The opinion of the court was delivered by: Thomas I. Vanaskie United States District Judge
Frank Kargbo is presently a detainee of the Bureau of Immigration and Customs Enforcement ("ICE") confined at the York County Prison, Pennsylvania. He filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 on September 27, 2006, challenging his detention by ICE. On November 29, 2006, an Order was issued directing Respondent to file a response to the petition within twenty (20) days. A response was thereafter submitted on December 19, 2006. No traverse has been filed by Petitioner. For the reasons that follow, the petition will be denied as Petitioner's detention is both mandatory and constitutionally permissible.
Petitioner is a native and national of Sierra Leone, West Africa. He entered the United States in New York on January 10, 1981, pursuant to a nonimmigrant F-1 student visa with authorization to remain in the Untied States for a temporary period. He ultimately remained in the United States beyond the duration of his status as a student without authorization from ICE. (Dkt. Entry 9, Ex. 2.) Thereafter, during the time period spanning from September of 1987 through November of 1997, he was convicted of various offenses in violation of New York State Penal Law, including Possession of Marijuana, Criminal Possession of a Controlled Substance, Petit Larceny and Attempted Petit Larceny. These crimes did not arise out of a single scheme of criminal misconduct. (Id.)
Based on these circumstance, Petitioner he was charged as removable pursuant to Sections 237(a)(1)(B)and 237(a)(2)(B)(i) and (ii) of the Immigration and Nationality Act, as amended.*fn1 He was ordered removed by ICE on February 23, 2006. It does not appear that any appeal was pursued and, as such, the order of removal thereafter became final. Petitioner does states that he received a custody file review that resulted in a decision on May 22, 2006 to continue detention. On September 13, 2006, the HQPDU, issued a decision to continue detention. The instant petition was filed on September 27, 2006.
In the petition, Kargbo contends that he is being subjected to mandatory indefinite detention in violation of Zadvydas v. Davis, 533 U.S. 678 (2001), in that he has been in detention over 180 days and ICE is not able to obtain any travel documents to remove him. He seeks his immediate release.
Subsequent to his filing of the instant habeas petition, Petitioner filed a motion to reopen his immigration proceedings. This motion was granted by the Immigration Judge on November 6, 2006. (Dkt. Entry 9, Ex. 1.) As such, Petitioner is no longer subject to a final order of removal and is back in administrative removal proceedings. As an alien in removal proceedings who has been convicted of offenses covered in § 237(a)(2)(A)(ii), Petitioner is subject to mandatory detention pursuant to § 236(c)(1)(B) of the INA, 8 U.S.C. § 1226(c)(1)(B). This section provides as follows:
(c)Detention of Criminal Aliens.--(1) Custody.-- The Attorney General shall take into custody any alien who --
(A) is inadmissible by reason of having committed any offense covered in section 2112(a)(2),
(B) is deportable by reason of having committed any offense covered in section 237(a)(2)(A)(ii), (A)(iii), (B), (C) or (D), 8 U.S.C. § 1226(c)(1)(emphasis added).
The United States Supreme Court held in Demore v. Kim, 538 U.S. 510 (2003), that mandatory pre-order detention under 8 U.S.C. § 1226(c) during the pendency of removal proceedings does not offended constitutional protections. Justice Kennedy, in a concurring opinion, suggested that prolonged detention while administrative proceedings were pursed, may be problematic. Id. at 532. In this case, it cannot be said at this time that re-consideration of the removal order has been unduly protracted, the ...