The opinion of the court was delivered by: Judge Caputo
Presently before the Court is Petitioner Robert A. Bautista's Emergency Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241(c)(3). Bautista, formerly a Lawful Permanent Resident of the United States, was taken into custody by U.S. Immigration and Customs Enforcement ("ICE") following his return from a trip abroad. While ICE contends that Bautista was convicted of an aggravated felony years earlier, this conviction had not been raised by ICE until Bautista's encounter with the customs agent at the airport. Today, Bautista has been detained by ICE for approximately twenty-six months while the merits of his case are on appeal before the Third Circuit Court of Appeals. Because their period of detention falls within the category of "prolonged, unreasonable, detention without a bond hearing" the Circuit Court cautioned against in Diop v. ICE/Homeland Security, 656 F.3d 221, 235 (3d Cir. 2011), Bautista's Petition will be granted insofar as he seeks an individualized bond hearing.
Petitioner Robert A. Bautista puts forth the following in his Petition. Bautista was born in the Dominican Republic on August 11, 1974, but was admitted to the United States as a Lawful Permanent Resident in 1984. He has three young children and his wife, Yenny Bautista, is a Lawful Permanent Resident. Together, they lived in Easton, Pennsylvania where they started a successful transmission repair business. In 2003, the Supreme Court of New York convicted Bautista of Attempted Arson in the Third Degree. This conviction was based on Bautista being discovered next to his own vehicle with a gas tank in his hand. He was sentenced to five years probation which he successfully completed, although he is currently challenging this conviction. Prior to that, Bautista pleaded guilty to a violation of the "forged writing" provision of New Jersey's criminal code for possession of a fake identification. For that, Bautista was sentenced to, and successfully completed, a one-year probation term. Aside from those two incidents, Bautista has been a law-abiding, productive member of society. However, since his detention, his previously lucrative business has gone into bankruptcy and his family has lost their home, which was nearly paid off.
In 2009, Bautista made two trips back to the Dominican Republic. On the first trip, he easily reentered the United States with his Permanent Resident Card. Upon return from the second trip, he was detained at John F. Kennedy airport. Although he was ultimately permitted to enter, he was instructed to make contact with the Philadelphia Customs and Border Patrol Office for a deferred inspection. Eventually, Bautista was told to report to the Philadelphia Customs and Border Patrol Office on March 25, 2010. Bautista was informed that he had nothing to worry about. However, at that inspection, Bautista was entered into mandatory immigration detention and has been there ever since. He was first taken to Lackawanna County Prison in Scranton, Pennsylvania, but was transferred to the York County Correctional Facility in York, Pennsylvania, where he remains today.
On April 8, 2010, Bautista appeared before Judge Walter Durling of the York Immigration Court where he entered a plea after his motions to terminate were denied. The United States charged Bautista as inadmissible, and Bautista sought to cancel his removal pursuant to 8 U.S.C. § 1229b(a). On February 8, 2011, Judge Durling determined that Bautista, having "already been convicted of an aggravated felony," was not eligible for cancellation of removal and ordered him removed from the United States. (Resp'ts' Ex. 3 at 2.) Bautista appealed this decision to the Board of Immigration Appeals, which, after argument, dismissed the appeal on October 13, 2011. (Resp'ts' Ex. 4.) Bautista has petitioned the Third Circuit Court of Appeals for further review of this determination, which is currently pending.
Judge Munley dismissed Bautista's previous Emergency Petition for a
Writ of Habeas Corpus, determining that because he had not sought
parole, Bautista had failed to properly exhaust with respect to his
constitutional claims. Bautista v. Sabol, No. 3:11cv1611, 2011 WL
5040894, at *3-4 (M.D. Pa. Oct. 24, 2011). Subsequent to that
Memorandum, on November 1, 2011, Bautista sought parole under 8 C.F.R.
