CASTILLO v. AVILES et al, No. 2:2012cv02388 - Document 14 (D.N.J. 2012)

Court Description: OPINION. Signed by Judge Stanley R. Chesler on 11/15/2012. (nr, )

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QT FOR j lJLiCATION UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY JULIAN RICARDO CASTILLO, Civil Action No. 12-2388 (SRC) Petitioner, v. . OPINION OSCAR AVILES, et aL, Respondents. APPEAIANCES: Petitioner rc Julian Ricardo Castillo A# 4 1-590-059 Hudson County Correctional Center 30-35 Hackensack Ave. Kearny, NJ 07032-4690 Attorney for Respondents Charles Scott Gradow Office of the U.S. Attorney District of New Jersey 970 Broad Street Suite 700 Newark, NJ 07102 CHESLER, District Judge Petitioner, Julian Ricardo Castillo, an alien detained in connection with removal proceedings and currently confined at Hudson County Correctional Center, has submitted a petition for a writ of habeas corpus pursuant to 28 U.S. C. 2241 challenging his detention without a bond hearing, purportedly pursuant to S U.S. C. § 1226(c). and paid the 85 filing fee. All Respondents other than Warden Oscar Aviles will be dismissed. For the reasons expressed 2 in this Opinion, this Court will deny the petition as again st Warden Oscar Aviles. 1, BACKGROUND Petitioner is a native citizen of the Dominican Republic and was admitted to the United States as Lawful Permanent Resident in November of 1987. He was convicted of attempted assault in New York state court in July of 2009 and was sentenced to one year in prison as a result of that sentence. He was arrested on unrelated char ges in May of 2011. He was released when those charges were dropped, and was then taken into the custody of U.S. Customs and Immigration Enforcement ( ICE ) on November 18, 2011 . Petitioner s removal proceedings began on November 21, 2011, when he was charged by ICE with being removable under the Immigration and Nati onality Act § 237(a)(2)(A)(iii) because his 2009 criminal conviction was an aggravated felony, rendering him removable. During his incarceration, Petitioner has had numerous hearings and adjournments to permit him time to Section 2241 provides in relevant part: a) Writs of habeas corpus may be granted by the Supreme Court, any justice thereof. the district courts and any circuit judge within their respective j unsdwtiou (c) The writ of habeas corpus shall not extend to a priso ner unless-- .(3) He is in custody in violation of the Constitution or laws or treat ies of the United States Petitioner names as Respondents. in addition to the ward en, various federal immigration officials. Such remote federal officials are not proper respondents: instead, the proper respondent is the warden of the facility where Petitioner is detained. , Rumsfeld v. Padilla, 542 U.S. 426 434-436 (2004) \ i v Maugans 24 F 3d 500 50 (3d Cir 1994) secure an attorney. Finally on February 29, 2012. Petit ioner appeared bethre the immigration judge with his counsel, who requested another adjo urnment so that the attorney could prepare the case. Later. at a hearing on March 22, 2012. Petitione r s attorney requcsted another adjournment of time in which Petitioner wished to appeal his 2009 conviction. The instant Petition was docketed in this Court on Apri l 23, 2012. In his Petition, Petitioner challenges his on-going detention, pursuant to 8 U.S.C. § 1226(c), while his removal proceedings are pending, contending that his continue d detention is unlawful since he was not taken into iCE custody immediately upon release from the criminal custody. At a May 21 hearing, an additional charge of remo vability related to conviction of an aggravated felony was added. At a June 14, 2012 , Petitioner was ordered by the immigration judge to be removed from the United States. Petitione r s attorney then filed another request to prolong the removal proceedings so that Petitioner could further pursue post-conviction relief on the state court criminal matter, but that request was denied by the immigration judge. 11. RELEVANT STATUTES Title 8 U.S.C. § 1226(a) provides the Attorney General with the authority to arrest, detain, and release an alien during the pre-removal-o rder period when the decision as to whether the alien will be removed from the United States is pending. The statute provides, (a) Arrest, detention, and release On a arrant issued by the Attolue) General an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States. Except as provided in subsection (ci of this section and pending such decision, the Attorney General (1) may continue to detain the arrested alien; and (2) may release the alien on- (A) bond of at least $1,500 with security approved by, and containing conditions prescnbed by. the Attorney General; or (B) conditional parole: hut (3) may not provide the alien with work authorization (including an employment authorized endorsement or other appropriate work permit), unless the alien is lawfully admitted for permanent residence or otherwise would (without regard to removal proceedings) be provided such authorization. (b) Revocation of bond or parole The Attorney General at any time may revoke a bond or parole authorized under subsection (a) of this section, rearrest the alien under the original warrant, and detain the alien. (Emphasis added.) Certain criminal aliens, however, are subject to mandatory detention pendin g the outcome of removal proceedings, pursuant to 8 U.S.C. § 1226(c)(1)(B), which provides in relevant part that: The Attorney General shall take into custody any alien who - (A) is inadmissible by reason of having committed any offense covered in section 1 182(a)(2) of this title, (B) is deportable by reason of having committed any offense covered in Sectio n 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) 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 fur the same offense. (Emphasis added) SeLnon I 226ccX2) pcrnuts release of cnrnmal aliens only under very limited circumstances not relevant here. In short, detention under detention under § 1226(a) is discretionary and permits release on bond, while 3 § 1226(c) is mandatory. III. ANALYSTS A. Jurisdiction Under 28 U.S.C. § 2241(c), habeas relief shall not extend to a prisoner unless ... [hje is in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. 