The opinion of the court was delivered by: Magistrate Judge Blewitt
REPORT AND RECOMMENDATION
On March 1, 2010, Petitioner, Y Viet Dang, an inmate at the Pike County Correctional Facility ("PCCF"), Lord's Valley, Pennsylvania filed, through counsel, this 16-page Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. (Doc. 1).*fn1 Petitioner is a detainee of the Bureau of Immigration and Customs Enforcement ("ICE"). Petitioner named as Respondents Craig Lowe, Warden at PCCF, Thomas Decker, Field Office Director of ICE, Philadelphia District, and Eric Holder, United States Attorney General of the Department of Justice. (Doc. 1).*fn2 Petitioner attached Exhibits to his Habeas Petition. (Doc. 1-3). Petitioner paid the required filing fee.
On March 3, 2010, we ordered service of Petitioner's Habeas Petition on Respondents, and directed Respondents to file their response to it. (Doc. 3).
After Respondents were served with the Habeas Petition, they filed their Response to it on March 23, 2010, with Exhibits. (Doc. 9). Also, on March 23, 2010, Petitioner filed his Traverse with an attached Exhibit, namely, a copy of our March 31, 2008 R&R we issued in McDonald v. Decker, Civil No. 08-0496, M.D. Pa. (Doc. 10).*fn3
Upon request of Petitioner's counsel, we give expedited consideration to the instant Habeas Petition since Petitioner contends that he is a lawful permanent resident with a pending substantial challenge to his removal, which he avers will not be decided by a hearing with an Immigration Judge ("IJ") for six to twelve months. (Doc. 10, pp. 24-25). In particular, Petitioner states that he has a meritorious claim for relief of removal pending with the Immigration Court ("IC") via his application for adjustment of status under 8 U.S.C. §1255(a), INA §245(a), and his application for a waiver of his prior criminal conviction under 8 U.S.C. §1182(h), INA §212(h). (Doc. 10, pp. 24-25). The record indicates that Petitioner had a hearing before an IJ scheduled for April 5, 2010 with respect to his removal proceedings. (Doc. 9, Ex. 7). Neither party has supplemented the record as to what transpired at Petitioner's April 5, 2010 IJ hearing if it was in fact held on this date. In any event, the record is undisputed that Petitioner is not yet subject to a final order of removal.
Petitioner states that he is a long-term lawful permanent resident of the United States and that he has been unlawfully detained by ICE since February 9, 2010, under the mandatory detention provisions of INA § 236(c), 8 U.S.C. § 1226(c), without being afforded an individualized bond hearing during the pendency of his removal proceedings before the Immigration Court. Petitioner indicates that his IC proceedings will take at least nine to twelve months. Basically, Petitioner claims that the mandatory detention provisions of INA § 236(c) do not apply to him "because ICE did not detain him until almost ten years after his release from prison." (Doc. 1, p. 2 and Doc. 10, p. 2)(emphasis original). Petitioner contends that since ICE did not detain him upon his release from incarceration, the mandatory detention provisions of INA §236 (c) do not apply to him. Petitioner argues that "[w]hile the Board of Immigration Appeals ("BIA") has interpreted section 1226(c) [INA § 236(c)] to authorize mandatory detention no matter when ICE takes a non-citizen into custody, see Matter of Rojas, 23 I&N Dec. 117 (2001), its approach ignores the statute's plain meaning, violates longstanding canons of statutory construction, and distorts legislative history." (Doc. 10, p. 2). Plaintiff also claims that his continued detention (of almost three months) without an individualized bond hearing violates procedural and substantive due process rights under the Fifth Amendment.*fn4
Petitioner admits that he has not exhausted his administrative remedies since, at the time he filed his Habeas Petition, he did not yet have his hearing before the Immigration Judge regarding his applications for relief from removal. Petitioner claims that it would be futile to exhaust since the Immigration Court and the Board of Immigration Appeals ("BIA") have repeatedly ruled that aliens like he are subject to mandatory detention under § 236(c) of the INA, 8 U.S.C. § 1226(c). (Doc. 1, p. 4, ¶ 5.). Similar to our finding in the McDonald case, we find that Petitioner Dang is not subject to mandatory detention under § 236(c) of the INA, 8 U.S.C. § 1226(c), since he was not timely taken into ICE custody when he was released from his prison confinement on his Pennsylvania state court sentence.*fn5
