JESSE M. FURMAN, District Judge:
This case presents a question that remains unresolved by the United States Court of Appeals for the Second Circuit and has divided the district courts in this Circuit: whether the mandatory detention provision of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1226(c) ("Section 1226(c)"), applies where, as a here, an alien is convicted of an otherwise qualifying offense but is not detained by the immigration authorities immediately upon his or her release from criminal custody. Petitioner Albert Omar Young petitions for the writ of habeas corpus, pursuant to Title 28, United States Code, Section 2241, arguing that he is entitled — either under the INA or as a matter of due process — to an individualized bail determination. Siding with those courts that have held that Section 1226(c) applies without regard for whether an alien is detained immediately upon his or her release from criminal custody, the Court concludes that Young is not entitled to an individualized bail determination, at least not yet. Accordingly, and for the reasons explained below, it denies Young's petition without prejudice to a renewed petition if or when his detention becomes unreasonably prolonged.
The relevant facts are largely undisputed and can be stated briefly. Young is a citizen of Jamaica and permanent resident of the United States. (Am. Verified Pet. (Docket No. 7) ("Pet.") 11). In October 2013, while driving in Maryland, he was stopped and found to be in possession of approximately twenty pounds of marijuana. (Pet. ¶ 2; Pet'r's Reply Resp't's Opp'n Writ Habeas Corpus (Docket No. 13) ("Petr'r's Ex."), Ex. D. at 28; Govt.'s Return (Docket No. 9) ("Govt's Ex."), Ex. B at 8-10).
Young remains in federal immigration custody, in New Jersey, having never received a bond hearing. Invoking Section 1226(c), Respondents maintain that Young's Maryland conviction subjects him to mandatory detention for the duration of
Young seeks relief on two primary grounds. First, he contends that because he was not taken into custody by the Department of Homeland Security ("DHS") immediately upon release from Maryland custody, he is not subject to mandatory detention under Section 1226(c), but is instead entitled to a bond hearing under Section 1226(a). (Pet. ¶¶ 23-27; Pet'r's Mem. 7-17). Second, he argues that his continued detention violates the Due Process Clause given both the gap between when he was released by Maryland officials and when he was detained by immigration officials and the total length of time that he has spent in DHS custody. (Pet. ¶¶ 28-30; Pet'r's Mem. 17-20). The Court begins with Young's statutory arguments before turning to his constitutional claims.
When an alien is arrested and detained pending a decision on removal, DHS generally has the discretion to release him on bond. See 8 U.S.C. § 1226(a).
Significantly, the Court does not confront that question on a blank slate. Separate and apart from the many courts that have weighed in on the question, the Board of Immigration Appeals ("BIA") has held that the "when released" clause of Section 1226(c) "create[s] a pre-condition for DHS to exercise its mandatory detention authority," and does not "set[] a deadline for its use." Id. at 352 (citing In re Rojas, 23 I. & N. Dec. 117 (BIA 2001)). In Rojas, the BIA concluded that the "when released" clause does in fact "direct [DHS] to take custody of aliens immediately upon their release from criminal confinement." 23 I. & N. Dec. at 122. But looking at the language of Section 1226(c)(2) (which allows DHS to release aliens "described in paragraph [(c)] (1)"), and relying on the statute's text and context, the BIA concluded that the "when released" language merely "impose[s] a duty on [DHS] to assume the custody of certain criminal aliens and specifie[s] the point in time at which that duty arises." Id. at 121 (citing In re Garvin-Noble, 21 I. & N. Dec. 672 (BIA 1997) (interpreting a nearly identical statutory provision)). Further, that "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. "In other words, the `when released' clause is irrelevant for all other immigration purposes," including an alien's eligibility for a bond hearing. Id. at 122.
