United States District Court, S.D. New York
OPINION & ORDER
ANDREW J. PECK, Magistrate Judge.
As baseball season begins, it is appropriate to start this Opinion with one of Yogi Berra's most famous expressions: "it is deja vu all over again." Petitioner Arjune seeks a writ of habeas corpus from his detention as a criminal alien, without a bail hearing, by U.S. Immigration and Customs Enforcement ("ICE"), which detention occurred more than four years after his release from custody from the criminal conviction. (See Dkt. No. 1: Pet.) I interpreted the phrase "when the alien is released" in INA § 236(c), 8 U.S.C. § 1226(c)(1), in Lora v. Shanahan, 15 F.Supp. 3d 478 (S.D.N.Y. 2014)(Peck, M.J.). Surprisingly, the U.S. Attorneys' Office did not even cite Lora in their brief opposing Arjune's habeas petition. (See generally Dkt. No. 9: Gov't Opp. Br.) Not surprisingly, I adhere to my statutory interpretation in Lora. Accordingly, Arjune's petition is GRANTED, and the government is directed to provide Arjune with an individualized bond hearing within 30 days of this Opinion.
The facts are not in dispute and need only be briefly summarized. Petitioner Arjune is a native of Suriname who entered the United States as a lawful permanent resident in 2006. (Dkt. No. 1: Pet. ¶¶ 1, 24, 26; Dkt. No. 9: Gov't Opp. Br. at 2.) In 2009, he was convicted in Supreme Court, Queens County, of fourth degree criminal possession of a weapon and tampering with physical evidence, and sentenced to one year imprisonment. (Dkt. No. 8: Gov't Return ¶ 3 & Ex. B; Pet. ¶¶ 27-28.) Arjune was released from prison on March 4, 2010. (Pet. ¶ 29 & Ex. H; Gov't Opp. Br. at 2.) ICE did not detain Arjune until December 2014. (Pet. ¶ 39; Gov't Opp. Br. at 1; Gov't Return ¶ 5 & Ex. D.) Represented by Brooklyn Defender Services, Arjune filed this habeas petition on March 3, 2015. (Pet.) The parties have consented to my decision of the petition pursuant to 28 U.S.C. § 636(c). (Dkt. No. 6.)
INA § 236(c) provides:
The Attorney General 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,
(B) is deportable by reason of having committed any offense covered in section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title,
(C) is deportable under section 1227(a)(2)(A)(i) of this title 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, 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) (emphasis added). As in Lora v. Shanahan, the issue is whether the word "when" in the phrase "when the alien is released" imposes a temporal limitation on DHS's power to mandatorily detain criminal aliens. See Lora v. Shanahan, 15 F.Supp. 3d 478, 485 (S.D.N.Y. 2014) (Peck, M.J.). I noted in Lora that:
Neither the Supreme Court nor Second Circuit have opined on the precise questions presented here, and the circuit and district courts (both inside and outside the Second Circuit) that have addressed these issues are not in agreement.
Lora v. Shanahan, 15 Supp. 3d at 485 & n.16 (citing cases). While the issue is pending, the Second Circuit has not yet ...