Hernandez-Carrera v. Carlson

547 F.3d 1237

Santos HERNANDEZ-CARRERA; Pablo Santiago Hernandez-Arenado, Petitioners-Appellees, v. Ken CARLSON, Field Office Director, Immigration and Customs Enforcement, Department of Homeland Security; E.J. Gallegos, Warden, USP-Leavenworth, Respondents-Appellants.

No. 08-3097.

United States Court of Appeals, Tenth Circuit.

November 12, 2008.

Thomas H. Dupree, Jr., Deputy Assistant Attorney General (Gregory G. Katsas, Acting Assistant Attorney General; David J. Kline, Director, District Court Section; Christopher J. Walker, Attorney, Appellate Staff; Samuel P. Go, Trial Attorney, with him on the briefs), United States Department of Justice, Office of Immigration Litigation, Washington, D.C., for Respondents-Appellants.

Melissa Harrison, Assistant Public Defender for the District of Kansas (David J. Phillips, Federal Public Defender, with her on the brief), Kansas City, KS, for Petitioners-Appellees.

Before KELLY, McCONNELL and TYMKOVICH, Circuit Judges.

McCONNELL, Circuit Judge.

This case requires us to determine whether an agency interpretation ordinarily owed deference under the framework established in 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), is foreclosed by a prior Supreme Court construction of the statute applying the canon of constitutional avoidance. We conclude that under the principles outlined in National Cable & Telecommunications Ass'n v. Brand X Internet Services, 545 U.S. 967, 982-83, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005), a subsequent, reasonable agency interpretation of an ambiguous statute, which avoids raising serious constitutional doubts, is due deference notwithstanding the Supreme Court's earlier contrary interpretation of the statute.

I. BACKGROUND

Santos Hernandez-Carrera and Pablo Santiago Hernandez-Arenado are natives and citizens of Cuba. They entered the United States illegally in 1980, during the Mariel boatlift. Although both were classified as "inadmissible aliens," they were granted immigration parole in the United States. The government revoked both aliens' parole, however, in part because of their criminal convictions while on parole. Mr. Hernandez-Carrera and Mr. Hernandez-Arenado were both issued exclusion and deportation orders, based on their lack of entry documents and their convictions for crimes of moral turpitude.

Under the Immigration and Nationality Act, once a final order of removal has been entered against an alien, the government typically must remove the alien from the United States within ninety days. 8 U.S.C. § 1231(a)(1)(A). However, 8 U.S.C. § 1231(a)(6) authorizes the Attorney General to detain certain classes of aliens beyond the ninety day removal period. It provides, in relevant part, that:

An alien ordered removed who is inadmissible under section 1182 of this title, removable under section 1227(a)(1)(C), 1227(a)(2), or 1227(a)(4) of this title or who has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal, may be detained beyond the removal period....

In February 2006, immigration judges separately ordered the continued detention of Mr. Hernandez-Carrera and Mr. Hernandez-Arenado, pursuant to 8 C.F.R. § 241.14, a regulation promulgated by the Attorney General under 8 U.S.C. § 1231(a)(6). This regulation allows United States Immigration and Customs Enforcement ("ICE") to "continue detention of particular removable aliens on account of special circumstances even though there is no significant likelihood that the alien will be removed in the reasonably foreseeable future." 8 C.F.R. § 241.14(a). The regulation recognizes four categories of aliens whose special circumstances warrant continued detention: (1) aliens with a highly contagious disease that is a threat to public safety; (2) aliens detained on account of serious adverse foreign policy consequences of release; (3) aliens detained on account of security or terrorism concerns; and (4) aliens determined to pose a special danger to the public. 8 C.F.R. § 241.14(b-d), (f).

Both Mr. Hernandez-Carrera and Mr. Hernandez-Arenado were found to "pose a special danger to the public" under 8 C.F.R. § 241.14(f). Under § 241.14(f), in order to justify an alien's continued detention, the government must prove by clear and convincing evidence that the alien has: (1) previously committed one or more crimes of violence as defined in 18 U.S.C. § 16; that (2) due to a mental condition or personality disorder and behavior associated with that condition or disorder, the alien is likely to engage in acts of violence in the future; and (3) no conditions of release can reasonably be expected to ensure the safety of the public. On the basis of Mr. Hernandez-Carrera's and Mr. Hernandez-Arenado's criminal records and mental health evaluations, immigration judges found these elements to be satisfied in both cases.