It is well established that the BIA is entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). See, e.g., Negusie v. Holder, 555 U.S. 511, 516-17, 129 S.Ct. 1159, 173 L.Ed.2d 20 (2009); Lanferman v. Bd. of Immigration Appeals, 576 F.3d 84, 88 (2d Cir.2009). Thus, the relevant question is not how the Court, if it were writing on a blank slate, would interpret Section 1226(c). Instead, the relevant question — at least in the first instance — is whether the statute is ambiguous. More specifically, under Chevron, the Court must first ask "whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." 467 U.S. at 842-43, 104 S.Ct. 2778. If, however, "the statute is silent or ambiguous with respect to the specific issue," the Court proceeds to the second step of the Chevron analysis, asking "whether the agency's answer is based on a permissible construction of the statute." Id. at 843, 104 S.Ct. 2778. A court may not defer to an interpretation that is "arbitrary, capricious, or manifestly contrary to the statute." Kar Onn Lee v. Holder, 701 F.3d 931, 936 (2d Cir.2012) (internal quotation marks omitted). But "[i]f the agency interpretation is reasonable, then [a court] must defer to it." Id. (internal quotation marks omitted). This framework "is rooted in a background presumption of congressional intent" and "provides a stable background rule against which Congress can legislate: Statutory
Applying that analysis here, the Court agrees with Respondents that the BIA's interpretation is entitled to deference.
If anything, DHS's interpretation of the statute is more persuasive than the interpretation favored by Young. Beginning with the text, Section 1226(c) "does not expressly put a time limit on DHS's mandatory detention authority," even though "[t]here were ready ways for Congress to set an outside deadline on agency action" — by, for example, giving "DHS a timetable to effect a mandatory detention after the alien's release" or stating "that DHS loses that authority if it delays to act." Straker, 986 F.Supp.2d at 353. At bottom, as Judge Engelmayer explained in his well-reasoned opinion in Straker, the word "when" is both "an awkward, unfamiliar locution to use to set a time limit"
In urging a different conclusion, Young contends — as several courts have concluded — that adopting DHS's interpretation would render the "when released" clause superfluous. (Pet'r's Mem. 11-12 (citing cases)). But that is not the case. First, as Judge Engelmayer's decision in Straker makes clear, adopting DHS's interpretation of the statute does not render the "when released" clause superfluous because "[t]he word `released' is itself a word of limitation." Straker, 986 F.Supp.2d at 355. In Straker itself, for example, Judge Engelmayer deferred to the BIA's interpretation of Section 1226(c) in Rojas, and thus held that DHS's duty and authority to detain a criminal alien "when the alien is released" do "not terminate if DHS cannot, or does not, act expeditiously." Id. at 356. Nevertheless, Judge Engelmayer concluded that the petitioner was entitled to an individualized bond hearing because, having never been sentenced to or served a term of imprisonment, he was never "released" within the meaning of Section 1226(c). See id. at 356-63. Second, the "when released" clause does work in another respect: It makes plain that DHS's duty and authority to detain a criminal alien ripens only upon release from criminal custody — and not before. Cf. 8 U.S.C. § 1228(a)(3) (prohibiting the "removal of any alien sentenced to actual incarceration, before release from the penitentiary or correctional institution where such alien is confined"); id. § 1231(a)(4)(A) (providing that, with certain exceptions, ICE "may not remove an alien who is sentenced to imprisonment until the alien is released from imprisonment"). In other words, the "when released" clause is far from superfluous.
The Court's conclusion that a gap between release from criminal custody and entry into immigration custody does not entitle an alien to an individualized bond hearing is reinforced by the purpose of Section 1226(c). As explained by the Supreme Court in Demore v. Kim, 538 U.S. 510, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003), Congress enacted the statute because it "had before it evidence that one of the major causes of the INS' failure to remove deportable criminal aliens was the agency's failure to detain those aliens during their deportation proceedings." Id. at 519, 123 S.Ct. 1708. For example, studies suggested that, once released on bond, more than twenty percent of deportable aliens who had been convicted of a crime failed to appear for their removal hearings. See id. at 519-20, 123 S.Ct. 1708. Although the Attorney General had the discretion to conduct individualized bond hearings and would theoretically release only those aliens who did not present a
In response, Young asserts that "Congress enacted mandatory detention to prevent incarcerated immigrants from being released and evading removal proceedings for that offense, not to deny bond hearings to individuals who reintegrate into the community." (Pet'r's Mem. 12-13). Congress's primary goal was indeed to ensure that criminal aliens did not evade removal proceedings; as Demore makes clear, however, it chose to accomplish that goal by prohibiting DHS's consideration of individualized determinations such as ties to the community in deciding whether to detain certain kinds of aliens. See Demore, 538 U.S. at 520, 123 S.Ct. 1708 (noting a study that "strongly supports Congress's concern that, even with individualized screening, releasing deportable criminal aliens on bond would lead to an unacceptable rate of flight"). Young also contends that DHS's reading of the statute would lead to "absurd results" because it would require the agency to detain an alien without bond "even if removal proceedings commenced as much as fifteen years after criminal custody terminated" and the alien had reintegrated into his or her community. (Id. at 13). But the fact that a statute "may be viewed as harsh or rigid does not make it absurd"; "[i]mmigration and deportation laws have long had features denounced as harsh." Straker, 986 F.Supp.2d at 355. If anything, it is Young's interpretation of the statute that would lead to absurd — or at least unfair — results, as an alien who was detained a day, or even minutes, after his release from criminal custody would be entitled to more favorable treatment than an otherwise identically situated alien who was released directly into immigration custody. See Rojas, 23 I. & N. Dec. at 124 (reasoning that it would be "inconsistent" to interpret Section 1226(c) in a manner that "permits the release of some criminal aliens, yet mandates the detention of others convicted of the same crimes, based on whether there is a delay between their release from criminal custody and their apprehension by [DHS]").
