The opinion of the court was delivered by: Linares, District Judge
Petitioner, James H. Beckford ("Beckford"), is currently being detained by the Department of Homeland Security ("DHS"), Immigration and Customs Enforcement ("ICE") at the Hudson County Correctional Center in Kearny, New Jersey, pending his removal from the United States.*fn1 On or about April 22, 2010, Beckford filed this Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241, in which he challenges his mandatory detention pending removal proceedings as unconstitutional. Beckford paid the $5.00 filing fee. With his petition, Beckford also filed an application for an Order to Show Cause and for appointment of counsel (see Docket entry nos. 2 and 3). Beckford brings this action against Oscar Aviles, Warden at Hudson County Correctional Center; Scott Weber, Field Office Director for Detention and Removal; John T. Morton, Assistant Secretary of the ICE; Janet Napolitano, Secretary of the DHS; and Eric Holder, United States Attorney General, as the named party respondents (hereinafter referred to as "the Government") in this action. For the reasons stated below, this petition for habeas relief will be denied without prejudice because mandatory detention pending completion of removal proceedings has been held constitutionally permissible.*fn2 See Demore v. Kim, 538 U.S. 510 (2003).
Beckford is a native and citizen of Jamaica, who was admitted into the United States as a lawful permanent resident in 1974, when he was fourteen (14) years old. He states that his parents, four siblings and nine children are all United States citizens "to whom petitioner is well attached." (Petition, ¶ 9). Beckford admits that he was convicted in 1982 on a charge of drug sales, and in 2007 on a charge of conspiracy to possess marijuana. He had pled guilty to the charge of conspiracy to possess marijuana in order to secure an earlier release from incarceration, without knowing the consequences of his plea. (Pet., ¶ 17). Beckford states that the ICE took him into custody on March 2, 2010, two and a half years after he was released from incarceration in 2007. (Pet. , ¶ 18). He is subject to removal from the United States on the ground that he is a convicted alien, having been convicted of crimes of moral turpitude. His removal proceedings are ongoing. (Pet., ¶¶ 18, 19). Beckford alleges that he is entitled to a hearing as to his eligibility for cancellation of removal, and seeks the Court's assistance in his release from custody. (Pet., ¶¶ 19, 20).
Beckford admits that he was in ICE custody only 45 days when he filed this habeas petition. (Pet., ¶¶ 9, 22). He had a scheduled hearing before an Immigration Judge on or about May, 12, 2010. (Pet., ¶ 21). At the time he filed his habeas petition, on April 22, 2010, Beckford allegedly has not had a hearing or custody review. He states that he poses no danger to the community, nor is he a flight risk. He also states that his drug offenses occurred about four years ago, and he has had no disciplinary infractions. Beckford further alleges that he has strong ties to his church and community as well as to his family. He also consents to reasonable terms for release under supervision, including electronic monitoring. (Pet., ¶¶ 22, 23). Beckford admits that his removal proceedings are pending, and that he is challenging his removal. Specifically, Beckford has applied for Cancellation of removal under 8 U.S.C. § 1229b(a). (Pet., ¶¶ 19-23).
On October 20, 2010, Beckford filed an application to be released, a notice of motion asserting civil and human rights violations, and a notice of intent to file for United States citizenship. (Docket entry no. 6).
On November 29, 2010, the Government filed an answer to the petition with a copy of the relevant immigration record. (Docket entry no. 8). In its answer, the Government provides the pertinent history as to Beckford's immigration proceedings. In October 2004, Beckford was identified as a criminal alien after being interviewed by ICE officers, and a Notice to Appear was served on him on October 28, 2004. (Answer at p. 3, Declaration of Lauren Farber Weintraub ("Weintraub Decl."), at ¶ 7, Respondents' Exhibit D). On November 10, 2004, an Immigration Judge set a $10,000 bond and Beckford was released from custody on December 1, 2004. However, Beckford failed to appear for his immigration hearing, which had been scheduled for May 31, 2005. Beckford failed to appear for three additional hearings and it was determined that he had been detained in a criminal matter. Consequently, the case was administratively terminated on November 5, 2005. (Weintraub Decl., ¶¶ 9-11, 13, Resp. Exs. F, G).
