United States District Court, S.D. New York
For Jorge Araujo-Cortes, Plaintiff: Bridget Phillips Kessler, LEAD ATTORNEY, Brooklyn Defender Services, Brooklyn, NY.
For Christopher Shanahan, in his official capacity as New York Field Office Director for U.S. Immigration and Customs Enforcement, Diane McConnell, in her official capacity as Assistant Field Office Director of U.S. Immigration and Customs Enforcement, Thomas Winkowski, in his official capacity as Principal Deputy Assistant Director of U.S. Immigration and Customs, Jeh Johnson, in his official capacity as Secretary of the U.S. Department of Homeland Security, Eric Holder, in his official capacity as the Attorney General of the United States, U.S. Department of Homeland Security, Defendants: Christopher Kendrick Connolly, United States Attorney's Office, New York, NY.
ORDER AND OPINION GRANTING PETITION FOR HABEAS CORPUS AND DIRECTING RESPONDENTS TO PROVIDE PETITIONER WITH AN INDIVIDUALIZED BOND HEARING
ALVIN K. HELLERSTEIN, United States District Judge.
On January 30, 2014, Petitioner Jorge Araujo-Cortes, a lawful permanent resident of the United States and a citizen and national of Colombia, was arrested by immigration officials and put in immigration detention, based on an April 2009 conviction for which he was not sentenced to prison.
His requests for a release on bond have been denied because the government maintains that he is subject to mandatory detention under 8 U.S.C. § 1226(c), which provides that the Attorney General " shall take into custody an alien who is deportable by reason of having committed [certain specific offenses] when the alien is released . . . for the same offense." As a result, he has been in detention for over six months without any hearing to determine whether his detention is appropriate or necessary.
Araujo-Cortes filed the instant petition, challenging the government's refusal to release him on bond. He argues that he is not subject to mandatory detention pursuant to § 1226(c) because he was placed in detention, not " when [he was] . . . released," but more than five years after his underlying conviction. He also argues that holding him in prolonged detention without a bond hearing violates his constitutional
right not to be deprived of liberty without due process.
For the following reasons, I conclude that Congress did not intend the mandatory detention provision of § 1226(c) to apply to individuals plucked out of the communities they have reintegrated into. I also conclude that the continued detention of Araujo-Cortes without an individualized hearing to determine whether he is a flight risk or a danger to the community is inconsistent with the United States Constitution. Accordingly, Araujo-Cortes' petition is granted and the Respondents are ordered to provide a bond hearing with regard to Araujo-Cortes' continuing detention.
Araujo-Cortes was born in Colombia on November 9, 1984. A year later, his parents brought him to the United States. He was raised in the United States as an undocumented immigrant, completing elementary, middle and high school here.
In 2004, Araujo-Cortes was arrested by the New York Police Department on attempted robbery charges. He was never convicted of these charges, but as a result of his arrest he came to the immigration authorities' attention and was placed in removal proceedings based on his presence in the United States without lawful admission. These removal proceedings terminated in Araujo-Cortes' favor on February 28, 2008 when Immigration Judge (" IJ" ) Page granted him cancellation of removal. See 8 U.S.C. § 1229b(b) (providing that certain non-citizens who have maintained a continuous presence in the United States are eligible for cancellation of removal where that removal would result in " exceptional and extremely unusual hardship" to a qualifying relative). It appears that Araujo-Cortes received cancellation of removal because of the hardship his removal would cause to his father, who was battling gastric cancer at the time. By virtue of receiving cancellation of removal, Araujo-Cortes became a lawful permanent resident. See Gov't Ex. 1.
Araujo-Cortes' father has since died. But his mother and younger brother, who is a United States citizen, remain in the United States. Since his father's death, Araujo-Cortes has provided for them financially. Additionally, Araujo-Cortes has started his own family in America: his son, a United States citizen, was born on May 15, 2008. Although Araujo-Cortes does not live with his son's mother, he shares parenting responsibilities.
On April 28, 2009, Araujo-Cortes was convicted for Criminal Possession of a Weapon in the Fourth Degree, a misdemeanor in violation of N.Y.P.L. § 265.01. He was sentenced to a three-year term of probation for this conviction. On June 9, 2012, Araujo-Cortes successfully completed his probation.
On January 30, 2014 (nearly five years after his April 2009 conviction), Araujo-Cortes was arrested by Immigration and Customs Enforcement (" ICE" ) officials in New York City. At the time of his arrest, ICE served him with a Notice of Removability dated December 16, 2013, charging
him with removability from the United States under 8 U.S.C. § 1227(a)(2)(C). That section provides that a non-citizen who, after admission to the United States, was convicted " under any law of . . . possessing . . . any weapon, part, or accessory which is a firearm" is removable. The Notice of Removability referenced Araujo-Cortes' April 2009 conviction. The Notice of Removability is a charging document that begins removal proceedings against Araujo-Cortes. The removal proceedings are pending before IJ Page, the same IJ who had presided over his 2004 to 2008 removal proceedings, in New York City's Immigration Court.
Immediately following his arrest, Araujo-Cortes was placed in immigration detention in a facility in New Jersey. ICE determined that he was subject to mandatory detention under 8 U.S.C. § 1226(c) and therefore ineligible for a bond. On June 5, 2014, Araujo-Cortes applied to an IJ for release from immigration detention on a bond. The IJ denied his application for a bond determination based on the mandatory detention provision of 8 U.S.C. § 1226(c), and the BIA's decision in Matter of Rojas, 23 I. & N. Dec. 117 (BIA 2001), which held that the mandatory detention statute applies to non-citizens regardless of when they were placed in immigration detention.
