The opinion of the court was delivered by: Hon. Joel A. Pisano
Michael Sylvain, confined at the Monmouth County Correctional Institution in Freehold, New Jersey, filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241 challenging his pre-removal-period mandatory detention, pursuant to 8 U.S.C. § 1226(c), in the custody of the Department of Homeland Security ("DHS"). Respondents filed an Answer and several exhibits. For the reasons expressed in this Opinion, this Court finds that Petitioner's detention is governed by 8 U.S.C. § 1226(a), grants the Writ of Habeas Corpus, and directs that the Immigration Judge conduct a bond hearing for Petitioner pursuant to 8 U.S.C. § 1226(a)(2).
Michael Sylvain, a native and citizen of Haiti, challenges his detention in the custody of DHS. Petitioner emigrated to the United States as a lawful permanent resident from Haiti in 1988. Between 1994 and 2007, Petitioner was convicted of various drug and other offenses, in the States of New York and New Jersey. Although it is not entirely clear from the Petition and Answer, it appears from the documents attached to the Answer that Petitioner's latest conviction occurred in New York on October 4, 2007, when he was convicted of criminal possession of a controlled substance and sentenced to conditional discharge. (Docket Entry No. 7-1, pp. 49, 95.)
On April 12, 2011, DHS took Petitioner into custody pursuant to 8 U.S.C. § 1226(c). (Answer, Docket Entry No. 7 at p. 6.) Although Respondents did not file the Notice to Appear with the Answer, the "Record of Deportable/Inadmissible Alien" dated April 12, 2011, states that "[a]n NTA was prepared on 08/31/2009 by NYC/CAP charging him under Section 237(a)(2)(A)(iii) for aggravated felony and Section 237(a)(2)(B)(i) of the INA for controlled substance conviction." (Docket Entry No. 7-1, p. 49.) Deportation officer Judith C. Almodovar served the Notice to Appear upon Petitioner on April 12, 2011, together with a notice of custody determination (not attached as an exhibit). (Docket Entry No. 7-1, p. 50.) Petitioner has been in pre-removal period custody since April 12, 2011. To date, no order of removal has been issued.
In the Petition, Petitioner argues: (1) he is not subject to mandatory detention under 8 U.S.C. § 1226(c), and his detention is instead governed by 8 U.S.C. § 1226(a), because he was not taken into DHS custody when he was released last from criminal incarceration, see Saysana v. Gillen, 590 F. 3d 7 (1st Cir. 2009), and (2) he is entitled to be released, see 8 U.S.C. § 1226(a), on bond because he does not pose a danger to the community or a flight risk.
Respondents concede that DHS did not take Petitioner into custody until years after he was released from criminal incarceration for an offense enumerated by 8 U.S.C. § 1226(c). They urge this Court to defer to the Board of Immigration Appeals' interpretation of 8 U.S.C. § 1226(c) in Matter of Rojas, 23 I.&N. Dec. 117 (BIA 2001).
Petitioner argues (in part) that he is not subject to mandatory detention under 8 U.S.C. § 1226(c) because DHS did not take him into custody when he was released from criminal incarceration (presumably in 2007), but delayed until April 12, 2011. The government argues that this Court should defer under Chevron USA, Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984), to the BIA's determination in Matter of Rojas, 23 I.&N. Dec. 117 (BIA 2001). Specifically, Respondents argue that this Court should dismiss the Petition because, "under the BIA's current reading, ICE has mandatory-detention authority [with] respect to an alien who has been released from custody relating to an offense enumerated in INA § 236(c)(1) after October 9, 1998, and need not invoke this authority immediately." (Docket Entry No. 7, p. 11) (citations omitted). Thus, the question in this case is whether the mandatory detention provision set forth at 8 U.S.C. § 1226(c) applies only if the alien is taken into custody immediately when he or she is released from a criminal custody, the basis for which is one of the offenses listed in § 1226(c)(1)(A)-(D).
A. Jurisdiction 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 mandatory detention is not statutorily authorized by 8 U.S.C. § 1226(c) 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).
B. Exhaustion The government has not raised failure to exhaust administrative remedies as an affirmative defense. Although 28 U.S.C. § 2241 contains no exhaustion requirement, "[o]rdinarily, federal prisoners are required to exhaust their administrative remedies prior to seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2241." Gambino v. Morris, 134 F.3d 156, 171 (3d Cir. 1998); see also, e.g., Callwood v. Enos, 230 F.3d 627, 634 (3d Cir. 2000); Bradshaw v. Carlson, 682 F.2d 1050, 1052 (3d Cir. 1981). The Third Circuit requires administrative exhaustion of a claim raised under § 2241 for three reasons: "(1) allowing the appropriate agency to develop a factual record and apply its expertise facilitates judicial review; (2) permitting agencies to grant the relief requested conserves judicial resources; and (3) providing agencies the opportunity to correct their own errors fosters administrative autonomy." Moscato v. Federal Bureau of Prisons, 98 F. 3d 757, 761-62 (3d Cir. 1996); see also Gambino, 134 F.3d at 171; Lyons v. U.S. Marshals, 840 F.2d 202, 205 (3d Cir. 1988). However, where the petitioner is challenging an agency's precedential interpretation of a statute, the purposes of exhaustion would not be served and exhaustion is not required. See Woodall v. Federal Bureau of Prisons, 432 F. 3d 235, 239 n.2 (3d Cir. 2005). In this case, exhaustion is not required because the BIA has already interpreted § 1226(c)(1) as requiring detention in a case like Petitioner's. See Matter of Rojas, supra.
The statutory authority to detain an alien depends on where the alien is in the removal process. Section 1226(a) provides the Attorney General with discretionary authority to detain or to release aliens on bond or conditional parole pending the outcome of the removal proceeding. Section 1226(c)(1) requires the detention of specified criminal aliens pending the outcome of the removal proceeding. Section 1231(a)(2) mandates detention during the removal period established in § 1231(a)(1)(B), and § 1231(a)(6) provides the Attorney General with discretionary authority to detain aliens beyond the removal period, or release them under supervision. See Diouf v. Mukasey, 542 F. 3d 1222, 1228 (9th Cir. 2008). Section 1226(a) authorizes the Attorney General of the United States to ...