Lee v. Stone

DAVID LEE,Alien # A018-949-107, Petitioner,

v. WARDEN STACEY N. STONE,North Georgia Detention Center,DIRECTOR JOHN MORTON,U.S. Immigration and Customs Enforcement,DIRECTOR FELICIA SKINNER,Atlanta Field Office, Immigration and Customs Enforcement, Respondents.

CIVIL ACTION NO. 2:11-CV-00014-RWS-SSC

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA GAINESVILLE DIVISION

SO DIRECTED and RECOMMENDED: August 25, 2011

PRISONER HABEAS CORPUS

28 U.S.C. § 2241

MAGISTRATE JUDGE'S FINAL REPORT AND RECOMMENDATION

While detained at the North Georgia Detention Center in Gainesville, Georgia, Petitioner David Lee filed a 28 U.S.C. § 2241 habeas corpus petition challenging his detention without bond by the Atlanta Field Office of the Bureau of Immigrations and Customs Enforcement ("ICE").¹ [Doc. 1]. Now before the Court are the petition [Doc. 1]; Mr. Lee's Emergency Motion for Hearing and Adjudication of His Habeas Petition [Doc. 4]; Respondent Stone's Motion to Dismiss [Doc. 8] and Mr. Lee's response [Doc. 9]; and Respondents Felicia Skinner and John Morton's Motion to Dismiss [Doc. 10] and Mr. Lee's response [Doc. 11].

I. The Petition

In his habeas petition filed with the assistance of counsel on January 24, 2011, Mr. Lee claims that his continuing detention without bond violates the Due Process Clause of the Fifth Amendment, both procedurally and substantively. (Doc. 1 at 6-7, 11).² Mr. Lee is a fifty-year-old native of Canada and has been a permanent resident of the United States since 1969. (Id. at 4-5). He was convicted of sexual battery in North Carolina on December 1, 2010. (Id. at 16-17). Immediately thereafter, ICE agents arrested and detained him. (Id. at 5). Mr. Lee is charged with being removable from the United States because he was convicted of "sexual abuse of a minor," defined in the Immigration and Nationality Act ("INA") as an "aggravated felony." (Id.; see 8 U.S.C. § 1101(a)(43)(A)); 8 U.S.C. § 1227(a)(2)(A)(iii)³ ). According to Mr. Lee, ICE is holding him without bond "under the false premise that [he is] subject to mandatory detention under . . . 8 U.S.C. § 1226(c)."⁴ (Doc. 1 at 6).

Mr. Lee contends, on the contrary, that his crime of conviction cannot beclassified as sexual abuse of a minor under the INA because the North Carolina statute making sexual battery a misdemeanor offense does not contain as an element a requirement that the victim be a minor and indeed does not mention minors at all. (Id. at 7-10).⁵ "Therefore," Mr. Lee argues, "because [his] single conviction for misdemeanor sexual battery under N.C. Gen. Stat. § 14-27.5A cannot be an aggravated felony, he is not subject to mandatory detention under INA § 236(c) [8 U.S.C. § 1226(c)] or even removable from the United States under INA § 101(a)(43)(A) [8 U.S.C. § 1101(a)(43)(A)] and is thus being detained unlawfully and has been since December 1, 2010." (Id. at 11). Mr. Lee seeks, inter alia, an order compelling his immediate release from custody. (Id. at 12).

II. Procedural History

On December 3, 2010, the Department of Homeland Security ("DHS"), of which ICE is a part, issued a Notice to Appear charging Mr. Lee with being

removable from the United States under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), based on Mr. Lee's sexual battery conviction. (Doc. 10 at 4). Held without bond, Mr. Lee sought a redetermination, claiming that he is eligible for release on bond because his underlying conviction is not an aggravated felony as defined in the statute. (Id. at 4-5). An Immigration Judge ("IJ") conducted a hearing⁶ on December 15, 2010, and issued an order on January 3, 2011, denying Mr. Lee's bond request. (Id. at 5). The IJ examined the record of Mr. Lee's conviction and noted the following:

The Indictment shows that the Respondent [Mr. Lee] was initially indicted under N.C.G.C. § 14-202.1(a)(1) for the charge of "Taking Indecent Liberties With a Child." It states that the Respondent "unlawfully, willfully, and feloniously did take or attempt to take immoral, improper, or indecent liberties with [a minor], who was under the age of sixteen years on the date of the offense, for the purpose of arousing or gratifying sexual desire." An Information was filed modifying the charge to Sexual Battery, alleging that the Respondent "unlawfully and willfully did for the purpose of sexualgratification and arousal, engage in sexual contact with [a minor] by force and against her will." The sentencing document further shows that the Respondent was ordered to register as a sex offender and not reside in a household with any minor child. Thus, the documents in the Respondent's record of conviction demonstrate that the victim of the Respondent's sexual battery was a minor.

