Mora-Mendoza v. Godfrey et al, No. 3:2013cv01747 - Document 12 (D. Or. 2014)
Court Description: OPINION AND ORDER. Petitioner's petition for writ of habeas corpus 1 is denied, and this proceeding dismissed with prejudice. IT IS SO ORDERED. Signed on 1/29/2014 by Judge Anna J. Brown. (gw)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON HERMELINDO MORA- MENDOZA, Petitioner , v. ELIZABETH GODFREYJ Assistant Field Office Director , Portland Field Office , U.S . Immigrations and Customs Enf o rcement; NATHALIE ASHER , _ICE Seattle Field Office Director; JOHN SANDWEG , Acting Director of ICE; and RAND BEERS , Acting Secretary of the Department of Homeland Security , Respondents. MICHAEL T. PURCELL 16771 Boones Ferry Rd. , Suite 1 0 0 Lake Oswego, Oregon 97035 Attorney for Petitioner S. AMANDA MARSHALL United States Attorney JAMES E. COX , JR. Assistant United States Attorney 1000 S . W. Third Avenue , Suite 600 Portland, Oregon 97204 - 2902 Attorneys for Respondents 1 - OPINION AND ORDER 3:13 - cv- 0 1747-HU OPINION AND ORDER BROWN, Judge Petitioner, currently in the custody of U.S. Immigration and Customs Enforcement (ICE) , pursuant to 28 U.S.C. brings this habeas corpus proceeding Petitioner argues he is in ICE 2241 . § custody in violation of 8 U.S .C. 1226(c) because he is currently § For the detained without the opportunity for release on bond. reasons set forth below, the petition is DENIED, and this proceeding DISMISSED , with prejudice. BACKGROUND Petitioner is a 38-year old citizen of Mexico who came to the United States without inspection in 1989. On September 11, 2007, Petitioner pled guilty to felony Possession of Cocaine in Oregon state court. Admin. Rec. (#10 - 3) sentenced to 18 months of probation. at 70 -7 9 . Admin. Rec. Petitioner was (#10 -3 ) at 77 . Petitioner first came to the attention of ICE on March 14, 2009 after immigration Marion County Jail officials in Salem, discovered him lodged Oregon on misdemeanor Driving Under the Influence of Intoxicants. 8. in charges the of Admin. Rec . (#10-4) at Immigration officials placed a detainer on Petitioner, who was subsequently released to ICE custody on March 17, 2009 . Id. On March 31, an immigration judge ( IJ) granted Petitioner release from custody, and set bond at $5,000. Admin. Rec. ( #10-2) at 50. Petitioner's family posted bond the following day and Petitioner 2 - OPINION AND ORDER was released from custody pending further immigration proceedings. Admin. Rec. (#10-4) at 64-73. ICE issued Petitioner a Notice to Appear f o r August 26, 2009. Admin. Rec. at 30-31. (#10-2) On August 20, however, 2009, six days before the date on Petitioner's Notice to Appear 1 an IJ signed an order stating Petitioner failed to appear at his hearing and ordered Petitioner removed t o Mexico. 1 Admin. Rec. ( #10-2 ) at 87. Accordingly, ICE a on September 1, · 2 00 9, Removal / Deportation for Petitioner. September 11, issued Admin. Rec. -of ( #10-2 ) at 89. On Petitioner voluntaril y departed the 20 0 9, States by walking across the border at Tijuana, Re c . Warrant Mexico. United Admin. ( # 10-4 ) at 3 4 . 2 Petitioner subsequently returned t o the United States. officials discovered Petitioner on May 30 , 2 0 13, when he ICE was arrested on misdemeanor charges of Giving False Information to a Police Officer and Using An o ther's License. 2. Admin. Rec. ( #10-3 ) at Petitioner pled guilty t o those charges on August 27, 2013, but apparently did not go into ICE custody at that time. ( #10-3 ) at 8 0 -87. On September 2 0 , 2 0 13, with misdemeanor Driving While Suspended. Admin. Rec. Petiti o ner was charged Admin. Rec. ( #1 0 -3 ) at 1 It is unclear why Petiti o ner's removal hearing was held six days befo re the date o n the Notice t o Appear. 2 It is also unclear why Petitioner was permitted to voluntarily depart. 