Straker v. JonesStraker v. Jones
OPINION & ORDER
Myles Straker, an alien, is currently detained in a New York State prison pursuant to a detainer issued by the Department of Homeland Security (“DHS”) while proceedings to remove him from the United States are underway. DHS
For the reasons that follow, Straker’s petition is granted. Respondents are ordered to provide Straker with a bond hearing by December 20, 2013.
1. Background
A. Straker’s Citizenship and Immigration Status
Straker was bom in 1986 in Trinidad, where he lived with his grandparents until the age of 13. Petition for Writ of Habeas Corpus (Dkt. 1) (“Pet.”) ¶ 21; id. Ex. D. In 2000, his grandparents sent him to live with his mother in the United States; he was lawfully admitted. Id. ¶ 21. Since then, apart from periodic visits to Trinidad, he has lived in Brooklyn. He most recently visited Trinidad in 2007. Id. After that visit, the Government states, he returned to the United States on a visitor’s visa, which has since expired. Respondent’s Memorandum of Law in Opposition to the Petition for a Writ of Habeas Corpus (“Gov. Br.”) (Dkt. 16) at 1; Return to Habeas Petition (“Ret.”) (Dkt. 15) Ex. 1.
B. Straker’s Criminal History
On October 25, 2008, Straker was arrested on narcotics charges, detained for several hours, and released on his own recognizance. Pet. ¶24; Pet. Ex. 1-K; Ret. Ex. 2; 11/22/13 Tr. 3. On December
On February 27, 2009, Straker was again arrested on narcotics charges, detained for several hours, and released on his own recognizance. Pet. ¶ 24; Pet. Ex. 1-K; Ret. Ex. 3; 11/22/13 Tr. 5-6. On July 13, 2009, Straker pled guilty in New York state court to Criminal Sale of a Controlled Substance (crack cocaine) in the Third Degree, N.Y.P.L. § 220.39.01, a felony. Pet. ¶ 24; Pet. Ex. 1-K; Ret. Ex. 3. On September 17, 2009, he was sentenced to a five-year term of probation; his driver’s license was also suspended. Pet. ¶ 24; Pet. Ex. 1-K; Ret. Ex. 3; 11/22/13 Tr. 6-7. On August 7, 2012, Straker was discharged, two years early, from probation. Pet. Ex. 1-G, 1-K; Ret. Ex. 3.
On December 28, 2012, Straker was arrested by local authorities in Brooklyn, New York, for a domestic dispute. Dkt. 26 (“Mitchell Decl.”) ¶ 3; see also Ret. Ex. 1, Tr. 7. On December 29, 2012, he was arraigned and taken into custody. Ret. Ex. 1. Immigration and Customs Enforcement (“ICE”) records reflect that he was charged with four misdemeanors: Menacing in the Second Degree with a Weapon, Assault in the Third Degree with Intent to Cause Physical Injury, Criminal Possession of a Weapon in the Fourth Degree with Intent to Use, and Menacing in the Third Degree; and one violation, Harassment in the Second Degree. Id. By the time of his arraignment, DHS had lodged a detainer with the Brooklyn Central Booking office of the New York City Police Department (“NYPD”), see Mitchell Decl. ¶ 3, Ret. Ex. 1, which notified the N.Y. PD that, once it ceased to hold Straker on criminal charges, ICE intended to assume custody of him, and requested that the NYPD advise ICE if it planned to release Straker, to enable DHS to assume custody, see
C. The Removal Proceedings
On December 31, 2012, two days after Straker’s arraignment, ICE initiated removal proceedings against him by issuing a Notice to Appear (“NTA”). Ret. Ex. 4. ICE contended that Straker was removable because he had (1) overstayed his visa and (2) committed the two drug offenses. Ret. Ex. 1.
Between May 15, 2013, after the domestic-dispute charges against Straker were dropped, and May 16, 2013, Straker was held in state criminal custody pursuant to the ICE detainer. Mitchell Decl. ¶ 9. On
Straker is presently the subject of removal proceedings pending before Immigration Judge Alan Page. Pet. ¶ 35. At a hearing held August 16, 2013, Straker, who is represented by counsel, disputed that his 2009 conviction was an aggravated felony requiring removal. Judge Page rejected that claim. Pet. Ex. 3 (“Vendzules Deck”) ¶ 9.