II. Claims of Habeas Petition
Petitioner's Habeas Petition and Traverse (Doc. 1, pp. 5-8 and Doc. 10, pp. 3-4) state his factual and procedural backgrounds, and they are supported by Respondents' Exhibits. We shall not detail the complete background with respect to Petitioner's present claim regarding his continued pre-final removal order detention by ICE at PCCF. As stated, Petitioner's claim is based on his contention that he is not subject to the mandatory detention provision of INA § 236(c) since he was not taken into custody by ICE when he was released from incarceration. Rather, Petitioner was taken into custody by ICE about nine years and nine months after he was released from incarceration, i.e. May 31, 2000 through February 9, 2010. Essentially, Petitioner is challenging his continued detention at PCCF by ICE since February 9, 2010, and he states that his habeas action is brought since he is not subject to mandatory detention provisions of INA § 236(c), 8 U.S.C. § 1226(c). Thus, Petitioner contends that he is statutorily and constitutionally entitled to an individualized bond hearing. The record indicates that Petitioner had a hearing before the IJ scheduled for April 5, 2010, in his removal proceedings, and Petitioner states that he expects the IC removal proceedings to take up to twelve months.
Petitioner states that on February 22, 2010, he appeared before an IJ who informed him that he would be subject to mandatory detention provisions of INA § 236(c) throughout his removal proceedings. (Doc. 10, p. 6 and Doc. 9, Ex. 6). Petitioner also states, and Respondents' evidence shows, that he had a Master Calendar Hearing scheduled in his removal proceedings for April 5, 2010. (Doc. 10, p. 6 and Doc. 9, Ex. 7). There is no indication in the record if this April 5, 2010 hearing actually occurred and what transpired at this hearing. The record indicates that on February 22, 2010, the IJ refused Petitioner's request for a change in his custody status and found that he was subject to mandatory detention. (Doc. 9, Ex. 6). Petitioner indicates that it would be futile to either appeal the IJ's February 22, 2010 Order or to request the IJ to hold an individualized bond hearing in his case in light of BIA precedent. (Doc. 10, pp. 8-9). Petitioner estimates that he will be kept in ICE custody and subject to mandatory detention provisions of INA § 236(c) for about six to twelve months while his requests for relief from removal are pending. (Id., p. 6).
Petitioner states, and Respondents' evidence, Notice to Appear ("NTA" ), shows, as follows with respect to Petitioner:
1. You are not a citizen or national of the United States.
2. You are a native of VIETNAM and a citizen of VIETNAM.
3. You were admitted to the United States at PHILADELPHIA, PA on or about September 30, 1996 as a RE8 [lawful permanent resident].
4. You were, on April 2, 1998, convicted in the Municipal Court of Philadelphia PA for the offense of Carrying Firearms in a Public Place, in violation of 18 [Pa. C.S.A. §] 6108.
5. You were, on May 5, 1999, convicted in the Court of Common Pleas of Philadelphia, PA for the offense of Attempted Theft by Unlawful Taking, committed on or about November 13, 1998, in violation of 18 [Pa. C.S.A. §] 3304.
6. For that offense, a sentence of one year or longer may be imposed. (Doc. 9, Ex. 1).*fn6
It is not clear from the current record if Petitioner was released for state confinement on May 31, 2000, as he claims (Doc. 1, p. 8, ¶ 16. and Doc. 10, p. 5), or if he was sentenced to 12 months confinement on May 31, 2000 (and hence released on May 31, 2001). Respondents' evidence seems to indicate that on May 31, 2000, Petitioner was sentenced to prison for violating the terms of his probation from his sentence for his 1998 firearms conviction by being convicted of his second offense (attempted theft) on May 5, 1999. (Doc. 9, Ex. 2, pp. 2-3 and Ex. 8). In their Brief (Doc. 9, p. 3), Respondents simply state that "in 2000 [Petitioner] Dang was ordered to serve a period of imprisonment after violating his probation." Regardless of when Petitioner was released from confinement, i.e. either May 31, 2000 or May 31, 2001, it is not disputed that Petitioner was not taken into ICE custody until February 9, 2010, when he appeared at the ICE field office in Philadelphia, Pennsylvania, to inquire about his pending N-400 Application for Citizenship. (Doc. 9, Ex. 2, p. 2). For present purposes, we use the May 31, 2000 release from confinement date which Petitioner repeatedly uses.
