VALERIE CAPRONI, United States District Judge.
Although the Statue of Liberty welcomes to the United States the "huddled masses yearning to breathe free,"
The material facts in this case are few and undisputed. On October 12, 2016, Petitioner, a 34-year old Haitian citizen, presented himself at the U.S.-Mexico border in California, seeking asylum. Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 ("Pet.") ¶¶ 1, 31, Dkt. 1. Over a month later, on December 8, 2016, an asylum officer interviewed Petitioner and found him to have a "credible fear of torture" if he returned to Haiti. Pet. ¶ 32; Pet. Ex. A (Form I-870) at 5-7. Petitioner was served with a Notice to Appear ("NTA"), the charging document used to commence removal proceedings, pursuant to which he was charged as an "arriving alien" without valid entry documents. Pet. Ex. B. Petitioner was then placed in removal proceedings in New York, New York. Pet. ¶ 13.
Petitioner has been imprisoned since he presented himself on October 12, 2016, and remains in U.S. Immigration and Customs Enforcement ("ICE") custody in jail pending resolution of his removal proceedings. Pet. ¶¶ 1, 3. On April 18, 2017, Osias filed an application for asylum, withholding of
On April 28, 2017, Osias filed this habeas petition ("Petition"), arguing that his imprisonment without a bond hearing violates the Due Process Clause. Dkt. 1. After Osias filed this Petition, ICE granted him discretionary parole, conditioned on payment of a $5,000 bond. Dkt. 15. Unfortunately, Petitioner has been unable to post the $5,000 bond and therefore remains in jail. Dkt. 15.
For the reasons stated herein, the Court concludes that Petitioner's prolonged imprisonment, which has exceeded nine months without any individualized assessment of the risk that he will flee, violates due process. Accordingly, the Court orders that Petitioner be given an individualized bond hearing.
Petitioner makes two arguments for why he is entitled to an individualized bond hearing, one statutory and one constitutional. As a statutory matter, Petitioner argues that he is being detained pursuant to 8 U.S.C. § 1226(a), not 8 U.S.C. § 1225(b) as the Government contends. As a constitutional matter, Petitioner argues that even if his detention were pursuant to Section 1225(b), his prolonged imprisonment without a bond hearing, which has now exceeded nine months, violates the Due Process Clause. For the following reasons, the Court holds that Osias's prolonged detention, which has exceeded nine months, violates the Due Process Clause, and that Osias must be promptly given an individualized bond hearing.
The parties dispute the statutory provision governing Petitioner's detention. According to the Government, Petitioner is being detained pursuant to 8 U.S.C. § 1225(b)(1)(B)(ii), which provides that an alien with a credible fear of persecution "shall be detained for further consideration of the application for asylum." Petitioner argues that once he was determined to have credible fear, the authority vel non for his detention, which Petitioner acknowledges was initially pursuant to Section 1225(b)(1)(B)(ii), became Section 1226(a). That shift in authority is important because Section 1226(a) authorizes immigration judges to review custody decisions made by ICE and grant release from detention, see 8 C.F.R. § 1003.19(a), but no analogous authorization exists for detentions governed by Section 1225(b).
The Government does not dispute that individualized bond hearings are available for immigrants detained pursuant to Section 1226(a), but it contends that Petitioner is being detained pursuant to Section 1225(b)(1)(B)(ii). The Government argues that Section 1225(b)(1)(B)(ii) unambiguously authorizes the mandatory detention of an immigrant such as Petitioner. Section 1225(b)(1)(B)(ii) provides, "If the officer
Petitioner argues that Section 1225(b)(1)(B)(ii) governed Petitioner's detention only up until the time he was adjudged to have credible fear; otherwise, the statutory provision titled "mandatory detention" and authorizing an immigrant's detention "pending a final determination of credible fear of persecution" would be superfluous. See 8 U.S.C. § 1225(b)(1)(B)(iii)(IV) ("Any alien subject to the procedures under this clause shall be detained pending a final determination of credible fear of persecution and, if found not to have such a fear, until removed"). According to Petitioner, after he passed the credible-fear interview and was charged with the NTA, he was placed in general removal proceedings under Section 1226(a), which provides for an alien's detention "pending a decision on whether the alien is to be removed from the United States." 8 U.S.C. § 1226(a).