Mr. Hernandez-Carrera was convicted of rape with force and bodily injury in 1988. He was again convicted of battery and indecent exposure in 1990 and sentenced to additional jail time. Upon his release from prison in 1993, Mr. Hernandez-Carrera was detained by the Immigration and Naturalization Service ("INS"). While in INS custody, Mr. Hernandez-Carrera was diagnosed with schizophrenia and examined several times by Bureau of Prisons personnel. A mental health evaluation concluded that, if released, Mr. Hernandez-Carrera "would need a high level of structure and security and continued 24-hour supervision for the rest of his life." Even then, the report concluded that "it is most probabl[e] that Mr. Hernandez-Carrera would be a direct danger to the public;" another report determined that it was "quite likely" that he would engage in future violence if released. The immigration judge ("IJ") concluded that the evidence "establishes that [Mr. Hernandez-Carrera's] refusal to take medication, along with [his] mental condition, makes relapse, escape, and decomposition, highly likely if [he] is released from prison." The IJ therefore determined that "no reasonable conditions of release would ensure public safety" and ordered Mr. Hernandez-Carrera's continued detention.

Mr. Hernandez-Arenado was convicted of sexually assaulting a seven year-old boy in 1984. He has admitted to involvement in "several hundred" pedophilic contacts with children in Cuba and in the United States. App. 98. Upon completing his sentence in 1987, he was released into INS custody. While in custody, he was diagnosed with pedophilia. Several mental health evaluations concluded that Mr. Hernandez-Arenado could not be released without exposing the public to danger, noting that he was unlikely to change his behavior or to "accept constraints upon his acting on his impulses and feelings." Indeed, Mr. Hernandez-Arenado has stated on several occasions that he does not believe sex with children is wrong. The IJ agreed with the government's mental health expert that if he was released, "nothing [would] stop [Mr. Hernandez-Arenado] from grabbing a child off the street and molesting the child just as he has done in the past." He therefore concluded that "there are no reasonable conditions of release that can reasonably be expected to ensure the safety of the public" and ordered Mr. Hernandez-Arenado's continued detention.

Both aliens filed petitions for a writ of habeas corpus under 28 U.S.C. § 2241, challenging the constitutionality of their continued detention under 8 U.S.C. § 1231(a)(6) and 8 C.F.R. § 241.14. The district court believed itself to be governed by the Supreme Court's interpretation of 8 U.S.C. § 1231(a)(6) in Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001), and Clark v. Martinez, 543 U.S. 371, 125 S.Ct. 716, 160 L.Ed.2d 734 (2005), rather than the agency's construction of the statute pursuant to notice-and-comment rulemaking. See Hernandez-Carrera v. Carlson, 546 F.Supp.2d 1185, 1186-89 (D.Kan.2008). It concluded that the Supreme Court had definitively interpreted 8 U.S.C. § 1231(a)(6) to permit detention only for a period "reasonably necessary to remove an alien from the United States," presumptively six months. Id. at 1187. Finding that 8 C.F.R. § 241.14 permitted continued detention for a period longer than six months, the district court reasoned that the regulation was not authorized by 8 U.S.C. § 1231(a)(6) and instead was "manifestly contrary to its authorizing statute as interpreted by the Supreme Court." Id. at 1189. Therefore, it determined that Mr. Hernandez-Carrera's and Mr. Hernandez-Arenado's continued detention under 8 C.F.R. § 241.14 was impermissible, and granted their writs of habeas corpus.

Mr. Hernandez-Carrera has been released pending this appeal. Mr. Hernandez-Arenado was ordered released, but the government has separately sought to detain him under the Adam Walsh Act, 18 U.S.C. § 4248. On June 9, 2008, the United States District Court for the Southern District of Illinois dismissed the government's attempt to civilly commit Mr. Hernandez-Arenado. United States v. Hernandez-Arenado, 2008 WL 2373747 (S.D.Ill. June 9, 2008). It concluded that the government had no authority to detain Mr. Hernandez-Arenado, because he was not legally "in custody" within the meaning of the Adam Walsh Act. Id. at *5. The district court in that case has stayed its decision pending review by the Seventh Circuit. United States v. Hernandez-Arenado, 2008 WL 2568146 (S.D.Ill. June 23, 2008).

II. ANALYSIS

It is well established that an agency's construction of a statute that it administers may be owed deference by courts when "the statute is silent or ambiguous" on the issue in question and the agency's reading represents a "permissible construction of the statute." Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Recently, the Supreme Court has also made clear that a "prior judicial...