This is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner Patrick Guillaume argues that his detention by the Bureau of Immigration and Customs Enforcement ("BICE") violates § 236(c) of the Immigration and Nationality Act ("INA"), 8 U.S.C. 1226(c), and the United States Constitution.
In 2003, Guillaume, a Haitian citizen, entered the United States as a lawful permanent resident to join his father, who is now a naturalized citizen. Since that time, Guillaume has been convicted of several crimes, including petit larceny, theft of services, criminal possession of a forged instrument, attempted grand larceny, and criminal possession of a weapon. He was last released from incarceration in 2008, a fact which is relevant to the application of § 236, as will be explained below.
On January 12, 2010, Guillaume was sentenced in state court to three years' probation for criminal possession of a weapon in the fourth degree. While visiting the Kings County Probation Office on September 21, 2011, Guillaume was apprehended by BICE agents, who had previously identified Guillaume as deportable because of his criminal convictions.
On the same day, BICE commenced removal proceedings by serving Guillaume with a Notice to Appear. BICE officials also determined that Guillaume's removal charges subjected him to mandatory pre-removal detention under § 236(c). Guillaume is now detained at the Monmouth County Correctional Facility in Freehold, New Jersey.*fn1
In his petition, Guillaume claims that he has been wrongfully subjected to mandatory pre-removal detention. Guillaume also claims that the administrative procedures that exist to challenge his mandatory-detention classification violate the Due Process Clause of the Fifth Amendment. He seeks immediate release or a hearing before an Immigration Judge to determine if he should be released on bond.
Certain features of the statutory scheme at issue call into question the court's jurisdiction over this case. Namely, § 236(e) of the INA, 8 U.S.C. § 1226(e), provides that no "court may set aside any action or decision by the Attorney General under this section regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole."
However, the Supreme Court held in Demore v. Kim, 538 U.S. 510, 516-517 (2003), that § 236(e) does not foreclose constitutional challenges to § 236(c) on habeas review. District courts have since read Demore to permit habeas petitions predicated on the statutory interpretation, rather than the constitutionality, of § 236(c). See, e.g., Louisaire v. Muller, 758 F.Supp. 2d 229, 234 (S.D.N.Y. 2010). Accordingly, Section 1226(e) does not bar the court from hearing Guillaume's petition.
Nor does the doctrine of exhaustion bar Guillaume's petition. Since no statutory exhaustion requirement applies in this case, the court may apply the doctrine of exhaustion at its discretion. See Beharry v. Ashcroft, 329 F.3d 51, 56-57 (2d Cir. 2003). It can decline to do so when exhaustion would be futile. See Garcia v. Shanahan, 615 F.Supp. 2d 175, 180 (S.D.N.Y. 2009). Here, petitioner's classification follows from a Board of Immigration Appeals ("BIA") decision, Matter of Rojas, 23 I. & N. Dec. 117 (BIA 2001), that petitioner claims was erroneously decided. It would obviously be futile to force petitioner to assert claims before an Immigration Judge bound by that very decision. Thus the court will assume jurisdiction over Guillaume's petition.
II) Section 236(c) of the INA
It is appropriate at this point to review the overall statutory framework concerning the detention of aliens pending removal.
Section 236(a) provides that 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. Pending such decision, the Attorney General may continue to detain the arrested alien. The Attorney General may also release the alien on a bond containing prescribed conditions, or instead of such of such release, the Attorney General may allow conditional parole. As the language of this provision clearly indicates, the Attorney General has broad discretion under § 236(a) with regard to the detention of an alien potentially subject to removal. It should be ...