The opinion of the court was delivered by: Wolfson, United States District Judge
Presently before the Court is a Petition by Mr. Oneal St. Elmo Burns for a Writ of Habeas Corpus. Mr. Burns' Petition arises from his detention in the Hudson County Correctional Center, pending a hearing to address his potential removal from the United States pursuant to 8 U.S.C. §§1227(a)(2)(C), and (a)(2)(B)(i). Mr. Burns alleges that he was wrongfully denied bond because he is not subject to mandatory detention under 8 U.S.C. §1226(c). Respondents John E. Thompson and the United States Department of Homeland Security (collectively, "the Government") have filed a motion to dismiss the Petition, arguing that Mr. Burns is in fact subject to mandatory detention without bond under the statute. For the following reasons, Mr. Burns' Petition is granted.
Mr. Burns is a native and citizen of Jamaica who acquired status as a lawful permanent resident of the United States on or about December 9, 1983, when he entered the United States. See Petition at 2. Mr. Burns is the father of a U.S. citizen child, and has other ties to the community, including the U.S. citizen mother of his child and two lawful permanent resident brothers. Id. at 7. He was disabled in 1986 as a consequence of a brain injury sustained in an automobile accident, but was able to work part-time as a welder. Id.
On or about August 1, 1990, Mr. Burns was convicted of Unlawful Possession of a Weapon and Possession of a Controlled Dangerous Substance, in violation of New Jersey law. See Order for Commitment dated 8/1/90, State of New Jersey v. O'Neil S. Burns, Govt. Resp., Decl. of Alan Wolf, Exh. A at 8. He was sentenced to a five-year period of incarceration. Id.; see In the Matter of St. Elmo Burns, Decision and Order of the Immigration Judge, A 038-570-382 (June 5, 2009) ("Immigr. Order") at 1. It is this conviction that the Government alleges renders Mr. Burns removable.
Since 1990, Mr. Burns was thrice convicted of additional offenses in New Jersey. In 1996, he was convicted of an Attempt to Elude Police charge. Petition at 4. In 1998, he plead guilty to both Unsworn Falsification to Authorities and Driving under the Influence of Alcohol or Controlled Substance. Lastly, in 2002, Mr. Burns was again convicted of Attempt to Elude Police. Id. The record does not reveal whether Petitioner was incarcerated, and/or released on parole, supervised release, or probation in connection with the 1996, 1998, and 2002 offenses.*fn1
On March 18, 2009, Mr. Burns was personally served with a Notice to Appear ("NTA") charging him removable from this country pursuant to the Immigration and Nationality Act ("INA") § 237(a)(2)(C) and 237(a)(2)(B)(i). Id. at 8. The NTA charged him as removable based on his 1990 conviction. Id. at 9. Mr. Burns complied with the NTA and appeared. Since his appearance, he has been detained without bond pending his removal hearing. Id. at 10.
While detained, Petitioner requested that he be released on bond because he was not, in his view, subject to mandatory detention under the INA. He argued before the Immigration Judge ("IJ") that section 1226(c)'s mandatory detention requirement is inapplicable to him because he was not released from criminal custody in connection with a removable offense after the statute's 1998 effective date. Id. at 9. On June 5, 2009, the IJ rejected his request, ruling instead that Mr. Burns was subject to mandatory detention under the statute. See Immigr. Order at 3. The IJ based his decision on a series of opinions issued by the Board of Immigration Appeals ("BIA"), each interpreting section 1226(c). The central opinion he relied upon is Matter of Saysana, 24 I. & N. Dec. 602 (BIA 2008) ("Saysana").
Mr. Burns filed a Petition for a Writ of Habeas Corpus with this Court in May of 2009. He then filed a Notice of Appeal with the BIA on July 1, 2009. Because the June Order was interlocutory in nature, the IJ issued a final bond decision to facilitate Mr. Burns' appeal. See In the Matter of Oneil St. Elmo Burns, File No. A 038-570-382, Bond Memorandum at 2 (July 8, 2009). This second ruling again held that Petitioner was ineligible for bond.
Mr. Burns' petition asks this Court to: (1) assume jurisdiction over this matter; (2) issue a Writ of Habeas Corpus, directed to Respondents, ordering them to release Mr. Burns immediately on his own recognizance or upon the setting of a reasonable bond; (3) award Petitioner costs and reasonable attorney's fees and; (4) award any other relief that the Court deems just and appropriate. See Petition at 17-18. After he filed this petition, and while in detention, Mr. Burns married his U.S. citizen fiancée on August 28, 2009. See Pet. Reply, Exh. 1.
