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11 Civ. 1350 (JSR) (S.D.N.Y. May. 31, 2011)

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11 Civ. 1350 (JSR)


ROMAN GOMEZ (A#041-424-512), Petitioner, v. JANET NAPOLITANO, Secretary of the Department of Homeland Security; U.S. DEPARTMENT OF HOMELAND SECURITY; WAYNE MULLER, Assistant Field Office Director, Office of Detention and Removal for U.S. Immigration and Customs Enforcement; RUBEN PEREZ, Assistant Field Office Director, Office of Detention and Removal for U.S. Immigration and Customs Enforcement; CHRISTOPHER SHANAHAN, New York Field Office Director for the Office of Detention and Removal for U.S. Immigration and Customs Enforcement; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; ERIC HOLDER, Attorney General of the United States; U.S. EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, Respondents.


On February 28, 2011, petitioner Roman Gomez, represented by counsel, petitioned the Court for a writ of habeas corpus, contending that he was being illegally detained under § 236 of the Immigration and Nationality Act ("INA"). After receiving full briefing from the parties, the Court heard oral argument on April 19, 2011. On April 29, 2011, the Court issued a "bottom-line" Order denying Gomez's petition for a writ of habeas corpus, with opinion to follow. Before the opinion could issue, however, petitioner moved under Fed. R. Civ. P. 60 for "relief" from the April 29, 2011 Order in light of new developments that allegedly would affect the analysis of the issues arising under the petition. In the alternative, petitioner moved to amend the petition. This Memorandum Order first explains the reasons for the Court's April 29, 2011 Order denying the habeas petition and then addresses, and denies, both prongs of petitioner's subsequent motion.

By way of background, petitioner Gomez, a native of the Dominican Republic, entered the United States on May 27, 1988 at age twenty as a lawful permanent resident joining his now-deceased father, a U.S. citizen. In 2004, Gomez pled guilty to two larcenies, in violation of N.Y. Penal Law 155.25, for which judgments of conviction were entered on February 28, 2004 and October 2, 2004. In connection with his plea to the second larceny, Gomez, who had previously been detained, was released from custody on October 2, 2004.

On December 4, 2009, Gomez was arrested and charged with rape and related charges, but all charges were dismissed on February 24, 2011. However, upon his release from Rikers Island, Gomez was transferred to the custody of the U.S. Immigration and Customs Enforcement ("ICE"), where he remains. This was pursuant to a "Form I-862" dated February 25, 2011, charging Gomez with deportability for having committed two crimes of moral turpitude: his two 2004 petit larceny convictions. Gomez has requested a custody redetermination -- known as a bond hearing -- but has not yet received any hearing because respondents contend that he is being held pursuant to the mandatory detention provision of § 236 of the INA and is thus not entitled to a bond hearing.

ICE has the authority to detain any alien pending a decision in removal proceedings, and has discretion to release some aliens. 8 U.S.C. § 1226(a). However, aliens who have been convicted of certain enumerated offenses, including crimes of moral turpitude, see id. §§ 1226(c)(1)(B), 1227(a)(2)(A), are subject to mandatory detention under INA § 236(c), which provides:

(c) Detention of criminal aliens

(1) Custody

The Attorney General shall take into custody any alien who ...(B) is deportable by reason of having committed any offense covered in section 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 for the same offense.

8 U.S.C. § 1226(c)(1) (emphasis added).

The Attorney General has discretion to release "an alien described in paragraph (1)" from detention only in limited circumstances, not applicable here. Congress enacted § 236 pursuant to § 303(b) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Div. C, Pub. L. No.1 04-208, § 303(b), 110 Stat. 3009-586 (Sept. 30, 1996), in response to evidence that the Immigration and Naturalization Service (now ICE) was unable to remove the majority of criminal aliens, in large part because of such aliens' failure to appear for removal hearings. See Demore v. Kim, 538 U.S. 510, 518-20 (2003).

The Board of Immigration Appeals ("BIA") first interpreted the mandatory detention clause in INA § 236(c) in Matter of Rojas, 23 I. & N. Dec. 117 (BIA 2001). In that case, the BIA considered whether an alien, whose conviction would otherwise subject him to mandatory detention, was exempt because he was not taken into immigration custody until two days after his release from state custody and concluded that he was not. Id. at 117-18. The BIA concluded that the "when ... released" clause described only the point at which the Attorney General's detention duty arose and that the statute thus prohibited such aliens' release from immigration custody regardless of how or when they entered such custody. Id. at 121.