On June 6, 2014, the IJ determined that Araujo-Cortes was removable, i.e. that the government had established that he was convicted " under any law of . . . possessing . . . any weapon, part, or accessory which is a firearm." The IJ adjourned Araujo-Cortes' case until August 6, 2014, to consider his eligibility for relief from removal. At that time, the IJ stated that he had requested the record from Araujo-Cortes' previous removal proceedings. Araujo-Cortes also wants those records, because they may contain information supportive of his application for cancellation or other relief from removal.
On June 11, 2014, Araujo-Cortes was temporarily brought to an immigration detention center in New York City. While in New York City, Araujo-Cortes filed the instant petition for a writ of habeas corpus. He requests an order directing the Respondents, various government officials responsible for his detention, to release him on bond or to hold an individualized bond hearing.
Araujo-Cortes has now been in detention for over six months.
As the government concedes, this Court has jurisdiction over Araujo-Cortes' petition for a writ of Habeas Corpus pursuant to 28 U.S.C. § § 2241 and 1331, based on Araujo-Cortes' presence in the Southern District of New York when this petition was filed. See Louisaire v. Muller, 758 F.Supp.2d 229, 233
(S.D.N.Y. 2010) (habeas petition filed during petitioner's presence in New York, court continued to exercise review over petitioner's detention where the government transferred petitioner to detention in New Jersey).
The Immigration and Nationality Act precludes review of the Attorney General's " discretionary judgment" with regard to the detention or release of any non-citizen. 8 U.S.C. § 1226(e). That statute, however, does not deprive courts of jurisdiction to conduct a habeas review based on an interpretation of the statutory framework governing immigration detention. See Demore v. Kim, 538 U.S. 510, 517, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003); Garcia v. Shanahan, 615 F.Supp.2d 175, 179 (S.D.N.Y. 2009).
II. Exhaustion of Administrative Remedies
There is no statutory requirement that a habeas petitioner exhaust his administrative remedies before challenging his immigration detention. Since Congress is silent on the issue, courts have applied a judicially created requirement that, generally, a petitioner must exhaust his administrative remedies before seeking federal court intervention. See Monestime v. Reilly, 704 F.Supp.2d 453, 456 (S.D.N.Y. 2010) (" A habeas petitioner generally must exhaust administrative remedies before seeking federal court intervention." ). In this case, Araujo-Cortes sought a bond hearing before an IJ. The IJ denied his application, invoking the mandatory detention statute. Araujo-Cortes can appeal that decision to the BIA. See 8 C.F.R. § § 1003.1(b)(7), 1003.19(f), 1003.38. Thus, he has not exhausted his administrative remedies.
However, courts may waive a judicially created exhaustion requirement where pursuing administrative remedies would be futile or where the agency has predetermined the issue before it. Monestime, 704 F.Supp.2d at 456 (" [E]xhaustion is not required where it would be futile or where the agency has predetermined the issue before it." ); see also Cave v. E. Meadow Union Free Sch. Dist., 514 F.3d 240, 249 (2d Cir. 2008) (" The exhaustion requirement is excused when exhaustion would be futile because the administrative procedures do not provide an adequate remedy." ).
In this case, it would be futile for Araujo-Cortes to appeal to the BIA in order to raise his statutory and constitutional arguments. The BIA has already rejected Araujo-Cortes' statutory arguments, holding that a non-citizen who, like Araujo-Cortes, was not taken into detention " when . . . released" is subject nevertheless subject to mandatory detention under § 1226(c). See Matter of Rojas, 23 I. & N. Dec. 117 (BIA 2001) (holding that 8 U.S.C. § 1226(c)'s mandatory detention provision applies regardless of how long ago an immigrant was released from criminal custody for a removable offense). The BIA considers that decision binding and has declined repeatedly to reconsider it. See, e.g., In Re Verner Alfonso Larios-Garcia, No. A040 138 097, 2011 WL 1570472, at *1 n.2 (BIA Mar. 30, 2011) (unpublished) (" [W]e find respondent's invitation to revisit our holding in Matter of Rojas. . . to be unpersuasive." ); Matter of Garcia Arreola, 25 I. & N. Dec. 267, 271 n.4
(BIA 2010) (" We therefore do not recede from Matter of Rojas. . . . " ).
It would also be futile for Araujo-Cortes to raise his constitutional argument that application of the mandatory detention statute to him violates the Due Process clause before the BIA as the BIA " does not have jurisdiction to adjudicate constitutional issues," United States v. Gonzalez-Roque, 301 F.3d 39, 48 (2d Cir. 2002), and Araujo-Cortes' constitutional claim is not predicated on procedural errors which could be corrected by the BIA, cf. id.
Additionally, requiring Araujo-Cortes to appeal to the BIA before I adjudicate his habeas petition would have the effect of prolonging his detention without the possibility of an application for a bond hearing. This is the very harm that Araujo-Cortes is trying to avoid.
Accordingly, it is appropriate for the Court to review the lawfulness of Araujo-Cortes' detention at this time, notwithstanding the fact that he has not ...