)(2)(B) ).
Few cases have interpreted or applied the provisions of § 1232(c), and I have not located any precisely relevant binding authority. I therefore look a bit farther afield.
In Saravia v. Sessions , 280 F. Supp. 3d 1168, the U.S. District Court for the Northern District of California considered the case of a UAC who was released to an individual sponsor, but subsequently rearrested on suspicion of gang activity. That minor, the court found (on an application for a preliminary injunction), could likely establish a due process right to a prompt hearing at which the government would be required to demonstrate that changed circumstances justified the arrest and detention. Id. at 1194–1200. The Saravia Court thus granted a classwide preliminary injunction and, on November 20, 2017, ordered the government to provide all "noncitizen minors previously released to a sponsor who were rearrested and are currently in federal custody based on allegations of gang affiliation with a hearing before an immigration judge by no later than November 29, 2017." Id. at 1205. The Court of Appeals for the Ninth Circuit affirmed that grant of a preliminary injunction. See Saravia , 905 F.3d 1137. Notably, the Saravia decisions concerned a plaintiff and class of detainees who were still under the age of 18; thus they considered only the application of § 1232(c)(2)(A) (and not § 1232(c)(2)(B), which governs the transfer of custody that occurs because a minor has turned 18). See id.
During the initial detention by ORR, a minor was found not to constitute a danger or a flight risk, and therefore was released to a family member under a sponsorship agreement. The court required that government afford such a minor a hearing at which the government would be required to justify the minor's subsequent arrest and detention by ICE by demonstrating changed circumstances. The court held that "due process requires the government to give the minor a prompt hearing before an immigration judge or other neutral decisionmaker, where the government must set forth the basis for its decision to rearrest the minor, and where the minor and his sponsor may seek to rebut the government's showing. Saravia , 280 F. Supp. 3d at 1194.
The U.S. District Court for the District of Columbia did directly analyze the transfer provision, § 1232(c)(2)(B), in Ramirez v. U.S. Immigrations and Customs Enforcement , 338 F. Supp. 3d 1. The three named plaintiffs in that case were "immigrant teenagers who were previously held in ORR custody as unaccompanied alien children," and "upon turning eighteen, ... were transferred to the custody of ICE and placed in adult detention facilities, purportedly without receiving statutorily mandated consideration of less restrictive placement options." Id. at 12. The government asserted, inter alia , that § 1232(c)(2)(B) did not require consideration of less restrictive settings for the plaintiffs because they had been deemed flight risks. Id. at 32-33. The Ramirez court rejected that argument:
Specifically, the government argued that the petitioners' claims were moot "because (1) 8 U.S.C. § 1232(c)(2)(B) does not require consideration of any setting less restrictive than adult detention for former unaccompanied minors who are deemed flight risks; (2) the record demonstrates that Plaintiffs received any consideration to which they were entitled before this lawsuit was filed; and (3) all three Plaintiffs have now been released from adult detention and two Plaintiffs now have legal status in the United States." Ramirez , 338 F. Supp. 3d at 32.
[A]ssessment of a former unaccompanied minor's risk of flight—along with assessment of whether he or she poses any danger to himself or herself or to the community—is only the beginning of the Secretary's inquiry. By the plain and unambiguous language of the statute, after accounting for these factors, the Secretary "shall consider placement in the least restrictive setting."
Id. (emphasis added) That court thus denied the government's motion to dismiss the action and certified a class defined as follows:
All former unaccompanied alien children who are detained or will be detained by ICE after being transferred by ORR because they have turned 18 years of age and as to whom ICE did not consider placement in the least restrictive setting available, including alternatives to detention programs, as required by 8 U.S.C. § 1232(c)(2)(B).
Id. at 50.
Putting Saravia and Ramirez together, (1) as to a previously released UAC who is re-detained while still under 18, based on allegations of gang involvement, the government must afford a hearing at which the government bears the burden of demonstrating changed circumstances justifying detention; and (2) as to a UAC who is transferred to DHS custody upon turning 18, the government must consider the least restrictive setting available, including alternatives to detention.
In this case, the Petitioner's circumstances do not fit neatly into either category. Petitioner was no longer a minor when he was re-detained for alleged gang involvement, distinguishing him from the Saravia plaintiffs. He was not held in detention but physically transferred from ORR to a DHS custody facility upon turning eighteen, like the members of the Ramirez class. Nonetheless, Petitioner asserts here that, "even in cases where the UAC was released to a sponsor, turned 18 and, thereafter, was detained by ICE, the Respondents must consider placement in the least restrictive setting available." (DE 2 ¶ 63.)
