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Misquitta v. Warden Pine Prairie Ice Processing Center

United States District Court, W.D. Louisiana, Lafayette Division

November 16, 2018

NEALE MISQUITTA
v.
WARDEN PINE PRAIRIE ICE PROCESSING CENTER

          HANNA MAGISTRATE JUDGE

          MEMORANDUM RULING ON MOTION FOR TEMPORARY RESTRAINING ORDER WITH NOTICE OR PRELIMINARY INJUNCTION

          ROBERT R. SUMMERHAYS UNITED STATES DISTRICT JUDGE

         In this habeas corpus proceeding brought under 28 U.S.C. § 2241, Petitioner Neale Misquitta challenges his continued civil detention by the United States Bureau of Immigration and Customs Enforcement ("ICE") at the Pine Prairie ICE Processing Center and moves for temporary or preliminary injunctive relief.

         Misquitta has been detained approximately 10 months pending the completion of removal proceedings commenced following a felony conviction for mail fraud and service of 51 months of his federal sentence. Petitioner has been detained under the authority of 8 U.S.C. § 1226(c), which provides for mandatory detention of aliens convicted of certain aggravated felonies without benefit of individualized bond hearings. The only ground for pre-removal release under section 1226(c) is a showing that release is necessary to protect a witness, a ground that is inapplicable here. Misquitta contends that his continued detention without an individualized bond hearing violates the Due Process Clause of the Fifth Amendment and seeks release from custody unless Respondent affords him an individualized bond hearing before an immigration judge. On October 19, 2018, the court held a hearing on Misquitta's motion. For the following reasons, the court concludes Misquitta has not established a likelihood of success on the merits, and therefore, Petitioner's Motion is DENIED.

         FACTS

         Misquitta, a citizen of India, was lawfully admitted to the United States in 1987 as a non-immigrant student. He later married a United States citizen and acquired lawful permanent residency in the 1990s. In July 2013, Misquitta was convicted of five counts of mail fraud (18 U.S.C. §1341), which subjects him to removal under 8 U.S.C. § 1228. Misquitta was sentenced to 71 months in prison and ultimately served 51 months of that sentence.

         On August 15, 2017, ICE served Misquitta with a Notice to Appear stating Misquitta was subject to removal based upon his conviction. On November 15, 2017, a hearing on Misquitta's removability was held. At the hearing, Misquitta denied the charges of removability. The Immigration Court reset the case in order to allow ICE to file a brief and submit supporting documentation. ICE submitted Its brief on November 29, 2017, and the Immigration Court subsequently issued a written decision on removability. The Immigration Court held another hearing on December 20, 2017 and again sustained the charges of removability.

         On February 6, 2018, ICE took Misquitta into civil immigration custody, as authorized by 8 U.S.C. § 1226(c). Misquitta then submitted an application seeking to readjust his status by applying for a waiver pursuant to 8 U.S.C. §1182. This waiver was based upon an "1-130 petition" by Misquitta's wife, requesting that Misquitta be permitted to remain in the United States because his removal would cause extreme hardship to herself and their children, who are all United States Citizens.[1] Following a hearing on the application to readjust status, the immigration judge issued his Ruling on July 12, 2018, wherein it denied Misquitta's request for a waiver and ordered Misquitta's removal. Although the immigration judge found Misquitta had met the burden of proving a hardship, he declined to readjust Misquitta's status on discretionary grounds. Misquitta has appealed that ruling to the Board of Immigration Appeals, and the appeal remains pending at this time.

         LAW AND ANALYSIS

         Misquitta contends his continued detention without an individualized bond hearing violates the Due Process Clause of the Fifth Amendment. He argues for a "bright line" rule that would require a bond hearing for section 1226(c) detentions that exceed six (6) months. To obtain injunctive relief on this claim, Misquitta must establish: (1) a substantial likelihood his cause will succeed on the merits, (2) a substantial threat of irreparable injury if the injunction is not granted, (3) the threatened injury outweighs the threatened harm the injunction may do to the opposing party, and (4) granting the injunction will not disserve the public interest. Piedmont Heights Civic Club, Inc. v. Moreland, 637 F.2d 430 (5th Cir. 1981). Here, the first requirement for injunctive relief - a "substantial likelihood of success on the merits" -- requires consideration of the statutory context of section 1226(c) and the jurisprudence addressing the constitutionality of mandatory detention under that provision.

         A. The Statutory Context.

         Section 1226(c) is one part of a broader statutory scheme addressing the removal of aliens. Section 1226 broadly authorizes the detention of aliens pending a final order of removal. 8 U.S.C. §1226. Section 1226(a) provides that any "alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States...." 8 U.S.C. § 1226(a) (emphasis added). If an alien is arrested and detained under this provision, section 1226(a) provides that, "[e]xcept as provided in subsection (c)," the Attorney General "may release the alien on- (A) bond of at least $1, 500 with security approved by, and containing conditions prescribed by, the Attorney General; or (B) conditional parole ...."; 8 U.S.C. § 1226(a)(1)-(3). Detention under 1226(a) is generally referred to as "discretionary detention."

         Section 1226(c) governs the detention of certain "criminal aliens," and is an exception to the discretionary detention authorized by section 1226(a). Section 1226(c)(1) describes a group of aliens that the government must detain:

The Attorney General shall take into custody any alien who [is convicted of the enumerated crimes] when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense. 8 U.S.C. § 1226(c)(1).

         Section 1226(c)(2) thus mandates detention for this class of aliens. Section 1226(c) also eliminates the availability of release on bond except when "necessary to provide protection to a witness ...." 8 U.S.C. § 1226(c)(2). Aliens subject to section 1226(c) detention are thus not entitled to bond hearings. Misquitta argues that aliens subject to detention under section 1226(c) are subject to indeterminate ...


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