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Cruz v. Shanahan

United States District Court, S.D. New York

January 30, 2015

SONNI A. CRUZ, Plaintiff,
v.
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 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, Defendants

For Sonni A. Cruz, Petitioner: Marjorie Josel Menza, LEAD ATTORNEY, Debevoise & Plimpton, LLP (NYC), New York, NY.

For Christopher Shanahan, in his official capacity as New York Field Office Director for U.S. Immigration and Customs Enforcement et. al., Jeh Johnson, in his official capacity as 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: Shane Patrick Cargo, U.S. Attorney Office SDNY, New York, NY.

OPINION & ORDER

VALERIE CAPRONI, United States District Judge.

Petitioner Sonni Cruz has been detained bye U.S. Immigrations and Customs Enforcement (" ICE" ) since October 9, 2014, pending ICE's determination whether he will be removed from the United States. After ICE denied Cruz's request for an individualized bond hearing to determine whether he should be released during the pendency of the removal proceedings, he petitioned this Court for a writ of habeas corpus, 28 U.S.C. § 2255, requesting an individualized bond hearing. For the reasons set forth below, Cruz's petition is GRANTED.

I. BACKGROUND

Cruz is a native and citizen of the Dominican Republic who entered the United States in 1997 and became a lawful permanent resident in November 2001. Resp't Mem. at 2. In 2005, Cruz was arrested and, on December 8, 2009, pled guilty to conspiracy to distribute cocaine in violation of 21 U.S.C. § 846[1] in the U.S. District Court for the Southern District of New York; he was sentenced to time served plus five years of supervised release. Resp't Ex. B at 1-2. Cruz was arrested on September 30, 2014, before the expiration of his supervised release, and, on October 9, 2014, was transferred to ICE custody. Pet. ¶ 18.[2] The day of his transfer, an ICE officer determined that Cruz would be detained without a bond hearing during the pendency of removal proceedings pursuant to section 1226 of the Immigration and Naturalization Act (" INA" ), 8 U.S.C. § 1226. Resp't Ex. E. An Immigration Judge reviewed Cruz's request for a change in custody status and, on December 10, 2014, denied that request because, he said, section 1226(c) mandated detention pending removal. Resp't Ex. F.

Cruz petitioned for a writ of habeas corpus and argues that he is entitled to an individualized bond hearing pursuant to section 1226(a) to determine whether he should be released pending a removal determination. Pet. ¶ ¶ 7, 52 (Dkt. 4); see 8 U.S.C. § 1226(a).[3] Section 1226(a) grants the Attorney General discretion to release an alien on bond or conditioned parole pending a decision whether the alien is to be removed from the United States, " except as provided in" section 1226(c). 8 U.S.C. § 1226(a). Cruz argues that section 1226(c) does not apply to him because he was taken into custody well after he was released from custody -- not " when . . . released" from criminal confinement, as provided in section 1226(c). Pet. ¶ 5. Cruz also argues that his detention without a bond hearing violates his Fifth Amendment right to Due Process. Pet. ¶ ¶ 6, 39-42.

II. SUBJECT MATTER JURISDICTION

The INA deprives federal courts of jurisdiction to review 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). Although Respondents do not challenge the Court's jurisdiction to review the Immigration Judge's rejection of Petitioner's request for a bond hearing, the Court is obligated to consider subject matter jurisdiction sua sponte. See Florida v. Thomas, 532 U.S. 774, 777, 121 S.Ct. 1905, 150 L.Ed.2d 1 (2001). In Demore v. Kim, 538 U.S. 510, 517, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003), the Supreme Court held that section 1226(e) does not bar habeas review of a challenge to the " statutory framework that permits detention without bail" found in 8 U.S.C. § 1226(c). The Court therefore proceeds to the merits of the petition.

III. STATUTORY FRAMEWORK

The mandatory detention provision of section 1226(c) is part of a section of the INA that governs the arrest and detention of aliens who are subject to removal from the United States. See generally 8 U.S.C. § 1226. Whether Cruz is subject to mandatory detention or entitled to a bond hearing turns on the interplay between sections 1226(a) and 1226(c). The general rule under section 1226(a) is that aliens arrested and charged with removal may be released on bond or conditional parole during the pendency of removal proceedings:

(a) Arrest, detention, and release

On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States. Except as provided in subsection (c) of this section and pending such decision, the Attorney General--

may continue to detain the arrested ...

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