United States District Court, S.D. New York
For Myles Straker, Plaintiff: Alina Das, Washington Square Legal Services, Inc., New York, NY.
For Kenneth T. Jones, in his official capacity as Undersheriff and Acting Administrator of Orange County Correctional Facility, Christopher Shanahan, in his official capacity as New York Field Office Director for U.S. Immigration and Customs Enforcement, Rand Beers, in his official capacity as Acting Secretary of Homeland Security, Eric Holder, in his official capacity as the Attorney General of the United States, Defendants: Christopher Kendrick Connolly, United States Attorney's Office, SDNY, New York, NY; David Stuart Jones, U.S. Attorney's Office, SDNY (86 Chambers St.), New York, NY; Patricia L. Buchanan, U.S. Attorney Office SDNY, New York, NY.
For U.S. Department of Homeland Security, Defendant: Patricia L. Buchanan, LEAD ATTORNEY, U.S. Attorney Office SDNY, New York, NY; Christopher Kendrick Connolly, United States Attorney's Office, SDNY, New York, NY; David Stuart Jones, U.S. Attorney's Office, SDNY (86 Chambers St.), New York, NY.
OPINION & ORDER
Paul A. Engelmayer, United States District Judge.
Myles Straker, an alien, is currently detained in a New York State prison pursuant to a detainer issued by the Department of Homeland Security (" DHS" ) while proceedings to remove him from the United States are underway. DHS asserts that it has the authority (indeed, the duty) to detain him under the mandatory detention statute, § 236(c) of the Immigration and Nationality Act (" INA" ), 8 U.S.C. § 1226(c), which applies to certain criminal aliens. Straker argues that the mandatory detention statute does not apply to him, and that DHS's only authority to detain him is a separate provision, 8 U.S.C. § 1226(a), under which he is entitled to a bond hearing. Straker petitions for a writ of habeas corpus ordering respondents to provide him with a bond hearing.
For the reasons that follow, Straker's petition is granted. Respondents are ordered to provide Straker with a bond hearing by December 20, 2013.
A. Straker's Citizenship and Immigration Status
Straker was born in 1986 in Trinidad, where he lived with his grandparents until the age of 13. Petition for Writ of Habeas Corpus (Dkt. 1) (" Pet." ) ¶ 21; id. Ex. D. In 2000, his grandparents sent him to live with his mother in the United States; he was lawfully admitted. Id. ¶ 21. Since then, apart from periodic visits to Trinidad, he has lived in Brooklyn. He most recently visited Trinidad in 2007. Id. After that visit, the Government states, he returned to the United States on a visitor's visa, which has since expired. Respondent's Memorandum of Law in Opposition to the Petition for a Writ of Habeas Corpus (" Gov. Br." ) (Dkt. 16) at 1; Return to Habeas Petition (" Ret." ) (Dkt. 15) Ex. 1.
B. Straker's Criminal History
On October 25, 2008, Straker was arrested on narcotics charges, detained for several hours, and released on his own recognizance. Pet. ¶ 24; Pet. Ex. 1-K; Ret. Ex. 2; 11/22/13 Tr. 3. On December
16, 2008, Straker pled guilty in New York State court to Criminal Possession of a Controlled Substance (crack cocaine) in the Seventh Degree, N.Y.P.L. § 220.03, a misdemeanor. Pet. ¶ 24; Pet. Ex. 1-K; Ret. Ex. 2. That same day, he was sentenced to a conditional discharge and to five days of community service. Pet. Ex. 1-K; Ret. Ex. 2. His driver's license was also suspended for six months. Pet. Ex. 1-K; Ret. Ex. 2.
On February 27, 2009, Straker was again arrested on narcotics charges, detained for several hours, and released on his own recognizance. Pet. ¶ 24; Pet. Ex. 1-K; Ret. Ex. 3; 11/22/13 Tr. 5-6. On July 13, 2009, Straker pled guilty in New York state court to Criminal Sale of a Controlled Substance (crack cocaine) in the Third Degree, N.Y.P.L. § 220.39(1), a felony. Pet. ¶ 24; Pet. Ex. 1-K; Ret. Ex. 3. On September 17, 2009, he was sentenced to a five-year term of probation; his driver's license was also suspended. Pet. ¶ 24; Pet. Ex. 1-K; Ret. Ex. 3; 11/22/13 Tr. 6-7. On August 7, 2012, Straker was discharged, two years early, from probation. Pet. Ex. 1-G, 1-K; Ret. Ex. 3.
On December 28, 2012, Straker was arrested by local authorities in Brooklyn, New York, for a domestic dispute. Dkt. 26 (" Mitchell Decl." ) ¶ 3; see also Ret. Ex. 1, Tr. 7. On December 29, 2012, he was arraigned and taken into custody. Ret. Ex. 1. Immigration and Customs Enforcement (" ICE" ) records reflect that he was charged with four misdemeanors: Menacing in the Second Degree with a Weapon, Assault in the Third Degree with Intent to Cause Physical Injury, Criminal Possession of a Weapon in the Fourth Degree with Intent to Use, and Menacing in the Third Degree; and one violation, Harassment in the Second Degree. Id. By the time of his arraignment, DHS had lodged a detainer with the Brooklyn Central Booking office of the New York City Police Department (" NYPD" ), see Mitchell Decl. ¶ 3, Ret. Ex. 1, which notified the NYPD that, once it ceased to hold Straker on criminal charges, ICE intended to assume custody of him, and requested that the NYPD advise ICE if it planned to release Straker, to enable DHS to assume custody, see 8 C.F.R. § 287.7. At arraignment, bail was set at $250. Mitchell Decl. ¶ 5. Between December 29, 2012, and May 15, 2013, Straker was held on bail in state criminal custody at Rikers Island. Id. ¶ 6. On May 15, 2013, the criminal charges against Straker were dropped pursuant to New York's speedy trial statute, N.Y. Crim. Procedure Law § 30.30, after the prosecution indicated that it was not prepared to pursue the case. Mitchell Decl. ¶ 8.
