The opinion of the court was delivered by: Chief Judge Kane
Before the Court is Petitioner Mourad Madrane's Petition for Writ of Habeas Corpus. (Doc. No. 1.) The petition has been briefed and is ripe for disposition. For the reasons discussed below, the Court finds it necessary to schedule a hearing on the petition.*fn1
Petitioner commenced this action seeking habeas corpus relief pursuant to 28 U.S.C. § 2241 by filing a petition on October 31, 2005. Petitioner explained the basis for his petition as follows:
Narrowly framed, this habeas corpus proceeding under 28 U.S.C. § 2241 concerns the constitutionality of the prolonged detention of Petitioner while he awaits a decision from a United States Court of Appeals on his petition for review of a final order of removal. Respondent violated Petitioner's constitutional right to a meaningful individualized determination of his status pending adjudication of the validity of the removal order, as contemplated by 8 C.F.R. § 241.4(i). Petitioner alleges that his incarceration by respondent while he contests his removal order is unreasonable and (1) violates his substantial and procedural right to due process; and (2) violates his right under the Equal protection clause where similarly situated aliens, have been treated differently. (Id. at 1.)*fn2 At the time his petition was filed, Petitioner represented that he had been held in custody for nearly two years at various detention centers. Petitioner has underscored that by the petition he was "exclusively challenging his continued detention by [Respondents], not the merits of his removal order." (Id. at n.1.)
On November 8, 2005, the Court entered an order directing that the petition be served upon Respondents and directing Respondents to show cause why the Petition should not be granted. (Doc. No. 3.) On November 15, 2005, Petitioner filed an anticipatory motion to prevent Respondents from obtaining an enlargement of time to respond to the show cause order, notwithstanding the fact that no such motion was pending. (Doc. No. 5.) Thereafter, Petitioner filed a second anticipatory motion, this time seeking an extension of time to respond to Respondent's brief. (Doc. No. 7.) On November 28, 2005, Respondents requested an extension of time to respond to the show cause order on the grounds that counsel had a family emergency that required attention. (Doc. No. 8.) The Court granted Respondents' motion and directed that a response be filed within twenty days. (Doc. No. 9.)
On December 19, 2005, Respondents filed a response in which they argued that the petition should be denied. Specifically Respondents argued that Madrane was being held as a pre-final order detainee under § 236(c) of the Immigration and Nationality Act as an alien convicted of an aggravated felony pursuant to § 237(a)(2)(A)(iii), having been convicted of a crime involving moral turpitude committed within five years after admission for which a sentence of one year or longer may be imposed. Accordingly, Respondents asserted that Petitioner is subject to pre-final order detention pursuant to § 236(c)(1)(B) of the INA, 8 U.S.C. § 1226(c)(1)(B).*fn3 Respondents note that the crimes for which Madrane was convicted -- namely, conspiring to fraudulently obtain credit card numbers and using a credit card skimmer to purchase goods and merchandise totaling more than $180,000 -- are covered in §§ 237(a)(2)(A)(iii) and (B) of the INA, and that Madrane's crimes involved moral turpitude that did not arise out of a single scheme of conduct, thus making him removable under § 237(a)(2)(A)(ii) of the INA. Finally, Respondents contend that in Demore v. Hyung Joon Kim, 538 U.S. 510 (2003), the United States Supreme Court held that mandatory pre-final order detention under § 236(c) of the INA does not violate any protections guaranteed to aliens under the United States Constitution. For all of the foregoing reasons, Respondents argued that Petitioner's habeas petition must be denied.
On February 21, 2006, Petitioner sought leave to file an amended memorandum of law in support of the Petition, which was granted. (Doc. No. 14.) In support thereof, Petitioner claimed a supplemental memorandum was warranted due to "recent findings and facts not available to Petitioner at the time of his December 28, 2005 reply to the government's opposition." (Id.) Respondent responded to this supplemental memorandum on March 31, 2006, reasserting its arguments. On April 12, 2006, Petitioner replied to that response. (Doc. No. 21.) In a letter received on May 18, 2006, Petitioner noted that he was scheduled to have a merits hearing on June 21, 2006. (Doc. No. 22.) On June 29, 2006, the Court ordered Respondents to file a status report regarding the outcome of that hearing. (Doc. No. 23.) On July 6, 2006, Respondents submitted a status report indicating that the June 21, 2006 hearing had been rescheduled to July 27, 2006, upon a motion for continuance filed by Petitioner's counsel. Respondents appended copies of three motions by which Petitioner moved to continue his merits hearings, delaying the hearing from April 12, 2006 to May 17, 2006; from May 17, 2006 to June 21, 2006; and from June 21, 2006 to July 27, 2006, all granted upon Petitioner's request.
