United States District Court, S.D. New York
OPINION & ORDER
LORETTA A. PRESKA, District Judge.
On June 5, 2014, Petitioner Patrick Baker was taken into custody by U.S. Immigration and Customs Enforcement ("ICE"), an agency within the U.S. Department of Homeland Security ("DHS"). Petitioner is currently detained at the Hudson County Correctional Center in Kearny, New Jersey and is facing removal proceedings based on his prior criminal convictions. Petitioner was detained by ICE pursuant to the Immigration and Nationality Act ("INA") § 236(c), 8 U.S.C. § 1226(c), the mandatory detention statute that requires the Attorney General to detain certain classes of criminal aliens "when the alien is released" from criminal custody. 8 U.S.C. § 1226(c)(1). Petitioner's request for a bond hearing pending the removal proceedings was denied.
On December 2, 2014, Petitioner filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241. Petitioner presents two arguments against the application of the mandatory detention statute in this case. First, he argues that, under the plain language of the statute, Section 1226(c) only applies where an alien is taken into ICE custody immediately upon the alien's release from non-ICE custody. Given the four-and-a-half-year gap between his release from criminal custody and when ICE detained him, Petitioner argues that he is not subject to mandatory detention because he was not taken into ICE custody under the meaning of the phrase "when... released." 8 U.S.C. 1226(c)(1). Second, Petitioner argues that his mandatory detention violates the Due Process Clause of the Fifth Amendment. Accordingly, Petitioner claims that he is entitled to an individualized bond hearing under INA § 236(a), 8 U.S.C. § 1226(a).
Petitioner is a citizen and native of Jamaica. (Pet. Br. (Dkt. No. 9) Ex. 1 ("Notice to Appear").) On June 18, 1989, Petitioner entered the United States as a lawful permanent resident. (Id.) At the time of his detention, Petitioner and his girlfriend, Chavonda Wilkins - a United States citizen - were living in a homeless shelter in the Bronx, New York, with their son Patrick and Ms. Wilkins's daughter, Angelique. (Id.; see id. Ex. 2 ("Wilkins Affidavit") ¶¶ 1, 2, 4, 7.) Five days after Petitioner was detained, Ms. Wilkins gave birth to their second son, Alton. (Id. ¶ 9.) Before he was detained by ICE, Petitioner was employed at a packing facility in Brooklyn, New York for approximately three years. (Id. ¶¶ 3, 5.)
In the twenty-five years that Petitioner has lived in the United States, he has been arrested six times. (Id. Ex. 3 ("Certificate of Disposition").) Most recently, Petitioner was arrested on December 14, 2009 for failure to pay the subway fare in violation of New York Penal Law § 165.15. (Id. at 6) Petitioner pled guilty to the charge on December 15, 2009, agreed to perform three days of community service, and was released from custody. (Id.)
On June 5, 2014 - approximately four and a half years after he was released from custody - Petitioner was detained by ICE agents outside of the homeless shelter that he was living in with his family. (Id.; Wilkins Affidavit ¶ 8.) Petitioner was transferred to the Hudson County Correctional Center in Kearny, New Jersey. (Id. Ex. 4 ("ICE Detainee Locator System").) On June 5, 2014, ICE initiated removal proceedings against Petitioner by serving him with a Notice to Appear, charging that Petitioner is removable from the United States pursuant to INA §§ 237(a) (2) (A) (i)-(iii), for having been convicted of two or more crimes involving moral turpitude and for having been convicted of an aggravated felony. (Notice to Appear.) The Notice to Appear specified that Petitioner was subject to removal for (1) a 1994 conviction for attempted robbery in the second degree; (2) a 1995 conviction for sexual misconduct; and (3) a 2005 conviction for menacing in the second degree. (Id.) On August 6, 2014, the Immigration Judge ("IJ") sustained the charge of removability for the two crimes involving moral turpitude, pursuant to INA § 237(a) (2) (A) (ii), but declined to find that Petitioner had been convicted of an aggravated felony. (See id. Ex. 5 ("IJ Order"); Resp. Br. (Dkt. No. 11) at 3.)