C. The Removal Proceedings
On December 31, 2012, two days after Straker's arraignment, ICE initiated removal proceedings against him by issuing a Notice to Appear (" NTA" ). Ret. Ex. 4. ICE contended that Straker was removable because he had (1) overstayed his visa and (2) committed the two drug offenses. Ret. Ex. 1.
Between May 15, 2013, after the domestic-dispute charges against Straker were dropped, and May 16, 2013, Straker was held in state criminal custody pursuant to the ICE detainer. Mitchell Decl. ¶ 9. On
May 16, 2013, ICE took Straker into custody, id., served him with the Notice to Appear, Ret. Ex. 4, and determined that he was subject to mandatory detention under 8 U.S.C. § 1226(c); see Ret. Ex. 5. Straker, who to that point had been housed at Rikers Island, was thereafter transferred to the Orange County Correctional Facility, where he is presently detained by ICE. Dkt. 25; Pet. ¶ 9.
Straker is presently the subject of removal proceedings pending before Immigration Judge Alan Page. Pet. ¶ 35. At a hearing held August 16, 2013, Straker, who is represented by counsel, disputed that his 2009 conviction was an aggravated felony requiring removal. Judge Page rejected that claim. Pet. Ex. 3 (" Vendzules Decl." ) ¶ 9. Straker is now pressing a range of other claims in the removal proceedings. These include for asylum, withholding of removal, and voluntary departure. He also argues that the Convention Against Torture prohibits his removal, because if removed to Trinidad he would face government-sanctioned violence and be victimized. Id. ¶ ¶ 10, 12. Straker has also sought a U Visa, in connection with his assistance to law enforcement in connection with a violent stabbing of him in 2009; the NYPD, however, has declined his U Visa certification request. Id. ¶ 11. Finally, in state court, Straker is collaterally challenging his 2009 conviction that is a basis for the present removal proceedings. Id. ¶ 14.
On August 1, 2013, Straker requested, in Immigration Court, a hearing to challenge his mandatory detention classification under Matter of Joseph, 22 I. & N. Dec. 799 (BIA 1999) (allowing an alien to seek from an Immigration Judge a judgment of whether the alien is properly classified as subject to mandatory detention). Straker contended that he was entitled to a bond hearing. Vendzules Decl. ¶ 8. On August 27, 2013, Judge Page held the Joseph hearing. Id. ¶ 11. In arguing that he was not subject to mandatory detention, Straker argued he had not been detained at the moment " when [he had been] released," see 8 U.S.C. § 1226(c), from criminal custody, as, he contended, is required under
that statute. Judge Page rejected this claim. Ret. Ex. 7. In an oral decision, he stated that he was bound to follow the Board of Immigration Appeals' decisions construing 8 U.S.C. § 1226(c), under which an alien released from criminal custody for an enumerated felony is subject to mandatory detention regardless of whether ICE took the alien into custody immediately upon release from that custody or at a later point. Vendzules Decl. ¶ 11. Judge Page noted that the Second Circuit has not ruled on that question. Id.
D. Straker's Petition for a Writ of Habeas Corpus
On September 30, 2013, Straker filed a petition for a writ of habeas corpus with this Court. Reprising his argument before Judge Page, he primarily claims that he is entitled to a bond hearing because the mandatory detention statute does not apply in his case. Dkt. 1. On October 1, 2013, the Court held a telephone conference with the parties and set an expedited briefing schedule. On October 2, 2013, Straker filed a memorandum of law in support of his petition. Dkt. 10 (" Straker Br." ) (originally filed as Dkt. 7). On November 7, 2013, respondents filed an opposition. Dkt. 16 (" Gov. Br." ) (originally filed as Dkt. 15). On November 12, 2013, Straker replied. Dkt. 17 (" Straker Reply Br." ). On November 22, 2013, the Court held argument.
This Court has subject matter jurisdiction to hear Straker's petition for a writ of habeas corpus under 28 U.S.C. § 2241(c)(3). The Court is not deprived of jurisdiction by 8 U.S.C. § 1226(e), which prohibits judicial review of " [t]he Attorney General's discretionary judgment" regarding " the detention or release of any alien or the grant, revocation, or denial of bond or parole." That is because the issue presented by Straker's petition is the construction of the mandatory detention statute, not a discretionary decision whether or not to grant release on a bond. See, e.g., Garcia v. Shanahan, 615 F.Supp.2d 175, 179 (S.D.N.Y. 2009) ( " While the Immigration and Nationality Act . . . precludes review of the 'Attorney General's discretionary judgment' with regard to 'detention or release of any alien or the grant, revocation, or denial of bond or parole,' 8 U.S.C. § 1226(e), the United States Supreme Court rejected the contention that § 1226(e) deprives courts of jurisdiction to consider challenges to the interpretation of the mandatory detention statute." ) (citing Demore v. Kim, 538 U.S. 510, 517-518, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003)); Monestime v. Reilly, 704 F.Supp.2d 453, 456 (S.D.N.Y. 2010) (" [A] district court may review challenges to removal detention based on questions of statutory interpretation or constitutional challenges to the statutory framework." ); see also Henderson v. I.N.S., 157 F.3d 106, 119-22 (2d Cir. 1998) (habeas review extends to statutory questions in context of removal).
This case calls for the Court to construe the meaning of a single clause within 8 U.S.C. § 1226(c). The Court refers to this clause, which reads " when the alien is released," as ...