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Cruz v. Nalls-Castillo

United States District Court, D. New Jersey

September 19, 2017





         Petitioner Jose Rafael Cruz, a native and citizen of the Dominican Republic, is a lawful permanent resident ("LPR") of the United States who is being detained by U.S. Immigration and Customs Enforcement ("ICE") pursuant to 8 U.S.C. 1225(b)(2)(A) during the pendency of his removal proceedings. He has filed a Petition for a Writ of Habeas Corpus seeking an Order for an individualized bond hearing before an immigration judge, and has been detained for over 28 months. For the reasons explained below, Petitioner's request for a Writ of Habeas Corpus and an individualized bond hearing is granted.


         Petitioner was admitted to the United States as a lawful permanent resident on November 30, 1998. (See ECF No. 4-1, Harrison Declaration at ¶ 4.) On November 3, 2011, Petitioner was convicted in the New York State Supreme Court of two counts of Criminal Sale of the Controlled Substance in the Third Degree, in violation of New York Penal Law § 220.39(1), and two counts of Criminal Possession of a Controlled Substance in the Seventh Degree, in violation of New York Penal Law § 220.03. (Id. at ¶ 5 and Exhibit A.) On December 5, 2011, Petitioner was sentenced to a term of imprisonment of one year on each count. (Id.) On or about January 3, 2012, Petitioner appealed his convictions.[1] (Id. at ¶ 5.)

         Following his convictions, Petitioner departed the United States to visit his elderly mother in the Dominican Republic. Petitioner states in his Petition, and Respondent has not contested, that the trip outside the United States was brief- lasting approximately two weeks. (Pet. at ¶ 10; ECF No. 5-3, Declaration of Sarah Gillman, Exhibit 9.) On or about May 2, 2015, Petitioner arrived at JFK International Airport in New York on a flight from Santiago, Dominican Republic, and sought admission as a returning lawful permanent resident. (Harrison Decl. at ¶ 6.) United States Customs and Border Protection officials determined that Cruz was an inadmissible arriving alien based on his conviction, and paroled him into the United States for removal proceedings. (Id. at ¶ 6.) Respondent contends that Cruz has been detained in ICE custody at the Hudson County Correctional Facility in New Jersey since May 3, 2015.[2]

         On November 2, 2016, Petitioner sought a bond hearing pursuant to Lora v. Shanahan, 804 F.3d 601 (2d Cir. 2015), which was denied by the immigration judge ("IJ") on December 8, 2016. (Gillman Decl. at ¶¶ 9, 11.) On November 25, 2015, Petitioner requested to be released based on ICE's authority to parole arriving aliens under 8 C.F.R. § 253.3(c). (Id. at ¶ 10.) On December 17, 2015, ICE denied Petitioner's request for parole. (Id. at ¶ 12.) Petitioner's removal proceedings are ongoing.[3]

         Petitioner filed the instant Petition on March 22, 2016. (ECF No. 1.) The matter is now fully briefed and ready for disposition.

         III. ANALYSIS

         "The writ of habeas corpus shall not extend to a prisoner unless ... [h]e is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). At issue here is whether Petitioner's detention of more than twenty eight months pursuant to U.S.C. § 1225(b)(2)(A) violates the Constitution.

         Respondent asserts, supported by documentation, that Petitioner was paroled into the country, i.e., not formally admitted, and therefore falls into the ambit of 8 U.S.C. § 1225(b)(2) as an alien seeking admission subject to mandatory detention during the pendency of his removal proceedings. (ECF No. 4, Res. Brief at 6-11.) Respondent further contends that Petitioner's due process rights are not violated by his prolonged detention. (Id. at 12-14.) Petitioner, through his counsel, contends that he is not properly detained pursuant to § 1225, and that even if he is properly detained pursuant to § 1225, his detention has become unreasonably prolonged. (ECF No. 1, Pet. at 2-3; ECF No. 5, Reply at 3-12.)

         Relying on Tineo v. Ashcroft, 350 f.3d 382, 386 (2003), Respondent asserts that Petitioner, upon return from his trip abroad, was "stripped" of his LPR status by the Department of Homeland Security ("DHS") based on his controlled substance convictions and thus may be characterized as an "arriving alien" under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA").[4] In Tineo, the Third Circuit explained that, under the IIRIRA, a lawful permanent resident returning from abroad is "presumptively entitled to retain that status upon reentry unless he falls into one of six subsections [of the IIRIRA], in which case 'he is stripped of his ... status [and] becomes an alien seeking admission as if he were entering for the first time.'" Mejia v. Ashcroft, 360 F.Supp.2d 647, 651 (D.N.J. 2005) (quoting Tineo, 350 F.3d at 386); see also Damus v. Tsoukaris, No. CV 16-933 (JLL), 2016 WL 4203816, at *2 (D.N.J. Aug. 8, 2016) (explaining same).

         Under the IIRIRA, Congress required that lawful permanent residents who have committed certain crimes seek formal "admission" when they return to the United States from abroad. See 8 U.S.C. § 1101(a)(13)(C)(v). As relevant here, Petitioner, who has 2011 convictions for controlled substance offenses, falls into that exception and is therefore treated as an applicant for admission upon reentry into this country. See 8 U.S.C. §§ 1101 (a)(13)(C); see also 8 U.S.C. § 1182(a)(2)(A)(i)(II). As explained by the Third Circuit in Doe v. Attorney General of the United States, 659 F.3d 266 (3d Cir. 2011), to detain a person as an arriving alien, under § 1225, the government must have "probable cause to believe that the alien has committed one of the crimes identified in 8 U.S.C. § 1182(a)(2), but need not show a conviction. Id. at 272.

         Here, Petitioner was convicted of controlled substance offenses in 2011 and is subject to detention as an arriving alien. Thus, the Court agrees with Respondent that Petitioner is properly classified as an arriving alien pursuant to § 1225(b)(2)(A) based on his criminal history. Answering the question of whether Petitioner may be detained under § 1225 does not answer the question of whether the Due Process Clause ...

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