The Court declines to resolve at this time the statutory question of whether Petitioner is being held pursuant to Section 1225(b) or Section 1226(a). In general, "[p]rinciples of judicial restraint" caution against "reaching constitutional questions when they are unnecessary to the disposition of a case." Anobile v. Pelligrino, 303 F.3d 107, 123 (2d Cir. 2002); see also Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347, 56 S.Ct. 466, 80 S.Ct. 688 (1936) (Brandeis, J., concurring) ("The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of."). But here, it is clear that even resolving the statutory question in the Government's favor would not dispose of this case.
In general, 8 U.S.C. § 1225(b) governs the inspection of immigrants seeking "admission" to the United States.
In considering the constitutionality of the prolonged imprisonment of an LPR pursuant to Section 1225(b)(2)(A),
Like the Morris petitioner, Osias is also charged as an "arriving alien," which means "an applicant for admission coming or attempting to come into the United States at a port-of-entry." 8 C.F.R. § 1001.1(q). Unlike the Morris petitioner, however, Osias is not an LPR, but an asylum seeker. As such, his detention, according to the Government, is not governed by Section 1225(b)(2)(A), which governed the Morris and Arias petitioners' detentions, but rather is governed by Section 1225(b)(1)(B)(ii).
Neither party argues that the "shall be detained" directive contained in Section 1225(b)(2)(A) has a different meaning from the "shall be detained" directive contained in Section 1225(b)(1)(B)(ii). Indeed, it would make little sense to interpret identical phrases differently when applied to different provisions of the same statute. A statute "should not be read as a series of unrelated and isolated provisions. . . . [T]he `normal rule of statutory construction' [is] that `identical words used in different parts of the same act are intended to have the same meanings.'" Gustafson v. Alloyd Co., 513 U.S. 561, 570, 115 S.Ct. 1061, 131 L.Ed.2d 1 (1995) (quoting Dep't of Revenue of Ore. v. ACF Indus., Inc. 510 U.S. 332, 342, 114 S.Ct. 843, 127 L.Ed.2d 165 (1994)).
The question for the Court is whether Lora's six-month limitation on imprisonment without an individualized bond hearing extends to a nonresident arriving alien, such as Petitioner. In Saleem v. Shanahan, No. 16-CV-808 (RA), 2016 WL 4435246 (S.D.N.Y. Aug. 22, 2016), appeal docketed, No. 16-3587 (2d Cir. filed Oct. 21, 2016), Judge Abrams extended Arias,
Saleem found persuasive the Ninth Circuit's reasoning in Rodriguez v. Robbins (hereafter, "Rodriguez II"), 715 F.3d 1127 (9th Cir. 2013), which construed Section 1225(b) to include a six-month limitation on detention to avoid constitutional concerns.
Mezei, 345 U.S. at 212, 73 S.Ct. 625 (internal quotation marks omitted).
The Government argues that Rodriguez II is distinguishable because Rodriguez II was a class action that required consideration of the constitutional protections for "the class's most sympathetic member," which included LPRs. Opp. 16. Because Petitioner is not an LPR, the Government argues, the Court need not consider the due process implications for LPRs detained pursuant to Section 1225(b). Opp. 16. Similarly, the Government argues that Saleem was incorrectly decided because Section 1225(b) usually does not govern the detention of returning LPRs, and, in any event, even if a returning LPR were treated as an arriving alien, the detention of that alien for a period of 21 months as in Mezei. Opp. 19-20. The Government further asserts that Saleem relied on unreported decisions relating to an immigration detention regime that is no longer in effect. Opp. 20-21.
