United States District Court, S.D. New York
REPORT AND RECOMMENDATION
JAMES L. COTT, Magistrate Judge.
To The Honorable Laura Taylor Swain, United States District Judge:
Petitioner Troy Thompson seeks a writ of habeas corpus, pursuant to 28 U.S.C. § 2241, challenging his July 26, 2013 detention by United States Immigration and Customs Enforcement ("ICE" or "the Government"). Thompson has been detained pursuant to § 236(c) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1226(c), which requires mandatory detention for certain criminal aliens for the duration of their removal proceedings. In his petition, Thompson argues that he is not subject to § 1226(c) and therefore is being detained in violation of the statute and his right to due process. Accordingly, Thompson seeks a prompt individualized bond hearing. In addition to challenging his detention, Thompson also asserts a claim of ineffective assistance of counsel. For the reasons set forth below, I recommend that Thompson's petition be granted and, should that recommendation be adopted, that the Government be directed to provide Thompson with an individualized bond hearing within 10 days of the date of the district court's decision.
A. Factual Background
Thompson is a native and citizen of Jamaica. Thompson's Petition for Writ of Habeas Corpus ("Pet") (Dkt. No.), ¶ 15; Respondents' Memorandum of Law in Opposition to Petition for Writ of Habeas Corpus ("Resp. Mem.") (Dkt. No. 7), at 3. He has been a lawful permanent resident of the United States since January 27, 1996. Id . Thompson is engaged to be married and has a daughter who was born in the United States in 2009, as well as a son from a prior relationship. Pet., ¶¶ 17-19. At the time he was taken into immigration custody, he was employed and, he alleges, recently promoted to a supervisory position. Id., ¶ 17.
1. Thompson's Criminal History
On September 27, 2000, Thompson pled guilty in New York state court to attempted criminal sale of a controlled substance (cocaine) in the third degree and was sentenced to a prison term of two to ten years. Resp. Mem., at 3; Return to Habeas Petition ("Return") dated March 11, 2014 (Dkt. No. 8), Exhibit ("Ex.") 2. Thereafter, on May 13, 2002, Thompson pled guilty before Judge Colleen McMahon of this Court to four counts of distribution and possession with the intent to distribute crack cocaine in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(C). Return, Ex. 3. Thompson was sentenced to 71 months imprisonment, to run concurrently with the undischarged portion of the New York state sentence that he was serving at the time of his conviction in federal court. Id . Thompson was released from custody on supervised release on July 9, 2007. Id., Ex. 4.
On March 17, 2013, Thompson was arrested for operating a motor vehicle while impaired by drugs and unlawful possession of marijuana. Id.. Ex. 1.
2. Facts Underlying Thompson's Detention and Charges for Removal
After Thompson's March 2013 arrest, the New York State Police referred him to ICE. Id . On or about May 22, 2013, ICE prepared a Notice to Appear ("NTA") charging that, on the basis of his state and federal narcotics convictions, Thompson was subject to removal pursuant to: (1) 8 U.S.C. § 1227(a)(2)(A)(iii), for having been convicted of two aggravated felonies, specifically an offense related to illicit trafficking in a controlled substance and an offense pertaining to an attempt or conspiracy to commit a drug trafficking crime; and (2) 8 U.S.C. § 1227(a)(2)(B)(i), for having been convicted of a violation relating to a controlled substance. Resp. Mem., at 4; Return, Ex. 5. Based on these charges, ICE determined that Thompson was subject to mandatory detention under § 1226(c). Resp. Mem., at 4; Return, Ex. 8.
3. Thompson's Custody Review and Removal Proceedings
ICE commenced removal proceedings against Thompson by serving him with the NTA on July 26, 2013 and taking him into custody at the Orange County Jail in Goshen, New York that same day. Resp. Mem. at 4; Return, Ex. 5, 6. Thompson sought review of ICE's custody determination, and on November 15, 2013, the Immigration Judge assigned to his case determined that Thompson was not eligible for release on bond because he was subject to mandatory ...