On August 1, 2013, Straker requested, in Immigration Court, a hearing to challenge his mandatory detention classification under Matter of Joseph, 22 I. & N. Dec. 799 (BIA 1999) (allowing an alien to seek from an Immigration Judge a judgment of whether the alien is properly classified as subject to mandatory detention). Straker contended that he was entitled to a bond hearing. Vendzules Deck ¶ 8. On August 27, 2013, Judge Page held the Joseph hearing. Id. ¶ 11. In arguing that he was not subject to mandatory detention, Straker argued he had not been detained at the moment “when [he had been] released,” see
D. Straker’s Petition for a Writ of Habeas Corpus
On September 30, 2013, Straker filed a petition for a writ of habeas corpus with this Court. Reprising his argument before Judge Page, he primarily claims that he is entitled to a bond hearing because the mandatory detention statute does not apply in his case. Dkt. 1. On October 1, 2013, the Court held a telephone conference with the parties and set an expedited briefing schedule.
II. Jurisdiction
This Court has subject matter jurisdiction to hear Straker’s petition for a writ of habeas corpus under
III. Discussion
This case calls for the Court to construe the meaning of a single clause within
By way of background, federal law contains two distinct provisions governing an alien’s detention while removal proceedings are pending.
(c) 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 § 1182(a)(2) of this title,
(B) is deportable by reason of having committed any offense covered in § 1227(a)(2)(A)(ii), (A)(iii), (B), (C) , or (D) of this title,
(C) is deportable under § 1227(a)(2)(A)(i) of this title on the basis of an offense for which the alien has been sentenced to a term of imprisonment of at least 1 year, or
(D) is inadmissible under § 1182(a)(3)(B) of this title or deportable under § 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 if the Attorney General decides pursuant to § 3521 of Title 18 that release of the alien from custody is necessary to provide protection to a witness, a potential witness, a person cooperating with an investigation into major criminal activity, or an immediate family member or close associate of a witness, potential witness, or person cooperating with such an investigation, and the alien satisfies the Attorney General that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding. A decision relating to such release shall take place in accordance with a procedure that considers the severity of the offense committed by the alien.
Id. (emphasis added). Originally, the authority and duties imposed by
A. The Meaning of “When”
Straker’s first argument is that the phrase “[DHS] shall take into custody any alien who [meets the requirements of one of subsections (A) through (D) ] when the alien is released,”
Although no federal appellate court has adopted this construction, a number of courts in this District have adopted it. See Jean v. Orsino, No. 11 Civ. 3682(LTS) (S.D.N.Y. June 30, 2011) (oral decision attached as Appendix A to Straker Br.); Aparicio v. Muller, No. 11 Civ. 0437(RJH) (S.D.N.Y. April. 7, 2011) (same); Louisaire v. Muller,
DHS reads the word “when” differently — as creating a pre-condition for DHS to exercise its mandatory detention authority, but not as setting a deadline for its use. This interpretation was adopted by the BIA in Matter of Rojas, 23 I. & N. Dec. 117 (BIA 2001). There, the BIA held that “this statutory language impose[s] a duty on the Service to assume the custody of certain criminal aliens and specifie[s] the point in time at which that duty arises.” Id. at 121 (citations omitted). The BIA further explained that the “when released” clause “modifies] the command that the Attorney General [now DHS] shall take into custody certain criminal aliens by specifying that it be done when the alien is released from criminal incarceration.” Id. Under this interpretation, the “when released” clause does not place an expiration date on DHS’s duty under
The Court refers to this as the “duty-triggering” construction of the “when released” clause. Both federal courts of appeals to consider this question have adopted this construction. See Sylvain v. Attorney Gen. of U.S.,
As a matter of textual interpretation, although neither reading is conclusive, the Court finds DHS’s reading (that the word “when” triggers its duty and authority to pursue mandatory detention) more persuasive than Straker’s (under which DHS’s authority to achieve mandatory deportation exists only where it takes the alien into custody immediately upon an alien’s release).
