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Pujalt-Leon v. Holder

United States District Court, M.D. Pennsylvania

March 25, 2013

FERNANDO PUJALT-LEON, Petitioner,
v.
ERIC HOLDER, et al., Respondents

Fernando Pujalt-Leon, Petitioner, Pro se, York, PA.

For Atty. General Eric Holder, Janet Napolitano, John Morton, Asst. Secretary for Immigration & Customs Enforcement, Thomas L. Decker, District Director of Pennsylvania Field Office for Detention, Warden Mary Sabol, Respondents: Mark Morrison, LEAD ATTORNEY, U.S. Attorney's Office - Prisoner, Harrisburg, PA; Melissa Swauger, U.S. Attorney's Office - Prisoner Litigation, Harrisburg, PA.

A. Richard Caputo, United States District Judge. MAGISTRATE JUDGE BLEWITT.

OPINION

Page 760

A. Richard Caputo, United States District Judge.

MEMORANDUM

Presently before the Court are Magistrate Judge Blewitt's Report and Recommendation (Doc. 23) to Petitioner's Petition

Page 761

for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 and Respondents' Objections to the Report and Recommendation. (Doc. 24.) In the instant petition, Petitioner, a detainee of the Bureau of Immigration and Customs Enforcement (" ICE" ), challenges ICE's determination that he is subject to mandatory detention pursuant to 8 U.S.C. § 1226(c). Petitioner contends that he is instead detained under § 1226(a) and therefore entitled to a bond hearing. According to Magistrate Judge Blewitt, § 1226(c) only applies to aliens detained immediately after release from custody or within a reasonable time after release. As such, Magistrate Judge Blewitt recommends Petitioner be afforded an individualized bond hearing before an immigration judge because Petitioner was not detained by immigration officials until four years after his release from state custody. Respondents filed timely objections to the Report and Recommendation. Because Petitioner's pre-removal-period detention is governed by § 1226(a) and not § 1226(c), the Report and Recommendation will be adopted and Petitioner will be afforded an individualized bond determination within ten days from the date of entry of the accompanying Order.

I. Background

A. Relevant Factual Background

The facts giving rise to the instant § 2241 petition are set forth at length in Magistrate Judge Blewitt's Report and Recommendation and will not be recounted in their entirety herein. For purposes of review of the Report and Recommendation, it is sufficient to note the following:

Petitioner, a citizen and native of Peru, entered the United States on a temporary visitor visa in January 1997. (Doc. 23, 2.) On April 6, 2000, Petitioner pled guilty to one count of threatening to kill and was sentenced to probation for one year. ( Id. ) On January 5, 2005, Petitioner was convicted of retail theft and sentenced to probation for two years. ( Id. ) Prior to the above convictions, Petitioner was arrested seven additional times. ( Id. ) Eventually, on December 29, 2010, Petitioner was arrested for violation of a protection from abuse order. ( Id. at 3.)

After he was arrested on December 29, 2010, Petitioner was placed into ICE custody, almost four years after he was released from his criminal conviction for a removable offense. ( Id. ) The next day, on December 30, 2010, ICE issued a Notice to Appear to Petitioner under § 237(a)(1)(B) and § 237(a)(2)(A)(ii) of the Immigration and Naturalization Act. ( Id. ) Petitioner appeared before the immigration court on January 19, 2011. Petitioner requested an adjournment to seek counsel. ( Id. )

Since then, Petitioner's removal proceedings have been put on hold, delayed, and/or continued for a number of reasons. ( Id. at 3-8.) According to Respondents, Petitioner's removal proceedings, as of October 2012, were on hold for four months while he was in the custody of other authorities, continued by the Immigration Judge six times at Petitioner's request, and delayed multiple times based on Petitioner's failure to provide proof that he filed an I-130 as claimed or that one of his crimes had been vacated which was central to Petitioner's removability. (Doc. 17, 37-38.) Since October 2012, Respondents contend that the delays in the removal proceedings have been " at the behest of Leon, his conduct, or factors which the government had no control over." (Doc. 25, 6.) For example, Petitioner's master calendar hearing scheduled for October 30, 2012 had to be postponed until January 16, 2013 due to Hurricane Sandy. ( Id. ) And, at the January 16, 2013 hearing, the Immigration Judge determined that Petitioner was not eligible for cancellation of removal, and the proceedings were adjourned to

Page 762

February 26, 2013 to ascertain the status of an additional request for relief raised by Petitioner. ( Id. ) Based on the Court's review of Petitioner's status on March 15, 2013, he appears to still be in ICE custody.

Based on the foregoing events, Petitioner filed the instant Petition for Writ of Habeas Corpus challenging the applicability of ยง 1226(c) to his detention. He also argues that his ...


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