To some degree, the issue turns on the meaning of "transfer" and "custody" under the statute, § 1232(c)(2)(B). Here an unpublished opinion of Judge Sweet of the U.S. District Court for the Southern District of New York is pertinent. Lopez v. Sessions , No. 18-4189, 2018 WL 2932726 (S.D.N.Y. June 12, 2018). The comparison to Lopez is apt in some ways, although I am ultimately unpersuaded.
While the petition includes no citation to the Lopez opinion, its arguments concerning § 1232(c)(2)(B) largely track the analysis of the Lopez court, including discussion of the mandatory detention of arriving aliens under 8 U.S.C. § 1225(b), the provision under which Lopez was detained, but which is not the basis for Petitioner's detention. See Lopez , 2018 WL 2932726 at *8–*10.
Like Petitioner here, Lopez, a Salvadoran citizen, entered the United States as a UAC, was subsequently placed by ORR with a parent already living in the country, and, several months after he turned 18, was detained by ICE based on allegations of gang affiliation. See id. at *2–*3. The Immigration Judge determined that Lopez (unlike Petitioner here) was an "arriving alien" subject to mandatory detention under 8 U.S.C. § 1225(b) and consequently denied a bond or custody hearing. The Lopez court, relying in part on Saravia , concluded that § 1232(c)(2)(B) required the government to consider the least restrictive setting for Lopez when it re-detained him, and further found that his re-detention without any custody hearing, after the ORR had previously found that he was "neither dangerous nor a flight risk," violated his due process rights. Id. at *8–*12. In concluding that § 1232(c)(2)(B) applied to Lopez, the court focused primarily on the question of whether Lopez had "attain[ed] majority while in HHS custody." The court answered that question in the affirmative, since Lopez had "turned eighteen while he was on physical release, but in legal custody of HHS, pursuant to a Sponsorship Agreement." Id. at *8–*10 (emphasis added).
Indeed, I note that the Lopez court concluded that detention of Lopez without granting him a bond hearing was problematic regardless of the applicability of § 1232(c)(2)(B). Lopez , 2018 WL 2932726 at *12 ("[E]ven if Petitioner was not owed the procedural protections of the TVPRA discussed supra (namely, the right to be considered for placement in the ‘least restrictive setting’), the Fifth Amendment requires more than he was given.").
As a matter of statutory interpretation, I respectfully disagree with both the framework and the conclusion of the Lopez analysis. A court must first look to the plain language of a statute in determining its meaning. United States v. Gregg , 226 F.3d 253, 257 (3d Cir. 2000) ; United States v. Gollapudi , 130 F.3d 66, 70 (3d Cir. 1997). "If the language of the statute expresses Congress's intent with sufficient precision, the inquiry ends there and the statute is enforced according to its terms." Gregg , 226 F.3d at 257. So long as the statutory language is clear, no further inquiry is necessary. Barrios v. Att'y Gen. , 399 F.3d 272, 277 n.11 (3d Cir. 2005). The language may be set aside only if strict application would produce an absurd result, one that is clearly contrary to legislative intent. See id. ; see also Gollapudi , 130 F.3d at 70 ("Only the most extraordinary showing of contrary intentions in the legislative history will justify a departure from that language." (internal quotation marks and brackets omitted)). Furthermore, statutes should, if possible, be construed to function as a "harmonious whole." FDA v. Brown & Williamson Tobacco Corp. , 529 U.S. 120, 133, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000). Thus, "[c]ourts should disfavor interpretations of statutes that render language superfluous." Conn. Nat'l Bank v. Germain , 503 U.S. 249, 253, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992) ; see also TRW Inc. v. Andrews , 534 U.S. 19, 31, 122 S.Ct. 441, 151 L.Ed.2d 339 (2001).
The language of § 1232(c)(2)(B) is clear enough. It requires that DHS "shall consider placement in the least restrictive setting available after taking into account the alien's danger to self, danger to the community, and risk of flight." It imposes that requirement, however, only in the case of a "minor described in subparagraph (A) [who] reaches 18 years of age and is transferred to the custody of the Secretary of Homeland Security." 8 U.S.C. § 1232(c)(2)(B). This section, by its plain terms, thus applies to a person who satisfies three preconditions:
(1) he or she was "a minor described in subparagraph (A)";
(2) who "reaches 18 years of age"; and
(3) is "transferred to the custody of the Secretary of Homeland Security."