To find for DHS on the proper meaning of the word “when,” however, the Court need not rely on an assessment that DHS’s construction is superior to Straker’s. At best for Straker, the term “when released” is ambiguous as to whether DHS’s obligation to detain the alien is limited to the instant of, as opposed to triggered by, the alien’s release from criminal custody. And the latter interpretation, DHS’s, was adopted by the BIA in Rojas. Accordingly, the Court must defer to DHS’s interpretation of the statute, if deemed ambiguous, if it is a reasonable agency interpretation of an ambiguous statute. See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
Under Chevron and its progeny, “where a statute’s plain terms admit of two or more reasonable ordinary usages, the [responsible agency’s] choice of one of them is entitled to deference.” Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs.,
The Court has carefully considered the reasoning of the courts to conclude that Straker’s time-limiting construction is superior. Such courts have commonly reasoned that “[t]he clear purpose of
As to the first point, it is certainly true that the word “when” does connote immediacy. But that DHS’s duty to take the criminal alien into detention ripens imme
Straker makes several additional arguments as to why this interpretation is the only reasonable one. The Court finds none persuasive. First, he argues that
Quite the contrary, the BIA’s reading of
For these reasons, the Court defers to the BIA’s interpretation of
B. The Meaning of “Released”
Straker alternatively argues that he was not “released” within the meaning of the statute. DHS’s duty to detain an alien under
DHS reads “released” more broadly. It makes two arguments in this direction. First, DHS argues, “release” also applies where an alien is arrested for an offense that qualifies under
1. Does Pre-Conviction Release Following an Arrest Constitute “Release”?
DHS argues that an alien’s release after an arrest made as part of the process that later leads to a qualifying conviction under
The statute’s text thus naturally fits the paradigm in which the alien (1) is convicted of an offense enumerated in
DHS’s thesis that pre-conviction release satisfies the statute thus cannot be squared with the statute’s command that detention becomes mandatory “when the alien is released.”
A construction of “released” under which a mere arrest for a qualifying offense under '
To be sure, the BIA has twice rendered a contrary interpretation, to the effect that release from a pre-conviction arrest constituted a statutory “release.” See Matter of West, 22 I. & N. Dec. 1405, 1410 (BIA 2000); Matter of Kotliar, 24 I. & N. Dec. 124, 125 (BIA 2007). To the extent these rulings extended to pre-conviction releases — as opposed to the post-conviction release of a defendant who had been held by criminal authorities since arrest — these interpretations are unreasonable, for the reasons stated above. See Chevron,
The BIA’s decisions are particularly unworthy of deference, in that West contained little reasoning in support of its conclusion on this point, and Kotliar none. See G & T Terminal Packaging Co., Inc. v. U.S. Dep’t of Agric.,
Only in two sentences at the end of its ruling did the BIA in West address whether a preconviction release following an arrest satisfied this term. Stating that it does, West explained only that “[w]e find support for this interpretation in the fact that [
The problem with this reading, as mentioned previously, is that prior to a conviction, guilt or innocence remains unresolved. As to a mandatory detention under subsections (B) and (C), which explicitly require a conviction, this problem is fatal to the BIA’s reading: DHS cannot be obliged to take an alien into mandatory detention before the alien has definitively qualified for mandatory detention. And the statutory clause on which West relied is otherwise explained. First, some of the listed offenses in subsection (A), and all of the listed offenses in subsection (D), do not require a conviction. See supra, n. 7. For example, an alien who “has engaged in a terrorist activity” is inadmissible under
The Court therefore holds that Straker’s post-arrest releases, prior to each of his crack-related convictions, did not constitute a “release” within the meaning of
