The opinion of the court was delivered by: Judge Conner
Petitioner Junior Cox, a detainee of the United States Immigration and Customs Enforcement ("ICE"), filed this petition for writ of habeas corpus (Doc. 1) pursuant to 28 U.S.C. § 2241 arguing that he is being unlawfully detained pursuant to the mandatory detention provision found at § 236(c)(1)(B) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1226(c)(1)(B), a statute that does not apply to him. Alternatively, he argues that the statute violates the substantive and due process provisions of the Fifth Amendment of the United States Constitution. For the reasons that follow, because the court concludes that the mandatory detention provision does not apply to petitioner, the petition will be granted and the matter will be remanded to ICE to conduct an individualized bond hearing. Petitioner's arguments concerning the constitutionality of the mandatory detention statute, as applied to him, will not be reached.
On September 30, 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. Pub.L. 104-28, Div. C., Title III, § 303(b)(3), 110 Stat. 3009-586 (1996) (IIRIRA). The IIRIRA contained a mandatory detention provision, INA § 236(c), now codified as 8 U.S.C. § 1226(c). However, implementation was deferred for two years. During the two-year deferment, the "Transition Period Custody Rules" ("TPCRs"), IIRIRA § 303(b)(3), were to be implemented. These rules provided for bond hearings for some aliens removable for having committed certain crimes and gave the Immigration Court discretion to set bond if a lawfully admitted alien did not present a danger to persons or property and was likely to appear at future removal proceedings. See IIRIRA § 303(b)(3).*fn1
On October 9, 1998, the TPCRs expired and INA § 236(c), 8 U.S.C. § 1226(c) became effective, providing for the mandatory detention of certain criminal aliens as follows:
(c) Detention of criminal aliens
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.
The Attorney General may release an alien described in paragraph (1) only if the Attorney General decides pursuant to section 3521 of Title 18 that release of the alien from custody is necessary to provide protection to a witness, a potential witness, a person cooperating with an investigation into major criminal activity, or an immediate family member or close associate of a witness, potential witness, or person cooperating with such an investigation, and the alien satisfies the Attorney General that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding. A decision relating to such release shall take place in accordance with a procedure that considers the severity of the offense committed by the alien.
Petitioner, a native and citizen of Barbados, entered the United States at San Juan, Puerto Rico on or about March 27, 1990. (Doc. 9-2, p. 4). Since his entry, petitioner has been arrested for the commission of a number of crimes. (Doc. 9-2, pp. 7-9).
On February 6, 2007, ICE took him into custody pursuant to a Notice to Appear (NTA) which charged him as being subject to removal pursuant to section 237(a)(2)(B)(I), violation of the Controlled Substances Act, section 237(a)(2)(C), firearms violation, and section 237(a)(2)(A)(I), crime involving moral turpitude. The underlying convictions subjecting petitioner to removal are as follows: a 1995 Commonwealth of Pennsylvania Court of Common Pleas of Philadelphia County simple assault conviction involving a police officer; a 1996 possession of cocaine conviction in the New Jersey Superior Court; and a 1999 Commonwealth of Pennsylvania Court of Common Pleas of ...