On October 25, 2006, the Court directed Respondents to submit another status report to advise regarding the posture of Petitioner's ongoing challenge to his removal and regarding his continued custody. (Doc. No. 30.) On October 30, 2006, Respondents filed a status report that on September 13, 2006, an Immigration Judge granted Petitioner an adjustment of status pursuant to Section 245 of the INA and a waiver of inadmissibility under Section 212(h) of the INA. The Bureau of Immigration and Customs Enforcement have appealed the IJ's decision to the Board of Immigration Appeals. Respondents provide no indication as to when the BIA is anticipated to render a decision on ICE's appeal. Respondents have asserted that because Petitioner remains a pre-final order detainee, he remains ineligible for release as his continued custody is mandated by statute.
On January 3, 2007, Petitioner wrote a letter to the Court, imploring that his petition be granted and expressing confusion and anger that he has been incarcerated for nearly three years while he pursues various challenges to Respondents' efforts to have him removed from the United States. Petitioner has represented that his extended incarceration has placed considerable strain on him and his family.
The Respondents' response to Petitioner's request that he be released from custody pending resolution of his removal proceedings is straightforward. First, Respondents underscore that Petitioner's detention during his pre-final order removal proceedings is not discretionary, but is instead mandated by federal statute. Secondly, Respondents rely on the Supreme Court's decision in Demore, where a narrow majority of the Supreme Court held that, at least in typical cases, section 236(c) of the INA does not violate due process.
The Court recognizes the unqualified mandate that § 236(c) of the INA imposes upon the Attorney General. The Court further recognizes that in Demore, a bare majority of the Supreme Court upheld the constitutionality of § 236(c), at least against the facts that the case presented. Nevertheless, a careful reading of the Supreme Court's decision reveals it to be not the sweeping pronouncement suggested by Respondents, but rather a narrower holding grounded in repeated reference to the anticipated brevity that pre-final order removal proceedings are expected to take in the ordinary course. The emphasis in Demore on the anticipated limited duration of the detention period is unmistakable, and the Court explicitly anchored its holding by noting a "brief period," id. at 513, 523, of "temporary confinement." Id. at 531. Indeed, the references to the brevity and limited nature of confinement can be found throughout Demore. See id. at 513 ("Congress . . . may require that [criminal aliens] be detained for the brief period necessary for their removal proceedings."); id. at 523 ("Respondent argued that the Government may not . . . detain him for the brief period necessary for his removal proceedings."); id. at 526 (noting the "Court's longstanding view that the Government may . . . detain deportable aliens during the limited period necessary for their removal proceedings"); id. at 529 n.12 (noting "the very limited time of the detention at stake") (emphasis added). Moreover, in upholding the constitutionality of § 236(c), the Supreme Court specifically referenced statistics that demonstrated the typically brief period that pre-final order removal proceedings require and the attendant short periods of detention that are therefore typically imposed. Relying on statistics compiled by the Executive Office for Immigration Review, the Supreme Court noted that in 85% of cases in which aliens were detained pursuant to § 236(c), removal proceedings were completed within an average of 47 days, with a median of 30 days. Id. at 529. Furthermore, the Court noted that even in the remaining 15% of cases, in which an alien appeals an Immigration Judge's ruling to the Board of Immigration Appeals, an appeal takes an average of four months, with an even shorter median time. Id. As the United States Court of Appeals for the Ninth Circuit recently commented, "[t]here is no indication anywhere in Demore that the Court would countenance an indefinite detention." Nadarajah v. Gonzales, 443 F.3d 1069, 1081 (9th Cir. 2006).*fn4
Accordingly, numerous courts that have confronted pre-final order detainees' challenges to their extended confinement have endeavored to apply the general rule announced in Demore to the specific facts of the habeas petitions presented to them where pre-final order detainees have been held in custody for one or more years while their removal proceedings wound their way through the administrative and appellate processes. Several courts have found that due process required that aliens subjected to lengthy mandatory detention be given bail hearings or otherwise have ordered their release in lieu of a bail hearing. For example, in Ly v. Hansen, 351 F.3d 263 (6th Cir. 2003), the Sixth Circuit found that following Demore the proper interpretation of § 236(c) was to "[construe] the pre-removal detention statute to include an implicit requirement that removal proceedings be concluded within a reasonable time, [thereby avoiding] the need to mandate the procedural protections that would be required to detain deportable aliens indefinitely." Id. at 270. On this standard, the Sixth Circuit "affirm[ed] the grant of habeas corpus and the district court's finding that the incarceration of 18 months pending removal proceedings is unreasonable, [without requiring] the United States to hold bond hearings for every criminal alien detained under § 236." Id. Although the Sixth Circuit declined to create a rigid guideline of what would constitute a reasonable or unreasonable length of pre-final order detention, the court ...