Beckford was released from prison in 2007 and his immigration case was re-calendared on the non-detained docket. (Weintraub Decl., ¶ 15). He appeared pro se before the Immigration Judge on February 24, 2009 and again at a master calendar hearing on June 2, 2009. At the June 2009 hearing, Beckford had informed the Immigration Judge that The Legal Aid Society would soon represent him. (Wientraub Decl., ¶¶ 16, 17). On March 2, 2010, Beckford appeared at a master calendar meeting with counsel and was taken into ICE custody pursuant to a determination that he was subject to mandatory detention while his removal proceeding are pending. (Id., ¶¶ 18, 19; Resp. Exs. I, J). The Immigration Judge continued Beckford's case on March 18, 2010 and again on May 12, 2010, for purposes of attorney preparation on behalf of Beckford. (Weintraub Decl., ¶¶ 20, 21, 23).
A merits hearing on the removal proceedings was scheduled for November 18, 2010. Before the hearing date, on October 6, 2010, Beckford's counsel again requested a continuance. On October 18, 2010, the Immigration denied the request for a continuance. Thereafter, on October 20, 2010, petitioner's counsel filed a motion to withdraw as counsel. At the November 18, 2010 hearing, Beckford's counsel withdrew representation. Beckford also requested a bond hearing. The Immigration Judge re-scheduled the hearing for January 19, 2011. (Weintraub Decl., ¶¶ 24-28; Resp. Exs. I, M and O).
The Government contends that it has not caused any delay in Beckford's removal proceedings, and that any delay was caused by Beckford's multiple requests for a continuances. (Weintraub Decl., ¶ 30).
On February 9, 2011, the American Civil Liberties Union, the American Civil Liberties Union of New Jersey, and the Washington Square Legal Services, Inc., (hereinafter, "ACLU"), filed a brief of amici curiae. (Docket entry no. 12).
Beckford asserts the following claims in support of his habeas petition. First, he argues that his mandatory detention violates federal law, namely, 8 U.S.C. § 1226(c), because he was not detained "when ... released" from criminal custody. Second, Beckford contends that he is not subject to mandatory detention because he has a substantial challenge to removal. See Gonzalez v. O'Connell, 355 F.3d 1010, 1019-20 (7th Cir. 2004)(noting that Demore left open the question as to the constitutionality of mandatory detention as applied to an alien who is raising a good faith challenge to removal); Tijani v. Willis, 430 F.3d 1241, 1247 (9th Cir. 2005)(Tashima, J. concurring)(in light of serious constitutional concern, mandatory detention statute should be construed as applying only to those aliens who cannot raise a substantial challenge against removability). Finally, Beckford alleges that his prolonged detention, without a hearing to determine if such detention is justified, violates both his right to due process under the United States Constitution and the Immigration and Nationality Act ("INA").
The Government contends that Beckford's mandatory detention under 8 U.S.C. § 1226(c) is constitutional, pursuant to the Supreme Court's ruling in Demore v. Kim, 538 U.S. 510 (2003). Further, the Government argues that Beckford's various drug convictions subject him to mandatory detention under § 1226(c). The Government does concede that Beckford was not taken into DHS custody until years after he was released from criminal incarceration for an offense enumerated by 8 U.S.C. § 1226(c). However, the Government urges the Court to defer to the Board of Immigration Appeals' ("BIA") interpretation of 8 U.S.C. § 1226(c) in Matter of Rojas, 23 I & N Dec. 117 (BIA 2001).
The ACLU thoroughly briefed the issues raised by Beckford in his petition for habeas relief. Namely, the ACLU argue that Beckford's mandatory detention violates federal law because he was not ...