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Talango v. Shanahan

United States District Court, S.D. New York

May 20, 2015

JAVIER TALANGO, Petitioner,
v.
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; SARAH SALDAÑA, in her official capacity as Principal Deputy Assistant Director of U.S. Immigration and Customs Enforcement; JEH JOHNSON, in his official capacity as Secretary of the U.S. Department of Homeland Security; LORETTA LYNCH, in her official capacity as the Attorney General of the United States; and the U.S. DEPARTMENT OF HOMELAND SECURITY, Respondents.

MEMORANDUM OPINION & ORDER

VALERIE CAPRONI, District Judge.

Petitioner Javier Talango, a citizen of Belize and a lawful permanent resident of the United States, has been detained in immigration custody, without a bond hearing, since September 2014 pursuant to section 236(c) of the Immigration and Naturalization Act ("INA"), 8 U.S.C. § 1226(c). The sole issue in this case is whether an alien who is not detained upon his release from criminal custody is nevertheless "an alien described in paragraph (1)" of section 236(c). 8 U.S.C. § 1226(c)(2). This Court has already determined this precise legal issue, see Cruz v. Shanahan, ___ F.Supp. 3d ___, No. 14-CV-9736, 2015 WL 409225 (S.D.N.Y. Jan. 30, 2015); so too have many other courts in this District, see, e.g., Arjune v. Shanahan, No. 15-CV-1551(AJP), 2015 WL 1529286, at *1 (S.D.N.Y. Apr. 7, 2015) (describing the identical cases as " deja vu all over again"); Gordon v. Shanahan, No. 15-CV-261(JGK), 2015 WL 1176706 (S.D.N.Y. Mar. 13, 2015); Rodriguez v. Shanahan, ___ F.Supp. 3d ___, No. 14-CV-9838(SN), 2015 WL 405633 (S.D.N.Y. Jan. 30, 2015); Figueroa v. Aviles, No. 14-CV-9360(AT), 2015 WL 464168 (S.D.N.Y. Jan. 29, 2015). The Second Circuit is also currently considering this precise legal issue. See Lora v. Shanahan, No. 14-2343-cv. Although the Court would ordinarily be inclined to stay the case pending the Circuit's decision, the deprivation of Talango's liberty without any individualized determination warrants immediate review. Accordingly, Talango's petition is GRANTED.

BACKGROUND

The relevant facts are few and undisputed. Talango is a 48-year-old citizen of Belize who has lived in the United States as a lawful permanent resident since 1980. Between 1995 and 2011, Talango "was convicted of at least twenty-two crimes, " Charles Decl. ¶ 5, including a conviction for an aggravated felony (Criminal Sale of a Controlled Substance in the fourth degree) in 2005 and a simple drug possession conviction in 2011, id. ¶¶ 12-13. Talango ascribes many of the problems in his life to his wife's death in early 2003; Talango claims that he "struggled to cope and fell into a pattern of drug abuse and homelessness." Pet'r Mem. at 3. Since 2007, Talango claims that he has been living peacefully at his parents' residence. Id. Agents from Immigration and Customs Enforcement ("ICE") arrested Talango on September 24, 2014; he has been in ICE custody since that time without a bond hearing (although he has persistently delayed the adjudication of the merits of his deportation proceedings).

DISCUSSION

I. The Immigration and Naturalization Act

The INA generally grants the Department of Homeland Security ("DHS")[1] the discretion to detain or release on bond aliens pending the determination whether they are to be deported. See 8 U.S.C. § 1226(a). There is an exception, however, which appears in subsection (c) of section 236:

(1)... 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. 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 [sic] 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 ...

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