United States District Court, S.D. New York
OPINION & ORDER
M. WOOD, UNITED STATES DISTRICT JUDGE
Hoxquelin Gomez Heredia has spent the better part of two
years in the custody of the Department of Homeland Security
("DHS"), and applies under 28 U.S.C. § 2241
for a writ of habeas corpus releasing him pending the outcome
of his removal proceedings. In the alternative, Heredia seeks
a bail hearing before an immigration judge. For the reasons
stated herein, Heredia's petition is GRANTED, and DHS is
ordered to give him a bail hearing within two weeks.
is a citizen of the Dominican Republic. Am. Pet. ¶ 15,
ECF No. 4. He first entered the United States in August 1997
as a legal permanent resident ("LPR"). Id.
In 1999, Heredia was arrested and pled guilty to criminal
possession of marijuana in the fifth degree, in violation of
New York Penal Law ("NYPL") § 221.10.
Id. ¶ 33. In 2008, Heredia was arrested for
selling cocaine to an undercover police officer and, in 2010,
he pled guilty to violating NYPL § 220.16(1), criminal
possession of a controlled substance in the third degree by
possessing a narcotic drug with the intent to sell.
Id. ¶ 34. In 2015, Heredia sought to vacate the
conviction, which was granted in 2016; subsequently, he
agreed to instead plead guilty to violation NYPL §
220.16(12), criminal possession of a controlled substance in
the third degree by possessing a mixture containing an
aggregate weight of half an ounce or more of a narcotic drug.
Pet'r Reply 4, ECF No. 17-1; see Id. Ex. G.
Section 220.16(12) is a possession offense and is not an
"aggravated felony" within the scope of 8 U.S.C.
11, 2015, Heredia left the United States with his family for
a vacation to the Dominican Republic. Am. Pet. ¶ 37.
Upon his return through John F. Kennedy International Airport
on June 21, 2015, he was taken into custody. Id.
¶ 38. An immigration judge issued a removal order on
January 12, 2016. Id. ¶ 40 & Ex. N. Heredia
filed a timely appeal of the immigration judge's decision
to the Board of Immigration Appeals ("BIA"),
id. ¶ 41 & Ex. O, and the BIA affirmed the
order of removal on May 6, 2016, Pet'r Reply 4 & Ex.
F. Heredia then timely filed for review of the BIA's
decision with the Second Circuit Court of Appeals.
Id. at 4; see also Gomez-Heredia v.
Sessions, No. 16-1465 (2d Cir.). Heredia filed a motion
to stay removal with the Second Circuit, which the Government
opposed; the motion remains pending. Gomez-Heredia,
No. 16-1465, ECF Nos. 6, 12. Under the Government's
forbearance policy, the U.S. Department of Immigration and
Customs Enforcement ("ICE") will not remove a
detainee while judicial proceedings are pending. See,
e.g., Efstathiadis v. Holder, 752 F.3d 591, 599 n.5 (2d
Court first addresses two key legal issues-the statutory
framework and constitutional due process-before applying the
law to Heredia's petition.
parties dispute which provisions of Title 8 of the United
States Code govern Heredia's detention. The three
relevant sections are §§ 1225(b)(2)(A), 1226(c),
1225(b)(2)(A) authorizes the detention of arriving
aliens. It provides that an alien who is an "applicant
for admission . .. shall be detained for a removal
proceeding" if the examining immigration officer
determines that the alien "is not clearly and beyond a
doubt entitled to be admitted."
1226(c) authorizes the detention of aliens who have
committed criminal offenses, specifically any alien who has
committed certain criminal offenses, defined by 8 U.S.C.
§ 1182(a)(2), and which includes "a violation of. .
. any law . . . relating to a controlled substance, " 8
U.S.C. § 1182(a)(2)(A)(i)(II). This section applies
while the Government is seeking a final removal order.
See Wang v. Ashcroft, 320 F.3d 130, 146 (2d Cir.
LPRs re-entering the United States, such as Heredia, are not
considered arriving aliens, and thus would be governed by
§ 1226, rather than § 1225. 8 U.S.C. §
1101(a)(13)(C); see also Arias v. Aviles, No. 15
Civ. 9249, 2016 WL 3906738, at *2 (S.D.N.Y. July 14, 2016)
(Abrams, J.), appeal filed, No. 16-3186 (2d Cir.
Sept. 12, 2016). However, LPRs who fit one of six
categories-including aliens who have "committed an
offense identified in section 1182(a)(2) of this
title"-may be treated as an alien seeking admission. 8
U.S.C. § 1101(a)(13)(C)(v). Thus, despite his status as
a LPR, Heredia was initially detained pursuant to §
1231 governs the "[d]etention, release, and removal
of aliens ordered removed." It directs that, following a
removal order, 'the Attorney General shall remove the
alien from the United States within a period of 90 days,
" which is referred to as the "removal
period." 8 U.S.C. § 1231(a)(1)(A). Pursuant to
§ 1231, an alien must be detained during the 90-day
removal period, id. § 1231(a)(2), which begins
when the order of removal becomes administratively final,
unless the removal order is judicially reviewed and a stay of
removal is ordered, or unless the alien is released,
id. § 1231(a)(1)(B). If the removal period is
tolled, § 1231 does not authorize detention and
authority for detention reverts to another provision, such as
§§ 1225 or 1226. Argueta Anariba v.
Shanahan, 190 F.Supp.3d 344, 349 (S.D.N.Y. 2016)
the forbearance policy, the Government will not remove an
alien while his or her petition is pending with the Second
Circuit. In re Immigration Petitions for Review Pending
inU.S. Court of Appeals for Second Circuit,702 F.3d 160, 162 (2d Cir. 2012). As a result, the Second
Circuit does not, as a ...