MEMORANDUM AND ORDER
Petitioner Shaka O’Christopher Johnson brings this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Johnson has been detained by the Bureau of
Four months ago, an Immigration Judge found Johnson removable, and ordered him removed from the United States to Jamaica. Johnson timely appealed this decision to the Board of Immigration Appeals, triggering an automatic stay of removal. For the reasons stated herein, the Court concludes that Johnson’s claim has not yet ripened to a due process violation, but that could soon change. At present, the petition for writ of habeas corpus is denied without prejudice, but the Court will hold a further hearing on July 2, 2013 to re-evaluate Johnson’s claim.
BACKGROUND
Johnson, a native and citizen of Jamaica, lawfully entered the United States on a temporary visitor visa on September 3, 2001, at the age of nineteen. (Verified Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (“Pet.”) at 20;
On May 30, 2006, Johnson was arrested in Westchester County for criminal possession of a controlled substance. (Return, Ex. 2 (Information).) On July 25, 2007, Johnson waived indictment and pled guilty to Criminal Possession of a Controlled Substance in the Fourth Degree, a class C felony, in violation of N.Y. Penal Law § 220.09. (Id. (Uniform Sentence and Commitment; Waiver of Indictment).) Johnson was sentenced to treatment at St. John’s Riverside Hospital Solutions Chemical Dependence Treatment Program. (Pet. at 39-40 (Discharge Form; Treatment Certificate); Return, Ex. 2 (Uniform Sentence and Commitment).) Johnson entered this treatment program on September 18, 2007 and was granted a successful discharge roughly six months later on March 14, 2008. (Pet. at 39-40 (Discharge Form; Treatment Certificate).)
Nearly four years later, on January 18, 2012, Johnson was taken into ICE custody and removal proceedings were commenced against him. (Pet. at 21; Return, Ex. 3.) ICE charged Johnson as removable under 8 U.S.C. § 1227(a)(2)(B)® (covering aliens convicted of any crime involving a controlled substance, other than a single offense involving possession of 30 grams or less of marijuana for personal use) based on Johnson’s 2007 controlled substance conviction, and under 8 U.S.C. § 1227(a)(1)(B) for remaining in the United States without lawful status after the expiration of his visitor’s visa. (Return, Ex. 3.) ICE determined that Johnson’s removal charges subjected him to mandatory detention under 8 U.S.C. § 1226(c), precluding a review of his custody by an Immigration Judge (an “IJ”). (Return, Ex. 4.) On December 17, 2012, after eleven months without a bond hearing, an IJ is
Johnson, appearing pro se, filed this petition for writ of habeas corpus on September 12, 2012. (Docket # 1). Johnson also submitted an application under 18 U.S.C. § 3006A(g) requesting the Court appoint counsel. (Docket # 3.) The Court initially denied the application without prejudice, noting that “appointment of counsel at this early stage is not warranted.” (Docket # 12.) However, after receiving and reviewing the government’s memorandum of law in opposition to the habeas petition, the Court concluded that additional guidance from counsel might be useful in reviewing the Petition. (Docket # 28.) Accordingly, the Court requested that the Pro Se Clerk list this action as eligible for assigned counsel, (id.), and Johnson formally obtained counsel on March 12, 2013, (Docket # 36).
Johnson argues that his detention is not authorized under 8 U.S.C. § 1226(c) because he was not taken into ICE custody until nearly four years after his release from state criminal custody. He also argues that his prolonged detention violates his right to due process under the Fifth Amendment to the United States Constitution.
DISCUSSION
I. Jurisdiction
This Court has subject matter jurisdiction to review the instant petition for writ of habeas corpus pursuant to 28 U.S.C. §§ 2241(a) & (c). Section 236 of the Immigration and Nationality Act (the “INA”), codified at 8 U.S.C. § 1226, provides in part that “[t]he Attorney General’s discretionary judgment regarding the application of this section shall not be subject to review.” 8 U.S.C. § 1226(e). Johnson has not challenged the Attorney General’s discretion. Instead, Johnson has challenged the interpretation of “the statutory framework that permits his detention without bail.” Demore v. Kim,
Neither party has contested this Court’s personal jurisdiction. Venue is proper because “a substantial part of the events ... giving rise to the claim occurred” within this district. 28 U.S.C. § 1391(e).
A habeas petition should name as respondent “the person who has custody over [the petitioner].” 28 U.S.C. § 2242. In accord with the “immediate custodian rule, longstanding practice confirms that in habeas challenges to present physical confinement ... the default rule is that the proper respondent is the warden of the facility where the prisoner is being held, not the Attorney General or some other remote supervisory official.” Rumsfeld v. Padilla,
II. Interpretation of Section 1226(c)
Section 236 of the INA grants the Attorney General authority to detain any alien pending a decision on whether the alien is to be removed from the United States.