(Doc. 10 at 50-51). On that basis, the IJ concluded "by clear, unequivocal, and convincing evidence that [Mr. Lee] committed the aggravated felony of sexual abuse of a minor by physically maltreating a minor for sexual gratification." (Id. at 51). Therefore, the IJ found it "substantially likely that the [DHS] will sustain its charge of removability under INA § 237(a)(2)(A)(iii) [8 U.S.C. § 1227(a)(2)(A)(iii)]," concluded that Mr. Lee therefore "is subject to mandatory detention under section 236(c)(1) of the Act," and denied his motion for bond reconsideration. (Id.). The IJ also noted that, even if Mr. Lee were not included within INA § 236(c)'s mandatory detention class as an aggravated felon, he would not be eligible for release under INA § 236(a), 8 U.S.C. § 1226(a), because "[t]he serious nature of [his] conviction . . . make[s] him a danger to the community." (Id. at 51-52).

On February 2, 2011, Mr. Lee filed an appeal of the IJ's bond decision to the Board of Immigration Appeals ("BIA"). (See Doc. 10 at 29, Elliot Decl. ¶ 11). On April 15, 2011, the BIA affirmed the IJ's ruling for the reasons stated in the IJ's order and dismissed the appeal. (Doc. 13 at 11, Ex. B). The BIA explained:

Upon review of the bond record, we do not find that it is "substantially unlikely" that the Department of Homeland Security (the DHS) will prevail on the removal charge under section 237(a)(2)(A)(iii) of the[INA], 8 U.S.C. § 1227(a)(2)(A)(iii), in the underlying removal proceedings. See Matter of Joseph, 22 I&N Dec. 799 (BIA 1999). Thus, because that removal charge is one contained in section 236(c)(1)(B) of the Act, 8 U.S.C. § 1226(c)(1)(B), we agree with the Immigration Judge's conclusion, as the respondent is "properly included" in a mandatory detention category. See Matter of Joseph, supra. We note that our finding is only for the purposes of this bond appeal, and the ultimate finding of whether the respondent is removable as charged will be made in the removal proceedings.

(Id. (footnote omitted)).

Meanwhile, on March 22, 2011, the IJ ordered Mr. Lee removed from the United States. (Doc. 13 at 5-10, Ex. A; see also id. at 11 n.1, Ex. B). The IJ framed the issue as "whether [Mr. Lee's] conviction for Sexual Battery in violation of N.C. Gen. Stat. § 14-27.5A is an aggravated felony under INA § 101(a)(43)(A), which defines an aggravated felony as 'murder, rape, or sexual abuse of a minor.' " (Doc. 13 at 7, Ex. A). The IJ noted that in the INA there is no explicit definition of the crime of "sexual abuse of a minor," although both the BIA and the Eleventh Circuit have interpreted the meaning of that term. (Id. at 7-8). The IJ also noted that a "finding that a prior conviction constitutes an 'aggravated felony' must be supported by 'clear, unequivocal, and convincing evidence.' " (Id. at 8).

The IJ explained that if the statute of conviction "is divisible, meaning that the statutory language contains some offenses that would qualify as aggravated felonies and others that would not, then the court must look to the record ofconviction" to determine the nature of the offense. (Id. (internal quotation omitted)). Noting that Mr. Lee's statute of conviction refers to the victim as "another" or "other" person, the IJ concluded that this terminology "encompasses both adults and minors." (Id.). "Thus," the IJ reasoned, "the statute is divisible because it contains some offenses that would qualify as aggravated felonies and some that would not." (Id. at 9). The IJ concluded that because "the face of the statute does not specify whether the victim must be a minor, the Court may look to the record of conviction to determine whether the victim was in fact a minor." (Id.)

The IJ reiterated his earlier assessment of Mr. Lee's record of conviction, which, he wrote, "demonstrate[s] that the victim of [Mr. Lee's] sexual battery was a minor." (Id.) The IJ then compared the language of Mr. Lee's statute of conviction, which "defines sexual battery as sexual contact for the purpose of 'sexual arousal' or 'sexual gratification,' " with the Eleventh Circuit's interpretation of "sexual abuse of a minor" in United States v. Padilla-Reyes, 247 F.3d 1158 (11th Cir.), cert. denied, 534 U.S. 913 (2001), where the court defined that term "to mean 'physical or nonphysical misuse or maltreatment of a minor for a purpose associated with sexual gratification.' " (Doc. 13 at 9, Ex. A (quoting Padilla-Reyes, 247 F.3d at 1163)). Based on his analysis, the IJ found "by clear, unequivocal, and convincing evidence that [Mr. Lee] committed the aggravated felony of sexual abuseof a minor under INA § 101(a)(43)(A) by physically maltreating a minor for sexual gratification." (Id.).

It appears that Mr. Lee has appealed the IJ's order of removal to the BIA. (See Doc. 13 at 1).

III. Respondent Stone's Motion to Dismiss [Doc. 8]

In his motion to dismiss, Warden Stone states that he is an employee of the Corrections Corporation of America, the company that operates the North Georgia Detention Center—"a noncriminal holding facility for alien detainees"—under an intergovernmental service agreement with ICE. (Doc. 8 at 2). According to Warden Stone, Mr. Lee is not in his custody because he "has no power to hold or release...