The opinion of the court was delivered by: Judge Conner
Daniel Enriquez Nunez-Pimental ("petitioner"), presently a detainee of the Bureau of Immigration and Customs Enforcement ("ICE"), incarcerated at the Clinton County Correctional Facility, McElhattan, Pennsylvania, filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. §2241on October 22, 2007, seeking release from unconstitutional detention. (Doc. 1, at 2). For the reasons set forth below, the petition will be granted.
Petitioner, a native and citizen of the Dominican Republic, entered the United States on or about February 9, 1986, as an immigrant. (Doc. 6-2, at 2.) On April 24, 2000, ICE issued a "Notice to Appear" for removal proceedings under section 240 of the Immigration and Nationality Act ("INA"), as amended, charging that he was removable under sections 237(a)(2)(A)(iii) because he was convicted in the United States District Court for the Eastern District of New York on December 9, 1999, of an offense relating to the illicit trafficking in a controlled substance, and 237(a)(2)(B)(i) of the INA based on a conviction relating to a controlled substance. (Id.) Petitioner claimed that he was a national of the United States and applied for asylum, withholding of removal under the INA, deferral of removal, and protection under Article III of the Convention Against Torture ("CAT"). (Doc. 6-2, at 8.) On October 9, 2003, the immigration judge ("IJ") denied relief and ordered that petitioner be removed from the United States to the Dominican Republic. (Doc. 6-2, at 25-26.) He timely appealed the decision to the Board of Immigration Appeals ("BIA"). The appeal was dismissed on March 1, 2004. (Doc. 6-2, at 28.) Subsequent to the dismissal of his appeal, petitioner moved to reopen his case. On September 30, 2004, the motion was denied. (Id. at 30.) On May 6, 2005, he completed his federal sentence and was immediately transferred into ICE custody.
In June 2005, he sought relief via a petition for review in the United States Court of Appeals for the Third Circuit. (Id. at 33.) On March 29, 2007, the court of appeals held as follows:
Here, the IJ and BIA applied an incorrect legal standard to Nunez's CAT claim. Specifically, Nunez argued that he would be tortured upon his return by people politically connected to the Dominican Republic government. He further argued that neither the government nor the police would aid him because of their connections to his torturers. This is, essentially, a willful blindness claim, as Nunez asserts not that the Government will torture him or actively consent to his torture, but that it will turn a "blind eye" to his pleas for help. The BIA rejected this claim, citing its decision in In re S-V-, 22 I. & N. Dec. 1306, 1312 (BIA 2000), in which it held that only willful acceptance constitutes acquiescence under the CAT. We have since overruled In re S-V-, holding instead that willful blindness fits the CAT's definition of acquiescence. Silva-Rengifo v. Att'y Gen., 473 F.3d 58, 70 (3d Cir. 2007).
Because the BIA's decision was based on an error of law, we grant the petition and remand to the BIA to remand to the IJ for a re-evaluation of the evidence under the correct legal standard.
Nunez v. Att'y Gen. of the United States, 226 Fed. Appx. 177, 180 (3d Cir. 2007) (footnote omitted). On August 2, 2007, the BIA remanded the case to the IJ. (Doc. 6-2 at 44.) The instant petition was filed on October 22, 2007. (Doc. 1.) On January 11, 2008, the IJ issued an order granting petitioner's application for "withholding of removal, deferral of removal under Article III of the Convention Against Torture . . . . " (Doc. 9, at 2.) The government appealed the IJ's decision and the appeal is presently pending before the Board of Immigration Appeals.
Petitioner seeks release pending a final decision in the removal proceedings.
The apprehension and detention of aliens, pending removal decisions, are governed by the provisions by § 236 of the INA, 8 U.S.C. § 1226. Under § 1226(a), the Attorney General may issue a warrant for arrest and detention of an alien, pending a decision on whether the alien is to be removed from the United States.
Although § 1226(a) permits discretionary release of aliens on bond, § 1226 (c)(1) states that "The Attorney General shall take into custody any alien who . . . (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." 8 U.S.C. § 1226(c)(1).
The United States Supreme Court held in Demore v. Kim, 538 U.S. 510 (2003), that mandatory detention under 8 U.S.C. § 1226(c) during removal proceedings does not violate the protections guaranteed under the Constitution. In Demore, a lawful permanent resident filed a habeas petition challenging the no-bail provision of § 1226(c), pursuant to which he had been held for six months during the pendency of removal proceedings against him. The Supreme Court held that detention of lawful permanent residents during removal proceedings is constitutionally permissible, even when there has been no finding that they are unlikely to appear for their deportation proceedings. See id., 538 U.S. at 523-524.
The government takes that position that "[a]s an alien in removal proceedings who has been convicted of an offense covered in §§ 237(a)(2)(A)(iii) and (a)(2)(B), Nunez Pimentel is subject to mandatory detention pursuant to § 236(c)(1)(B) of the Immigration and Nationality Act ("INA", 8 U.S.C. § 1226(c)(1)(B)." (Doc. 13, at 3.) Although petitioner respects the Demore Court's holding regarding the constitutionality of the mandatory detention provision, he contends that the holding is limited. ...