The opinion of the court was delivered by: Hon. William J. Martini
Ruhel Chowdhury, confined at the Bergen County Jail in Hackensack, New Jersey, filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241 challenging his detention in the custody of the Department of Homeland Security ("DHS"). Respondents filed an Answer, two declarations, and several certified exhibits. Petitioner filed a Reply. For the reasons expressed in this Opinion and as required by Demore v. Kim, 538 U.S. 510 (2003), this Court will dismiss the Petition.
Ruhel Chowdhury, a native and citizen of Bangladesh, challenges his detention in the custody of DHS. Petitioner emigrated to the United States from Bangladesh on April 10, 1996. On July 3, 2008, Petitioner pled guilty to second-degree grand larceny in the Supreme Court of the State of New York. On April 23, 2009, the Supreme Court of New York sentenced Petitioner to one year of imprisonment. On July 1, 2009, upon Petitioner's release from the custody of the State of New York, DHS took him into custody at the Bergen County Jail based on an arrest warrant issued pursuant to 8 U.S.C. § 1226(c). (Docket Entry #91- at p. 46.) DHS officials served him with a Notice of Custody determination (docket entry #9-1, p. 45) informing him that he was subject to mandatory detention, and a Notice to Appear for removal (docket entry #9-1, p. 43). The Notice to Appear states that, based on Petitioner's April 23, 2009, grand larceny conviction and one year sentence, he is subject to removal pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii)*fn1 of the Immigration and Nationality Act ("INA") in that he was convicted of an aggravated felony, a law relating to a theft offense or burglary offense for which the term of imprisonment of at least one year was imposed. (Docket Entry #9-1, p. 43.) Petitioner has been detained at the Bergen County Jail since July 1, 2009, pending the outcome of the removal proceeding.
An Immigration Court in New York, New York, adjourned Petitioner's removal hearing at Petitioner's request on several occasions, including August 19, 2009, October 7, 2009, December 3, 2009, March 23, 2010, and April 5, 2010. On October 7, 2009, Petitioner appeared before an Immigration Judge and, "through counsel, he admitted to the truth of the four factual allegations contained in the Notice to Appear and conceded that he is subject to removal as an aggravated felon under section 237(a)(2)(A)(iii) of the Act as defined in 101(a)(43)(G) of the Act. Based upon the petitioner's admissions and concession through counsel the Court found that the petitioner's removability was established by clear, unequivocal, and convincing evidence as required. Then the case was adjourned to allow the petitioner to prepare an application for protection under the Convention Against Torture." Declaration of Susan Marie Beschta, Assistant Chief Counsel of the New York Office of the Chief Counsel of DHS, dated Aug. 11, 2010 (Docket Entry 9-1, p. 3.) Petitioner thereafter filed an Application for Asylum and for Withholding of Removal. (Docket Entry #9-1, pp. 16-25.) On December 3, 2009, Petitioner appeared before an Immigration Judge, filed an application for protection under the Convention Against Torture, and the case was scheduled for a merits hearing on March 23, 2010. The March 23, 2010, date was adjourned at Petitioner's request because counsel failed to appear; the April 5, 2010, date was adjourned at the request of Petitioner's new attorney; and a merits hearing was scheduled for October 8, 2010.*fn2 (Docket Entry #9-1, pp. 1-4.)
Petitioner executed the § 2241 Petition presently before this Court on May 13. 2010. The Clerk filed in on May 17, 2010. While the Petition is not a model of clarity, this Court reads the Petition as raising the following grounds: (1) Petitioner is not subject to mandatory detention under 8 U.S.C. § 1226(c), and (2) if Petitioner's detention since July 1, 2009, without a bond hearing is mandated by 8 U.S.C. § 1226(c), then the statute violates procedural and substantive due process. Petitioner seeks a Writ of Habeas Corpus directing DHS to immediately release him from custody because his continued detention is not statutorily authorized and violates the Fifth Amendment of the United States Constitution.
This Court ordered the government to file an answer responding to the Petition and including the statutory authority for Petitioner's detention, the date on which Petitioner was released from state custody, and the dates of Petitioner's detention by DHS. On August 12, 2010, DHS filed an Answer, with declarations and exhibits. On August 24, 2010, Petitioner filed a Reply, and on February 9, 2011, he filed a letter. To date, neither party has advised this Court that an Immigration Judge has ordered Petitioner's removal.
Under 28 U.S.C. § 2241(c), habeas jurisdiction "shall not extend to a prisoner unless . . .
[h]e is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). A federal court has subject matter jurisdiction under § 2241(c)(3) if two requirements are satisfied: (1) the petitioner is "in custody," and (2) the custody is "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3); Maleng v. Cook, 490 U.S. 488, 490 (1989). This Court has subject matter jurisdiction over the Petition under § 2241 because Petitioner was detained within its jurisdiction in the custody of DHS at the time he filed his Petition, see Spencer v. Kemna, 523 U.S. 1, 7 (1998), and he asserts that his detention is not statutorily authorized and violates his due process rights. See Zadvydas v. Davis, 533 U.S. 678, 699 (2001); Bonhometre v. Gonzales, 414 F.3d 442, 445-46 (3d Cir.2005).
Petitioner contends: (1) he is not subject to mandatory detention under 8 U.S.C. § 1226(c) because his grand larceny conviction does not constitute an aggravated felony under that statute; (2) he is not subject to mandatory detention under 8 U.S.C. § 1226(c) because his criminal defense attorney was constitutionally ineffective in failing to accurately advise him that his guilty plea to grand larceny would subject him to removal; and (3) Petitioner's mandatory detention pursuant to 8 U.S.C. § 1226(c) since July 1, 2009, violates procedural and substantive due process. Before considering Petitioner's arguments, this Court will outline the relevant statutes.
The INA authorizes the Attorney General of the United States to issue a warrant for the arrest and detention of an alien pending a decision on whether the alien is to be removed from the United States. See 8 U.S.C. § 1226(a). Specifically, § 1226(a) provides:
(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 --
(1) may continue to detain the arrested alien; and
(2) may release the alien on --
(A) bond of at least $1,500 ...