While the BIA initially held that an alien was subject to mandatory detention regardless of when the alien was released, the BIA subsequently modified this position, and held that an alien is subject to mandatory detention "only if he or she is released from non-[ICE] custody after [October 9, 1998] and only where there has been a post-[October 9, 1998] release that is directly tied to the basis for detention under [§ 1226(c)(1)(A)-(D)]." Matter of Garcia-Arreola, 25 I. & N. Dec. 267, 267 (BIA 2010). Accordingly, under the BIA's current interpretation, ICE has mandatory-detention authority with respect to an alien who has been released from custody relating to an offense enumerated in INA § 236(c)(1) after October 9, 1998, see id. at 267, 271, and need not invoke this authority immediately, see Matter of Rojas, 23 I. & N. Dec. at 127.

Since the relevant release is the one from detention tied to the offense(s) on which deportability is premised, the fact that Gomez was detained following his release from being held on the dismissed rape charges is irrelevant. The relevant release date for present purposes is his release from custody on October 2, 2004, since his deportability is premised on the larceny charges and October 2, 2004 is the date of his release respecting these charges. Petitioner therefore contends that, because respondents waited six years after he was released from custody to take him into immigration custody, the mandatory detention provision of § 236(c) does not apply and thus the petitioner must be afforded a bond hearing. Respondents contend that the "when ... released" clause in INA § 236(c) is ambiguous and that the BIA's interpretation is reasonable and should be afforded Chevron deference.

Before turning to the merits of the habeas petition, the Court notes that it has jurisdiction to hear this petition under 28 U.S.C. § 2241, 28 U.S.C. § 1331, and Article I, § 9, cl. 2 of the U.S. Constitution. While § 1226(e) of the INA provides that "[t]he Attorney General's discretionary judgment regarding the application of this section shall not be subject to review," see 8 U.S.C. § 1226(e), in this case petitioner "does not challenge a 'discretionary judgment' by the Attorney General or a 'decision' that the Attorney General has made regarding his detention or release." See Demore v. Kim, 538 U.S. 510, 516-17 (2003) ("Section 1226(e) contains no explicit provision barring habeas review, and we think that its clear text does not bar respondent's constitutional challenge to the legislation authorizing his detention without bail."). Here, petitioner is merely challenging the BIA's interpretation of the mandatory detention provision; his petition does not challenge the basis for removal. Thus, the Court concludes that it has jurisdiction to review the instant petition and now turns to the merits of the petition.

By contrast, petitioner's motion for relief filed on May 12, 2011 -- following the issuance of the Court's ruling on the petition -- contends that he is not removable. See infra.

In Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984), the Supreme Court established a two-step framework for courts reviewing an administrative agency's interpretation of a statute. First, the court must consider "whether Congress has directly spoken to the precise question at issue." Id. at 842. If the statute is unambiguous, "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." Id. at 842-43, 104. If, however, the statute is "silent or ambiguous with respect to the specific issue," the Court must then determine whether the agency's determination is "based on a permissible construction of the statute," and, if so, must defer to the agency's interpretation (at least if it relates to a matter within the agency's expertise). Id. at 843.

As an initial matter, the Court concludes that the mandatory detention provision is ambiguous. Section 236(c) provides that the alien is subject to mandatory detention "when ... released." This could mean at the moment of release or it could mean at any time following release. Under this latter construction, the alien is subject to mandatory detention at any point following the alien's release from custody.

Which of these competing definitions to adopt is a question, at least in part, of what makes sense from the standpoint of the ICE's practices in implementing Congressional policy, and thus is properly a subject of Chevron deference. In order to defer to the BIA's interpretation, the Court "need not conclude that the agency construction was the only one it permissibly could have adopted ... or even the reading the court would have reached if the question initially had arisen in a judicial proceeding." Chevron, 467 U.S. 837 at 843 n.1. Because the BIA's interpretation is consistent with congressional goals as evidenced by legislative history, the Court concludes that the interpretation is reasonable. Specifically, the legislative history demonstrates that Congress adopted the mandatory detention provision in response to concerns about flight and recidivism. Congress was dissatisfied with the current system whereby aliens who committed the crimes enumerated in § 236(c) would be released following their bond hearings and then either flee before their removal proceedings or commit additional crimes. See, e.g., S. Rep. No. 104-48, p. 2 (1995) ("[O]ver 20 percent of nondetained criminal aliens fail to appear for deportation proceedings."); 142 Cong. Rec. 7972 (1996) ("77% of noncitizens convicted of felonies are arrested at least one more time."). Thus, instead of allowing these individuals to have individualized bond hearings, Congress determined that they should be automatically subject to mandatory detention. Permitting certain individuals to avoid mandatory detention simply because ICE fails to immediately take them into immigration custody runs counter to this congressional intent. While the BIA's interpretation may not be the only reasonable construction of the mandatory detention provision, the Court concludes that respondents' interpretation is reasonable and thus defers to that interpretation.

