The opinion of the court was delivered by: Chief Judge Kane
Pending before the Court is Petitioner Viktor Sidorov's writ of habeas corpus (Doc. No. 1). In this Court's December 18, 2009 Order, the Court granted Petitioner's writ of habeas corpus in part, and ordered that the parties present further briefing regarding whether the length of Petitioner's detention under 8 U.S.C. § 1226(c) was still reasonable. (See Doc. No. 12 at 19, 22.) The matter has been fully briefed and is now ripe for disposition. Because the Court finds that the length of Petitioner's mandatory detention without a bond hearing is no longer reasonable, the Court will partially grant the habeas petition and order a bond hearing.
Petitioner is detained pursuant to the mandatory detention provisions of 8 U.S.C. § 1226(c). He contends that his continued detention pending resolution of removal proceedings violates both the Immigration and Nationality Act (INA), 8 U.S.C. § 1101, et seq., and his right to due process under the Fifth Amendment.
The facts of this case are laid out in this Court's December 18, 2009 Memorandum and Order, and need not be reproduced here. However, because the length of Petitioner's detention is at issue, the Court will briefly outline the timeline of this case.
Petitioner is a native of the former Soviet Union, who adjusted to lawful permanent resident status in the United States on August 20, 1994. (Doc. No. 1 ¶ 15; Doc. No. 8 at 2.) On November 6, 2007, Petitioner was arrested by the Fairfax County Police Department, Virginia, for the offense of "Unlawful Wounding." (Doc. No. 8 at 3.) On April 4, 2008, he pled guilty and was sentenced to 4 years confinement. (Doc. No. 1 ¶ 17.) All but eleven months of his sentence was suspended and he was credited for time served while awaiting trial. (Id.) Petitioner was released from the Fairfax County Jail in August 2008. (Id., Ex. B at 6.)
Petitioner was taken into custody by Immigration and Customs Enforcement (ICE) on October 28, 2008, a day after he was arrested by the Philadelphia Police Department for driving under the influence. (Doc. No. 1 ¶ 18; Doc. No. 8 at 3.) At that time, the Department of Homeland Security (DHS) issued a Notice to Appear and placed Petitioner in removal proceedings. (Doc. No. 1 ¶ 19.) DHS charged petitioner under § 237(a)(2)(A)(ii) & (iii) of the Immigration and Nationality Act (INA), codified at 8 U.S.C. § 1227(a)(2)(A)(ii) & (iii), and held him pursuant to § 236, 8 U.S.C. § 1226(c). (Id.) On December 18, 2008, Petitioner submitted to the York Immigration Court an I-589 application for withholding of removal under § 241(b)(3) of the INA, 8 U.S.C. § 1231(b)(3), and the Convention Against Torture. (Id.)
Petitioner was initially scheduled for an individual merits hearing on March 5, 2009. (Id.) However, his original attorney terminated her employment at the Pennsylvania Immigration Resource Center and his current counsel, Megan Bremer, substituted her appearance on February 2, 2009. (Id.) Ms. Bremer requested and was granted a continuance to have more time to familiarize herself with the case. The individual merits hearing was rescheduled for May 7, 2009. (Id.)
On or about March 12, 2009, Petitioner was transferred to the custody of the Philadelphia County Sheriff's Office for a hearing on the criminal charge of driving under the influence. (Doc. No. 8, Ex. 1 at 26.) On March 23, 2009, Petitioner's immigration proceedings were administratively closed pending the conclusion of his state criminal charges. (Doc. No. 8 at 5.) On April 15, 2009, Petitioner was returned to ICE custody and transferred back to the York County Prison. (Doc. No. 1 ¶ 19.) At that time, the York Immigration Court re-calendered the individual merits hearing for July 1, 2009. (Id.) The July 1, 2009 hearing was again continued upon the request of Petitioner's counsel in order to permit DHS additional time to authenticate foreign documents submitted by Petitioner in support of his claim for relief from removal. (Id.; Doc. No. 16 at 6; Doc. No. 18 at 2.) The hearing was subsequently rescheduled for December 17, 2009. (Doc. No. 1 ¶ 19.)
Petitioner filed his writ of habeas corpus on September 29, 2009. (Doc. No. 1.) On October 9, 2009, the Court ordered the Government to respond to the petition. (Doc. No. 5.) The Government submitted its response on October 29, 2009. (Doc. No. 8.) Petitioner submitted his reply brief on November 17, 2009. (Doc. No. 9.)
In its December 16, 2009 Memorandum and Order, the Court did not finally resolve Petitioner's claims for relief under 28 U.S.C. § 2241, but instead set forth its initial legal holdings and ordered the parties to indicate by letter on the docket whether they planned to present further evidence regarding Petitioner's detention. (See Doc. No. 12.)
On January 7, 2010, the parties responded that no evidentiary hearing was necessary and that the issues could be resolved through further briefing by the parties. (See Doc. Nos. 13, 14.) As a result, the Government submitted a brief on January 28, 2010 (Doc. No. 16), and Petitioner submitted his brief on January 29, 2010 (Doc. No. 18.).*fn1
Petitioner's individual merits hearing was held before Immigration Judge Andrew R. Arthur (the "IJ") on December 17, 2009. (Doc. No. 16 at 6.) The IJ adjourned the case to February 9, 2010, to issue his decision. (Id. at 7.) On March 11, 2010, the IJ issued an oral decision. In it, Petitioner was ordered to be removed from the United States to Russia or, in the alternative, to Ukraine. (Doc. No. 32-2.) Petitioner's application for withholding of removal was denied. (Id.) However, the IJ granted Petitioner's application of deferral of removal to Russia and Ukraine under Article III of the Convention Against Torture. ...