United States District Court, E.D. Kentucky, Northern Division, Covington
MEMORANDUM OPINION AND ORDER
AMUL R. THAPAR, District Judge.
Petitioner Carlos Alberto Lopez Hernandez filed a petition seeking habeas corpus relief under 28 U.S.C. § 2241. See R. 1. He asks the Court to compel United States Immigration and Customs Enforcement ("ICE") to hold a bond hearing under 8 U.S.C. § 1226(a) before concluding proceedings to remove him from the United States. R. 1 at 16. Lopez Hernandez, however, is not entitled to such a hearing.
Lopez Hernandez is 22 years old. R. 1 ¶ 20. Thought he is a native of Mexico, he has lived in the United States for the last eight years. Id. ¶¶ 20-22. In December 2012, Lopez Hernandez was arrested for possessing marijuana. Id. ¶ 23. After he posted bond on his state court charge, ICE took him into custody and initiated a removal proceeding under 8 U.S.C. § 1229a. Id. ¶ 24. Then ICE released him on bond. Id. ¶ 25. Two months later, Lopez Hernandez pled guilty to a Class One Misdemeanor in state court and received one year of probation. Id. ¶¶ 25-26.
Despite his undocumented status, Lopez Hernandez worked on a Material Handling Solutions crew. Id. ¶¶ 29-30. When the crew took an assignment to clean conveyor belts at the Cincinnati International Airport, airport personnel discovered that Lopez Hernandez was working under a false name. Id. So, once again, Lopez Hernandez was arrested. Id. ¶ 30.
On January 20, 2015, Lopez Hernandez appeared before an Immigration Judge ("IJ") in Chicago, Illinois. Id. ¶ 31. After hearing from both parties, the IJ ruled that Lopez Hernandez was subject to mandatory detention under 8 U.S.C. § 1226(c) rather than discretionary detention under 8 U.S.C. § 1226(a). Id. ¶¶ 31-32. Since December 1, 2014, he has remained in ICE custody without a bond hearing. Id. ¶ 33.
I. Exhaustion of Claims
ICE argues that Lopez Hernandez must exhaust his administrative remedies with the Board of Immigration Appeals ("BIA") before bringing his habeas challenge to this Court. R. 7 at 4. ICE is incorrect.
Courts have long recognized a requirement that parties exhaust administrative remedies before turning to federal courts. Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51 (1938). Despite the doctrine's judicial roots, courts cannot waive exhaustion when Congress requires it by statute. See McCarthy v. Madigan, 503 U.S. 140, 144 (1992). But here, though Congress requires aliens to exhaust administrative remedies before challenging a final order of removal, see 8 U.S.C. § 1252(d), it imposes no such requirement on challenges to mandatory detention pending a removal decision. See Gonzalez v. O'Connell, 355 F.3d 1010, 1016 (7th Cir. 2004). In the absence of congressional mandate, courts waive the judge-made exhaustion requirement when (1) a long exhaustion process would create undue prejudice, (2) an administrative remedy is inadequate, such as when an agency lacks the authority to resolve the constitutionality of a statute, and (3) the appeal would be futile because the agency has "predetermined the issue before it." See McCarthy, 503 U.S. at 146-48 (citing Gibson v. Berryhill, 411 U.S. 564, 575 n.14 (1973)). The last two exceptions apply in this case.
Any efforts by Lopez Hernandez to exhaust his statutory claim would be futile because the BIA has already ruled that the delay between release from criminal custody and detention by ICE does not exempt an alien from mandatory detention under 8 U.S.C. § 1226(c). See In Re Rojas, 23 I. & N. Dec. 117, 127 (BIA 2001) ("[T]he respondent is subject to mandatory detention..., despite the fact that he was not taken into Service custody immediately upon his release from state custody."). The BIA is similarly incapable of resolving the constitutionality of the mandatory detention provision at issue in this case. See In Re Joseph, 22 I. & N. Dec. 660, 665 (BIA 1999) ("We note that it is not within the purview of this Board to pass upon the constitutionality of the mandatory detention provision in section 236(c)(1)...."); Liu v. Waters, 55 F.3d 421, 425 (9th Cir. 1995) ("[T]he BIA lacks jurisdiction to decide questions of the constitutionality of governing statutes or regulations."). Accordingly, Lopez Hernandez need not exhaust his claims before bringing them here.
II. Statutory Claim
For aliens "detained pending a decision on whether the alien is to be removed, " § 1226(a) provides for discretionary detention and the possibility of release on bond. 8 U.S.C. § 1226(a). In contrast, § 1226(c) provides for mandatory detention without a bond hearing, but only for a specific class of aliens: "The Attorney General shall take into custody any alien who is inadmissible... [or] deportable by reason of having committed [certain enumerated offenses] when the alien is released." Id. § 1226(c)(1). Subsection (c)(2) then provides a narrow exception to that rule: "The Attorney General may release an alien described in paragraph (1) only if" release is "necessary" to facilitate witness protection. Id. § 1226(c)(2).
Because the witness-protection exception does not apply here, Lopez Hernandez is eligible for release on bond only if he is not "an alien described in paragraph (1)." Id. Lopez Hernandez argues exactly that, and accordingly maintains that he cannot be detained without a bond hearing. But Lopez Hernandez concedes he committed a qualifying offense under § 1226(c)(1): marijuana possession. R. 1 ¶¶ 26, 44 (admitting to a conviction for marijuana possession); 8 U.S.C. § 1226(c)(1)(A) (requiring detention without a bond hearing of any alien who is inadmissible for committing "any offense covered in section 1182(a)(2) of this title"); 8 U.S.C. § 1182(a)(2)(A)(i)(II) (identifying as an offense "a violation of... any law or regulation... related to a controlled substance").
In spite of his qualifying offense, Lopez Hernandez argues that he is not "an alien described in paragraph (1)" because the Attorney General did not "take [him] into custody... when [he was] released " from state custody. R. 1 ¶¶ 39-40 (quoting 8 U.S.C. § 1226(c)(1)) (emphasis added). According to Lopez Hernandez, the "when released' language... requires the government to exercise its mandatory detention authority" either "immediately after the alien's release from the triggering criminal incarceration" or not at all. Id. ¶ 42. Because ICE waited to detain him until nearly two years after his release on the marijuana charge, Lopez Hernandez contends that he is entitled to a bond hearing under the discretionary detention provision, § 1226(a). Id. ¶¶ 36, 44.
More than a decade ago, the BIA rejected Lopez Hernandez's argument, holding that § 1226(c) does not require mandatory detention to immediately follow the release from criminal detention. In Re Rojas, 23 I. & N. Dec. 117, 121 (BIA 2001). Instead, the BIA explained, the "when released" clause merely "specified the point in time at which th[e] duty [to detain] arises." Id. It is not, however, "part of the description of an alien who is subject to [mandatory] detention." Id. That is, "an alien described in paragraph (1)" is an alien that committed one of the enumerated offenses in paragraphs (A) through (D), ...