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Mitchell v. Orsino

August 13, 2009

FRANKLYN MITCHELL, PETITIONER,
v.
COLONEL DOMINIC ORSINO, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge*fn1

MEMORANDUM ORDER

Petitioner Franklyn Mitchell challenges his confinement by United States Immigration and Customs Enforcement ("ICE") and his continued detention without an individualized bail hearing while his removal proceedings are pending. Petitioner moves this Court to grant his petition for a writ of habeas corpus and mandamus, pursuant to 28 U.S.C. §§ 1361 and 2241. The Court heard argument on August 12, 2009, following Petitioner's filing of an Order to Show Cause pursuant to 28 U.S.C. § 2243. For the reasons that follow, Petitioner's writ of habeas corpus is GRANTED in part. Respondents are directed to give Petitioner a prompt, individualized bail hearing. Respondents are also restrained from transferring Petitioner outside of this Court's jurisdiction during the pendency of his bond proceedings, including the hearing and any appeal therefrom.

BACKGROUND

I. Mandatory Detention Under 8 U.S.C. § 1226(c)

In 1996 Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. No. 104-208, 110 Stat. 3009-546. IIRIRA contains a mandatory detention provision, § 236(c) of the Immigration and Nationality Act ("INA"), codified at 8 U.S.C. § 1226(c). Implementation of Section 1226(c) was deferred for two years, during which time detention was governed by § 303(b)(3), otherwise known as the Transition Period Custody Rules ("TPCR"). The TPCR provided for individualized bond hearings for some aliens deportable for having committed certain crimes; the immigration judge could set bond after finding that the alien was not a danger to the community and was likely to appear for future proceedings. See Garcia v. Shanahan, 615 F. Supp. 2d 175, 178 (S.D.N.Y. 2009); Thomas v. Hogan, No. 08 Civ. 0417, 2008 WL 4793739, at *1 (M.D. Pa. Oct. 31, 2008).

The TPCR expired on October 9, 1998, and the mandatory detention provision of 8 U.S.C. § 1226(c) became effective. That provision states:

(c) Detention of criminal aliens

(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 sentence [sic] 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.

See 8 U.S.C. ยง 1226(c) (emphasis added). The mandatory detention provision is not applied retroactively to aliens released from custody prior to the expiration of the TPCR. See ...


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