2. Does Termination of Non-Physical Custody Constitute A “Release”?
DHS argues that the termination of non-physical custody, e.g., the conclusion of judicial supervision over a defendant’s case, or the end of a term of probation, is a “release” that triggers DHS’s mandatory detention obligation under
“[W]here a statute’s plain terms admit of two or more reasonable ordinary usages, the [responsible agency’s] choice of one of them is entitled to deference.” Brand X
Here, the BIA has determined that “released” in
Further supporting this construction, the BIA noted that, throughout
The Government has not disputed that West merits deference, or claimed that West’s is an unreasonable construction. At argument, the Government instead relied on a different decision, Matter of Kotliar, 24 I. & N. Dec. 124 (BIA 2007). There, the respondent alien argued to the BIA that “he [was] not subject to mandatory detention because he did not serve a jail term and was apprehended from his home while on probation, rather than when he was released from criminal custody.” Id. at 125. The BIA rejected that argument. It noted that
The Court disagrees. There is undeniably some tension between the BIA’s rejection of alien Kotliar’s argument, and the
Further, Kotliar’s main reason for denying the alien’s challenge to his mandatory detention was West’s later holding that a release of a defendant who had been released following an arrest but before conviction can constitute a “release” under the mandatory detention statute. See Kotliar, 24 I. & N. Dec. at 125 (“Moreover, we have held that an alien who is released from criminal custody (including from an arrest preceding a conviction, as the respondent implicitly conceded took place here) after the expiration of the Transition Period Custody Buies ... is subject to mandatory detention pursuant to [
The Court, accordingly, holds, in deference to the BIA’s reasonable interpretation in West, that an alien’s release from non-physical restraints such as court supervision, probation, parole, or supervised release does not qualify as a release that triggers DHS’s duty to detain an alien under any part of
Straker was therefore never “released” within the meaning of
3. Exhaustion of Administrative Remedies
In a final argument opposing Straker’s petition, the Government argued that Straker had failed to exhaust his administrative remedies, because, before the Immigration Judge, he had not made the argument he makes here with regard to the term “released” within the “when released” clause. Gov. Br. 20 (citing Howell v. I.N.S.,
C. Due Process and Parole
Because the Court finds for Straker on the “release” argument, it has not occasion to reach his alternative claims, i.e., that his continued detention without a hearing offends due process, or that DHS may release him on parole on the basis of “urgent humanitarian reasons” or “significant public benefit” under
CONCLUSION
In sum, the Court holds that Straker, who was never sentenced to nor served any term of imprisonment, was never “released” from physical custody within the meaning of that term in
DHS’s authority for detaining Straker during removal proceedings instead lies under
SO ORDERED.
Notes
. It is undisputed that Straker is presently being held at the direction of DHS, which contends that his detention is mandatory pursuant to
. The mandatory detention statute was passed by Congress as § 236(c) of the INA and is codified at
. Explaining the early termination of probation, Straker represents that after this arrest, he attempted to turn his life around, including enrolling in GED classes, gaining employment, and moving in with his girlfriend. Pet. ¶¶ 26-34. In 2011, his girlfriend gave birth to their daughter, Malaysia, id. Ex. I, for whom Straker has been a primary caregiver. Id. ¶¶ 29, 34-35.
. DHS asserted in the NTA that Straker was removable because, inter alia, his 2009 conviction for criminal sale of a controlled substance in the third degree, N.Y.P.L. § 220.39.01, qualified as an aggravated felony, in that it constituted "illicit trafficking in a controlled substance.” See
. Straker represents that his brother "was violently assaulted upon his return to Trinidad and Tobago and [he] fears the same will happen to him.” Vendzules Deck ¶ 12.
. Consistent with the district-wide stay issued that day by Chief Judge Preska, entitled “In re Stay of Certain Civil Cases Pending the Restoration of Department of Justice Funding,” the Court held that the Government's briefing deadline would be triggered by restoration of government funding. The Assistant United States Attorneys assigned to this matter had represented that, pending that restoration, they were prohibited from returning to work. Dkt. 4.
. See § 1226(c)(1)(B) (subjecting to mandatory detention an alien who, per
. Were § 1226(c)(1) limited to provisions (c)(1)(A) and (c)(1)(D), which mandate detention based on behavior falling short of a criminal conviction, DHS's construction would appear not to suffer from this flaw. See, e.g.,
. The Third Circuit has three times followed West and Kotliar, but without substantive analysis of the proposition that a pre-conviction release following an arrest is a "release” under
. The specific issue before the BIA in West was the meaning of "released” as used in a temporary version of the mandatory detention statute: the Transition Period Custody Rules ("Transition Rules”). See
For two reasons, although West applied the Transition Rules and not the mandatory detention statute that was to take permanent effect after the Transition Rules ceased to be in force, West’s holding applies equally to the mandatory detention statute. First, in analyzing the term “released” in the Transition Rules, the BIA construed that term as used in the mandatory detention statute. The BIA concluded that "released” as used there “refer[s] to the release of an alien from a restrictive form of criminal custody involving physical restraint.” 22 I. & N. Dec. at 1409. Second, West noted, "released” has the same meaning in the Transition Rules as in the mandatory detention statute. See id. at 1407-OS (“[Fjocusing its argument on the 'when released’ language of
. The Court has no occasion here to consider how the requirement of a "release” would apply to the circumstance in which an alien was arrested, eventually released from custody on bail, later convicted, and still later sentenced to a term of time served. On neither narcotics conviction was Straker sentenced to time served.