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Masih v. Aviles

United States District Court, S.D. New York

May 20, 2014

RAHUL MASIH, Petitioner,
v.
OSCAR AVILES, in his official capacity as Warden of Hudson County Jail, CHRISTOPHER SHANAHAN, in his official capacity as New York Field Office Director for U.S. Immigration and Customs Enforcement, RAND BEERS, in his official capacity as Acting Secretary of Homeland Security, ERIC HOLDER, in his official capacity as Attorney General of the: United States, and the U.S. DEPARTMENT OF HOMELAND SECURITY, Respondents.

MEMORANDUM AND ORDER

JAMES C. FRANCIS, IV, Magistrate Judge.

Since January 2014, United States Immigration and Customs Enforcement ("ICE") has held petitioner Rahul Masih in detention. It has done so pursuant to a statute that requires the Government to detain any alien who is subject to deportation on the basis of having been convicted of two or more crimes involving moral turpitude. 8 U.S.C. §§ 1226(c)(1)(B), 1227(a)(2)(A)(ii). Mr. Masih contends that he is not properly held under that section, and seeks a bond hearing pursuant to 8 U.S.C. § 1226(a), the general provision governing detention of removable aliens. He argues that (1) detention under section 1226(c)(1)(B) is authorized only for an alien who has been released from a custodial sentence imposed for the conviction that makes him removable, and he did not receive a custodial sentence for any of the crimes that make him removable, and (2) detention under that section is authorized only for an alien who is detained at or around the time that he is released from criminal custody, whereas Mr. Masih was not detained until years after his convictions for the offenses that made him removable. Because Mr. Masih's first argument correctly interprets the statute, I conditionally grant the writ on that ground.[1]

Factual Background

The relevant facts are largely undisputed. Mr. Masih immigrated to the United States from India in 1991. ([Proposed] First Amended Petition for Writ of Habeas Corpus ("Am. Pet."), attached as Exh. 1 to Motion to Amend Petition for Writ of Habeas Corpus, at 3).[2] He is not a United States citizen. (Am. Pet. at 3). In 1998 and 2005, he pled guilty to two crimes involving moral turpitude; however, he received no jail time as a result of the convictions.[3] (Am. Pet. at 7). Instead, he was sentenced to a one-year conditional discharge on the 1998 conviction and three years of probation on the two 2005 convictions. (Am. Pet. at 7; Conditions of Conditional Discharge dated Dec. 11, 1998, attached as Exh. 3 to Memorandum of Law in Support of Petition for Habeas Corpus ("Pet. Memo."); Certificate of Disposition dated Dec. 5, 2013, attached as Exh. 4 to Pet. Memo.; Certificate of Disposition dated Dec. 5, 2013, attached as Exh. 5 to Pet. Memo.). In January 2014, ICE detained him without a bond hearing pursuant to section 1226(c). (Notice of Custody Determination dated Jan. 15, 2014, attached as Exh. 8 to Return to Habeas Petition ("Return")). Proceedings are now underway to effect his removal. (Notice of Hearing in Removal Proceedings dated April 1, 2014, attached as Exh. 10 to Return).

Discussion

A. Legal Standards[4]

This case requires me to interpret part of the Immigration and Naturalization Act (the "INA"), which is administered by the Board of Immigration Appeals (the "BIA"). See Chery v. Ashcroft , 347 F.3d 404, 407 (2d Cir. 2003). The statute includes two subsections directed at the detention of potentially removable aliens. Section 1226(a) provides that, pursuant to a warrant, immigration officials[5] may arrest an alien and, pending a decision on whether the alien is removable, may detain him, release him on bond, or release him on conditional parole. 8 U.S.C. § 1226(a). Section 1226(a) thus contemplates that detained aliens will be provided a bond hearing. Section 1226(c), on the other hand, applies to only a subset of aliens - denominated "criminal aliens" - and denies them a right to a bond hearing:

The [Department of Homeland Security] 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 [which primarily governs admissibility of aliens convicted of an offense (including a conspiracy or attempt) involving moral turpitude or a controlled substance],
(B) is deportable by reason of having committed any offense covered in section 1227(a)(2)(A)(ii) [which governs deportability of aliens convicted of two or more crimes of moral turpitude], (A)(iii), (B), (C), or (D) of this title, [which primarily govern deportability of aliens convicted of aggravated felonies, crimes involving controlled substances or firearms, and certain other crimes],
(C) is deportable... on the basis of an offense for which the alien has been sentence[d] 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 [which govern admissibility and deportability of those involved in terrorist activity],
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.

8 U.S.C. § 1226(c)(1) (footnote omitted). An alien otherwise subject to mandatory detention under section 1226(c)(1) may be released only in limited circumstances related ...


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