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Figueroa v. Aviles

United States District Court, S.D. New York

January 29, 2015

OSCAR AVILES, in his official capacity as Warden of Hudson County Jail; CHRISTOPHER SHANAHAN, in his official capacity as New York Field Office Director for U.S. Immigration and Customs Enforcement; JEH JOHNSON, in his official capacity as Acting Secretary of Homeland Security; ERIC HOLDER, in his official capacity as the Attorney General of the United States; and the U.S. DEPARTMENT OF HOMELAND SECURITY, Respondents

For Carlos Figueroa, Petitioner: Paul B Grotas, LEAD ATTORNEY, The Grotas Firm, P.C., New York, NY.

For Oscar Aviles, in his official capacity as Warden of Hudson County Jail, Christopher Shanahan, in his official capacity as New York Field Office Director for U.S. Immigration and Customs Enforcement, Jeh Johnson, in his official capacity as Acting Secretary of Homeland Security, Eric Holder, in his official capacity as the Attorney General of the United States, U.S. Department of Homeland Security, Respondents: Christopher Kendrick Connolly, United States Attorney's Office, SDNY, New York, NY.


ANALISA TORRES, United States District Judge.

Petitioner, Carlos Figueroa, has been detained by U.S. Immigration and Customs Enforcement (" ICE") since June 18, 2014. He seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241, ordering Respondents to grant his request for an individualized bond hearing. For the reasons that follow, Figueroa's petition is GRANTED. Respondents are directed to provide Figueroa with a bond hearing by February 9, 2015.


Figueroa, a citizen of the Dominican Republic, entered the United States as a conditional lawful permanent resident in 1997. Pet'r Mem. 10, ECF No. 3; see Return to Pet. (" Ret.") Ex. 1, ECF No. 8-1. Figueroa is married to a U.S. citizen and has two children, who are also U.S. citizens. See Pet'r Mem. Ex. A, ECF No. 3-1; Pet'r Mem. Ex. B, ECF No. 3-2. Figueroa has worked to provide for his family and has dutifully paid federal income taxes. See Pet'r Mem. Ex. C, ECF No. 3-3.

On October 6, 2004, U.S. Citizenship and Immigration Services (" USCIS") terminated Figueroa's conditional status because his mother failed to obtain permanent resident status. Ret. Ex. 2, ECF No. 8-2. In 2006, ICE commenced removal proceedings against Figueroa by filing a Notice to Appear. Ret. Ex. 3, ECF No. 8-3. By decision dated February 5, 2008, Immigration Judge Annette S. Elstein ordered Figueroa removed in absentia . Pet'r Mem. 11; see Ret. Ex. 4, ECF No. 8-4.

On June 14, 2010, Figueroa pleaded guilty in Supreme Court, Bronx County, to Criminal Sale of a Controlled Substance in the Third Degree, under New York Penal Law 220.39. Pet'r Mem. Ex, D at 7, ECF No, 3-4. Figueroa was sentenced to five years' probation. Id. Figueroa had been arrested for this and related offenses on December 5, 2008. Id. at 4.

On June 18, 2014, ICE arrested Figueroa pursuant to an outstanding warrant of removal based on the 2008 removal order. Pet'r Mem. 11. On August 6, 2014, Immigration Judge Philip L. Morace granted Figueroa's motion to reopen his prior removal proceedings on the ground that Figueroa presented evidence that he never received notice of the 2008 hearing. Pet'r Mem. Ex. F, ECF No. 3-6. Judge Morace also noted that Figueroa had " submitted evidence of strong equities" and " may be eligible to adjust his status to [lawful permanent resident]." Id.

Figueroa is currently detained pending the outcome of his removal proceedings. The basis for his mandatory detention is his 2010 narcotics conviction.[1] Pet'r Mem. 8, 11. On November 24, 2014, Figueroa filed a petition for a writ of habeas corpus seeking a bond hearing to determine whether his confinement should continue. Pet. 1, 8, ECF No. 2.


I. Statutory Background

Section 236(c) of the Immigration and Nationality Act (" INA"), 8 U.S.C. § 1226, regulates the detention of aliens who are facing removal due to past criminal convictions. Generally, immigration detention is authorized by § 1226(a), which provides for individualized review of detention decisions. Aliens detained pursuant to § 1226(a) may be released on bond or conditional parole while their immigration case is resolved.

