The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge:
Petitioner Melbin Santana petitions for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241, challenging his confinement by United States Immigration and Customs Enforcement ("ICE") under § 236(c) of the Immigration and Nationality Act, 8 U.S.C. §1226(c), pending his removal proceedings. The Court heard oral argument on March 2, 2012. For the reasons that follow, Petitioner's writ of habeas corpus is DENIED.
Santana is a citizen of the Dominican Republic who entered the United States as a lawful permanent resident in 1990. (Petitioner's Memorandum for Writ of Habeas Corpus ("Pet. Mem."), Ex. A; Respondents' Memorandum in Opposition ("Resp. Mem."), 2.) On July 11, 2002, Santana pleaded guilty to sexual misconduct. He was sentenced to six years probation by the Bronx County Criminal Court on September 27, 2002. (Resp. Mem. 2; Declaration of Natasha Oeltjen ("Oeltjen Decl."), Ex. 1.)
On September 17, 2011, ICE agents arrested Santana during an enforcement operation that targeted aliens who had committed crimes, including sex offenders. (Resp. Mem. 3; Oeltjen Decl., Ex. 2.) Santana has been in custody since ICE has commenced removal proceedings, charging him as removable (1) under INA §237(a)(2)(A)(iii) as an alien convicted of an aggravated felony, specifically, sexual abuse of a minor; and (2) under §237(a)(2)(E)(i) as an alien convicted of a crime of domestic violence or child abuse. (Pet. Mem., Ex. A; Resp. Mem. 3.) ICE determined that Santana's removal charges subjected him to mandatory detention under INA §236(c). (Resp. Mem. 3; Oeltjen Decl., Ex. 3.) Santana moved to terminate the removal proceedings, arguing that his conviction was not for an aggravated felony. (Resp. Mem. 3.) On December 20, 2011, an Immigration Judge ("IJ") denied the motion, and concluded that Santana was removable under both charges. (Pet. Mem., Exh. A; Resp. Mem. 3.)
On January 18, 2012, Santana filed his habeas petition to challenge his mandatory detention and removal. Santana argues that §236(c) does not apply to him because he was not taken into ICE custody until years after his conviction, rather than immediately "when . . . released" from criminal incarceration. He seeks an order directing respondents to release him or to provide an individualized bond hearing before an IJ. (Pet. Mem. 1-2; Resp. Mem. 4.) He also argues that the means of challenging the applicability of §236(c) in this case, a hearing governed by the standards set forth in Matter of Joseph, 22 I. & N. Dec. 799 (BIA 1999), is unconstitutional. (Pet. Mem. 12-13.)
This Court has jurisdiction pursuant to 28 U.S.C. § 2241. On January 18, 2012, the date when Santana filed this habeas petition, he was detained at 201 Varick Street, New York, NY 10014 and was thus within this Court's jurisdiction at the time of filing. Rumsfeld v. Padilla, 542 U.S. 426, 437 (2004). Respondents do not contest that this Court's jurisdiction. (Resp. Mem. 4.) Instead they submit that the Varick Street Facility warden, Assistant Field Office Director Tay-Taylor, should be the only respondent in this case because he was Santana's "immediate custodian." (Resp. Mem. 4 n.3 (citing Padilla, 542 U.S. at 437).)
Padilla establishes a default "immediate custodian" rule in "core" habeas challenges to present physical confinement. Under this rule, the proper habeas respondent is the warden of the facility where the prisoner is being held, and not the Attorney General or other remote supervisory official. Padilla, 542 U.S. 426, 434. While the Court "left open the question of whether the Attorney General is a proper respondent to a habeas petition filed by an alien pending deportation," id. at 435 n.8, a majority of district courts in this Circuit have applied the immediate custodian rule to habeas petitions filed by incarcerated aliens challenging their physical detentions prior to deportation. See, e.g., Zhen Yi Guo v. Napolitano, No. 09 Civ. 3023 (PGG), 2009 WL 2840400, at *3 (S.D.N.Y. Sept. 2, 2009) (citing cases); Liu v. Napolitano, No. 09 Civ. 1560 (BSJ) (S.D.N.Y. April 14, 2009). Accordingly, Assistant Field Office Director Tay-Taylor is the only proper respondent in this case.
Pursuant to the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1226(a), ICE has the authority to arrest and detain any alien pending a decision in removal proceedings, as well as discretion to release certain aliens. Aliens who have been convicted of certain enumerated offenses are subject to mandatory detention under INA §236(c), which provides in relevant part as follows:
The Attorney General shall take into custody any ...