Ashley v. Ridge, Civil Action No. 03-4078 (JLL).

288 F.Supp.2d 662

Milton ASHLEY, Petitioner-Plaintiff, v. Thomas RIDGE, Secretary, Department of Homeland Security, et al., Respondents-Defendants.

Civil Action No. 03-4078 (JLL).

United States District Court, D. New Jersey.

October 29, 2003.

Ruchi Thaker, Bretz & Coven, LLP, New York City, for Petitioner-Plaintiff.

Christopher J. Christie, United States Attorney, Anthony J. Labruna, Jr. Assistant United States Attorney Newark, NJ, for Respondents-Defendants.

OPINION & ORDER

LINARES, District Judge.

Presently before this Court is a petition for a writ of habeas corpus by Petitioner Milton Ashley. Petitioner asserts that he is currently being detained in violation of the Due Process Clause of the United States Constitution by virtue of the automatic stay of his bail pursuant to 8 C.F.R. § 3.19(i)(2).

FACTUAL BACKGROUND

The facts in this case are not disputed. Petitioner Milton Ashley, a native of Jamaica, was admitted to the United States in 1986 and became a lawful permanent resident four years later. (Thaker Affirmation in Support of Petitioner's Verified Petition for a Writ of Habeas Corpus and Complaint for Declaratory and Injunctive Relief, ¶ 3; Exh. B) ("Thaker Aff."). In November 1993, Petitioner was arrested on various charges and spent ten days in criminal custody. (Thaker Aff., Exh. A). Pursuant to this arrest, in January 1995, he pled guilty to the offense of Endangering the Welfare of a Child, Third Degree, under New Jersey Statute 2C:24-4a. (Thaker Aff., ¶ 11). Petitioner was sentenced to three years probation and psychological counseling for his offense, and was required to register with the State of New Jersey as a sex offender. He completed his probation without any violations in 1998. (Thaker Aff., ¶ 12).

On August 6, 2003, Petitioner was arrested at his home in Montclair, New Jersey by officials from the Bureau of Immigration and Customs Enforcement ("BICE") and taken to the Hudson County Correctional Facility in Kearny, New Jersey. (Thaker Aff., ¶ 13). He was served with a Notice to Appear in deportation proceedings as a result of his 1995 conviction. (Thaker Aff., ¶ 14). At the same time, Petitioner was provided with a Notice of Custody Determination from the BICE, stating that the BICE District Director had determined that he should remain in BICE custody and that no bond should be set. (Thaker Aff., ¶ 15). As permitted by 8 C.F.R. § 236.1(d)(1), Petitioner then requested a redetermination of his custody status before an Immigration Judge. (Thaker Aff., ¶ 16).

On August 14, 2003, Immigration Judge Annie S. Garcy held a hearing to redetermine Petitioner's custody status. (Thaker Aff., ¶ 17, Exh. E). The Immigration Judge determined that bond should be set at $5,000. (Thaker Aff., ¶ 19). Immediately following the hearing, BICE filed form EOIR-43 with the Board of Immigration Appeals ("BIA"), a Notice of Service Intent to Appeal Custody Redetermination. (Thaker Aff., ¶ 20). Pursuant to 8 C.F.R. § 3.19(i)(2), this filing automatically stayed the Immigration Judge's redetermination decision. Petitioner remains detained pending this appeal. It is unclear how long the BICE's appeal of the Immigration Judge's bond determination will take.¹

Subsequently, Petitioner filed a writ of habeas corpus pursuant to 28 U.S.C. § 2241 challenging the constitutionality of his continued detention by the government. Respondents have supplied an opposition to the petition for writ of habeas corpus. This Court heard oral argument on the matter on October 14, 2003.

The issue presented before this Court is whether the Government can continue to detain Petitioner pending appeal, without judicial review of the automatic stay of the bail determination, notwithstanding the Immigration Judge's decision that Petitioner be released on bond. For the reasons set forth below, this Court finds that Petitioner's continued detention pursuant to the automatic stay provision of 8 C.F.R § 3.19(i)(2) is not consistent with the dictates of the Due Process Clause of the Constitution.

LEGAL BACKGROUND

The custodial status of aliens who have committed crimes is governed by 8 U.S.C. § 1226 (Immigration and Nationality Act § 236). Section (a) of this provision gives the Attorney General discretion to arrest and detain an alien pending the removal decision and discretion to release the alien on bond. The alien may seek a bond redetermination hearing of the Attorney General's custody determination with an Immigration Judge. 8 C.F.R. § 236.1(d)(1). In contrast to this discretionary state of affairs, section (c) of this provision requires the Attorney General to detain those aliens with enumerated criminal convictions.² Section 1226(c) applies only prospectively, and therefore does not affect criminal aliens who were released from incarceration prior to the law's effective date of October 9, 1998. See Matter of Adeniji, 1999 WL 1100900, 22 I. & N. Dec. 1102 (BIA 1999). Therefore, all criminal aliens released from incarceration prior to October 9, 1998, such as Petitioner in the present case, are subject only to the discretionary provisions of § 1226(a).