Section 1226(c) provides in part:
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 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.
(2) Release
The Attorney General may release an alien described in paragraph (1) only [under limited circumstances related to witness protection and not applicable to petitioner]....
8 U.S.C. § 1226(c) (emphasis added).
Johnson is charged with removability under 8 U.S.C. § 1227(a)(2)(B) based on his 2007 controlled substance conviction. (Return, Ex. 3.) Johnson does not dispute that this offense is covered by section 1226(c)(1)(B), which authorizes mandatory detention of an alien who is deportable by reason of having committed an offense covered in section 1227(a)(2)(B). Nonetheless, Johnson argues that his detention is not authorized by section 1226(c). According to Johnson, the language “when the alien is released” in section 1226(c) describes the specific point in time at which the Attorney General is required to take certain aliens into custody. Because Johnson was not detained until nearly four years after his release from criminal custody, he argues that section 1226(c) cannot authorize his detention. Instead, Johnson argues that his detention is only authorized under section 1226(a), thus affording Johnson the possibility of a bond hearing.
Under the two-step analysis set forth in Chevron, this Court must first determine whether section 1226(c) is ambiguous. If it is unambiguous, then Congress’s clearly expressed intent is binding upon this Court and the BIA. If, however, section 1226(c) is ambiguous, this Court must proceed to the second step of the Chevron analysis, and determine whether the BIA’s interpretation is permissible.
Sulayao,
First, the Court held that section 1226(c) is ambiguous. Noting that “[a] statute is ambiguous if it is susceptible to two or more reasonable interpretations,” id. (citing Natural Res. Def. Council Inc. v. Muszynski,
[t]he word “when,” as used in the phrase “when the alien is released,” is ambiguous. As several courts have recognized, “when” can “include[ ] the characteristic of ‘immediacy,’ referring in its primary conjunctive sense, to action or activity occurring ‘at the time that’ or ‘as soon as’ other action has ceased or begun.” Waffi v. Loiselle,527 F.Supp.2d 480 , 488 (E.D.Va.2007) (citing 20 The Oxford English Dictionary 209 (2d ed. 1989), and citing The American Heritage Dictionary of the English Language (4th ed. 2000)). “When” can also mean “at or during the time that.” Concise Oxford English Dictionary (11th ed. rev. 2008). These different definitions lead to two different meanings of the phrase “when the alien is released,” and therefore, two different conclusions as to whether petitioner’s detention is authorized by section 1226(c). Applying the first meaning, the phrase “when the alien is released” would mean “at the time that the alien is released,” and petitioner’s detention may not be authorized under section 1226(c). If the second definition is used, however, the phrase means “at or during the time that the alien is released.” This definition would authorize[] petitioner’s detention because he was taken into custody while on parole, i.e., during his release.
Sulayao,
Having found the statute ambiguous, the Court then proceeded to determine whether the BIA’s interpretation was permissible:
In Rojas, the BIA interpreted section 1226(c) to include aliens such as petitioner, who were not taken into custody immediately upon release from incarceration. It first determined that section1226(c) was ambiguous because the phrase “an alien described in paragraph (1)” contained in section 1226(c)(2) “does not unambiguously tell us whether it encompasses the ‘when the alien is released’ clause in [section 1226(c)(1) ] or merely references the four categories of aliens described in subparagraphs (A) through (D).” Matter of Rojas, 23 I & N Dec. 117, 120 (2001). To resolve this ambiguity, the BIA analyzed the statute in light of four separate considerations: (1) the ordinary meaning of the statute’s language, though ambiguous, (2) the overall statutory context and goals, (3) the statute’s predecessor provisions, and (4) practical considerations. Id. at 121— 24.
First, examining the plain language of section 1226(c), the BIA determined that the phrase “an alien described in paragraph (1)” “seems ... most appropriately to be a reference to an alien described by one of four subparagraphs, (A) through (D)” because “[t]he ‘description’ of the alien does not naturally appear to include any or all of the concluding clauses of paragraph (1).... ” Id. at 121. The BIA found that: “[the] ‘when released’ clause is no more a part of the description of an alien who is subject to detention than are the other concluding clauses ... [which] simply make it plain that the duty to detain is not affected by the character of an alien’s release from criminal incarceration or the possibility that an alien may be rearrested on criminal charges.” Id.