3 - OPINION AND ORDER 3. -Petitioner was delivered into ICE custody on September 30, 2013. Admin. Rec. (#10 -3) at 2. Although Petitioner was initially denied an opportunity for a bond hearing because he was the subject of an outstanding order of removal from · his prior immigration proceedings, on October 29, 2013 , the IJ reopened Petitioner's prior removal proceedings. now maintains ICE Petitioner is not entitled to an opportunity for release on bond because Petitioner's 2007 conviction for Possession of Cocaine subjects him to mandatory detention under 8 U.S.C. 122 6 (c) ( 1 ) . § Petitioner filed the instant petition seeking an order instructing ICE to hold a bond hearing or release him, arguing that ICE cannot rely on 8 U.S.C. § 1226(c) (1) as grounds for mandatory detention. DISCUSSION As relevant to this case , the Immigration and Nationality Act (INA) provides that ICE "shall take into custody any alien who" is deportable by reason of having committed a qualifying offense "when the alien is released." 8 U.S. C . § 1226 (c) (1) (emphasis added ) . The parties agree that Petitioner 's 2007 cocaine qualifying offense. Thus, convic~ion is a the only question is whether an alien who is not taken into custody at the time of his release from state custody ~ay nonetheless be subject to mandatory detention under Section 1226 (c) (1). 4 - OPINION AND ORDER The Board of Immigration Appeals 1226(c) (BIA) interpreted Section to provide that an alien who has committed a qualifying crime is subject to mandatory detention regardless of whether ICE took the alien into custody "immediatel y upon his state custody." release from In re Rojas, 23 I. & N. Dec. 117, 127 (BIA 2001). Thus, the BIA interpieted Section 1226(c) (1) , including the "when released" language, to not limit the timeframe during which ICE may take an alien into custod¥ and detain the alien pursuant to Section 1226(c)(l). "The BIA's construction of ambiguous statutory terms in the INA through case-by-case adjudication is under Chevron U.S.A., Inc." Inc. v. Natural Resources Defense Council, Henriquez-Rivas v. 2013) entitled to deference (citing Chevron, Holder, 467 U.S. 707 F.3d 1081, 837 , 844 1'087 (1984)) . (9th Cir. The Chevron analysis requires the Court to examine the agency's interpretation of the statute in two sequential steps. whether the statute is . issue. amb~guous First, the Court considers as to the precise question at Second, if the statute is ambiguous, the Court considers whether the agency's interpretation is reasonable. See Chevron, 467 U.S. at 842 - 43 . Since In re Rojas, courts have been split on whether mandatory detention under Section 1226(c) (1 ) requires ICE to take the alien into custody immediately upon the alien's release from criminal custody. A majority of district courts to consider the issue, 5 - OPINION AND ORDER released" provision including this Court, have held the "when . unambiguously restricts ICE's authority to detain an alien pursuant t ·o Section 1226 (c) to those situations in which they immediately take custody of the alien upon release from criminal custody. ~' Boonkue v. Ridge , No . 3:04 - cv- 00566-PA , 2004 WL See, 1146525 (D . Or . May 7, 2004); Vicencio v . Shanahan, Civ. No. 12-7560 (JAP) (D.N.J . Feb . 26 , 2013) ; Castillo v. ICE Field Office Director , 907 F. Supp. 2d 1235 (W . O. Wa. 2012) . On the other hand , a growing number _of courts, recentlY. including two courts of appeals, have reached the opposite conclusion and found that an alien may be subject to mandatory detention under Section 1226 (c) (1) even if ICE does not immediately take the alien into custody upon release from criminal custody . United States, F. 3d 375 See, e.g ., 714 F. 3d 150 Sylvain v . (3d Cir. Attorney Gen. of the 2013); Hash v . Lucero, (4th Cir . 2012) ; Johnson v. Orsino , 680 942 F. Supp . 2d 396 (' S . D. N. Y. 2013). Although I appreciate the difficulty of this question, under Chevron I defer to the BIA 's interpretation of Section 1226(c) (1) . I alternatively find that even if the "when released" provision requires ICE to immediately take custody of an alien upon release from criminal custody , deprive it ICE's failure t o do so does not of the authority to subject detention under Section 1226 (c) . the alien to mandatory Accordingly, I conclude the delay between Petitioner's release from criminal custody on his cocaine 6 - OPINION AND ORDER possession charges and ICE taking Petitioner into custody does not deprive ICE of ihe authority to detain Petitioner under Section 1226 (c) (1). I. Chevron Analysis A. step One As indicated above, at ·step One of the Chevron analysis, the Court considers whether the statute is ambiguous as to the precise question at issue. See Chevron, 467 U.S. at 842 . "If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give expressed intent of Congress." Id. effect to the unambiguously The Court determines whether a statute is ambiguous by "applying the normal 'tools of statutory construction.'" Blandino-Medina v . Holder, 712 F.3d 1338, 1343 (9th Cir. 2013) . In doing so, the Court first engages in a textual analysis of the relevant statutory provision, including a reading of the words of the statute in their context and "'with a view of their place in the overall statutory scheme.'" v. Wilcox, 633 F.3d 766 , 773 (9th Cir . 