Prior to October 31, 2001, aliens detained pursuant to the Attorney General's discretion under 8 U.S.C. § 1226(a) who were then granted release on a bond determination by an Immigration Judge, like Petitioner, could only remain detained if the Immigration and Naturalization Service ("INS") sought an emergency stay of the bond determination from the BIA pursuant to 8 C.F.R. § 3.19(i)(1). Presently, however, the Department of Homeland Security (encompassing the former INS) is authorized pursuant to 8 C.F.R. § 3.19(i)(2) to invoke an automatic stay in any case in which the district director has determined that an alien should either not be released or has set bond of $10,000 or more, and an order of the immigration judge then authorizes release on bond or otherwise. The stated purpose of this automatic stay provision is twofold: 1) to ensure removal by preventing the alien from fleeing, and 2) to protect the public from potential harm. Executive Office for Immigration Review; Review of Custody Determination, 66 Fed.Reg. 54909 (Oct. 31, 2001). The stay "allow[s] the Service to maintain the status quo while it seeks review by the Board [of Immigration Appeals], and thereby avoid[s] the necessity for a case-by-case determination of whether a stay should be granted." Id. The regulation reads:

(i) Stay of custody order pending Service appeal —

2) Automatic stay in certain cases. In any case in which the district director has determined that an alien should not be released or has set a bond of $10,000 or more, any order of the immigration judge authorizing release (on bond or otherwise) shall be stayed upon the Service's filing of a Notice of Service Intent to Appeal Custody Redetermination (Form EOIR-43) with the immigration court within one business day of the issuance of the order, and shall remain in abeyance pending decision of the appeal by the Board of Immigration Appeals. The stay shall lapse if the Service fails to file a notice of appeal with the Board in accordance with § 3.38 within ten business days of the issuance of the order of the immigration judge. If the Board authorizes release (on bond or otherwise), that order shall be automatically stayed for five business days. If, within that five-day period, the Commissioner certifies the Board's custody order to the Attorney General pursuant to § 3.1(h)(1) of this chapter, the Board's order shall continue to be stayed pending the decision of the Attorney General.

8 C.F.R. § 3.19(i)(2).

Based on the aforesaid regulation, the Attorney General may, by filing a Notice of Intent to Appeal form, stay the Immigration Judge's determination as to bond pending decision of the appeal by the Board of Immigration Appeals.

DISCUSSION

A. Exhaustion of Administrative Remedies

As a threshold matter, it is important to first address the Government's contention that this action is premature and that the Court lacks jurisdiction to hear this case because Petitioner has not yet exhausted his administrative remedies. Because Petitioner's case is soon to be heard by the Board of Immigration Appeals, the Government argues that the administrative process should conclude before a federal court hears the habeas petition.

It is well established that federal courts retain jurisdiction under 28 U.S.C. § 2241 to decide habeas petitions filed by criminal aliens subject to deportation or removal. INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001); Beshli v. Dep't of Homeland Security, 272 F.Supp.2d 514, 519 (E.D.Pa.2003) (citing Chmakov v. Blackman, 266 F.3d 210, 213 (3d Cir.2001)). Indeed, "[a]t its historical core, the writ of habeas corpus has served as a means of reviewing the legality of Executive detention, and it is in that context that its protections have been strongest." St. Cyr, 121 S.Ct. at 2280.

However, under the doctrine of exhaustion of administrative remedies, a party generally cannot seek federal judicial review of an adverse administrative determination until the party has first sought all possible relief within the agency itself. Howell v. INS, 72 F.3d 288, 291 (2d Cir.1995). Failure to exhaust administrative remedies may lead to dismissal for lack of subject matter jurisdiction. DiLaura v. Power Auth., 982 F.2d 73, 79 (2d Cir.1992). This Court recognizes the importance of the exhaustion doctrine, which serves the dual purpose of protecting the authority of the administrative agency and promoting judicial efficiency. Grant v. Zemski, 54 F.Supp.2d 437, 442 (E.D.Pa. 1999).

In considering exhaustion arguments, it is important to focus on the precise issue as to which petitioner seeks judicial relief. Cabreja-Rojas v. Reno, 999 F.Supp. 493, 496 (S.D.N.Y.1998). If the issue presented here were the merits of Petitioner's deportation case or the constitutionality of his deportation, petitioner would likely have to...