The Government's arguments are unavailing. In light of Clark's instruction that "where one possible application of a statute raises constitutional concerns, the statute as a whole should be construed through the prism of constitutional avoidance," see Rodriguez II, 715 F.3d at 1141 (citing Clark), the fact that Section 1225(b) does not usually concern returning LPRs does not foreclose this Court from construing the statute to avoid constitutional concerns. Similarly, the fact that Petitioner is not an LPR does not save the statute from its unconstitutional implications, for the same statute must be construed similarly as applied to all categories of immigrants captured under the statute. Saleem, 2016 WL 4435246, at *4 (citing Clark). Moreover, and as discussed by Rodriguez II, Mezei is inapposite because the statutory scheme considered in Mezei is no longer in force and effect; the category of "excludable aliens" that was considered in Mezei was eliminated by the passage of the IIRA, the statute implicated by Osias's petition.
Therefore, this Court joins Judge Abrams in holding that Lora extends to the prolonged detention of a nonresident immigrant imprisoned pursuant to Section 1225(b) without an individualized bond hearing. Because Lora extends to Section 1225(b)(2)(A), Saleem, 2016 WL 4435246, at *5,
As in Morris, the Government argues that "the political branches' broad power over immigration is at its zenith at the international border" and that "[t]he power to admit or exclude aliens is a sovereign prerogative vested in the political branches" that is entitled to deference. Opp. 10 (internal quotation marks and citations omitted). The Government also argues, as it did in Morris, that the Court should not upset Congress's "detailed statutory scheme" that provides immigrants with different immigration statuses with "varying degrees of process" on issues of admission and detention. Opp. 13. The Government further contends, as it did in Morris, that the availability of discretionary parole "lessens any possible due process concerns." Opp. 16-17. The Court rejects these arguments for the same reasons discussed in Morris. See Morris, 2017 WL 1968314, at *4-5.
In addition, although dicta in Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001), suggested that the entry of an alien into the United States might invoke different political considerations so as to "leave no `unprotected spot in the Nation's armor,'" Zadvydas, 533 U.S. at 696, 121 S.Ct. 2491 (citation omitted), this Court's holding granting Petitioner a bond hearing will not effect Petitioner's entry into the United States; whether Petitioner is admitted remains at the discretion of the executive branch's representative, the immigration officer who will consider Petitioner's application. See 8 U.S.C. § 1101(a)(13)(A) (the term "admission" means, "with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer."). In addition, any release pursuant to a bond hearing will be subject to mandatory supervision upon release requirements. See Zadvydas, 533 U.S. at 696, 121 S.Ct. 2491 ("The choice ... is not between imprisonment and the alien `living at large.' It is between imprisonment and supervision under release conditions that may not be violated.").
The Government argues that Petitioner's detention does not violate due process because his detention serves a valid statutory purpose of ensuring Petitioner's appearance at his removal proceedings, as well as his availability for removal. Opp. 23. The Court, however, is not questioning the Government's authority to detain Petitioner; rather, the Court's concern is with the length of Petitioner's detention without an individualized bond hearing. The Court finds nothing in Section 1225(b) "that clearly demonstrates a congressional intent to authorize indefinite, perhaps permanent, detention." See Zadvydas, 533 U.S. at 699, 121 S.Ct. 2491.
Lastly, the Court notes that the circumstances particular to this Petitioner heighten the due process concerns in this case. The Court has been presented with no facts that would warrant a legitimate concern that Osias may not appear at his removal proceedings. Osias is seeking asylum in the United States because he is afraid that he will be tortured if he is sent back to Haiti; he is unlikely to jeopardize his opportunity to receive asylee status in the United States by absconding. Indeed, because discretionary parole is available only if, among other things, "the alien presents neither a security risk nor a risk of absconding," Dkt. 14 at 3 (ICE letter granting parole), the fact that Osias was granted parole, albeit with financial conditions he is unable to meet, implies that the Government, too, is not really concerned that Petitioner will abscond.
For the foregoing reasons, the Court holds that Petitioner's detention, which has exceeded nine months without an individualized bond hearing, violates due process. The Government is ORDERED to provide Osias with an individualized bond hearing not later than
Mr. Osias's Petition is GRANTED. The Clerk of Court is respectfully directed to close this case.
