Summary
finding that the mandatory detention provision is ambiguous and giving deference to Matter of Rojas
Summary of this case from Beltran v. HolderOpinion
No. 11 Civ. 7857 (RJS)
01-25-2012
WILLIAM ROBERT MENDOZA, Petitioner, v. WAYNE MULLER, Assistant Field Office Director, Office of Detention and Removal for U.S. Immigration and Customs Enforcement, et al., Respondents.
MEMORANDUM ORDER
RICHARD J. SULLIVAN, District Judge:
On November 3, 2011, William Mendoza ("Petitioner"), represented by counsel, petitioned the Court for a writ of habeas corpus, contending that his detention without a bail hearing was not authorized under § 236 of the Immigration and Nationality Act ("INA"), and thus illegal. The parties fully briefed the issue and the Court heard argument on January 24, 2012. For the reasons stated on the record, and as elaborated on below, the petition is denied.
I. BACKGROUND
Petitioner is a citizen of Ecuador, who has been a lawful permanent resident of the United States since 1975. In May of 1987, Petitioner pled guilty to robbery with the intent to injure. In 1997, the Immigration and Naturalization Service ("INS") commenced removal proceedings, asserting that Petitioner's prior conviction for robbery with the intent to injure rendered him deportable. However, an immigration judge granted Petitioner relief in the form of a discretionary waiver of inadmissibility pursuant to former section 212(c) of the INA.
On September 29, 2004, Petitioner was arrested on a number of federal robbery, weapons, and drug charges, and indicted by a grand jury in this district. Petitioner pled guilty to an information that charged him with conspiracy to commit a Hobbs Act robbery, in violation of 18 U.S.C. § 1951, four counts of commission of a Hobbs Act robbery, in violation of 18 U.S.C. § 1951, using and brandishing a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii), using and carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(j)(1), and conspiracy to distribute and possess with intent to distribute cocaine, marijuana, and heroin, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A), and 841(b)(1)(C). On December 5, 2008, the Court sentenced Petitioner to time served followed by five years of supervised release, and ordered that he forfeit $4,000,000 in proceeds from the conspiracy.
Most recently, on June 6, 2011, Petitioner was arrested on state charges of third-degree grand larceny. While detained on these charges, Immigration and Customs Enforcement ("ICE") agents encountered Petitioner and identified him as a criminal alien. ICE issued a Notice to Appear for removal proceedings, charging Petitioner with six separate grounds for removability based on his December 2008 convictions. ICE agents began removal proceedings on August 1, 2011 by arresting Petitioner and serving him with a notice to appear. ICE determined that Petitioner's removal charges, based on his 2008 convictions in federal court, subjected him to mandatory detention under § 236(c) of the INA, 8 U.S.C. § 1226(c).
On October 20, 2011, Petitioner challenged ICE's determination that he was subject to mandatory detention, but an immigration judge upheld this determination based on his 2008
Petitioner is currently detained at the Monmouth County Correctional Facility in Freehold, New Jersey. Petitioner filed the instant petition on November 3, 2011 while in custody attending a hearing before an immigration judge at the Varick Street Immigration Court in this district.
II. DISCUSSION
The Court has jurisdiction to entertain this habeas petition, which challenges the statutory framework that the government has relied upon to detain Petitioner without a bail hearing. See Gomez v. Napolitano, No. 11 Civ. 1350 (JSR), 2011 WL 2224768, at *3 (S.D.N.Y. May 31, 2011) (citing Demore v. Kim, 538 U.S. 510, 516-17 (2003)). Although Petitioner is being held in New Jersey, jurisdiction is proper in this Court because he filed the petition while detained in New York in connection with his immigration proceedings.
The issue before the Court involves the interpretation of § 236(c) of the INA, which provides that the Attorney General shall detain aliens convicted of certain offenses "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 section further provides that such aliens must be detained, and may be released only if "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." Id. § 1226(c)(2).