The mandatory detention provision, § 1226(c), carves out an exception to the general framework set forth in § 1226(a). See id. § 1226(a) (" Except as provided in subsection (c) . . . ."). Under this exception, aliens who have committed one or more predicate crimes are to be detained by the Attorney General " when . . . released" from criminal custody. Id. § 1226(c)(1). In contrast to § 1226(a), immigration authorities do not have the option to provide aliens detained under § 1226(c) with a bond hearing. Instead, the aliens may be released only for limited purposes, none of which are relevant here. See id. § 1226(c)(2). In full, § 1226(c)(1) provides:

(c) Detention of criminal aliens
(1) Custody
The Attorney General shall take into custody any alien who--
(A) is inadmissible by reason of having committed any offense covered in section 1182(a)(2) of this title,
(B) is deportable by reason of having committed any offense covered in section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title,
(C) is deportable under section 1227(a)(2)(A)(i) of this title on the basis of an offense for which the alien has been sentence[d] to a term of imprisonment of at least 1 year, or
(D) is inadmissible under section 1182(a)(3)(B) of this title or deportable under section 1227(a)(4)(B) of this title,
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) (emphasis added).

Respondents contend that Figueroa's 2010 narcotics conviction renders him deportable under 8 U.S.C. § § 1227(a)(2)(A)(iii) and 1227(a)(2)(B)(i), which, in turn, trigger mandatory detention under § 1226(c)(1)(B).

II Application

Figueroa advances three arguments in support of his claim that he is not subject to mandatory detention without a bond hearing under § 1226(c). First, he contends that because he never served a custodial sentence, he was, therefore, never " released" from custody as § 1226(c) requires. Second, Figueroa argues that he was not detained " when released." Finally, he claims that mandatory detention under § 1226(c), as applied to this case, offends the Due Process Clause of the U.S. Constitution. Figueroa is entitled to relief on each of these grounds.

A. Meaning of " Released"

Figueroa was arrested for the narcotics offense that serves as the basis for his detention on December 5, 2008. He was convicted on June 14, 2010 and sentenced to five years' probation. Because Figueroa's conviction did not result in a custodial sentence, Figueroa maintains that he was never " released" under § 1226(c). Respondents, on the other hand, insist that the qualifying " release" for purposes of mandatory detention can include a release from an arrest preceding a conviction for a removable offense.

In Straker v. Jones, 986 F.Supp.2d 345 (S.D.N.Y. 2013), the Honorable Paul A. Engelmayer rejected Respondents' argument. After engaging in a painstaking statutory construction of the mandatory detention statute, the Court held that an alien is " released" within the meaning of the statute only when he or she is released from " physical restraint, " such as imprisonment, pursuant to a conviction for an enumerated offense. Id. at 356-63; accord Martinez-Done v. McConnell, No. 14 Civ. 3071, 2014 WL 5032438, at *5 (S.D.N.Y. Oct. 8, 2014). The Court concluded that the petitioner's " post-arrest releases, prior to each of his crack-related convictions, did not constitute a 'release' within the meaning of § 1226(c)(1)." Straker, 986 F.Supp. at 360. Thus, because the petitioner had never been imprisoned or otherwise subjected to physical restraint after a conviction, § 1226(c) did not apply to him. Id. at 362-63.

This Court agrees with Judge Engelmayer's construction of the term " released" in Straker and adopts Part III.B.'s reasoning. See id. at 356-63. Figueroa, like the petitioner in Straker, was never released from physical custody following a conviction for an enumerated offense. Thus, the Department of Homeland Security (" DHS") lacks the authority to detain him under § 1226(c). DHS may only continue to detain Figueroa during his removal proceedings under § 1226(a), which requires a bond hearing.

B. Meaning of " When"

Next, Figueroa argues that, even if he were released from criminal custody for a removable offense, he is entitled to a bond hearing because § 1226(c) limits mandatory detention to individuals who are detained " at or around" the time they are released. By contrast, Respondents urge that individuals are subject to being taken into custody " at any time" following their release under § 1226(c).