Finally, the Court's interpretation of Section 1226(c) is further reinforced by Supreme Court precedent. The Supreme Court has held that "a provision that the
In short, the BIA's interpretation of Section 1226(c) is arguably correct, and certainly "based on a permissible construction of the statute." Chevron, 467 U.S. at 843, 104 S.Ct. 2778. It follows that Young is subject to mandatory detention under the statute despite the fact that he was not detained by DHS immediately after his release from Maryland custody. Moreover, contrary to Young's contentions (Pet'r's Mem. 13), neither the rule of lenity nor the canon of constitutional avoidance compels a different result. Under the former, "lingering ambiguities in deportation statutes must be construed in favor of the alien." Ruiz-Almanzar v. Ridge, 485 F.3d 193, 198 (2d Cir.2007) (internal quotation marks omitted). The rule, however, arguably applies only where an alien's deportability is ambiguous, and does not speak to whether an alien would be entitled to a bond hearing. See Hosh, 680 F.3d at 383-84; accord Debel, 2014 WL 1689042, at *5. And in any event, it "is a doctrine of last resort, and it cannot overcome a reasonable BIA interpretation entitled to Chevron deference." Mizrahi v. Gonzales, 492 F.3d 156, 174-75 (2d Cir.2007); accord Johnson v. Orsino, 942 F.Supp.2d 396, 407 (S.D.N.Y.2013). As for the canon of constitutional avoidance, delay between when an alien is released from criminal custody and when he is detained by immigration officials does not present serious due process concerns for reasons discussed below. And, although the total length of an alien's detention by immigration authorities can present such concerns, that issue has no bearing on the question of whether Section 1226(c) applies in the first instance to aliens who are not detained immediately upon release. See, e.g., Reynoso v. Aviles, No. 14-CV-9482, 87 F.Supp.3d 549, 555-63, 2015 WL 500182, at *5-11 (S.D.N.Y. Feb. 5, 2015). Accordingly, the Court
The Court turns then to Young's constitutional claims. There is no dispute "that the Fifth Amendment entitles aliens to due process of law in deportation proceedings." Demore, 538 U.S. at 523, 123 S.Ct. 1708. Further, it is plain that "[i]ndefinite detention in connection with removal proceedings without an opportunity for a bail hearing, where there is no possibility of actual removal, violates the due process rights of the detained alien." Debel, 2014 WL 1689042, at *5 (citing cases). In Demore, however, the Supreme Court upheld Section 1226(c)'s mandatory detention provisions against a facial due process challenge. See 538 U.S. at 531, 123 S.Ct. 1708. Thus, the question presented here is whether application of Section 1226(c) to Young violates the Due Process Clause. Contending that it does, Young tries to distinguish his circumstances from those faced by the alien in Demore on three grounds: (1) based on the length of time between his release from criminal custody and his detention by immigration officials; (2) based on the assertion that he has a "substantial challenge" to removability; and (3) based on the length of time that he has been detained. (Pet'r's Mem. 18-20). The Court will address each in turn.
