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Heredia v. Shanahan

United States District Court, S.D. New York

March 28, 2017

HOXQUELIN GOMEZ HEREDIA, 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; JOHN F. KELLY, in his official capacity as Secretary of the U.S. Department of Homeland Security; JEFF SESSIONS, in his official capacity as Attorney General of the United States; and the U.S. DEPARTMENT OF HOMELAND SECURITY, Respondents.[1]

          OPINION & ORDER

          KIMBA M. WOOD, UNITED STATES DISTRICT JUDGE

         Petitioner Hoxquelin Gomez Heredia has spent the better part of two years in the custody of the Department of Homeland Security ("DHS"), and applies under 28 U.S.C. § 2241 for a writ of habeas corpus releasing him pending the outcome of his removal proceedings. In the alternative, Heredia seeks a bail hearing before an immigration judge. For the reasons stated herein, Heredia's petition is GRANTED, and DHS is ordered to give him a bail hearing within two weeks.

         I. BACKGROUND

         Heredia is a citizen of the Dominican Republic. Am. Pet. ¶ 15, ECF No. 4. He first entered the United States in August 1997 as a legal permanent resident ("LPR"). Id. In 1999, Heredia was arrested and pled guilty to criminal possession of marijuana in the fifth degree, in violation of New York Penal Law ("NYPL") § 221.10. Id. ¶ 33. In 2008, Heredia was arrested for selling cocaine to an undercover police officer and, in 2010, he pled guilty to violating NYPL § 220.16(1), criminal possession of a controlled substance in the third degree by possessing a narcotic drug with the intent to sell. Id. ¶ 34. In 2015, Heredia sought to vacate the conviction, which was granted in 2016; subsequently, he agreed to instead plead guilty to violation NYPL § 220.16(12), criminal possession of a controlled substance in the third degree by possessing a mixture containing an aggregate weight of half an ounce or more of a narcotic drug. Pet'r Reply 4, ECF No. 17-1; see Id. Ex. G. Section 220.16(12) is a possession offense and is not an "aggravated felony" within the scope of 8 U.S.C. § 1101(a)(43).

         On June 11, 2015, Heredia left the United States with his family for a vacation to the Dominican Republic. Am. Pet. ¶ 37. Upon his return through John F. Kennedy International Airport on June 21, 2015, he was taken into custody. Id. ¶ 38. An immigration judge issued a removal order on January 12, 2016. Id. ¶ 40 & Ex. N. Heredia filed a timely appeal of the immigration judge's decision to the Board of Immigration Appeals ("BIA"), id. ¶ 41 & Ex. O, and the BIA affirmed the order of removal on May 6, 2016, Pet'r Reply 4 & Ex. F. Heredia then timely filed for review of the BIA's decision with the Second Circuit Court of Appeals. Id. at 4; see also Gomez-Heredia v. Sessions, No. 16-1465 (2d Cir.). Heredia filed a motion to stay removal with the Second Circuit, which the Government opposed; the motion remains pending. Gomez-Heredia, No. 16-1465, ECF Nos. 6, 12. Under the Government's forbearance policy, the U.S. Department of Immigration and Customs Enforcement ("ICE") will not remove a detainee while judicial proceedings are pending. See, e.g., Efstathiadis v. Holder, 752 F.3d 591, 599 n.5 (2d Cir. 2014).

         II. DISCUSSION

         The Court first addresses two key legal issues-the statutory framework and constitutional due process-before applying the law to Heredia's petition.

         a. Statutory Framework

         The parties dispute which provisions of Title 8 of the United States Code govern Heredia's detention. The three relevant sections are §§ 1225(b)(2)(A), 1226(c), and 1231.

         Section 1225(b)(2)(A) authorizes the detention of arriving aliens. It provides that an alien who is an "applicant for admission . .. shall be detained for a removal proceeding" if the examining immigration officer determines that the alien "is not clearly and beyond a doubt entitled to be admitted."

         Section 1226(c) authorizes the detention of aliens who have committed criminal offenses, specifically any alien who has committed certain criminal offenses, defined by 8 U.S.C. § 1182(a)(2), and which includes "a violation of. . . any law . . . relating to a controlled substance, " 8 U.S.C. § 1182(a)(2)(A)(i)(II). This section applies while the Government is seeking a final removal order. See Wang v. Ashcroft, 320 F.3d 130, 146 (2d Cir. 2003).

         Generally, LPRs re-entering the United States, such as Heredia, are not considered arriving aliens, and thus would be governed by § 1226, rather than § 1225. 8 U.S.C. § 1101(a)(13)(C); see also Arias v. Aviles, No. 15 Civ. 9249, 2016 WL 3906738, at *2 (S.D.N.Y. July 14, 2016) (Abrams, J.), appeal filed, No. 16-3186 (2d Cir. Sept. 12, 2016). However, LPRs who fit one of six categories-including aliens who have "committed an offense identified in section 1182(a)(2) of this title"-may be treated as an alien seeking admission. 8 U.S.C. § 1101(a)(13)(C)(v). Thus, despite his status as a LPR, Heredia was initially detained pursuant to § 1225(b)(2).

         Section 1231 governs the "[d]etention, release, and removal of aliens ordered removed." It directs that, following a removal order, 'the Attorney General shall remove the alien from the United States within a period of 90 days, " which is referred to as the "removal period." 8 U.S.C. § 1231(a)(1)(A). Pursuant to § 1231, an alien must be detained during the 90-day removal period, id. § 1231(a)(2), which begins when the order of removal becomes administratively final, unless the removal order is judicially reviewed and a stay of removal is ordered, or unless the alien is released, id. § 1231(a)(1)(B). If the removal period is tolled, § 1231 does not authorize detention and authority for detention reverts to another provision, such as §§ 1225 or 1226. Argueta Anariba v. Shanahan, 190 F.Supp.3d 344, 349 (S.D.N.Y. 2016) (Forrest, J.).

         Under the forbearance policy, the Government will not remove an alien while his or her petition is pending with the Second Circuit. In re Immigration Petitions for Review Pending inU.S. Court of Appeals for Second Circuit,702 F.3d 160, 162 (2d Cir. 2012). As a result, the Second Circuit does not, as a ...


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