Gordon v. Johnson

991 F. Supp. 2d 258, 2013 WL 6905352, 2013 U.S. Dist. LEXIS 181980
CourtDistrict Court, D. Massachusetts
DecidedDecember 31, 2013
DocketC.A. No. 13-cv-30146-MAP
StatusPublished
Cited by8 cases

This text of 991 F. Supp. 2d 258 (Gordon v. Johnson) is published on Counsel Stack Legal Research, covering District Court, D. Massachusetts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gordon v. Johnson, 991 F. Supp. 2d 258, 2013 WL 6905352, 2013 U.S. Dist. LEXIS 181980 (D. Mass. 2013).

Opinion

MEMORANDUM AND ORDER REGARDING PLAINTIFF’S PETITION FOR WRIT OF HABEAS CORPUS, PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION, and DEFENDANTS’ MOTION TO DISMISS

(Dkt. No. 1, 2 & 13)

PONSOR, District Judge.

I. INTRODUCTION

Plaintiff, a lawful permanent U.S. resident held by the government pursuant to 8 U.S.C. § 1226(c), brought a petition for writ of habeas corpus on behalf of himself and those similarly situated. (Dkt. No. 1.) He sought an individualized bond hearing to challenge his ongoing detention by immigration authorities. Defendants are: Jeh Charles Johnson, Secretary of Homeland Security; Eric Holder, Attorney General; John Sandweg, Acting Director of Immigrations and Customs Enforcement (ICE); Sean Gallagher, Acting Field Office Director for the New England Field Office of ICE; Christopher Donelan, Sheriff of Franklin County; Michael Bellotti, Sheriff of Norfolk County; Steven Tompkins, Sheriff of Suffolk County; Thomas Hodgson, Sheriff of Bristol County; and Joseph McDonald, Jr., Sheriff of Plymouth County. In addition to his petition for habeas corpus, Plaintiff filed a Motion for a Preliminary Injunction. (Dkt. No. 2.) Defendants also submitted a Motion to Dismiss. (Dkt. No. 13.)

On October 23, 2013, 2013 WL 5774843, this court granted Plaintiffs individual habeas petition, denied without prejudice Plaintiffs Motion for a Preliminary Injunction, and denied Defendants’ Motion to Dismiss.1 This memorandum provides a more detailed explanation of the court’s reasoning.

II. BACKGROUND2

As the facts of this case can only be understood in the context of the statute, a brief discussion of the law is necessary before laying out the factual background.

A. Statutory Framework

Section 1226 of Title 8 governs the detention of noncitizens during immigration removal proceedings. Sub-section (a) provides discretionary authority to the government to take an alien into custody while a decision on removal is pending. A non-citizen detained under § 1226(a) is entitled [261]*261to an individualized bond hearing to determine whether release pending removal is appropriate. 8 C.F.R. §§ 1003.19 & 1236.1(d); Matter of Guerra, 24 I. & N. Dec. 37, 37-38 (BIA 2006). Sub-section (a) provides:

On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States. Except as provided in subsection (c) of this section and pending such decision, the Attorney General—
(1) may continue to detain the arrested alien; and
(2) 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; but
(3) may not provide the alien with work authorization (including an “employment authorized” endorsement or other appropriate work permit), unless the alien is lawfully admitted for permanent residence or otherwise would (without regard to removal proceedings) be provided such authorization.

8 U.S.C. § 1226(a) (emphasis added).

Sub-section (c) of the law eliminates this discretion with respect to certain non-citizens. This provision requires detention pending removal, and, unlike sub-section (a), it does not explicitly provide for individualized bond hearings. Sub-section (c) reads as follows:

(1) Custody
The Attorney General shall take into custody any alien who—
(A) is inadmissible by reason of having committed any offense covered in section 1182(a)(2) of this title,
(B) is deportable by reason of having committed any offense covered in section 1227(a)(2)(A)(ii), A(iii), (B), (C), or (D) of this title,
(C) is deportable under section 1227(a)(2)(A)(I) of this title on the basis of an offense for which the alien has been sentenced to a term of imprisonment of at least 1 year, or
(D) is inadmissible under section 1182(a)(3)(B) of this title or deportable under section 1227(a)(4)(B) of this title,
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.
(2) Release
The Attorney General may release an alien described in paragraph (1) only if the Attorney General decides pursuant to section 3521 of title 18 that release of the alien from custody is necessary to provide protection to a witness, a potential witness, a person cooperating with an investigation into major criminal activity, or an immediate family member or close associate of a witness, potential witness, or person cooperating with such an investigation, and the alien satisfies the Attorney General that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding. A decision relating to such release shall take place in accordance with a procedure that considers the severity of the offense committed by the alien.

8 U.S.C. § 1226(c) (emphasis added).

B. Factual Background

Plaintiff Clayton Richard Gordon, a native of Jamaica, arrived in the U.S. in 1982 [262]*262at age six as a lawful permanent resident. Plaintiff joined the National Guard in 1994 and then served in active duty with the U.S. Army. He was honorably discharged in 1999.

In 2008, Plaintiff was arrested after police found cocaine in his home. Within one day of his arrest, he was released from custody. Plaintiff pled guilty in state court to a charge of possession of narcotics with intent to sell, for which he received a seven-year suspended sentence and three years of probation. He successfully completed his probation without incident.

Since that arrest, Plaintiff has re-established himself as a productive member of society. He met his current fiancee around 2008, and the couple had a son in 2010. They purchased a home together in Bloomfield, Connecticut. Plaintiff developed a successful business and has worked on a project to open a halfway house for women released from incarceration.

On June 20, 2013, while driving to work, Plaintiff was unexpectedly stopped by ICE agents.

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Cite This Page — Counsel Stack

Bluebook (online)
991 F. Supp. 2d 258, 2013 WL 6905352, 2013 U.S. Dist. LEXIS 181980, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gordon-v-johnson-mad-2013.