The BIA then examined Congress’s intent in enacting the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, which contained section 1226(c). It found that “Congress was frustrated with the ability of aliens, and particularly criminal aliens, to avoid deportation if they were not actually in [INS] custody when their proceedings were complete.” Id. at 122. After reviewing several other parts of the INA, the BIA stated: “we discern that the statute as a whole is focused on the removal of criminal aliens in general, not just those coming into [INS] custody ‘when ... released’ from criminal incarceration.” Id.
Turning to prior versions oí the INA, the BIA found instructive former section 242(a)(2), as amended by certain enactments in 1990 and 1991. That provision stated:
“(A) The Attorney General shall take into custody any alien convicted of an aggravated felony upon release of the alien (regardless of whether or not such release is on parole, supervised release, or probation, and regardless of the possibility of rearrest or further confinement in respect of the same offense). Notwithstanding paragraph (1) or subsections (c) and (d) but subject to sub-paragraph (B), the Attorney General shall not release such felon from custody.
(B) The Attorney General may not release from custody any lawfully admitted alien who has been convicted of an aggravated felony, either before or after a determination of deportability, unless the alien demonstrates to the satisfaction of the Attorney General that such alien is not a threat to the community and that the alien is likely to appear before any scheduled hearings.”
8 U.S.C. § 1252(a)(2) (1992). The BIA found this provision helpful because the requirements of paragraph (B) applied to all aggravated felons, not just those that were taken into custody at the time of their release. Id. at 123-24.
Finally, the BIA recognized that interpreting section 1226(c) to apply only to those aliens taken into custody immediately upon release would cause practical and analytical problems: “it is not clear where the line would be drawn under [the alien’s] reading of the statute. Would mandatory detention apply only if an alien were literally taken into custody ‘immediately’ upon release, or would there be a greater window of perhaps 1 minute, 1 hour, or 1 day?” Id. at 124.
Sulayao,
Johnson, noting that “a decision of a federal district court judge is not binding precedent in either a different judicial district, the same judicial district, or even upon the same judge in a different case,” urges the Court to “not follow, or ... at least re-visit” its holding in Sulayao, (Pet’s Response to Govt's Opp. to Pet. for a Writ of Habeas Corpus, dated March 12, 2013 (hereinafter “Pet’s Response”), at 18-19 (quoting Moore’s Federal Practice § 134.02).) Johnson argues that section 1226(c) unambiguously does not authorize his detention. In the alternative, Johnson argues that even if the Court finds the statute ambiguous, it should not defer to Rojas because Rojas advances an unreasonable interpretation of the statute, Rojas did not speak to the same issues as are present here, and the rule of lenity dictates that the statute should be construed in Johnson’s favor. In support of these arguments, Johnson additionally notes that “the legal landscape has changed significantly signed the Court decided [Sulayao ] in 2009,” with “a substantial number of courts ... hav[ing] reached a contrary conclusion.” (Id. at 19.)
Having freshly re-considered the issue, the Court declines Johnson’s invitation to depart from the holding of Sulayao. It is true that a substantial number of courts have since reached a conclusion contrary to the Court’s holding in that case. See, e.g., Vicencio v. Shanahan, No. 12-7560(JAP),
With great respect for the courts that have held otherwise, the Court cannot conclude that section 1226(c) is unambiguous. As discussed in Sulayao,
The Court also disagrees with Johnson’s assertion that the BIA’s interpretation of section 1226(c) is unreasonable and unworthy of deference. In order to defer to the BIA’s interpretation, the Court “need not conclude that the agency construction was the only one it permissibly could have adopted ... or even the reading the court would have reached if the question initially had arisen in a judicial proceeding.” Chevron,
The analyses provided by those courts that have agreed with Sulayao further reinforce this conclusion. For instance, after finding the statutory text ambiguous and concluding that the BIA reasonably construed section 1226(c), the Fourth Circuit in Hosh noted:
Supporting our opinion that the BIA reasonably construed § 1226(c) is the description of the statutory scheme provided by the Supreme Court of the United States in Demore v. Kim,538 U.S. 510 , 518,123 S.Ct. 1708 ,155 L.Ed.2d 724 (2003). In Demore, the Court considered the constitutionality of § 1226(c) and, in upholding the statute, observed that “Congress adopted [§ 1226(c) ] against a backdrop of wholesale failure by the INS to deal with increasing rates of criminal activity by aliens.” Id. (citations omitted). That backdrop included the fact that federal authorities suffered from a “near-total inability to remove deportable criminal aliens,” due in large part to the INS’s “failure to detain those aliens during their deportation proceedings” under the statutes previously in force, which gave the Attorney General broad discretion to release criminal aliens pending their removal proceedings. Id. at 519, 123 S.Ct. 1708 (citations omitted). Because “deportable criminal aliens who remained in the United States often committed more crimes before being removed,” id. at 518,123 S.Ct. 1708 , and because “[o]nce released, more than 20% of deportable criminal aliens failed to appear for their removal hearings,” id. at 519,123 S.Ct. 1708 (citing S. Rep. No. 104-48, at 1 (1995)), Congress endeavored to amend the immigration scheme that was in place before the passage of § 1226(c).