It was on the basis of this reasoning that the Court denied petitioner's petition, as reflected in the "bottom-line" Order of April 29, 2011. Petitioner then filed his "motion for relief" from that Order, to which the Court now turns. Whether this motion is construed as a motion for reconsideration or as a motion to obtain relief from a final judgment, order, or proceeding pursuant to Rule 60(b), the Court concludes that the motion lacks merit.

The standard for granting a motion for reconsideration "is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked." Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). While petitioner now contends that he is not removable under INA § 237(a)(2)(A)(ii), petitioner did not in any way contest the basis for removal in his original petition. Indeed, not only this argument but all of petitioner's arguments in support of his motion for relief from the April 29, 2011 Order are arguments not previously raised before the Court. Thus, construing petitioner's motion as a motion for reconsideration, the motion must be denied because "a party is not permitted to put forth new facts, issues, or arguments that were not presented to the court on the original motion." Aguiar v. New York, 2008 WL 4700030, at *1 (S.D.N.Y. 2008).

Rule 60(b) provides that a party may obtain relief from a final judgment, order, or proceeding on the basis of "newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b)" or "any other reason that justifies relief." Fed. R. Civ. P. 60(b)(2), Fed. R. Civ. P. 60(6)(6). In order to obtain relief based on "newly discovered evidence," the movant must demonstrate that:

(1) the newly discovered evidence was of facts that existed at the time of trial or other dispositive proceeding, (2) the movant must have been justifiably ignorant of them despite due diligence, (3) the evidence must be admissible and of such importance that it probably would have changed the outcome,

and (4) the evidence must not be merely cumulative or impeaching.

United States v. Int'l Bd. Of Teamsters
, 247 F.3d 370, 392 (2d Cir. 2001) (internal citations omitted).

While Rule 60(b) also contains a catch-all provision which permits the Court to grant relief from a final judgment, order, or proceeding for "any other reason that justifies relief," this provision "has been narrowly cabined by the precedent of this Court." Harris v. United States, 367 F.3d 74, 80 (2d Cir. 2004). Generally, the "proper case for Rule 60(b)(6) relief is only one of extraordinary circumstances, or extreme hardship." Id. at 81 (internal citations and quotations omitted). --------

Petitioner argues that new factual developments suggest that he is not removable under INA § 237(a)(2)(A)(ii) and thus that he cannot be subject to mandatory detention pursuant to INA § 236(c). Specifically, petitioner contends that his two petit larceny convictions do not subject him to removal because these offenses do not constitute crimes involving moral turpitude. However, the facts needed to raise the argument that petitioner is not removable cannot be considered "new" factual developments. Petitioner has known that ICE charged him as removable under INA § 237(a)(2)(A)(ii) based on two petit larceny convictions since before the filing of the instant petition. And the cases suggesting that not all theft offenses constitute crimes involving moral turpitude were decided long before the filing of this petition. Petitioner, as noted, is represented by counsel, and petitioner thus has no excuse for not raising these arguments at an earlier stage. And to the extent that petitioner has a colorable argument that he is not removable, his remedy is to raise that argument before the immigration judge.

Petitioner also contends that he recently discovered that he was never incarcerated for his 2004 offense and thus that he was never "released" from criminal custody within the meaning of INA § 236(c). The Court concludes that, with reasonable diligence, petitioner could have easily raised this argument in connection with his initial petition. Moreover, this fact would not have changed the Court's decision because petitioner never challenged the BIA's position that the relevant "release" from criminal custody can take place following an arrest. See Matter of Kotliar, 24 I. & N. Dec. 124, 125 (BIA 2007); Matter of West, 22 I. & N. Dec. 1405, 1410 (BIA 2000). Thus, the Court hereby denies both petitioner's motion for relief from the April 29, 2011 Order and petitioner's motion to amend the petition.

Accordingly, the Court affirms its April 29, 2011 Order denying the habeas petition and denies petitioner's motion for relief from that order. The Clerk of the Court is hereby directed to enter final judgment and close the case.



JED S. RAKOFF, U.S.D.J. Dated: New York, New York

May 31, 2011