2241 (c)(3). A federal court has subject matter jurisdiction under § § 2241 (c)(3) if two requirements are satisfied: (1) the petitioner is in custody. and (2) the custody is alleged to be in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 224 l(c)(3): Malengv. Cook, 490 U.S. 488, 490, 109 S.Ct. 1923, 104 L.Ed.2d 540(1989), This Court has subject matter jurisdiction over this Petition under § 2241 because Petitioner was detained within its jurisdiction, by a custod ian within its jurisdiction, at the time he filed his Petition. Petitioner also asserts that his mandatory detention is not statutorily authorized by 8 U.S.C. § 1226(c), and that it violates his due process rights. c Zadvydas v. Davis, 533 U.S. 678, 699, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001); Bonhometre v. Gonzales, 414 F.3d 442, 445 46 (3d Cir. 2005). B. Petitioner s Detention Here, the parties dispute the meaning of the phrase when the alien is released. Petitioner argues that slflLe lie Wa not taken immcdiaiek upon release from criminal confinement that the current ongoing detention is improper. Petitioner argues that he is not There is no dispute that Petitioner s criminal 1226(c). § convictions are of the type enumerated in subject to mandatory pre-rernoval period detention under 8 U.S.C. § 1226 (c)hecause ICE failed to apprehend him immediately following the time of his release from criminal incarceration tr the crime underlying the charges for removal. Responde nts argue that this Court should defer under Chevron USA, Inc. v. Natural Res. Def. Council. Inc.. 467 U.S. 837 (1984). to the BIA s determination of 1226(c) in Matter of Rojas. 23 1. & N. Dec. 177 (BIA 2001). Respondents assert that the when the alien is released language mean s that detention is authorized at any time afler release from criminal custody. Petitioner contends that ICE is permitted to subject a pre-remo val-order detainee, such as himself, to mandatory detention under § 1226(c) if it takes that detainee into custody immediately upon his release from a criminal sentence. Acco rdingly, as he was not detained by immigration authorities at the time of his release from crim inal confinement, Petitioner contends that he may be detained only under the discretionary deten tion provision of § 1226(a) and that he is entitled to a bond hearing, Respondents argue, in reliance on Matter of Rojas, 23 I. & N. Dec. 117 (BIA 2001), that § 1226(c) is not so temporally limited. In Roias, the BIA held that the when the alien is released clause of § 1226(c) mandates that aliens who have been convicted of certain enumerated offenses be detained, without the possibilit y of release on bond. regardless of when they were released from criminal confinement and regardles s of whether they had been living ithin the ommunit for years attertheirrelease 231 & 14 Dcc at 122 Matter of Rojas involved the alien s appeal to the BIA of the Immigration Judge s rejection of the argument that Rojas was not subject to man datory detention under § 1226(c) because ICE failed to apprehend him at the time of his relea se from incarceration on parole for an offense covered by 1226(c), and instead waited two days before taking him into custody. Sç Matter of Rojas. 23 I. & N. Dec. 177 (BIA 2001). Ther e, the BIA determined that [Congress] was concerned with detaining and removing all crim inal aliens. held that Rojas was subject to mandatory detention pursuant to at 122. The BIA ultimately § 1226(c) even though he was not taken into custody immediately following his relea se from state custody. at 127. Respondents argue that this Court should defer to the BIA construction of § 1226(c) under the principles the Supreme Court set forth in Chev ron U.S.A.. Inc. v. Nat l Res. Def. Council. Inc., 467 U.S. 837 (1984). In Chevron, the Supr eme Court established a two-step framework for reviewing an administrative agency s interpretation of a statute. 467 U.S. at 84243. Under step one, the Court must consider whe ther Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter. Id. 1f however, the statute is silent or ambiguous with respe ct to the specific issue, then the Court must proceed to step two and determine whether the agency s determination is based on a permissible construction of the statute. ich In support of their position that this Court should defe r to the BIA Roias decision, Respondents rely on a recent decision of the Court of Appeals for the Fourth Circuit, Hosh v. Lucero, 680 F.3d 375 (4th Cir. 2012). In Roth. the Fourth Circuit agreed that the statutory language was ambiguous. that the B IA s interpreta tion of § 1226(c) was reasonable, and that it must be accorded deference Thus, the Fourth Circ uit heki that an alien is ubjeet to mandator detention under § 1 226(c) even if there is a gap betw een the time of release from criminal incarceration and the time of detention by immigrat ion authorities. In Diaz v. Muller, this Court deferred to was lawful under § 1226(c), stating that an interpretation of the statute in line with petitioner s arguments there that enacted 8 U.S.C. holding that pre-removal detention there was wrongly decided would challenge the intent of Coness when it § 1226(c). jz v, Muller, 2011 WL 3422856 (D.NJ, Aug. 4. 2011) ( [T]his Court does not concur that the statutory language [of l226(c)J is unambiguous and amenable to § only one interpretation. Nor does this Court perceive that the statutory language necessarily imposes a temporal requirement such that detention must occur immediately upon the alien s release. ), As in Diaz, this Court rejects the contention of Petitioner here that he is not within the scope of § l226(c) simply because he was not detained pursuant to his removal proceedings immediately upon release from the underlying criminal custody. Accordingly, the Petition will be denied. IV. CONCLUSION For the reasons set forth above, the Petition for writ of habeas corpus under 28 U.S.C. 2241 will be denied. An appropriate order follows. Stanley R. Chesler, U. Dated: . .J. §

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