On December 2, 2014, Petitioner appeared before IJ Thomas Mulligan to (1) challenge ICE's determination that he was subject to mandatory detention under 8 U.S.C. § 1226(c); and (2) request that the IJ allow him to be released upon the posting of a bond. (IJ Order; see also Resp. Br. at 3.) On February 12, 2015, Judge Mulligan determined that Petitioner's two convictions for crimes involving moral turpitude subjected him to mandatory detention, and he denied Petitioner's request for a change in custody status. (See IJ Order.)
On December 2, 2014 - while he was temporarily detained in the Southern District of New York - Petitioner filed this habeas petition. On March 9, 2015, the Government filed an opposition brief (Dkt. No. 11), and Petitioner filed a reply brief on March 20, 2015 (Dkt. No. 12).
"To obtain habeas relief pursuant to 28 U.S.C. § 2241, a petitioner must demonstrate that he is being detained in violation of the Constitution or laws or treaties of the United States.'" Araujo-Cortes v. Shanahan, No. 14 Civ. 4231, 35 F.Supp. 3d 533, 539 (S.D.N.Y. 2014) (quoting 28 U.S.C. § 2241(c) (3)). Petitioner argues that he is not subject to mandatory detention because: (1) 8 U.S.C. § 1226(c) does not apply because he was not detained by ICE immediately after he was released from criminal custody; and (2) his detention without a bond hearing violates due process, given the four-and-a-half-year time lapse between his release from criminal custody and when he was detained by ICE, as well as the fact the length of his present detention.
A. MANDATORY DETENTION UNDER INA SECTION 236(c)
Section 236 of the INA, codified at 8 U.S.C. § 1226, governs the apprehension and detention of aliens. "When an alien is arrested and detained pending a decision on removal, DHS generally has the discretion to release him on bond." Young v. Aviles, No. 14 Civ. 9531, 2015 WL 1402311, at *2 (S.D.N.Y. Mar. 26, 2015) (citing 8 U.S.C. § 1226(a)). "Section 1226(c), entitled Detention of criminal aliens, ' however, provides for mandatory detention for certain criminal aliens." Reynoso v. Aviles, No. 14 Civ. 9482, 2015 WL 500182, at *3 (S.D.N.Y. Feb. 5, 2015). 8 U.S.C. § 1226 provides, in relevant part:
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). Pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii) - the relevant provision here - "[a]ny alien who at any time after admission is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor and regardless of whether the convictions were in a single trial, is deportable." 8 U.S.C. § 1227(a)(2)(A)(ii). Under 8 U.S.C. § 1226 (c) (2), "[t]he Attorney General may release an alien described in paragraph (1) [of 1226(c)]" in certain circumstances that are not relevant here. 8 U.S.C. § 1226(c)(2).
Here, Petitioner does not dispute that he qualifies for removal under the crimes enumerated in § 1227(a)(2)(A)(ii). Instead, Petitioner argues that the language in Section 1226(c)(1) requiring that DHS take certain aliens into custody "when... released" means that an alien must be taken into ICE custody immediately after the alien is released from criminal custody. (See Pet. Br. at 4.) Because Petitioner was not detained until June 2, 2014 - nearly five years after his last arrest and nine years after the underlying conviction for which Petitioner is facing removal proceedings - he argues that he is not subject to mandatory detention. (See id.) By contrast, the Government argues that Section 1226(c) applies even though Petitioner was not immediately detained upon his release from criminal custody. (See Resp. Br. at 9-13.)
As an initial matter, courts in this district are split on whether aliens, such as Petitioner, who are not detained immediately upon their release from criminal custody are subject to mandatory detention under Section 1226(c). Indeed, judges in this district who have tackled the meaning of the phrase "when released" have divided into two schools of interpretation: the "duty-triggering" construction and the "time-limiting" construction. Straker v. Jones, 986 F.Supp.2d 345, 352-53 (S.D.N.Y. 2013) (collecting cases). Under the duty-triggering construction, "the when released' clause does not place an expiration date on DHS's duty under § 1226(c); if an alien who meets the requirements of § 1226(c) is released from criminal custody and DHS does not immediately take him into immigration custody, DHS continues to have the duty, and therefore the authority, to take that alien into custody." Id. In other words, the "when released" clause "creates a pre-condition for DHS to exercise its mandatory detention authority, but does not set a temporal deadline for its use." ...