United States District Court, S.D. New York
For Carlos Figueroa, Petitioner: Paul B Grotas, LEAD ATTORNEY, The Grotas Firm, P.C., New York, NY.
For 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, Jeh Johnson, in his official capacity as Acting Secretary of Homeland Security, Eric Holder, in his official capacity as the Attorney General of the United States, U.S. Department of Homeland Security, Respondents: Christopher Kendrick Connolly, United States Attorney's Office, SDNY, New York, NY.
MEMORANDUM AND ORDER
ANALISA TORRES, United States District Judge.
Petitioner, Carlos Figueroa, has been detained by U.S. Immigration and Customs Enforcement (" ICE") since June 18, 2014. He seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241, ordering Respondents to grant his request for an individualized bond hearing. For the reasons that follow, Figueroa's petition is GRANTED. Respondents are directed to provide Figueroa with a bond hearing by February 9, 2015.
Figueroa, a citizen of the Dominican Republic, entered the United States as a conditional lawful permanent resident in 1997. Pet'r Mem. 10, ECF No. 3; see Return to Pet. (" Ret.") Ex. 1, ECF No. 8-1. Figueroa is married to a U.S. citizen and has two children, who are also U.S. citizens. See Pet'r Mem. Ex. A, ECF No. 3-1; Pet'r Mem. Ex. B, ECF No. 3-2. Figueroa has worked to provide for his family and has dutifully paid federal income taxes. See Pet'r Mem. Ex. C, ECF No. 3-3.
On October 6, 2004, U.S. Citizenship and Immigration Services (" USCIS") terminated Figueroa's conditional status because his mother failed to obtain permanent resident status. Ret. Ex. 2, ECF No. 8-2. In 2006, ICE commenced removal proceedings against Figueroa by filing a Notice to Appear. Ret. Ex. 3, ECF No. 8-3. By decision dated February 5, 2008, Immigration Judge Annette S. Elstein ordered Figueroa removed in absentia . Pet'r Mem. 11; see Ret. Ex. 4, ECF No. 8-4.
On June 14, 2010, Figueroa pleaded guilty in Supreme Court, Bronx County, to Criminal Sale of a Controlled Substance in the Third Degree, under New York Penal Law 220.39. Pet'r Mem. Ex, D at 7, ECF No, 3-4. Figueroa was sentenced to five years' probation. Id. Figueroa had been arrested for this and related offenses on December 5, 2008. Id. at 4.
On June 18, 2014, ICE arrested Figueroa pursuant to an outstanding warrant of removal based on the 2008 removal order. Pet'r Mem. 11. On August 6, 2014, Immigration Judge Philip L. Morace granted Figueroa's motion to reopen his prior removal proceedings on the ground that Figueroa presented evidence that he never received notice of the 2008 hearing. Pet'r Mem. Ex. F, ECF No. 3-6. Judge Morace also noted that Figueroa had " submitted evidence of strong equities" and " may be eligible to adjust his status to [lawful permanent resident]." Id.
Figueroa is currently detained pending the outcome of his removal proceedings. The basis for his mandatory detention is his 2010 narcotics conviction. Pet'r Mem. 8, 11. On November 24, 2014, Figueroa filed a petition for a writ of habeas corpus seeking a bond hearing to determine whether his confinement should continue. Pet. 1, 8, ECF No. 2.
I. Statutory Background
Section 236(c) of the Immigration and Nationality Act (" INA"), 8 U.S.C. § 1226, regulates the detention of aliens who are facing removal due to past criminal convictions. Generally, immigration detention is authorized by § 1226(a), which provides for individualized review of detention decisions. Aliens detained pursuant to § 1226(a) may be released on bond or conditional parole while their immigration case is resolved.
The mandatory detention provision, § 1226(c), carves out an exception to the general framework set forth in § 1226(a). See id. § 1226(a) (" Except as provided in subsection (c) . . . ."). Under this exception, aliens who have committed one or more predicate crimes are to be detained by the Attorney General " when . . . released" from criminal custody. Id. § 1226(c)(1). In contrast to § 1226(a), immigration authorities do not have the option to provide aliens detained under § 1226(c) with a bond hearing. Instead, the aliens may be ...