The opinion of the court was delivered by: Sylvia H. Rambo United States District Judge
Before the court is Petitioner Wilnerson Occelin's ("Occelin") petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. (Doc. 1.) Occelin is challenging his continued detention pending his removal proceedings. The petition has been briefed and is ripe for disposition. For the reasons that follow, the court finds it necessary to schedule a hearing on the petition.
Occelin, a native and citizen of Haiti, entered the United States on March 14, 1996, on a student visa, but was subsequently granted lawful permanent resident status under § 245(a) of the Immigration and Nationality Act ("Act"), 8 U.S.C. § 1255(a), as amended. (Doc. 1-2, Ex. C, Notice to Appear.)
On September 3, 2003, Occelin was convicted in the Supreme Court of the State of New York for criminal possession of stolen property in the third degree, in violation of section 165.50 New York's penal code. (Id.) He was sentenced to a term of imprisonment of one (1) to three (3) years. (Id.)
On July 2, 2007, the United States Immigration and Customs Enforcement ("ICE") issued a "Notice to Appear" informing Occelin that he was subject to removal under section 237(a)(2)(A)(iii) of the INA, 8 U.S.C. § 1227(a)(2)(A)(iii), as amended, because he had been convicted of an aggravated felony. (Id.) Also on July 2, 2007, ICE issued a Notice of Custody Determination informing Occelin that he would be detained and his detention was mandated by the INA. (Doc. 1-2, Ex. C, Notice of Custody Determination.) The notice further informed Occelin that an immigration judge ("IJ") could not review the detention status. (Id.) Upon his release from state custody, Occelin was served with the Notice to Appear and the Notice of Custody Determination on August 7, 2007 and placed into ICE custody. (Doc. 1-2, Ex. C.)
On October 16, 2007, Occelin filed an Application for Certificate of Citizenship, Form N-600, with the United States Citizenship and Immigration Services ("USCIS"), claiming he is eligible for derivative citizenship through the naturalization of his father. (Doc. 1-2, Ex. D, Nov. 28, 2007 Notice of Decision.) On November 28, 2007, USCIS issued a decision denying Occelin's application. (Id.) Occelin filed another Application for Certificate of Citizenship on June 25, 2008, again claiming derivative citizenship through the naturalization of his father. (Doc. 1-2, Ex. D, Sept. 23, 2008 Notice of Decision.) On September 23, 2008, USCIS denied Occelin's application because he failed to establish that his parents were legally separated at the time of his father's naturalization. (Id.) Occelin filed a motion to reconsider USCIS's September 23, 2008 denial on October 14, 2008. (Doc. 10-2, Ex. 4, Decision on Motion to Reconsider Form N-600.) On January 20, 2009, USCIS denied Occelin's motion for reconsideration, finding that Occelin had failed to establish that his father's marriage to another woman in New York constituted a legal separation between his father and mother under Haitian common law or New York law. (Id.) Because Occelin's parents were married under common law but were never legally separated, USCIS concluded that he did not derive citizenship through his father's naturalization. (Id.)
On November 5, 2008, Occelin was denied release from ICE custody because his aggravated felony theft conviction, which required a term of imprisonment exceeding one year, subjected him to mandatory custody under section 236(c)(1)(B) of the INA, 8 U.S.C. § 1226(c)(1)(B), as amended. (See Doc. 1-2, Ex. E, Ruling on Bond.) On that same day, an immigration judge ("IJ") denied Occelin a change in custody status based on the mandatory custody requirement of the INA. (Doc. 10, Ex. 1, Order of IJ with Respect to Custody.) Further, on December 2, 2008, an IJ denied bond to Occelin based on the mandatory custody requirement. (Doc. 1-2, Ex. E.)
Occelin appealed the IJ's November 5, 2008 decision denying his request for a change in custody status to the Board of Immigration Appeals ("BIA"). (Doc. 1-2, Ex. F, BIA Decision.) The BIA affirmed, concluding that the IJ had not erred in denying Occelin's request. (Id.) Specifically, the BIA found that Occelin's continued detention, regardless of length, was not indefinite because that detention under section 236(c) of the INA would terminate upon completion of Occelin's removal proceedings. (Id.) Further, the BIA found no showing that the completion of Occelin's removal proceedings had been delayed by the government's conduct. (Id.) It stated, "A constitutional detention cannot be transformed into an unconstitutional detention solely because an alien makes tactical decisions, which are within his or her rights, which necessarily serve to lengthen the time required to complete the alien's removal proceedings." (Id.)
On January 28, 2009, the IJ issued an order of removal of Occelin from the United States to Haiti. (Doc. 10-2, Ex. 2, Order of the IJ.) In that order, the IJ also granted Occelin's request for deferral of removal pursuant to the Convention on Torture ("CAT"). (Id.) On February 2, 2009, both Occelin and ICE appealed the decision of the IJ to the BIA. (Doc. 10-2, Ex. 3, Filing Receipt for Appeal.) To date, the appeals have yet to be adjudicated.
Occelin filed, pro se, the instant petition on January 27, 2009. (Doc. 1.) On March 2, 2009, an order to show cause was issued, directing Respondents to respond to the petition. (Doc. 9.) Respondents filed a response on March 23, 2009. (Doc. 10.) On April 7, 2009, counsel entered appearances on behalf of Occelin, and filed a reply to the response. (Doc. 15.) After the court granted Respondents' motion to supplement the response to the petition, (Doc. 21), Respondents further responded to the petition on April 17, 2009, (Doc. 22). Another counsel entered an appearance on behalf of Occelin on April 23, 2009, (Doc. 24), and a supplemental reply brief was filed on April 24, 2009, (Doc. 25). This matter is now ripe for disposition.
As set forth above, Occelin was initially detained pursuant to § 1226(c). In his petition, Occelin challenges his continued detention as a pre-final order of removal detainee on the basis that his detention is unconstitutional. Specifically, Occelin argues that because § 1226(c) does not authorize prolonged mandatory detention, his detention is instead governed by § 1226(a). As a result, he should be released, or at the very least provided a bond hearing, under § 1226(a) while his removal proceedings are pending. Respondents maintain that Occelin's detention is lawful in that he continues to be subject to mandatory detention under §1226(c), and he has not ...