United States District Court, S.D. New York
OPINION & ORDER
RONALD L. ELLIS, Magistrate Judge.
Petitioner Kastriot Djombalic seeks a writ of habeas corpus under 28 U.S.C. § 2241. (Doc. No. 1) On September 24, 2014, the United States Department of Homeland Security ("DHS") Bureau of Immigration and Customs Enforcement ("ICE") detained Djombalic pursuant to Section 236(c) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1226(c), which mandates that ICE detain without bond certain categories of criminal aliens pending the outcome of their removal proceedings. (Doc. No. 10-7) Djombalic has now been detained for approximately eight months. He argues that he is not properly subject to mandatory detention without a bond hearing, and that he has been deprived of his liberty without due process of law in violation of the Fifth Amendment to the United States Constitution. (Doc. No. 1) The Parties consented to the jurisdiction of the undersigned on April 7, 2015, pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73. (Doc. No. 12) This case requires the Court to interpret the meaning of the phrase "when the alien is released" within the statutory framework of the INA. For the reasons which follow, the Court finds that Djombalic is not properly subject to mandatory detention. Djombalic's Petition is GRANTED and the government is directed to provide Djombalic with an individualized bond hearing by June 19, 2015.
Djombalic and his family are members of an Albanian Muslim ethnic minority who, as a result of the persecution they suffered in Yugoslavia, applied for refugee status in the United States. (Doc. No. 1, Ex.Bat 33.) When his parents' application was granted in 1971, Djombalic came to the United States from Yugoslavia at the age of two. (Id.) Now forty-six years old, he has been a legal permanent resident for forty-four years. (Id.) Since 1971, Kastriot has lived and worked in New York City. (Id.) He currently lives with his wife and their two sons in Brooklyn, but "splits time" between his home and his parents' home because they frequently need his assistance with housework and errands. (Id.) Djombalic's son Yalon is a student-athlete who plays basketball for Brooklyn College and is currently working toward a degree in kinesiology. Both of Djombalic's sons are "devastated that their father is incarcerated and might be deported." (Doc. No. 1, Ex.Cat 39.)
A. Djombalic's Criminal History
Between 2007 and 2012, Djombalic was convicted of one felony and three misdemeanors. (Doc. No. 10-3 at 5-8; Doc. No. 10-5 at 3.) On April 25, 2007, he pled guilty to attempted robbery in the second degree under New York State Penal Law ("NYPL") § 160.10 and was sentenced to a two-year term of incarceration and a three-year term of post-release supervision time. (Id. at 8.) On October 30, 2010, he pled guilty to criminal possession of a controlled substance in the seventh degree under NYPL § 220.03 and was sentenced to a five-day term of incarceration and a six-month license suspension. (Id. at 5.) On August 25, 2012, Djombalic pled guilty to criminal possession of a controlled substance in the seventh degree and was sentenced to "time-served" and a six-month license suspension. (Id. at 3.) He was last released from criminal custody on August 25, 2012. (Id.)
B. Djombalic's ICE Detention and Removal Proceedings
On the morning of September 24, 2014, approximately two years after his 2012 conviction, ICE agents went to Djombalic's apartment and arrested him in front of his wife and children. (Doc. No. 9-1; Doc. No. 1. Ex.Bat 34.) ICE charged Djombalic with being subject to removal pursuant to section 237(a)(2)(B)(i) of the INA for having committed an offense involving a controlled substance, and section 237(a)(2)(A)(iii), for having committed an aggravated felony. (Doc. No. 10-6 at 3-4.) Djombalic faces removal proceedings which have not yet been scheduled. On February 27, 2015, he requested a bond hearing before Immigrant Judge ("11") Alan Page. (Doc. No. 1 at 13.) 11 Page ruled that Djombalic was subject to mandatory detention and therefore not eligible for bond. (Doc. No. 9 at 10.)
C. Djombalic's Federal Habeas Corpus Petition
Djombalic filed his Petition on February 27, 2015: the same day that 11 Page determined he was ineligible for bond. (Doc. No. 5) Djombalic seeks an order, inter alia, directing ICE to release him "immediately on his own recognizance or under parole, bond, or reasonable conditions of supervision, or, in the alternative, ordering [ICE] to provide [him] with a constitutionally adequate, individualized hearing before an impartial adjudicator" pursuant to 8 U.S.C. § 1226(c). (Doc. No. 1 at 24-25.)
Djombalic argues that he does not fall within the limited class of persons who are subject to mandatory detention "when... released" under 8 U.S.C. § 1226(c) because the "when... released" clause requires ICE to arrest and detain individuals "immediately after" or "at the time of' their release. (Doc. No. 5 at 16.) Because he was not arrested and detained by ICE at the time of his 2012 conviction, Djombalic argues that he is eligible for a bond hearing under 8 U.S.C. § 1226(a). (Id.) He further argues that his continued detention without an individualized hearing violates his due process rights. (Id. at 18-24.)
The government filed its opposition to the Petition on March 31, 2015, and Djombalic filed a reply on April 6, 2015. (Doc. Nos. 10, 11) The Court has reviewed and ...