Hosh,
In support of his argument that the Court should ignore Rojas, Johnson notes that “the purported premise of Rojas that Section 1226(c)(l)’s concluding clause may be reád as disjointed from the list of enumerated offenses — has been consistently rejected by federal courts and even the BIA, in a later decision.” (Pet.’s Response at 15 (discussing Saysana v. Gillen,
First, although Saysana, Garcia Arreola, and Rojas all focused on the proper interpretation of section 1226(c), the question in Rojas — whether section 1226(c) authorizes the mandatory detention of an alien who was not detained immediately following his release from criminal custody — was not at issue in Saysana or Garcia
More importantly, although Rojas determined that the “when the alien is released” phrase could be read as disjointed from the list of enumerated offenses, this was only one of the grounds on which the BIA ultimately based its holding. As discussed above, “the BIA analyzed the statute in light of four separate considerations: (1) the ordinary meaning of the statute’s language, though ambiguous, (2) the overall statutory context and goals, (3) the statute’s predecessor provisions, and (4) practical considerations.” Sulayao,
Finally, Johnson attempts to circumvent Rojas by arguing for application of the rule of lenity. “The rule of lenity provides that ‘lingering ambiguities in deportation statutes’ must be construed ‘in favor of the alien.’ ” Ruiz-Almanzar v. Ridge,
In sum, for the reasons provided above as well as the reasons articulated in Sulayao, the Court concludes that section 1226(c) is ambiguous, and that the BIA’s interpretation of the statute is permissible. Accordingly, Johnson’s detention is authorized by section 1226(c).
III. Johnson’s Due Process Argument
“It is well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings.” Reno v. Flores,
In Demore v. Kim,
In order to avoid running afoul of the Due Process Clause, numerous United States Courts of Appeals have interpreted section 1226(c) to contain an implicit limitation on unreasonable or unjustified detention. See Diop v. ICE/Homeland Sec.,
Johnson has now been detained for fifteen months without the opportunity for an individualized bond hearing. This period of detention plainly exceeds the
Consideration of these factors leads the Court to conclude that Johnson’s due process rights have not been offended by his detention. Johnson was detained for eleven months before an IJ ruled on his removal, an extended period of detention. On December 17, 2012, an IJ ordered Johnson removed. The sole reason that Johnson continues to be in ICE custody is the fact that Johnson chose to appeal the IJ’s removal order. Although Johnson indisputably “has every right to seek any relief from deportation for which he may be eligible, delay caused by his actions does not make continued detention unreasonable or unjustified.” Andreenko,
The Court rejects the contention that the foregoing analysis “effectively punishes] [Johnson] for pursuing applicable legal remedies.” Leslie v. Attorney General of U.S.,
Furthermore, there is no indication that Johnson’s continued detention pending resolution of his appeal to the BIA will last indefinitely or for a lengthy period of additional time. Significantly, if Johnson’s appeal is denied and a final order of removal is entered against him, there will be no impediment to his deportation. This distinguishes the instant case from the situation in Monestime v. Reilly,
Finally, Johnson’s detention is not unjustified. “[T]he justification for 8 U.S.C. § 1226(c) is based upon the Government’s concerns over the risks of flight and danger to the community.... ” Demore,
Having considered the totality of the circumstances, the Court concludes that Johnson’s detention is not unreasonable or unjustified. Accordingly, the Court denies Johnson’s habeas petition to the extent that Johnson seeks immediate release or an individualized bond hearing. Nevertheless, the Court notes that Johnson’s indefinite detention without a bond hearing would raise substantial constitutional concerns. See Demore,
CONCLUSION
For the x-easons discussed, and to the extent provided above, Johnson’s petition for writ of habeas corpus is DENIED without prejudice to renewal at the hearing on July 2, 2013 at 3:00 p.m.
SO ORDERED.
Notes
. The first page of the Petition is paginated as page 17, rather than page 1. Citations to the Petition correspond to the pagination utilized therein.
. Although section 1226 grants authority to the "Attorney General,” that authority now resides with the Department of Homeland Security, which arrested and is detaining Johnson.