The opinion of the court was delivered by: Chesler, U.S.D.J.
This matter comes before the Court upon the Petition by Petitioner Lorenzo Florentino Delgado Diaz ("Diaz") for a Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2241, challenging his continued detention by the United States Immigration and Customs Enforcement ("ICE") as unlawful and unconstitutional. Diaz is currently in custody at the Hudson County Correctional Facility in New Jersey. He filed the instant Petition on June 10, 2011 naming several Respondents, specifically Oscar Aviles, the warden of the facility where Diaz is detained; Eric H. Holder, Attorney General of the United States; Janet Napolitano, Secretary of the Department of Homeland Security; Christopher Shanahan, a Field Office Director with the Office of Detention and Removal; and Wayne Muller and William Joyce, both Assistant Field Office Directors with the Office of Detention and Removal (collectively, "Respondents"). Diaz filed the Petition in the United States District Court for the Southern District of New York. Respondents filed opposition arguing, inter alia, that the Court should transfer the Petition to the District of New Jersey, where Diaz was detained. On July 7, 2011, the Court transferred the case to the District of New Jersey.
In brief, Diaz is a lawful permanent resident of the United States who immigrated from the Dominican Republic in 1993. In 2005, he entered a plea of guilty to the offense of sexual abuse of a minor, New York Penal Law § 130.60(2), and was sentenced to three years of probation. On or about October 6, 2010, Respondents detained Diaz, and he was placed in removal proceedings. Through counsel, Diaz requested release on bond, and this request was denied. He continues to be detained to date. On July 26, 2011, this Court held oral argument on this Petition.
Diaz argues that his continued detention "is unlawful because he was not taken into the Respondents' custody immediately upon release from incarceration." (Pet. Br. 1.) The dispute here concerns the interpretation of this section of 8 U.S.C. § 1226 ("Apprehension and detention of aliens"):
(c) Detention of criminal aliens.
(1) Custody. The Attorney General shall take into custody any alien who-- . . .
(B) is deportable by reason of having committed [certain] offense[s] . . . . . . when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense.
There is no dispute that Diaz committed a predicate offense. Rather, the parties dispute the meaning of the phrase "when the alien is released." Diaz argues that this phrase means that the Attorney General is authorized to detain an individual only at the time that he is released and at no other time. Respondents argue that this phrase means that the Attorney General is authorized to detain an individual at any time after he is released.
Diaz contends that the majority of district courts that have considered this issue have followed the interpretation he advocates. The problem with some of this persuasive authority is that the provision at issue was enacted by Congress on September 30, 1996 as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), which became generally effective on April 1, 1997. Almodiel v. INS, 13 Fed. Appx. 659 (9th Cir. 2001). Thus, cases which deal with offenses that occurred prior to the effective date are inapposite.
In more recent cases, a number of district courts have recognized that
the statutory language is ambiguous and can reasonably be read in ways
that support both Petitioner's and Respondents' interpretations. This
is well-explained by Judge Castel in Sulayao v. Shanahan, 2009 U.S.
Dist. LEXIS 86497, *8-*19 (S.D.N.Y. Sept. 14, 2009), and this Court
concurs with Judge Castel's analysis of this issue, as well as his
ultimate conclusion that the interpretation of the Board of
Immigration Appeals is entitled to Chevron deference.*fn1
See also Sidorov v. Sabol, No. 09-1868 (M.D.Pa. filed Dec.
18, 2009) (same); Gomez v. Napolitano, 2011 U.S. Dist. LEXIS 58667
(S.D.N.Y. May 31, 2011) (same). The interpretation of the Board of
Immigration appeals in Rojas is the one advocated by Respondents
Petitioner argues that Rojas was wrongly decided. Diaz fails to recognize, however, the standard that must be met to reject the BIA's interpretation:
If this choice represents a reasonable accommodation of conflicting policies that were committed to the agency's care by the statute, we should not disturb it unless it appears from the statute or its legislative history that the accommodation is not one that Congress would have sanctioned.
Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 845 (1984) (quoting United States v. Shimer, 367 U.S. 374, 382, 383 (1961)). Petitioner has not persuaded this Court that the BIA's interpretation is not one that Congress would have sanctioned. To the contrary, it appears to this Court ...