Young's first claim — concerning the gap between his release from criminal custody and his detention by immigration officials — is without merit. Young's argument is essentially that detention is constitutional only if it "bears a reasonable relation to the purpose[s] for which the individual was committed." Zadvydas v. Davis, 533 U.S. 678, 690-91, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) (internal quotation marks omitted). The Supreme Court has found that detention pending removal has two basic purposes: preventing flight before removal and avoiding danger to the community. Id. When an alien is released from incarceration for a period of time before he is detained, Young argues, DHS may not presume, without a hearing, that he is a flight risk. (Pet'r's Mem. 19). In so arguing, Young depends heavily on the Supreme Court's decision in Zadvydas and Justice Kennedy's concurrence in Demore. (Pet'r's Mem. 18-19). Neither case, however, involved a gap between release from criminal custody and detention. Instead, they both examined whether the total length of an alien's detention implicates the Due Process Clause. Demore, 538 U.S. at 522-23, 531-32, 123 S.Ct. 1708; Zadvydas, 533 U.S. at 689, 701, 121 S.Ct. 2491; see also Reynoso, 87 F.Supp.3d at 560, 2015 WL 500182, at *8 ("Justice Kennedy's concurrence [in Demore ] did not address, let alone propose a due process test to govern, the separate issue presented by the duration of time taken by immigration authorities before apprehending a criminal alien after completion of his prison sentence."). Accordingly, neither case is particularly helpful to Young.
Young's second argument is also meritless. The exact contours of Young's argument are not entirely clear, but he appears to suggest that his detention violates the Due Process Clause because, whereas the alien in Demore had conceded removability, he has a "substantial challenge" to removability, making his ultimate removal unlikely. (Pet'r's Mem. 19). He also cites several cases supposedly supporting that proposition. See, e.g., Demore, 538 U.S. at 531-32, 123 S.Ct. 1708 (Kennedy, J., concurring) (stating that the ultimate purpose behind Section 1226(c) assumes the alien's deportability, and suggesting that the Due Process Clause may be implicated when that assumption does not hold true); Tijani v. Willis, 430 F.3d 1241, 1247 (9th Cir. 2005) (Tashima, J. concurring) (stating that the mandatory detention statute should be interpreted as applying only to aliens who could not raise a substantial challenge to their removability). The Court need not decide whether the detention of an alien who has a "substantial challenge" to removability raises due process concerns, however, because Young has not demonstrated that he has such a challenge. Although Young does not specify in his memorandum of law what his "substantial challenge" is (Pet'r's Mem. 19-20), the only possibilities presented in either his habeas petition or his memorandum are his applications for cancellation of removal and for asylum. (Pet. ¶ 3; Pet'r's Mem. 5). With respect to the latter, Young provides no detail, so it is impossible for the Court to conclude that his
Young's last constitutional argument, that the duration of his detention without a bond hearing violates the Due Process Clause, is his most substantial. Young has been detained since August 28, 2014 — that is, as of today, for almost seven months. Relying heavily on the Supreme Court's decisions in Zadvydas and Demore, Young contends that the Supreme Court set a six-month limit on mandatory detention under Section 1226(c). (Pet'r's Mem. 20). That reliance, however, is largely misplaced. In Zadvydas, the Court found that a six-month detention following a final order of removal was presumptively reasonable. Zadvydas, 533 U.S. at 701, 121 S.Ct. 2491. But it did not hold that detention longer than six months is necessary unreasonable. Instead, after that time, detention becomes unreasonable if "there is no significant likelihood of removal in the reasonably foreseeable future." Id. Additionally, in Demore, the Supreme Court explicitly distinguished the circumstances in Zadvydas from those present in cases like this one. Unlike in Zadvydas, where the aliens challenging their detention "were ones for whom removal was no longer practically attainable" and for whom a final removal order had already been entered, Demore, 538 U.S. at 527, 123 S.Ct. 1708 (internal quotation marks omitted), in cases like Young's, where detention is pending removal proceedings, detention not only "necessarily serves the purpose of preventing deportable criminal aliens from fleeing prior to or during their removal proceedings," but also has "a definite termination point," namely, the proceedings' completion. Id. at 528-29, 123 S.Ct. 1708. Further, although the Court in Demore stated that most removal proceedings conclude within five months and that the habeas petitioner in that case had been detained for six, nowhere did the Court suggest that there was a six-month limit on mandatory detention. Id. at 530, 123 S.Ct. 1708.
That said, many courts, including several in this Circuit, have found that prolonged detention without a hearing can present a constitutional problem. See, e.g., Diop v. ICE/Homeland Sec., 656 F.3d 221, 233-34 (3d Cir.2011); Ly v. Hansen, 351 F.3d 263, 271-72 (6th Cir.2003); Araujo-Cortes v. Shanahan, 35 F.Supp.3d 533, 548-49 (S.D.N.Y.2014); see also Guangzu Zheng v. Decker, No. 14-CV-4663 (MHD), 2014 WL 7190993, at *7 (S.D.N.Y. Dec. 12, 2014) (citing cases).
