The opinion of the court was delivered by: Chief Judge Kane
Sandy R. Hernandez, ("Hernandez"), presently a detainee of the Bureau of Immigration and Customs Enforcement ("ICE") confined at the York County Prison, Pennsylvania, filed this counseled petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 on June 2, 2011. (Doc. No. 1.) Hernandez contends that his mandatory detention pending the resolution of removal proceedings pursuant to 8 U.S.C. § 1226(c) is not authorized and therefore unlawful. For the reasons that follow, the Court finds that Hernandez is subject to mandatory detention provisions of § 1226(c), and that his continued detention pending resolution of the removal proceedings is reasonable under the particular facts of this case.
Hernandez is a native and citizen of the Dominican Republic. He entered the United States on or about September 8, 1984 at New York, New York. On September 6, 1995, he was convicted in the Superior Court of New Jersey at Middlesex County, New Jersey, for the offense of Distribution of a Controlled Substance (cocaine), in violation of N.J.S. 2C:35-5a(1). (Doc. No. 5-1, Ex. 1, Notice to Appear and Ex. 4, Criminal Record). He was also convicted on January 8, 2002, following a plea of guilt, in the Criminal Court of New York, New York for the offense of Criminal Possession of a Controlled Substance in the Seventh Degree, (cocaine), in violation of NY PG20.03. (Id.; Ex. 5, Criminal Record.) He was sentenced to time served and released from criminal custody the same date.
On April 20, 2007, Hernandez appeared before immigration officials for an examination with respect to an application for naturalization he had submitted in accordance with Section 316(A) of the Immigration and Nationality Act ("INA"). Hernandez was found ineligible for naturalization on the basis of "Poor Moral Character" due to his 1995 conviction on the New Jersey charge for Distribution of a Controlled Dangerous Substance, an aggravated felony as defined in Section 101(a)(43) of the INA. (Id., Ex. 6, 4/20/07 Decision at 2-4.)
On February 16, 2011, immigration agents traveled to an address in Bethlehem, Pennsylvania in an effort to serve Hernandez with a Notice to Appear. Although they did not locate him at that time, they did speak with Hernandez over the telephone. He was subsequently served with the Notice to Appear on February 28, 2011, and taken into ICE custody at that time. Hernandez was charged as being subject to removal from the United States pursuant to Section 237(a)(2)(A)(iii) of the INA, codified at 8 U.S.C. § 1227(a)(2)(A)(iii), in that he was convicted of an aggravated felony, and Section 237(a)(2)(B)(I) of the INA, 8 U.S.C. § 1227(a)(2)(B)(I), in that he was convicted of violating any law relating to a controlled substance. (Doc. No. 501, Ex. 1 at 3, Notice to Appear.) On the same date, a Notice of Custody Determination and a Warrant for Arrest of Alien were issued. (Id., Exs. 2, 3.)
Since February 28, 2011, Hernandez has been mandatorily detained at the York County Prison pursuant to 8 U.S.C. § 1226(c) during the pendency of the removal proceedings against him. On June 2, 2011, he filed the instant petition for writ of habeas corpus through counsel challenging his mandatory pre-final removal order detention. He maintains that he is not subject to the mandatory detention statute given that he was not taken into immigration custody immediately upon his release from criminal custody on January 8, 2002, as required by § 1226(c). As such, he requests this Court to either grant his petition and release him or order that he be granted an individualized bond hearing. (Doc. No. 3, Pet. at 5.) On June 8, 2011, the Court ordered the Government to respond to the petition. (Doc. No. 3.) The Government submitted its response on June 28, 2011 (Doc. No. 5.) Petitioner submitted his reply brief on July 31, 2011 (Doc. No. 7).
Hernandez is being held pursuant to 8 U.S.C. § 1226(c), which governs the mandatory detention of aliens pending removal decisions. The statute states in pertinent part:
(1) Custody. -- The Attorney General shall take into custody any alien who --
(A) is inadmissible by reason of having committed any offense covered in section 1182(a)(2) of this title,
(B) is deportable by reason of having committed any offense covered in section 1227(a)(2)(A)(ii), (A)(iii), (B),(C), or(D) of this title,
(C) is deportable under section 1227(a)(2)(A)(I) of this title on the basis of an offense for which the alien has been sentence [sic] to a term of imprisonment of at least 1 year, or
(D) is inadmissible under section 1182(a)(3)(B) of this title or deportable under section 1227(a)(4)(B) of this title, when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to ...