United States District Court, S.D. New York
For Plaintiff: Paul B. Grotas, Esq., New York, NY.
For Defendants: Patricia L. Buchanan, Assistant U.S. Attorney, U.S. Attorney's Office for the Southern District of New York, New York, NY.
OPINION AND ORDER
Shira A. Scheindlin, United States District Judge.
On March 26, 2014, Diomedes Martinez-Done, a lawful permanent resident of the United States since 1983, was taken into custody by Immigration and Customs Enforcement officials (" ICE" ). At the time, Martinez was serving five years of probation in connection with a 2012 state conviction -- his second -- for drug possession.
In light of his criminal history, ICE determined that Martinez was subject to mandatory detention under section 236(c) of the Immigration and Nationality Act (" INA" ). Section 236(c)(1) provides that the Attorney General " shall take into custody" any alien who has committed a qualifying offense -- such as drug possession -- " when the alien is released."  Aliens taken into custody pursuant to section 236(c) may not seek review of detention decisions.
Martinez argues that if he is removable, it is not pursuant to section 236(c), as the government contends, but rather to section 236(a). Under the latter provision, detention is not mandatory; aliens are entitled to individualized bond hearings to determine whether release is appropriate during the pendency of removal proceedings. That is the remedy Martinez seeks here.
Martinez offers three theories for why section 236(c) does not govern his case. First, Martinez argues that he never served a custodial sentence -- and therefore he was never " released" from custody as section 236(c)(1) requires. Second, Martinez argues that he was not taken into custody " when [he was] released," thereby violating the implicit timeliness requirement of section 236(c). Third, Martinez argues that mandatory detention under section 236(c), as applied to his case, offends the Due Process Clause of the U.S. Constitution.
For the reasons set forth below, Martinez's request for an individualized bond hearing is GRANTED.
In 1983, at the age of twenty-five, Martinez was admitted to the United States as a lawful permanent resident. Since then he has lived with his family in New York.
In 2003, Martinez pled guilty to criminal possession of cocaine in the third degree -- which was subsequently modified to criminal possession of a controlled substance in the fourth degree. He was sentenced to
five years of probation. In 2008, Martinez was arrested once again for drug possession, and in 2012, he was found guilty of possession of cocaine in the fifth degree. He was sentenced to five years of probation. Both convictions are grounds for removal under the INA.
In August and September of 2004, while serving his initial probationary sentence, Martinez was remanded to the New York City Department of Corrections and spent forty-one days in custody. The reason for the remand is uncertain. Neither party has been able to produce a document that directly explains why Martinez was taken into custody. The government argues that it was " presumably" for violating the terms of his probation -- which, if true, would mean that Martinez's first conviction resulted in a period of custody despite the fact that his sentence was non-custodial. In the absence of further information, I conclude that the most likely explanation for the remand is that Martinez violated his probation.
On March 26, 2014, nearly six years after his most recent arrest, and nearly ten years since he was released from post-conviction custody, ICE officials took Martinez into custody and initiated removal proceedings. In light of Martinez's criminal history, ICE determined that he was subject to mandatory detention under section 236(c). Accordingly, Martinez has been in detention since March 2014, awaiting a removal decision. On April 30, 2014, Martinez filed a petition for a Writ of Habeas Corpus. He seeks an individualized hearing to determine whether detention should continue.
III. APPLICABLE LAW
A. Section 236 of the INA
Section 236 of the INA regulates the detention of aliens who are facing removal due to past criminal convictions. Section 236(a) lays out a general framework for detention. It authorizes the Attorney General to " arrest and detain" criminal aliens " pending a decision on whether the alien is to be removed from the United States."  It also provides for individualized review of detention decisions. Aliens detained pursuant to section 236(a) may be released on bond, or on conditional parole, while their immigration case is resolved.
Section 236(c) carves out an exception to the general framework set forth in section 236(a). It makes pre-removal detention mandatory -- without the benefit of individualized review -- for aliens who commit particularly serious crimes. Procedurally, section 236(c) provides that
[t]he Attorney General shall take into custody any alien who [has been convicted of a qualifying offense] 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.
The italicized clause, " when the alien is released," is a source of persistent confusion. There has been extensive litigation, in this District and elsewhere, about the meaning of the word " when."  Martinez, like other removable aliens who have sought habeas relief from mandatory detention, maintains that section 236(c) contains an implicit timeliness requirement. In essence, Martinez argues that the word " when" requires that mandatory detention should begin at or around the time of release from criminal confinement. If ICE unreasonably delays the process of taking an alien into custody, section 236(c) cannot govern the alien's detention.
The government, on the other hand, relies on a 2001 opinion from the Board of Immigration Appeals (" BIA" ) to argue that " when" does not " set a deadline" for the onset of mandatory detention. Rather, it " creat[es] a precondition for the Department of Homeland Security to exercise its mandatory detention authority,"  and that such authority, once triggered, extends indefinitely through time. Judge Paul Engelmayer of this District recently labeled these views the " time-limiting" construction (Martinez's) and the " ...