I conclude that Petitioner here does not meet requirement (1) or requirement (3). He is not a UAC as described in paragraph A, and he was not "transferred to the custody" of DHS. For those two independent reasons, § 1232(c)(2)(B) does not apply. It follows that there is no requirement that the Petitioner receive, apart from an ordinary bail hearing, a separate determination that the conditions of custody are the least restrictive available.
Requirement 1: a "minor described in subparagraph (A)"
Petitioner does not meet Requirement 1. A "minor described in subparagraph (A)" is "an unaccompanied alien child in the custody of the Secretary of Health and Human Services." 8 U.S.C. § 1232(c)(2)(A). "Unaccompanied alien child," as used in § 1232, explicitly bears the same meaning as in 6 U.S.C. § 279(g) : A UAC is a child who (1) has no lawful immigration status, (2) is less than 18 years old, and (3) who either has no parent or guardian in the United States or no parent or guardian in the United States who is available to provide care and physical custody. See 6 U.S.C. § 279(g)(2) ; 8 U.S.C. § 1232(g). The third requirement is at issue here.
Petitioner was, upon his entry into this country, classified as a UAC who was properly within the jurisdiction of HHS/ORR. The government argues, however, that Petitioner's release into the care of his father shortly after his initial apprehension meant that he was no longer a UAC and that he was no longer in the custody of HHS. (See DE 17 at 8–11.) I agree that Petitioner's release to the care of his father implies that he was no longer accurately viewed as a UAC.
First, Petitioner could never have been considered a UAC on the basis of having no parent or guardian in the United States at all. See 6 U.S.C. § 279(g)(2)(C)(i). His father, who had been awarded legal guardianship of Petitioner by a Salvadoran family court in 2002, had lived in the United States since sometime prior to October 2014. (DE 1-1, Ex. 13; DE 2 ¶¶ 45, 47.); c.f. D.B. v. Cardall , 826 F.3d 721, 744 (4th Cir. 2016) (Floyd, J., dissenting) (asserting that minor alien was "not unaccompanied" because minor's mother "is here in the United States.").
Second, Petitioner could not be considered a UAC because he lacked a parent or guardian "who is available to provide care and physical custody." 6 U.S.C. § 279(g)(2). It is true that, when Petitioner entered the country at the Texas border, his father, who lived in New York, was not conveniently at hand. It is possible, then, that Petitioner could have been classified, for a period of days, as a UAC having "no parent or legal guardian in the United States [who] is available to provide care and physical custody." 6 U.S.C. § 279(g)(2)(C)(ii) ; c.f. D.B. , 826 F.3d at 734 ("to be ‘available to provide care’ for a child, a parent must be available to provide what is necessary for the child's health, welfare, maintenance, and protection. And a parent who is not ‘capable of providing for the child's physical and mental well... is not available." (relying on suitable custodian requirement in 8 U.S.C. § 1232(c)(3)(A) )). That unavailability, in this case, was temporary at most. Within nine days, Petitioner was transported to New York and released to his father (and lawful guardian), with whom he lived for the following three years. (DE 2 ¶¶ 7, 27, 45). At that point, certainly, it was not true that there was "no parent or legal guardian in the United States ... available to provide care and physical custody." The father was not merely "available" to assume custody of Petitioner; he actually did so.
Neither party points to any authority establishing that UAC status is fixed and irrevocable, or determined solely at the moment of entry. The obvious humane purpose of § 1232 is to provide a backstop for the needs of a child who lacks a parent or guardian in the United States. To find that a child remains legally "unaccompanied" despite being placed in the care of a parent would contravene both the plain language and the evident intent of § 279 and § 1232.
Accordingly, I conclude that Petitioner was no longer a UAC once he was released to the care of his father in October 2014. It follows that he was not a "minor described in subparagraph (A)." For this reason alone, the first requirement is not met, and § 1232(c)(2)(B) does not apply. I nevertheless consider the other two requirements.
In Saravia , the court did not reach this issue. There, one minor was placed with his mother, and the other two with family members under sponsorship agreements. The court noted that the parties agreed not to contest the minors' UAC status. The court believed that "the accuracy of this classification [did] not matter for purposes of determining the minors' procedural due process rights, [so] there [was] no need to decide in this ruling whether the parties are correct." 280 F. Supp. 3d at 1196 n.14.