Petitioner contends that the mandatory detention provision in § 236(c) applies only if the alien is detained immediately upon release from custody for the crimes enumerated in the statute. By contrast, the Board of Immigration Appeals ("Board") has interpreted this provision to apply at any point after an alien is released from custody and, therefore, to require the detention of aliens who committed the crimes enumerated in this section regardless of how or when they entered immigration custody. In re Rojas, 23 I & N Dec. 117, 127 (2001). The Court reviews the Board's interpretation of the statute pursuant to the two-step framework established by the Supreme Court in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984). Under Chevron, courts first consider whether Congress directly addressed the precise question at issue or whether the statute is ambiguous. Id. at 842. If the statute is unambiguous, "that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of congress." Id. at 842-43. However, if the statute is "silent or ambiguous with respect to the specific issue," courts proceed to the second step and consider how the agency has interpreted the statute and whether its interpretation is "based on a permissible construction of the statute." If the agency's construction is reasonable, courts must defer to that interpretation. Id. at 843.
Applying this framework, the Court agrees with at least two other judges in this district and holds that the mandatory detention provision in § 236(c) is, at best, ambiguous. The statute, in pertinent part, provides only that aliens who have committed certain offenses are subject to mandatory detention "when . . . released." As Petitioner argues, this could mean that criminal aliens are subject to mandatory detention only if taken into immigration custody immediately following their release from custody for the offenses enumerated in this section. Or, as the government argues, it could mean that they are subject to mandatory detention at any time following their release from custody. Congress was not explicit in drafting this statute and, as written, it does not definitively address whether the mandatory detention provision applies only if an alien is detained immediately upon release from custody for the charges enumerated in this section.
Proceeding to the second prong of the Chevron analysis, the Board's construction of the statute in In re Rojas is reasonable and, therefore, the Court will defer to that interpretation. Section 236 regulates the apprehension and detection of aliens, and subsection (c) provides specific rules for the detention of criminal aliens - a status that is not dependent on when an alien is taken into immigration custody. Consistent with the text and structure of the statute, it is not unreasonable to treat all criminal aliens in the same manner and require their detention regardless of whether they evaded detection by immigration officials for hours, days, months, or years after their release from custody for the crimes enumerated in this section.
Additionally, this interpretation is consistent with the legislative history, which reflects that Congress enacted the mandatory detention provision in response to evidence that INS (now ICE) was unable to remove a majority of deportable and inadmissible criminal aliens, because these individuals failed to appear for removal proceedings. See Demore, 538 U.S. at 518-20. Congress's concerns about criminal aliens failing to appear are not lessened merely because time may have elapsed between when the alien was released from custody and when he or she is detained by ICE. To be sure, the risk of flight would be even further reduced if ICE detained criminal aliens immediately upon their release from custody for the crimes enumerated in § 236(c). However, the concern that criminal aliens will fail to appear at removal proceedings if they are released on bond is still present even if the individual has spent some time in the structure of this statute suggests that Congress intended to treat criminal aliens differently depending on whether they were detained immediately upon release from custody for the crimes enumerated in this section. This conclusion is consistent with the results reached by other courts in this district. See Gomez, 2011 WL 2224768, at *3-4; Sulayao v. Shanahan, No. 09 Civ. 7347 (PKC), 2009 WL 3003188, at *6-7 (S.D.N.Y. Sept. 15, 2009); but see, e.g., Louisaire v. Muller, 758 F. Supp. 2d 229, 236 (S.D.N.Y. 2010) (holding that § 236(c) is unambiguous, and mandatory detention applies only if the criminal alien is detained immediately upon release from custody). Thus, the Court defers to the Board's interpretation of § 236(c).
The Court notes that this decision has been appealed on an expedited basis, and is currently sub judice before the Second Circuit. --------
While immigration officials did not take Petitioner into custody until more than two years after his release for the crimes that render him deportable, the mandatory detention provision in § 236(c) nonetheless applies, and Petitioner's detention without a bail hearing is not unlawful. Therefore, the petition for a writ of habeas corpus is denied. The Clerk of the Court is respectfully requested to enter final judgment and close the case. SO ORDERED. Dated: January 25, 2012
New York, New York
/s/_________
RICHARD J. SULLIVAN
UNITED STATES DISTRICT JUDGE