2011) N. Cal . River Watch (quoting Resident Councils of Wash. v. Leavitt, 500 F. 3d 1025, 1031 (9th Cir. 2007)) . "If the analysis, proper the interpretation is not clear legislative history offers insight into Congressiona.l intent." Ill Ill 7 - OPINION AND ORDER Id. from the textual valuable guidance and 1. Textual Analysi~ Whether the statute is clear as to the precise question at issue turns on whether the "when . . released" language clearly commands ICE to take an alien into custody immediately upon release from criminal custody. As relevant here, however, "when" has two different usages that suggest different answers to this question. Without a doubt, as Petitioner suggests, "when" can be used to mean ·"at or during the time that" or "just after the moment that" the triggering event takes place. Dictionary Unabridged 2602 Webster's Third New International (1981). Such a definition clearly implicates a temporal limitation on ICE's authority to take custody of an alien under Section 122 6 (c) ( 1) . On the other hand, "when" can mean "in the event that" or " on condition that;" a usage that does not bear the strictly temporal implication of the first usage discussed above. Id. If Congress ·intended the second usage of "when," ICE's power to subject an alien to mandatory detention may not be limited to where it takes the alien into custody at the jailhouse door. 3 3 An example illustrates this point. If, at the conclusion of a hearing, a judge said, "The Court shall issue its opinion when the parties-' supplemental briefing is completed," few would interpret the judge's statement to mean the Court must issue jts opinion at the moment the briefing is completed and could ·not do so at any time thereafter. While there are certainly differences between this example and the statutory phrase at issue, the example demonstrates that the operative combination of "when" and a passive past participle does not necessarily bear as rigid a meaning as Petitioner suggests. 8 ~ OPINION AND ORD~R In add i tion , bo t h usages produce plausible read i ngs of the statute when r ead in the context of · the p r ovision as a whole . Applying the temporal usage of " when ," Section 1226(c) (1) mandates t hat ICE detain any alien deportable by reason of having committed a qualifying offense as long as ICE takes the alien into custody at th~ moment the al i en is released from criminal custody . Applying the conditional usage of " when ," however , the provision instructs ICE to take custody of and detain aliens who have committed qualifying offenses , but only "in the event that " they are released from criminal custody . Thus , " when ," Section 1226 (c) (1) detain qualifying aliens , applying the conditional usage of requires but released from criminal custody . 4 only ICE to take custody of and if and after the alien is So understood , the " when . released " language is effectively a mandate to ICE not to interfere with criminal custodial sentences . Thus , after performing the textual analysis , I conclude both readings of " when . released" are plausible and the statute remains ambiguous as to the precise question at issue. 2. Leqis~tive History and Statutory Purpose Because ambiguity remains after the textual analysis , I turn to the legislative history and purpose of the statute to discern 4 Notably , the qualifying offenses in Section 122 6 (c) ( 1) include some very serious offenses fo r which some aliens may never be released from criminal custody . See , e .g., 8 U. S . C. § 1227 (a) (2) (A) ( i ii) (providing that aliens who commit agg r avated felonie s are deportable). 9 - OPINION AND ORDER whether the statute is ambiguous. 