Since the Petitioner (although still a minor) ceased to be a UAC in October 2014, and thus was no longer a "minor described in subparagraph [§ 1232(c)(2) ](A)," it is not strictly necessary to decide whether Petitioner in some sense remained in HHS/ORR "custody" despite having been placed with his father. See Lopez , 2018 WL 2932726 at *8–*10 (discussed supra ). Lopez concluded that a UAC released to a sponsor (including a parent), although no longer in the physical custody of HHS, was still in the legal custody of the HHS, due to its "custodial and legal control pursuant to sponsorship agreements." Id. at *9. I do not have before me any such sponsorship agreement or any indication of its terms. Even if the issue remained relevant, I would lack the necessary basis to determine that Petitioner remained in the legal custody of HHS/ORR within the meaning of Lopez .
Requirement 2: "reaches 18 years of age"
Under § 1232(c)(2)(B), it is clear that Petitioner has "reache[d] 18 years of age," although there is some doubt as to the exact timing. The parties consistently represent that Petitioner was born in January 1999, a date which is also reflected in some of the documents included as exhibits. Nonetheless, the petition asserts that Petitioner was 14 years old when he entered the country in October 2014, and that he was 18 years old when he was detained in March 2018. A January 1999 birthdate would imply that Petitioner was in fact 15 when he entered the country and 19 at the time he was detained. Nevertheless, all agree that Petitioner was under 18 when he entered the country and was then released to his father, and that he was over 18 when he was placed in immigration detention.
Requirement 3: "transferred to the custody of the Secretary of Homeland Security"
The third factor under § 1232(c)(2)(B) is whether Petitioner was "transferred to the custody of the Secretary of Homeland Security." I find that this third requirement, like the first, is not met, although the analysis is less straightforward.
The dispute is over the meaning of "transfer." The government replies that the statute applies only to a transfer of custody that occurs when a minor who is in a HHS/ORR facility attains the age of eighteen and is sent to an adult facility maintained by DHS. Petitioner responds, in essence, that the statute is broad enough to cover the automatic change in status—the "transfer" of jurisdiction from HHS/ORR to DHS—that occurs by virtue of the minor's passing his or her eighteenth birthday. Thus it must apply to persons, like Petitioner here, who (as minors) "are released to sponsors and then re-detained after the age of 18." (DE 2 ¶ 62.)
The parties have provided no precedent concerning the precise meaning of "transferred" in this context, nor have I located any. "Transfer" might generally be defined as "to move or send to a different location" or "to cause to pass from one person or thing to another." Transfer , Webster's Third New International Dictionary (1986). Black's Law Dictionary defines "transfer" as follows: "[t]o convey or remove from one place or one person to another; to pass or hand over from one to another, esp[ecially] to change over the possession or control of." Transfer , Black's Law Dictionary (11th ed. 2019). Merriam-Webster offers the following definitions:
1a: to convey from one person, place, or situation to another: MOVE, SHIFT
b: to cause to pass from one to another: TRANSMIT
c: TRANSFORM, CHANGE
2: to make over the possession or control of: CONVEY
3: to print or otherwise copy from one surface to another by contact
Transfer , Dictionary by Merriam-Webster, https://www.merriam-webster.com/dictionary/transfer.
These various definitions seem to have two common features: (1) that a transfer involves a relatively discrete or abrupt change in location or control and (2) that a transfer occurs as the intentional result of the actor or actors involved.
Petitioner's journey from HHS/ORR custody to ICE custody is an awkward fit. First, it is clear there was a lengthy delay between the two. HHS released him into the custody of his father in October 2014. Even if Petitioner's ORR "custody" in some sense continued until the day he turned 18, that would take us only to January 2017. It was not until some 15 months later, in March 2018, that ICE took petitioner into custody. This does not fit the usual sense of a "transfer" of custody between two agencies.
These facts simply do not seem to embody the situation addressed by the statute. Here, ICE was not deciding what to do with a minor, currently held in custody because he lacked a guardian, when he attained majority. Rather, ORR had released the Petitioner to his father, years before; the Petitioner was now an adult; and as an adult he had been arrested, subjected to removal proceedings, and denied bail, after a hearing. It makes sense that by March 2018, Petitioner stood in the shoes of any other adult without resident status.
Furthermore, there is no indication that anyone intentionally transferred custody from HHS/ORR to DHS/ICE. I cannot accept the view that the "transfer" consists of nothing more than the theoretical passing of jurisdiction from ORR to ICE on the person's eighteenth birthday. Petitioner does not assert that when ORR released him, it did so with the intent that he end up in ICE custody, or that ORR released him so that ICE could assume jurisdiction. Rather, in October 2014, ORR released the fifteen-year-old Petitioner to his father. Forty-one months later, ICE detained Petitioner--not because he had turned 18, but because he was suspected of gang activity, and removable. There is no indication of any involvement by either agency during the ORR/ICE interregnum, whether it is considered to have lasted 15 or 41 months. Accordingly, I find that Petitioner was not "transferred to the custody of the Secretary of Homeland Security."
