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Gordon v. Shanahan

United States District Court, S.D. New York

March 13, 2015

DEAN GORDON, Petitioner,
v.
CHRISTOPHER SHANAHAN ET AL., Respondents.

MEMORANDUM OPINION & ORDER

JOHN G. KOELTL, District Judge.

In 2002, Dean Gordon-a lawful permanent resident-pleaded guilty to the attempted sale of a controlled substance; he was eventually sentenced to imprisonment for one year and released from custody in September 2005. On June 26, 2014, agents from Immigration and Custom Enforcement ("ICE") arrested and detained Mr. Gordon because his 2005 conviction may render him removable from the United States. Mr. Gordon remains in detention pursuant to 8 U.S.C. § 1226(c), which requires the Department of Homeland Security ("DHS") to arrest and detain aliens who have committed certain crimes. Mr. Gordon has not received a bond hearing.

Mr. Gordon now brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. He petitions for release from custody or a hearing in which the respondents would be required to demonstrate that his continued detention is justified.

For the following reasons, the petition for a writ of habeas corpus is granted, and the respondents are ordered to release Mr. Gordon unless they provide him a timely hearing to determine whether his continued detention is justified.

I.

In 1987, Dean Gordon became a lawful permanent resident of the United States. Habeas Pet. Ex. C. In 2002, Mr. Gordon was arrested on drug-related charges, and that same year he pleaded guilty in the New York State Supreme Court to the attempted sale of a controlled substance, in violation of New York Penal Law sections 110 and 220.39. Gordon Decl.¶ 11; Habeas Pet. Ex. F. On May 11, 2005, he was sentenced to one-year imprisonment, and on September 15, 2005, he was released from state custody. Gordon Decl. ¶¶ 11-13.

On June 26, 2014, ICE officers arrested Mr. Gordon and placed him in detention. Gordon Decl. ¶ 2; Habeas Pet. Ex. D; Gov't Ex. D. Mr. Gordon was detained pursuant to 8 U.S.C. § 1226(c), which provides for the detention without bond of certain aliens. On July 3, 2014, Mr. Gordon was served with a Notice to Appear, which charged him with removability pursuant to 8 U.S.C. §§ 1227(a)(2)(A)(iii) (aggravated felony) and 1227(a)(2)(B)(i) (controlled substance offense).[1] The Notice to Appear identifies the May 11, 2015, conviction as the basis for these charges. Habeas Pet. Ex. D.

At a January 14, 2015, hearing, an immigration judge determined that Mr. Gordon was removable pursuant to the charges listed in the Notice to Appear. Loyo Decl. ¶ 15. At this hearing, Mr. Gordon requested a bond hearing. The immigration judge denied the request, holding that Mr. Gordon was subject to mandatory detention. Loyo Decl. ¶ 16. The immigration judge then adjourned the hearing to allow Mr. Gordon to submit any applications for relief from removal. Loyo Decl. ¶ 15.

Also on January 14, 2015, Mr. Gordon filed this petition for a writ of habeas corpus while temporarily detained at 201 Varick Street, New York, New York 10014. Habeas Pet. ¶ 23. Gordon is currently detained in Kearny, New Jersey.

II.

The Court has jurisdiction pursuant to 28 U.S.C. §§ 2241 and 1331. Although 8 U.S.C. § 1226(e) bars judicial review of certain "discretionary judgment[s], " that section does not deprive the Court of jurisdiction over Gordon's constitutional and statutory challenges to his detention. See Demore v. Kim , 538 U.S. 510, 517 (2003); see also Louisaire v. Muller , 758 F.Supp.2d 229, 234 (S.D.N.Y. 2010).[2]

III.

Mr. Gordon was charged with being removable for having committed an aggravated felony and a controlled substance offense, and Congress mandated that such aliens must be taken into custody at the time they are released. See § 1226(c)(1) ("The Attorney General shall take into custody any alien who... 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... when the alien is released...."); see also United States v. Rios-Zamora , 153 Fed.App'x 517, 520-21 (10th Cir. 2005) ("With the transfer of authority under [6 U.S.C.] § 557, as of March 1, 2003, the title Attorney General' is synonymous with the Secretary of Homeland Security."). The DHS "may release an alien described in [§ 1226(c)(1)] only" for narrow reasons not at issue here. See § 1226(c)(2). Unlike noncriminal aliens, who are detained under § 1226(a), aliens detained under § 1226(c) typically are not entitled to a bond hearing before an immigration judge.

Mr. Gordon challenges his continued detention without a bond hearing on three grounds. First, he argues that § 1226(c)(1), which requires the Attorney General to "take into custody any alien... when the alien is released, " only authorizes mandatory detention of aliens who are arrested immediately after their release from criminal custody. Second, he contends that mandatory detention years after his release from criminal custody violates the Due Process Clause of ...


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