773. N. Cal. River Watch, 633 F.3d at . With regard to Section 1226 (c), the Supreme Court noted "Congress adopted this provision against a backdrop of wholesale failure by the INS to activitY by aliens." deal with increasing rates of criminal Demore v. Kim, 538 U.S. 510, 518 (2003) . The Court noted that at the time of passage, Congress was considering evidence of the significant number of crimes committed by criminal aliens, and further considered evidence that "more than 20% of deportable criminal hearings." In aliens failed to appear for their removal Id. at 519 (citing S. Rep. No. 104-48, p. 2 (1995)). addition, the Court found Congress considered studies that "suggested that detention of criminal aliens during their removal proceedings might be the best way to ensure their successful removal from this county," and "[i]t was following these Reports that Congress enacted 8 U.S. C. § 122 6, requiring the Attorney General to detain a subset of deportable criminal aliens pending a determination of their removability." mandatory process, detention under Section Id. 1226 (c) at 521. consistent In finding with due the Court concluded that "[s]uch detention necessarily serves the purpose of preventing deportable criminal aliens from fleeing prior to or during their removal proceedings, thus increasing the chance that, if ordered removed, the aliens will be successfully removed." 10 - OPINION AND ORDER Id. at 528. Although I find Section 1226 (c) (1) remains ambiguous, the statutory purpose and legislative history lend additional credence to the viability of the interpretation of "when . conditional , rather released." than temporal, As the Court . thoroughly discussed in Kim , in light of a high percentage of criminal aliens failing to appear for their removal bond, Congress sought to proceeding~ facilitate the when released on speedy and efficient deportation of criminal aliens by subjecting a specific class of such aliens to mandatory detention. Kim, 538 U.S. at 518-20. A reading of "when . . . released" that places a very strict temporal limitation on ICE's authority to take criminal deportable aliens into mandatory custody is incongruent with Congress 's clear purpose in passing Section 12 2 6 (c ) . See Hosh, 680 F.3d at 381 . Simply put, giving otherwise qualifying criminal aliens the opportunity to be released on bond simply because of a delay in taking the alien into ICE custody frustrates the Congressional purpose in passing Section 1226 (c ) . Although I recognize that Petitioner's reading of "when . released" is plausible on the face of the statute, considering the text, context, legislative history, and statutory purpose, I conclude that Petitioner's interpretation is not the clear intent of Congress. Thus, I find the statute is ambiguous and move on to Step Two of the Chevron analysis. Ill 11 - OP INI ON AND ORDER B. Step Two At Step provision Two, if ambiguous the after Court finds undergoing the the relevant above statutory analysis , the administrative interpretation is entitled to deference so long as it is a reasonable construction of the statute . at 843 . Chevron , 467 U.S. "This test is satisfied if the agency's interpretation ' reflects a plausible construction of the statute ' s plain language and does not otherwise conflict with Congress ' expressed intent.'" Oregon Trollers Ass ' n v. Gutierrez , 452 F . 3d 1104, 1116 (9th Cir . 2006) (quoting Rust v . Sullivan , 500 U. S . 173 , 183 (1991)). An agency's decision will not be overturned at the second step "unless it is arbitrary, statute. " capricious, Ramos-Lopez v . or manifestly Holder, 563 contrary F.3d 855 , 859 to the (9th Cir. 2009) . As discussed above , I find the BIA ' s conclusion that Section 122 6 (c) ( 1) does not restrict when ICE may take a qualifying criminal alien into custody and subject the alien to mandatory detention is a plausible reading Moreover, the BIA's interpretation is consistent with Congress 's intent in passing Section 1226(c) of the text of the statute. insofar as it provides for the mandatory detention of the qualifying criminal aliens Congress was concerned would not appear for removal proceedings if released on 12 - OPINION AND ORDER There f ore , bond . I conclude that the BIA ' s inte r pretation of Section· 122 6 (c) i s r easonabl e and entitled to deference . 