Lopez set aside concerns about the definition of "transfer," focusing instead on whether Lopez had "attain[ed] majority while in HHS custody." See Lopez , 2018 WL 2932726, at *10. That language, however, comes not from the words of the statute itself, but from a far less authoritative source: the section header of VAWRA. Taken alone, such language might support the interpretation of § 1232(c)(2)(B) urged by Petitioner. To take it alone, however, would contradict and render superfluous the plain language of the statute. The statute specifies that it applies only to UACs who are "transferred to the custody of the Secretary of Homeland Security." If "transferred to the custody" of DHS just meant "turned eighteen," Congress could have just said so, and omitted the "transferred" language altogether.
Section 1261 of that act, which created subparagraph § 1232(c)(2)(B), was titled "Appropriate custodial settings for unaccompanied minors who reach the age of majority while in Federal custody." § 1261, 127 Stat. at 156; c.f. D.B. , 826 F.3d at 739 (statutory heading or title may be considered in interpreting ambiguous statute).
For these reasons, I conclude that 8 U.S.C. § 1232(c)(2)(B) does not apply to Petitioner. Because he ceased to be a UAC once he was placed in the care and custody of his father, he was not a "minor described in subparagraph (A)." Further, he was not "transferred to the custody" of DHS. Accordingly, the statutory requirement that the government consider the least restrictive option did not apply to the detention of the Petitioner in March 2018. B. Alleged Unconstitutionality of Petitioner's Detention
I note that the petition additionally includes arguments that the TVPRA "mandate[d]" Petitioner's release "to the ‘least restrictive setting’ " under § 1232(c)(2)(A), that the 2013 amendment to the TVPRA functioned as a partial repeal of the laws requiring mandatory detention of "arriving aliens," and that "[a]llowing the Respondents to detain indefinitely any UAC who reached the age of 18, without any review of dangerousness or flight risk, solely by designating them an arriving alien would be in direct violation of 8 U.S.C. § 1232(2)(B) [sic]." (See DE 2 ¶¶ 58–64.) These provisions clearly do not apply to Petitioner's circumstances. There is no good argument that Petitioner should still be treated as an unaccompanied "child" after his 18th birthday. Furthermore, he received a custody determination concerning his detention under 8 U.S.C. § 1226(a), and he has not been subjected to mandatory detention as an arriving alien under § 1225(b).
Petitioner next argues in relation to his detention under 8 U.S.C. § 1226(a) that deficient proceedings or its extended duration have rendered it statutorily and constitutionally infirm.
The Immigration and Nationality Act permits, upon a warrant issued by the Attorney General of the United States, the arrest and detention of an alien pending a determination as to removal. 8 U.S.C. § 1226(a) ; see also Demore v. Kim , 538 U.S. 510, 531, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003) ("Detention during removal proceedings is a constitutionally permissible part of the process."). An alien taken into custody pending a removal determination under 8 U.S.C. § 1226(a) may be detained or may be released on bond or parole. Generally, aliens detained under § 1226(a) should receive a bond hearing at the outset of detention. See 8 C.F.R. §§ 236.1(d)(1), 1236.1(d)(1). The Court may order a bond hearing, however, if a petitioner has erroneously been denied a hearing or if a hearing was conducted unlawfully. See Melgar-Melgar v. Green , No. 16-1449, 2016 WL 3457004, at *3 (D.N.J. June 22, 2016) ; Harris v. Herrey , No. 13-4365, 2013 WL 3884191, at *1 (D.N.J. July 26, 2013) ; Morrison v. Elwood , No. 12-4649, 2013 WL 323340, at *3 (D.N.J. Jan. 28, 2013).
In his second claim, Petitioner alleges in general fashion that "Respondents violated [his] due process rights under the Fifth Amendment to the United States Constitution by detaining him after he was released by ORR without providing adequate procedural protections before or after the resultant deprivation of his liberty." (DE 2 ¶ 86.) Yet Petitioner admits that, when he was detained by ICE in March 2018, he received a bond hearing before an IJ, and that he unsuccessfully the IJ's denial of bond to the BIA. (DE 2 ¶¶ 50–53.) See 8 U.S.C. § 1226(a) ; 8 C.F.R. §§ 236.1 and 1236.1 ; Jennings v. Rodriguez , ––– U.S. ––––, 138 S. Ct. 830, 847, 200 L.Ed.2d 122 (2018) ("Federal regulations provide that aliens detained under § 1226(a) receive bond hearings at the outset of detention.").
