United States District Court, S.D. New York
MEMORANDUM OPINION AND ORDER
LAURA TAYLOR SWAIN, District Judge.
Petitioner Rowsevelt Debel ("Debel"), who has been detained since October 21, 2012, seeks a writ of habeas corpus, pursuant to 28 U.S.C. § 2241, in connection with removal proceedings by the United States Immigration and Customs Enforcement ("ICE" or "the Government"). Debel has been detained pursuant to Section 236(c) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1226(c), which mandates detention for certain criminal aliens for the duration of their removal proceedings. Arguing (1) that he is not subject to § 1226(c) and is therefore being detained in violation of the law and (2) that he is being detained in violation of his constitutional rights, Debel seeks an order requiring ICE to grant him a bail hearing.
The Court has reviewed Magistrate Judge Cott's thoughtful Report and Recommendation ("Report") (dkt entry no. 21), which recommends that the petition be granted, as well as the Government's objections to the Report (dkt entry no. 24). The Court has considered thoroughly the record, including Debel's petition ("Petition"), the Government's Response (dkt entry no. 11), the Government Memorandum in Opposition to Debel's Petition (dkt entry no. 12), Debel's Reply Memorandum (dkt entry no. 16), the Government's letter responding to Debel's Reply Memorandum (dkt entry no. 17), the Report, and the Government's objections. While the legal issues implicated by the Petition are far from well-settled and the practical necessity of detention in Debel's individual circumstances is questionable, the Court respectfully disagrees with the Report's recommended conclusions regarding the scope of the mandatory detention statute and as to whether Debel's detention under the current circumstances of this case violates constitutional constraints on detention pending removal proceedings. Accordingly, the Court declines to adopt the Report and denies Debel's Petition.
This Memorandum Opinion and Order summarizes the pertinent facts, which are explained in further detail in the Report. Debel is a native and citizen of Haiti and has been a lawful permanent resident of the United States since January 12, 1990. On November 29, 2005, Debel was arrested for attempted criminal sale of a controlled substance (cocaine) in the third degree in violation of New York law. He pleaded guilty to that offense and was sentenced on March 21, 2006, to a five-year term of probation. On June 18, 2008, he was re-sentenced to one year of imprisonment for violating the terms of probation. On March 27, 2008, Debel was arrested for endangering the welfare of a child and certain sex offenses. He pleaded guilty to endangering the welfare of a child on July 21, 2008, and was sentenced to 90 days of imprisonment. He served the sentence and was released into the community, finding employment as a shoe salesman.
On October 21, 2012, ICE's Fugitive Operations Team arrested Debel at his home. ICE subsequently served Debel with a Notice to Appear ("NTA") in order to begin removal proceedings against him. The NTA charged that Debel was subject to removal pursuant to: (1) 8 U.S.C. § 1227(a)(2)(B)(i), for having been convicted of a violation related to a controlled substance; (2) 8 U.S.C. § 1227(a)(2)(A)(iii), for having been convicted of an aggravated felony (specifically, an offense related to an attempt to commit illicit trafficking in a controlled substance); and (3) 8 U.S.C. § 1227(a)(2)(E)(i), for having been convicted of a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment. Based on these prior convictions, ICE determined that Debel was subject to mandatory detention under 8 U.S.C. § 1226(c).
On November 20, 2012, Debel had his first appearance before an immigration judge. Due to three requests for continuances made by Debel and one Government error, which led to a continuance, a hearing regarding Debel's removability did not occur until May 22, 2013, at which time the immigration judge found that Debel was removable as charged in the NTA. The May 22 hearing was continued three more times in order to accommodate Debel's preparation of an application for relief from removal. On December 19, 2013, on Debel's request, a bond hearing was held, during which the immigration judge denied his request for change in custody status, finding that he was subject to mandatory detention. On February 3, 2014, the immigration judge rejected Debel's application for relief from removal and entered an order of removal.
On August 15, 2013, Debel filed his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, seeking immediate release from custody upon reasonable conditions of supervision or, in the alternative, a bail hearing at which the Government would have the burden of demonstrating that his continued detention is justified. Pet. at 13. The Government responded, opposing his habeas petition. On February 25, 2014, Judge Cott issued his Report, which recommends that the Court grant Debel a writ of habeas corpus and direct the Government to provide Debel with an individualized bond hearing. On March 17, 2014, the Government filed its objections to the Report ("Objections"), which challenge the Report's legal conclusions.
When reviewing a report and recommendation, the Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C.S. § 636(b)(1) (LexisNexis 2013). Where a party submits objections to a report and recommendation, the district court reviews de novo the aspects of the report to which the party objected. See Fed.R.Civ.P. 72(b)(3); 28 U.S.C. § 636(b)(1); United States v. Male Juvenile , 121 F.3d 34, 38 (2d Cir. 1997). The Court has considered thoroughly the record herein and, for the following reasons, the Court denies the Petition.
The principal legal conclusions upon which the Report's recommendation is based, and to which the Government objects, are (1) that the detention mandate of 8 U.S.C. § 1226(c) does not reach an individual who, like Debel, had been at liberty in the community for a significant period of time after a qualifying conviction and before his arrest and detention in connection with removal proceedings, and (2) that the length of Debel's detention without a hearing may violate Debel's constitutional right to due process. The Court addresses these issues in turn.
Scope of 8 U.S.C. § 1226(c) Mandatory Detention Authorization
A statute is construed in accordance to the meaning of its plain language unless it is ambiguous. See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837, 843 (1984). If a statute is ambiguous and an agency with jurisdiction has construed it, a court must defer to the agency's construction of the ambiguous language if the agency's ...