5 II. Authority for Mandatory Detention In the alternative , even assuming Section 1226(c) requires ICE to take a qualifying criminal alien into custody immediately upon release from criminal custody , I conclude that ICE ' s failu r e to do so does not deprive it of the power to subject qualifying criminal alien to mandatory detention . directing official action needs more than a an otherwise " [A] mandatory statute -' shall ' before the grant of power can sensibly be read to expire when the job is supposed to be done ." U. S . 1 49 , 161 (2003) . Barnhart v . Peabody Coal Co ., 537 Accordingly , " if a sta t ute does not sp e cify a consequence for noncompliance with statutory timing provis i ons , the federal courts will not in the ordinary course impose their own coercive sanction ." 510 u.s . I United States v . James Daniel Good Real Prop . , 43 , 63 (1993) . find the rationale of the Third and Fourth Circuits in Sylvain and Hosh persuasive in concluding that even if Section 5 Because I conclude that the BIA ' s interpretation of Section 1226 (c) is reasonable , I reject Petitioner ' s argument that the rule of lenity justifies granting the writ. " The rule of lenity . . does not prevent an agency from resolving statutory ambiguity through a valid regulation. " Pacheco - Camacho v . Hood , 272 F . 3d 1266 , 1271 (9th Cir . 2001). Beca u se the BIA ' s decision is entitled to Chevron deference , I conclude " [t]o the extent that there is any ambiguity in " Section 1226(c) , the BIA " has resolved it through a r easonable interpretation , and the rule of lenity does not apply ." Id . at 1272. 13 - OPINION AND ORDER 1226(c) provides a time limit for taking a qualifying alien into custody, the authority expiry of to subject that the time does alien . to not deprive mandatory ICE of detention. Sylvain, 714 F.3d at 157-61; Hosh, 680 F.3d at 381-83. the See As the Hosh and Sylvain courts noted, in United States v. Montalvo-Murillo, 495 U.S. 711 (1990), the Supreme Court refused to strip the government of the authority to detain a criminal defendant pending trial when a judge sua sponte continued the detention hearing in v iolation of 495 U.S. at 714-i8. the Bail Reform Act. There, the Bail Reform Act provided that before a defendant could be detained, a judicial officer "sha ll " hold a bond hearing "immediately upon the person's first appearance before the judicial officer". 18 u.s.c. § 3142 (f)). The Id. at 714 (quoting Montalvo-Murillo Court reasoned, , " [a]ssessing the situation in realistic and practical terms, it is inevitable that, despite the Government and the courts, time requirements situations, of there is § no most diligent efforts of the some errors in the application of the 3142(f) will occur . In these reason to bestow upon the defendant a windfall and to visit upon the Government and the citizens a severe penalty by mandating release of possibly dangerous defendants every time some deviation from the strictures of§ 3142(f) occurs ." Id. at 720. The Court's present situation. rationale in Montalvo-Murillo applies to the As discussed above and at length by the Court 14 - OPINION AND ORDER in Kim, in passing Section 1226(c), Congress sought to protect the public from a certain class of criminal aliens who failed to appear for their removal proceedings at a high rate by mandating that ICE take such efficient aliens into removal. custody Kim , 538 to U.S. facilitate at 518 - 20 . their As speedy and in Montalvo- Murillo , the criminal alien should not receive the windfall of the opportunity for release on pond, and the public should not bear the penalty of the possibility of the alien's release pending re~oval proceedings, simply because ICE did not timely take the alien into custody . Thus, See Sylvain, 714 F.3d at 159 ; Hosh, I conclude even if Section . 1226 (c) qualifying crimi ~ al 680 F . 3d at 382 - 83 . requires ICE to take a alien into custody at the moment the alien is released from criminal custody, failure to do so does not deprive ICE of the authority to subject the alien to mandatory detention. CONCLUSION Based on the habeas corpus foregoing , (#1) Petitioner's petition for writ is denied , and this proceeding dismissed with prejudice. IT IS SO ORDERED . DATED this ;).C, of ~ day of January, 2014 . Anna J. Brown United States District Judge 15 - OPINION AND ORDER
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