Young's detention, however, has not yet reached that point. First, although "the sheer length of the proceedings is not alone determinative of reasonableness," Debel, 2014 WL 1689042, at *5, courts in this Circuit have upheld detentions of significantly longer duration than Young's, see, e.g., id. at *6 (eighteen months and "likely" to exceed two years); Orsino, 942 F.Supp.2d at 408-11 (fifteen months); Johnson v. Phillips, No. 10-CV-480 (HBS), 2010 WL 6512350, at *6-7 (W.D.N.Y. Dec. 20, 2010) (seventeen months); Andreenko v. Holder, No. 09-CV-8535 (CM) (JCF), 2010 WL 2900363, at *3-4 (S.D.N.Y. June 25, 2010) (thirteen months). But see Gordon v. Shanahan, No. 15-CV-261 (JGK), 2015 WL 1176706, at *4 (S.D.N.Y. Mar. 13, 2015) (holding that detention of approximately eight months violated due process); Araujo-Cortes, 35 F.Supp.3d at 548 (same where detention was "for more than six months"). Second, in determining whether detention without a hearing remains reasonable, most courts look to a variety of additional factors, "such as which party bears responsibility for the prolonged detention, whether the continued duration of the detention is finite or near conclusion, and the interests served by continued detention," among others. Orsino, 942 F.Supp.2d at 409; see Debel, 2014 WL 1689042, at *5 (stating that "the principal factor considered in constitutional review of detention pending removal proceedings is the degree to which the proceedings have been prolonged by unreasonable government action"); see also Diop, 656 F.3d at 233 ("This will necessarily be a fact-dependent inquiry that will vary depending on individual circumstances.").
Although it is a close call, applying those factors here, the Court cannot say that Young's continued detention without a bond hearing has yet crossed the line into a due process violation. First and foremost, "[t]here is no evidence that the immigration authorities have unreasonably
Regrettably, until the Supreme Court or the Second Circuit address the questions presented in this case, similarly situated aliens in this Circuit will continue to be treated differently. That is, given the split among district courts in the Circuit, whether an alien in Young's position will be granted a bond hearing will continue to turn on the district judge to whom a particular habeas petition is assigned. The Court sincerely hopes that the Second Circuit steps into the fray soon. But in the absence of binding precedent from the Supreme Court and the Circuit, this Court has no choice but to reach its own decision on the questions presented. For the reasons stated above, the Court sides with those courts that have held that an alien in Young's position is subject to mandatory detention under Section 1226(c) and that Young's detention without a bond hearing does not yet violate due process. Accordingly, his petition is DENIED without prejudice to refiling if or when his detention becomes unreasonably prolonged.
There is one final matter to address: Last month, Young's counsel of record, Maggy Duteau, moved to withdraw and sought a retaining lien on Petitioner's file. (Docket Nos. 14, 18). Through his new counsel, Paul Grotas, Young has indicated
Young does, however, challenge Duteau's request for a retaining lien and, through Grotas, has submitted receipts purportedly indicating that he and his wife paid Duteau in full. (Docket No. 29 at 1; id., Ex. A). Without expressing any view as to the authenticity of those receipts — or as to whether the receipts even establish that Duteau was paid in full, as they appear to all have been issued before commencement of this case — the Court is of the view that further fact-finding may be necessary to determine if Duteau is entitled to a retaining lien and, if so, to fix the amount of the lien. Accordingly, by separate order to be issued today, the Court will refer this matter to Magistrate Judge Maas for the purposes of assessing Ms. Duteau's request for a retaining lien. See Foster v. City of New York, No. 96-CV-9271 (PKL), 2000 WL 145927, at *6 (S.D.N.Y. Feb. 7, 2000) (indicating that the Court would refer any motion for a retaining lien to a magistrate judge "for an evidentiary hearing and determination of the appropriateness of the requested liens"); Fed. Deposit Ins. Corp. v. Kisosoh Realty Corp., No. 90-CV-7900 (PKL), 1992 WL 34146, at *2 (S.D.N.Y. Feb. 18, 1992) (referring the case to magistrate judge for the purposes of conducting a hearing on the attorney's motion for a retaining lien in light of a factual dispute regarding the fees assessed).
SO ORDERED.