Petitioner does not dispute that his Philadelphia, Pennsylvania, carrying a firearm and attempted theft convictions render him removable under § 237(a)(2)(C) and § 237(a)(2)(A)(i) of the INA, as charged in the NTA. (Doc. 9, Ex. 1, p. 3). However, he states that he is eligible for relief from removal through his request for waiver of removal under § 212(h) of the INA after he adjusts his status under §245(a) of the INA based on the approval of his wife's I-130 application. (Doc. 10, p. 6). Petitioner seemingly now has had his initial IJ hearing in his removal proceedings, which was scheduled for April 5, 2010, about two months after he was taken into custody by ICE, i.e. February 9, 2010. Thus, it is undisputed that Petitioner is not yet subject to a final order of removal. Also, it appears that Petitioner has filed a request for a change in custody status with the IJ, and that the IJ denied his request on February 22, 2010, since the IJ found that he was subject to the mandatory detention provision of the INA. (Doc. 10, p. 8 and Doc. 1, p. 9 and Doc. 9, Ex. 6). Petitioner also indicates that it would be futile to appeal the IJ's Order to the BIA since the BIA will has consistently relied upon the decision of Matter of Rojas to deny aliens such as himself an individualized bond hearing. Petitioner also claims that § 236(c) of the INA and its mandatory detention provision only applies to an alien who is taken into custody by ICE at the time that he has been released from custody with respect to his underlying removable offense. Petitioner argues that the mandatory detention provision of INA § 236(c) does not apply to him because he was not detained by ICE at the time he was released from criminal custody, but rather, almost ten years later while he was checking on the status of his pending N-400 Application for Naturalization on February 9, 2010. In fact, Petitioner seems to indicate that at various times much earlier than February 9, 2010 he was available to ICE with respect to his other applications he submitted with ICE, in which his criminal history was revealed, and that despite his prior availability, ICE waited almost ten years to take him not custody. (See e.g. Doc. 1, p. 9, n. 1, regarding Petitioner's 2006 I-90 Application with ICE).
At the outset, based on Thomas v. Hogan, 2008 WL 4793739, *3 (M.D. Pa.), we agree with Petitioner that this Court has jurisdiction to decide his Habeas Petition. In Thomas, the Court stated:
It is well-established that district courts retain jurisdiction to consider an alien's habeas challenge to the statutory framework mandating his detention during removal proceedings. See 28 U.S.C. § 2241(c)(3) (noting that the writ of habeas corpus may extend to those held in custody in violation of the constitution "or laws or treaties of the United States"); Demore v. Kim, 538 U.S. 510, 517, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003) (finding that the INA does not bar habeas review of statutory or constitutional challenges to detention).
Id. See also Madrane v. Hogan, 2007 WL 3145956, * 12 - * 13 (M.D. Pa.), 520 F. Supp. 2d 654 (M.D. Pa. 2007).
The Thomas case is not directly on point with Petitioner Dang's case since the Thomas Court held its Petitioner's latest release date from criminal incarceration was in 1998, prior to the effective date of §236(c) of the INA. Thus, the Thomas Court held that Petitioner Thomas was not subject to the mandatory detention provision.*fn7
As stated, Petitioner Dang's latest release date was in May 2000 (or May 2001), after the effective date of §236(c). Thus, § 236(c) of the INA applies to Petitioner Dang. The issue is whether Petitioner Dang is subject to the mandatory detention provisions § 236(c) since he was not taken into ICE custody when he was released from prison.
In Motto, 2010, WL 146315, *3, the Court stated:
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 (1) states that "The Attorney General shall take into custody any alien who... (B) is deportable by reason of having ...