The opinion of the court was delivered by: Hon. John E. Jones III
THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:
Petitioner Rannord Jones ("Petitioner" or "Jones"), a detainee of the United States Immigration and Customs Enforcement ("ICE") Office, who is confined at the York County Correctional Facility in York, Pennsylvania, initiated this action by filing a Petition for Writ of Habeas Corpus ("Petition") pursuant to the provisions of 28 U.S.C. § 2241. Jones asserts that the charges of removability against him do not subject him to mandatory detention and therefore requests that this Court grant his Petition and direct his immediate release. (See Doc. 1.)
By Order dated July 9, 2010, service of the Petition was directed, and Respondents were directed to file an answer within twenty-one (21) days. (Doc. 4.)
On July 30, 2010, a Response (Doc. 6), exhibits (Doc. 6-2), and supporting authority (Doc. 6-3) were filed. Petitioner filed a reply brief (Doc. 7) on August 17, 2010. Accordingly, the Petition is fully briefed and ripe for disposition. For the reasons set forth below, the Petition will be denied.
Jones, a native and citizen of Jamaica, first entered the United States on September 13, 1996 as a lawful permanent resident. (Doc. 6-2 at 2*fn1 , Ex. 1, Immigrant Visa and Alien Registration.) On December 1, 1997, Jones pled guilty in the Superior Court of the State of Delaware for conspiracy in the third degree and possession/use of a non-narcotic Schedule IV controlled substance. (Id. at 4-5, Ex. 2, Delaware Superior Court Criminal Docket.) Jones was sentenced on the possession/use charge to one (1) year of confinement, suspended to one (1) year of intense supervision, and on the conspiracy charge, to one (1) year of confinement, suspended to one (1) year of probation. (Id.; Doc. 6-2 at 7, Ex. 3, Record of Deportable/Inadmissible Alien.)
Jones subsequently returned to Jamaica. However, on December 14, 2006, he attempted to re-enter the United States at Baltimore, Maryland. (Id. at 11, Ex. 4, Notice to Appear.) Upon his arrival, Jones applied for admission into the United States as a returning lawful permanent resident. (Id.) However, as a result of his 1997 criminal convictions in Delaware, his inspection was deferred. (Id.)
On January 12, 2007, Jones reported for deferred inspection at Philadelphia. (Id.) At that time, he was served with a Notice to Appear before an immigration judge to show why he should not be removed from the United States. (Id. at 10-11.) The Notice to Appear charged Jones with removability under § 212(a)(2)(A)(i)(II) of the Immigration and Nationality Act ("INA") as "an alien who has been convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of (or a conspiracy or attempt to violate) any law or regulation of a State . . . relating to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802))." (Id. at 11.)
While his immigration proceedings were pending, Jones was arrested by Delaware state authorities and convicted on November 21, 2008*fn2 of assault in the third degree, terroristic threatening, and abuse of a sports official. (Id. at 16-18, Ex. 6, Delaware Superior Court Criminal Docket.) On January 9, 2009, Jones was sentenced on the assault charge to one (1) year of confinement, suspended after serving six (6) months to partial confinement for one (1) year; on the terroristic threat charge to one (1) year confinement, suspended to one (1) year of probation; and on the abuse charge, to one (1) year of confinement, suspended to one (1) year of probation. (Id. at 8, Record of Deportable/Inadmissible Alien.)
On June 10, 2009, an immigration detainer was lodged with Delaware correctional officials. (Id. at 21, Immigration Detainer- Notice of Action.) On June 18, 2009, a Record of Deportable/Inadmissible Alien, Warrant for Arrest of Alien, and Notice of Custody Determination were issued. (Doc. 6-2 at 6-8; Doc. 6-2 at 22, Ex. 9, Warrant for Arrest of Alien; Doc. 6-2 at 23, Ex. 10, Notice of Custody Determination.) The following day, June 19, 2009, the arrest warrant and custody determination notice were served upon Jones. (Doc. 6-2 at 22, 23.) Jones has been in ICE custody since June 19, 2009. (Id.)
On August 24, 2009, the Notice to Appear was amended to include the charge of removability under INA 212(a)(2)(A)(i)(I), "as an alien who has been convicted of, or who admits committing acts which constitute the essential elements of a crime involving moral turpitude." (Id. at 24-25, Ex. 11, Additional Charges of Inadmissibility/Deportability.)
Subsequently, Jones sought relief from removal under INA section 212(h). (Id. at 26-27, Ex. 12, IJ Ruling on Eligibility.) Specifically, he sought a waiver of inadmissibility based on his argument that his Delaware conviction for terroristic threats does not amount to a "crime of violence" aggravated felony. (See id.) On February 10, 2010, an Immigration Judge ("IJ") determined that Jones was ineligible for a section 212(h) waiver of inadmissibility to waive an aggravated felony conviction in light of his status as a lawful permanent resident alien. (See id.)
By Order dated March 8, 2010, the IJ ordered Jones removed from the United States to Jamaica. (Id. at 28, Ex. 13, Order of Removal.) On April 1, 2010, Jones filed an appeal from the Order of Removal to the Board of Immigration Appeals ("BIA"). (Id. at 29-31, Ex. 14, Copy of Notice of Appeal.) On May 4, 2010, the Department of Homeland Security ("DHS") filed a motion for summary affirmance of the decision of the IJ. (Id. at 32-34, Ex. 15, DHS Motion for Summary Affirmance.) On June 14, 2010, a brief in support of the appeal was filed by Jones' counsel. (Id. at 35-47, Ex. 16, Jones' Brief in Support of Merits Appeal.) The appeal was pending before the BIA at the time of the submission of the Response in this action on July 30, 2010. However, a check of the Immigration ...