235.3(c), which was denied in a January 24, 2012 letter.*fn1
(Pet'r's Exs. B, C, & D.) In the present Motion, there is no
argument that Bautista has not exhausted his administrative remedies
as required by 8 U.S.C. § 1252(d)(1).
At the date of the instant Petition, Bautista had been in DHS custody for over twenty-four months. Bautista now brings this Habeas Motion pursuant to 28 U.S.C. § 2241 seeking an immediate release and an individualized bond hearing. The Respondents to the instant Petition include: (1) Mary E. Sabol, the Warden of the York County Correctional Facility; (2) the Department of Homeland Security ("DHS"); (3) Immigration and Customs Enforcement ("ICE"), the investigatory branch of the DHS; (4) Janet Napolitano, the Secretary of the Department of Homeland Security; (5) Thomas Decker, the Philadelphia Director for ICE; (6) David Clark, the director of ICE Detention Operations who oversees Petitioner's detention; and (7) John Morton, a Deputy Secretary of DHS who leads ICE. Although Bautista failed to submit a reply brief in support of his position, this matter is now ripe for the Court's review.
Generally, "when an alien is ordered removed, the Attorney General shall remove the alien from the United States within a period of 90 days." 8 U.S.C. § 1231(a)(1)(A). Throughout this so-called removal period, "the Attorney General shall detain the alien." Id. at § 1231 (a)(2) (emphasis added). Where, as here, the administrative removal order is judicially reviewed, the removal period begins to run with the "date of the court's final order." Id. at § 1231(a)(1)(B)(ii). Furthermore, § 1231(a)(6)*fn2 allows an alien who, among other things, has been convicted of an aggravated felony, to be detained for a removal period greater than 90-days. This does not allow for indefinite detention, however, and the Supreme Court has recognized a six-month period as presumptively reasonable. Zadvydas v. Davis, 533 U.S. 678, 701 (2001). At the conclusion of this 6-month period, "once the alien provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the Government must respond with evidence sufficient to rebut that showing." Id. The Supreme Court has since expanded this six-month rule to cover aliens deemed statutorily "inadmissible." Clark v. Suarez Martinez, 543 U.S. 371, 386 (2005).
Contrary to both the Petitioner's and Respondents' assertions, § 1231 is inapplicable to the instant matter. This is because the Court of Appeals has determined that an alien does not fall within § 1231's "removal period" until the occurrence of the latest statutorily-prescribed triggering event. Leslie v. Attorney Gen. of U.S., ___ F. 3d ___ , 2012 WL 898614, at *4 (3d Cir. Mar. 19, 2012) (finding, pertinent to the matter sub judice, that "there can be little doubt that an alien, subject to and within a stay of removal, cannot yet be in the 'removal period' for § 1231 purposes."). Instead, when a removal order is on appeal, a petitioner is still "considered in 'pre-removal order' detention, and the protections afforded by Clark . . . do not yet apply to [his] situation." Codina v. Chertoff, Civ. Act. No. 06-105 (MLC), 2006 WL 2177673, at *2 (D.N.J. July 31, 2006). Therefore, as the reviewing court has not yet issued its final order, the authority to detain Bautista does not derive from § 1231.*fn3
In his October 24, 2011 Order, Judge Munley correctly concluded that Bautista's detention was founded on 8 U.S.C. § 1225(b)(2)(A). Bautista, 2011 WL 5040894, at *3. Section 1225(b)(2)(A) applies where "the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted." When a lawful permanent resident seeks to re-enter the United States, he will be considered an alien "seeking admission" if it appears that he has committed a crime involving moral turpitude.
Bautista, 2011 WL 5040894, at *3 (citing Tineo v. Ashcroft, 350 F.3d 382, 390 (3d Cir.2003)). Bautista admits, for the purposes of the instant motion, that he has been convicted of a crime described within 8 U.S.C. § 1182(a), characterizing him an alien "seeking admission."*fn4
(Pet'r's Br. at 17, Doc. 1.) Thus, Bautista's confinement is properly evaluated in light ...