As enacted in 1952, the Immigration and Nationality Act gave the Attorney General discretion to detain or release an alien prior to a final determination of deportability. See 8 U.S.C. §1252(a) (1970 ed.); Velasquez v. Reno, 37 F.Supp.2d 663, 666 (D.N.J. 1999). The INA was amended in 1988 by the Anti-Drug Abuse Act, which added a mandatory detention provision for aliens that had committed aggravated felonies. See Velasquez, 37 F. Supp. at 666; INA § 242(a)(2), codified at 8 U.S.C. §1252(a)(2)(1990)*fn2 . That Act provided that the alien felon was to be taken into custody by the Attorney General "upon completion of the alien's sentence for such conviction." Probert v. I.N.S., 954 F.2d 1253, 1255 (6th Cir. 1992) (quoting statutory language). In response to rulings declaring the 1988 amendments unconstitutional, Congress again amended the INA in 1990, this time allowing for bond (and subsequent release pending deportation hearings) for certain lawfully admitted aliens. See Velasquez, 37 F. Supp. at 666; 8 U.S.C. §1252(a)(2)(B)*fn3 .
The 1990 amendment, further, provided for the mechanism by which aliens convicted of aggravated felonies would come into the Attorney General's custody:
The Attorney General shall take into custody any alien convicted of an aggravated felony upon release of the alien (regardless of whether or not such release is on parole, supervised release, or probation, and regardless of the possibility of rearrest or further confinement in respect of the same offense) ....
Cuomo v. Barr, 812 F.Supp. 324, 326 n.3 (N.D.N.Y. 1993) (quoting 8 U.S.C. § 1252(a)(2)(A)) (emphasis added).
The Sixth Circuit interpreted this amendment "to permit the mandatory detention of an alien convicted of an 'aggravated felony' only when that aggravated felony conviction serves as the basis for deportation." Probert v. I.N.S., 954 F.2d 1253, 1255 (6th Cir. 1992). Like the 1988 amendment, this amendment was ultimately held unconstitutional by several district courts. See Velasquez, 37 F. Supp. at 666 (citing Caballero v. Caplinger, 914 F.Supp. 1374, 1379-80 (E.D.La. 1996)); see e.g., Paxton v. United States INS, 745 F.Supp. 1261, 1265-66 (E.D. Mich. 1990); Kellman v. INS, 750 F.Supp. 625, 628 (S.D.N.Y. 1990). But see e.g., Davis v. Weiss, 749 F.Supp. 47, 50, 52 (D.Conn. 1990).
In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act ("AEDPA") and the Illegal Immigration and Immigrant Responsibility Act ("IIRIRA"). The AEDPA deleted the provision providing for bond for legal aliens and reenacted provisions providing for mandatory detention of aliens who had committed certain enumerated crimes. See Velasquez, 37 F. Supp. at 666. The enumerated crimes included not only aggravated felonies, but also possession of controlled substances, certain firearm offenses, crimes involving moral turpitude, and other miscellaneous crimes. Id. at 666-67. This section of the AEDPA was soon thereafter replaced by section 236(c) of the INA, enacted as part of the IIRIRA. The IIRIRA's mandatory detention provision is codified at 8 U.S.C. §1226(c). Id.
Implementation of the IIRIRA was deferred from 1996-1998, during which time the Transition Period Custody Rules ("TPCR") were in effect. Id. at 667. The TPCR provided for bond hearings for aliens that were removable for having committed certain crimes, and provided for bond to be set in particular instances. Velazquez, 37 F.Supp. at 666. The TPCR expired on October 9, 1998, at which point 8 U.S.C. §1226(c) became effective. Id.
Section 1226, like some of its statutory predecessors, grants the Attorney General discretion to release alien detainees on bond:
(a) Arrest, detention, and release
On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States. Except as provided in subsection (c) of this section and pending such decision, the Attorney General--
(2) may release the alien on--
(A) bond of at least $1,500 with security approved by, and containing conditions prescribed by, the Attorney General; ....
8 U.S.C. §1226(a) (emphasis added).
That discretion is limited, however, by the mandatory detention provision found in subsection (c)(1) of the statute:
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), ...