As noted above, Petitioner's contentions that mandatory detention under § 1225(b), without any bond hearing, would violate his rights, (see DE 2 ¶¶ 58–61, 64), appear inapplicable to the facts of his case. He has been detained under another section, § 1226(a), and did in fact receive a bond hearing.
In his third and fourth claims (and elsewhere in the petition), Petitioner contends that his detention has been unduly prolonged, entitling him to another bond hearing. He adds that the prior bond hearing he did receive was defective because the IJ erroneously placed the burden on him to demonstrate that he was not a flight risk or danger to the community. Accordingly, Petitioner demands another bond hearing at which the government will bear the burden of showing by clear and convincing evidence that Petitioner is a flight risk or a danger to the community. (See DE 2 ¶¶ 65–67, 89–103.)
The Third Circuit, in Borbot v. Warden Hudson County Correctional Facility , 906 F.3d 274 (3d Cir. 2018), considered and rejected these arguments. Like Petitioner here, Borbot received an initial bond hearing, at which time he was denied release. Fourteen months later, he filed a petition seeking a second bond hearing at which the government would be required to justify his ongoing detention with clear and convincing evidence that he was a flight risk or danger to the community. See id. at 275–76. The Borbot Court noted that "Borbot cites no authority, and we can find none, to suggest that duration alone can sustain a due process challenge by a detainee who has been afforded the process contemplated by § 1226(a) and its implementing regulations." Id. at 277. The Court of Appeals rejected an analogy between prolonged detention under § 1226(a) and mandatory detention under § 1226(c) without a bond hearing. Borbot, it noted, had in fact received a bond hearing and had appealed from the result, and thus "was granted meaningful process prior to filing his habeas petition." Id. at 278–79. The Court also rejected Borbot's argument that, at some point, the burden of justifying detention should shift to the government. Id. at 279. Overall, the Circuit did note a possibility that, "despite an initial bond hearing, detention under § 1226(a) might become unreasonably prolonged," but it concluded that Borbot had not demonstrated this to be true in his case. Id. at 280.
Here, Petitioner's circumstances are practically indistinguishable from those in Borbot . Borbot had been detained 15 months when his petition was initially denied, and for about 30 months when the Circuit rejected his appeal; Petitioner here has been detained for approximately 18 months in total. Borbot similarly demanded a bond hearing at which the government bore the burden of proof, a demand which the Circuit rejected. Based on this binding precedent, I will deny Petitioner's third and fourth claims.
Finally, in his fifth claim, Petitioner asserts that "the government's categorical denial of bail" violates the Excessive Bail Clause of the Eighth Amendment. (DE 2 ¶¶ 105–107.) The only precedent cited in support of this assertion is Justice Breyer's dissent in Jennings v. Rodriguez . ( Id. ¶ 106.) There, Justice Breyer assessed the Excessive Bail Clause in conjunction with the Due Process Clause of the Fifth Amendment and opined that persons subjected to prolonged immigration detention should be afforded bail hearings. See Jennings , 138 S. Ct. at 862–69. I again observe that Petitioner did receive a bond hearing. The presiding IJ denied release on bond, finding that Petitioner had failed to show that he was not a danger to the community or a flight risk. (See DE 1-1, Ex. 4.) It is well established that potential danger to the community and risk of flight are constitutionally permissible reasons for denying bail. See United States v. Salerno , 481 U.S. 739, 753–54, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) (noting that the Excessive Bail Clause " ‘has never been thought to accord a right to bail in all cases, but merely to provide that bail shall not be excessive in those cases where it is proper to grant bail’ " (quoting Carlson v. Landon , 342 U.S. 524, 545, 72 S.Ct. 525, 96 L.Ed. 547 (1952) )).
Accordingly, I conclude that Petitioner has not demonstrated any constitutional defect with his detention, which is authorized by 8 U.S.C. § 1226(a). Neither has he shown any basis to order that he receive a second bond hearing or a bond hearing at which the government bears the burden of justifying his continuing detention with clear and convincing evidence.
IV. CONCLUSION
For the foregoing reasons, the habeas petition will be denied. An appropriate order follows.