In Martinez-Done v. McConnell, 2014 WL 5032438, the Honorable Shira A. Scheindlin, employing a textual analysis, held that the phrase " when released" carries " an implicit requirement of temporal proximity." Id. at *7. This Court adopts the " time-limiting construction" of § 1226(c) articulated in Martinez-Done and other Southern District of New York cases. Id. at *6-8; see also Araujo-Cortes v. Shanahan, No. 14 Civ. 4231, 2014 WL 3843862, at *8 (S.D.N.Y. Aug. 5, 2014) (" By including the 'when . . . released' clause, Congress plainly intended that there be a connection between the timing of a non-citizen's release and when the non-citizen is taken into custody."); Lora v. Shanahan, 15 F.Supp.3d 478, 2014 WL 1673129, at *6 (S.D.N.Y. 2014) (" The majority of district courts to address the issue . . . have adopted the time-limiting construction, rejecting the BIA's interpretation and holding that the statute unambiguously provides that ICE may only subject an alien to mandatory detention if it detains him immediately at or around the time he is released from criminal custody for the underlying offense." (internal quotation marks omitted)); Louisaire v. Muller, 758 F.Supp.2d 229, 236 (S.D.N.Y. 2010) (" The clear purpose of § 1226(c)(1) is to authorize the mandatory detention of immigrants who have committed offenses enumerated within § 1226(c)(1)(A)-(D) immediately upon their release from criminal sentences for those same offenses, even if they are still serving part of their sentence out in the community, under parole, supervised release, or probation."); Garcia v. Shanahan, 615 F.Supp.2d 175, 182 (S.D.N.Y. 2009) (finding that the plain language of the statute " manifests Congress' clear intent that there must be a nexus between the date of release and the removable offense").

Indeed, as the First Circuit recently explained, neither the INA's text, nor structure, nor purpose, nor legislative history, " suggest that Congress contemplated automatic detention[ ] being imposed years after an alien's release from custody." Castañeda v. Souza, 769 F.3d 32, 43 (1st Cir. 2014). " The mandatory detention provision does not reflect a general policy in favor of detention; instead, it outlines specific, serious circumstances under which the ordinary procedures for release on bond at the discretion of the immigration judge should not apply." Saysana v. Gillen, 590 F.3d 7, 17 (1st Cir. 2009). " When the government has delayed several years before arresting an alien, the presumption of dangerousness and flight risk is eroded by the years in which the alien lived peaceably in the community." Castañeda, 769 F.3d at 43; see also Martinez-Done, 2014 WL 5032438, at *8 (" [T]he more remote in time a conviction becomes and the more time after a conviction an individual spends in a community, the lower his bail risk is likely to be." (quoting Saysana, 590 F.3d at 17-18)).

Here, ICE apprehended Figueroa over five years after he was arrested in connection with the relevant narcotics offense and four years after he pleaded guilty to the charge. Because Figueroa was not timely detained, he is not subject to mandatory detention under § 1226(c). Rather, DHS's authority for detaining Figueroa during the pendency of his removal proceedings is grounded in § 1226(a). For this additional reason, Figueroa is entitled to have an impartial adjudicator determine whether his detention is justified.

C. Due Process

Finally, several courts have held that the continued detention of non-citizens in circumstances similar to Figueroa's violates the Due Process Clause of the U.S. Constitution. See, e.g., Martinez-Done, 2014 WL 5032438, at *9 (" [T]he government's construction of section 236(c) would confer limitless authority on the Attorney General to pluck immigrants from their families and communities with no hope of release pending removal--even decades after criminal confinement."); Araujo-Cortes, 2014 WL 3843862, at *14 (holding that petitioner's " continued detention without a bond hearing is inconsistent with the due process clause of the Constitution"); Monestime v. Reilly, 704 F.Supp.2d 453, 459 (S.D.N.Y. 2010) (" For Monestime, who has been held for eight months on removal charges for misdemeanors committed long ago and is now facing indefinite detention, an individualized hearing on the necessity of his detention is constitutionally required."); see also Castaneda v. Souza, 952 F.Supp.2d 307, 320 (D. Mass. 2013), aff'd, 769 F.3d 32 (1st Cir. 2014) (" Mandatory detention ought not be taken so lightly both because it has such a dramatic effect on the outcome of deportation proceedings and because an individual's liberty is at stake.").

Clearly, Figueroa's mandatory detention without a bond hearing raises serious due process concerns.


For these reasons, Figueroa's petition is GRANTED. The Court directs Respondents to provide Figueroa with a bond hearing, consistent with § 1226(a), by February 9, 2015. It is further ORDERED that:

1. The parties shall submit a report to the Court on the outcome of the hearing within five days of a decision by an immigration judge.
2. By February 16, 2015, Petitioner shall file a letter memorandum concerning his entitlement to costs and attorneys' fees under the Equal Access to Justice Act.


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