United States District Court, D. New Jersey
MADELINE COX ARLEO, U.S.D.J.
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.
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. (Id. at ¶ 5.)
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,
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.
filed the instant Petition on March 22, 2016. (ECF No. 1.)
The matter is now fully briefed and ready for disposition.
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.
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.)
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"). 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)
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.
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 ...