The opinion of the court was delivered by: Judge Munley
Before the court for disposition is Robert A. Bautista's (hereinafter "petitioner") "Emergency Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241(c)(3)." The matter has been fully briefed and is ripe for disposition.
Petitioner is a citizen of the Dominican Republic. He first entered the United States as a Lawful Permanent Resident in 1984 when he was approximately ten years old. (Doc. 1, Emergency Pet. at 1). He was born in the Dominican Republic in August 1974. (Id.) He lived in the Bronx, New York, with his family, and he attended elementary school and high school in the United States. (Id.) He eventually married Yenny Bautista, a Lawful Permanent Resident, and moved with her to the Allentown, Pennsylvania area where he started a transmission repair business. (Id.) Petitioner has three children all of whom are younger than thirteen years of age. (Id.)
Petitioner, however, has a criminal record. Authorities in Bergen County, New Jersey cited him for violating the "Forged Writing" provision of New Jersey's Criminal Code. (Id. at 7). The court sentenced him to one year of probation after a guilty plea. (Id.) Additionally, the Supreme Court of New York for Bronx County convicted petitioner of Attempted Arson in the Third Degree in 2003. (Id.) The court sentenced petitioner to five years of probation, which he successfully completed. (Id.)*fn1
Petitioner made two trips to the Dominican Republic in 2009. (Id.) After the first trip, he re-entered the United States with no problem. (Id.) After his second trip, however, Customs and Border Patrol officials stopped him at the airport and detained him. Ultimately, they released him with "Deferred Inspection" status, which means that authorities would decide at a later date if he was entitled to enter the country. (Id.) Authorities subsequently directed him to report to the Philadelphia Airport for inspection on March 5, 2010 . Petitioner went for the inspection, and immigration authorities have detained him ever since. (Id.)
Based on the foregoing, petitioner filed the instant petition raising the following causes of action: 1) violation of the Immigration and Nationality Act (hereinafter "INA") - mandatory detention of a non-citizen who is taken into immigration custody when released from criminal custody for a conviction that does not subject him to mandatory detention; 2) violation of INA - mandatory detention of non-citizen who has a substantial challenge to removal; 3) violation of INA - prolonged detention beyond the time reasonably necessary to conclude removal proceedings; 4) violation of INA - prolonged detention in the absence of a hearing where the government bears the burden of showing that such prolonged detention is justified; 5) violation of the Due Process Clause of the Fifth Amendment - prolonged detention that bears no reasonable relation to its purpose; 6) violation of the Due Process Clause of the Fifth Amendment - prolonged detention without a constitutionally adequate hearing where the government bears the burden of showing that such detention is justified; and 7) violation of the Excessive Bail Clause of the Eighth Amendment. (Doc. 1, Emergency Petition for a Writ of Habeas Corpus, at 42 - 48). Thus the first four causes of action are based upon the INA, specifically 8 U.S.C. § 1226©), and the remaining three causes of action are based upon the United States Constitution.
Petitioner asks the court to grant the writ of habeas corpus and either order his immediate release from custody under reasonable conditions of supervision, or in the alternative, order a constitutionally adequate hearing where the government must demonstrate that his continued detention is justified. (Id. at 49, Prayer for Relief).
Petitioner requested that the court order the respondents to show cause, within two days of the filing of the petition as to why the writ of habeas corpus should not be granted, and to have a hearing within five days of the government's response. (Id. ¶ c). The court ordered the Clerk of Court to serve the petition on the government, and ordered a response from the government within seven days. (Doc. 2, Order of Aug. 24, 2011). The order further allowed the petitioner to file a reply within five days of the filing of the government's response. (Id.) The court deferred ruling on whether oral argument or a hearing would be held. (Id.) Subsequently, on August 31, 2011, the government sought a brief extension of time to file its response in order to obtain and review the petitioner's administrative file. (Doc. 3). The court granted the request and ordered that the response be filed by September 12, 2011. (Doc. 4, Order of Sept. 1, 2011).
On September 3, 2011, petitioner filed a motion the he titled an "Emergency Motion for an Immediate Individualized Bond Hearing Before an Impartial Court." (Doc. 6). The court denied the motion on September 8, 2011, indicating that the petition for a writ of habeas corpus was on an expedited briefing schedule and that the court needed to review the government's response to the petition to make a reasoned decision. (Doc. 9, Order of Sept. 8, 2011).
The government filed a timely response to the original petition on September 12, 2011. (Doc. 13). The petitioner did not file a reply to the response and the time for such fling has passed. Accordingly, the matter is ripe for disposition.
We have jurisdiction over this petition for a writ of habeas corpus under 28 U.S.C. § 2241 ("Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective ...