The opinion of the court was delivered by: Hon. John E. Jones III
THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:
On August 9, 2010, Petitioner Ruwan Jayasekara ("Petitioner" or
"Jayasekara"), a detainee of the United States Immigration and Customs
Enforcement ("ICE") Office, who is confined at the York County
Correctional Facility in York, Pennsylvania, filed pro se*fn1
the instant Petition for Writ of Habeas Corpus ("Petition")
pursuant to 28 U.S.C. §2241. (Doc. 1.) He challenges his continued
mandatory detention by ICE under the provisions set forth in section 236(c) of
the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1226(c)(1)(A).
Jayasekara seeks his immediate release from custody, or a
constitutionally adequate hearing at which Respondents must
demonstrate that his continued detention is justified. (See id. at
11-12.) For the reasons set forth herein, the Petition will be
Jayasekara is a native and citizen of Sri Lanka. (Doc. 6-3 at 3*fn2 , Ex. A, 2/11/03 Notice to Appear.) He originally entered the United States at an unknown place on an unknown date. (Id.) On February 11, 2003, the United States Immigration and Naturalization Service (now known as ICE), issued a Notice to Appear notifying Jayasekara that he was subject to removal as an alien present in the United States without being admitted or paroled. (Id.) On February 12, 2003, a Notice of Custody Determination was issued releasing Jayasekara on $5,000.00 bond. (Id. at 5, Ex. B, 2/12/03 Notice of Custody Determination.)
On April 23, 2004, Jayasekara was convicted in the Orange County Court, State of New York, at No. 2004-195, of Attempted Criminal Possession of a Controlled Substance (cocaine) in the Third Degree, Class "C" Felony. (Id. at 6-7, Ex. C, Orange Co., NY Sentencing Records.) In his Application for Asylum and for Withholding of Removal filed with the Immigration Court, Jayasekara states, "I was charged and convicted of sale of controlled substance. I was sentenced [to] 29 days in jail and 5 years probation. Later I was again detained for 1 year for violation of probation and was sentenced [to] 1 year jail time and 2 years parole." (Id. at 31, Ex. H, I-589 Application for Asylum.)
On June 28, 2004, the Immigration Judge issued an Order granting Jayasekara's application for voluntary departure by October 26, 2004, with an alternate order of removal to Sri Lanka. (Doc. 6-3 at 14-15, Ex. D, 6/28/04 Order.) The Order directed Jayasekara to present a valid travel document to the Department of Homeland Security ("DHS") no later than August 27, 2004. (Id.) In his Application for Asylum and Withholding of Removal filed with the Immigration Court, Jayasekara states that, in 2004, he voluntarily departed the United States to Canada to seek refugee status. (Id. at 30, Ex. H.) He further states, "In 2009, I was denied refugee status in Canada because of pending charges in the U.S. and hence I was extradited to the U.S." (Id.) He states that he was paroled into the United States on March 25, 2009, and that, upon his arrival, he was detained by New York State authorities and placed in removal proceedings. (Id. at 31.)
On June 12, 2009, the DHS served Jayasekara with a Notice to Appear indicating that he was deportable under the following sections of the INA:
Section 212(a)(7)(A)(i)(I), of the Immigration and Nationality Act (Act), as amended, as an immigrant who, at the time of application for admission, is not in possession of a valid unexpired immigrant visa, re-entry permit, border crossing card, or other valid entry document required by the Act, and a valid unexpired passport, or other suitable travel document, or document of identity and nationality as required under the regulations issued by the Attorney General under section 211(a) of the Act.
Section 212(a)(2)(A)(i)(II), of the Immigration and Nationality Act (Act), as amended, in that you are 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, the United States, or a foreign country relating to a controlled substance (as defined in Section 102 of the Controlled Substances Act), 21 U.S.C. 802)) [and] Section 212(a)(2)(C), of the Immigration and Nationality Act (Act), as amended, in that a consular or immigration officer knows or has reason to believe you are an alien who is or has been an illicit trafficker in any controlled substance or who is or has been a knowing assister, abettor, conspirator, or colluder with others in the illicit trafficking in any such controlled substance. (Id. at 18, Ex. E, 6/12/09 Notice to Appear.) On March 4, 2010, the DHS issued a Notice of Custody Determination to Jayasekara informing him that he would be detained in DHS custody and that his detention status could not be reviewed by an immigration judge because his detention was mandated by the INA. (Id. at 19, Ex. F, 3/4/10 Notice of Custody Determination.)
A removal hearing was scheduled for May 27, 2010. (Id. at 20, Ex. G, Motion for Continuance.) However, on May 25, 2010, Petitioner's counsel in his immigration proceedings requested a two (2) week continuance in order to allow Petitioner time to complete his I-589 Application for Asylum and for Withholding of Removal. (Id. at 21-23.) Petitioner subsequently submitted his Application to the Immigration Court. (Id. at 24-37, Ex. H.) On July 7, 2010, the Immigration Court issued a Notice of Hearing in Removal Proceedings, which rescheduled Petitioner's hearing to September 15, 2010. (Id. at 38, Ex. I, 7/7/10 Notice of Hearing.)
The instant Petition was filed by Jayasekara pro se on August 9, 2010. (Doc. 1.) At the time of filing, Jayasekara challenged his mandatory detention by ICE pending the hearing that had been scheduled for September 15, 2010 before the Immigration Court on his I-589 Application for Asylum and for Withholding of Removal, and he sought his immediate release from custody.
Service of the Petition was directed by Order dated August 10, 2010 (Doc. 4), and on August 31, 2010, Respondent filed a Response (Doc. 6), a supporting unpublished opinion (Doc. 6-2), and supporting exhibits (Doc. 6-3). Although Petitioner was provided with the opportunity to file a reply brief, the deadline to do so expired, and no reply brief was filed. Accordingly, the Petition became ripe for disposition.
However, in preparing to dispose of the Petition, on December 17, 2010, the Court checked the status of Petitioner's immigration proceedings through the Executive Office for Immigration Review ("EOIR") Telephone System, and ascertained that an Order had been entered by the Immigration Judge in Petitioner's case on December 2, 2010. Because it sounded from the recording provided by the EOIR System like the Immigration Judge's Order had granted "release" in Petitioner's case, by Order dated December 20, 2010, ...