CARLOS MANUEL GARCIA AGUASVIVAS, A 044-875-218, Monmouth County Correctional Institution, Freehold, NJ, Petitioner Pro Se.
DAVID E. DAUENHEIMER, Assistant U.S. Attorney Office of the U.S. Attorney, Newark, NJ, Attorney for Respondent.
PETER G. SHERIDAN, District Judge.
Carlos Manuel Garcia Aguasvivas, who is detained at Monmouth County Correctional Institution in New Jersey, filed a Petition for a writ of habeas corpus under 28 U.S.C. § 2241 challenging his pre-removal period detention without a bond hearing, pursuant to 8 U.S.C. § 1226(c), in the custody of the Department of Homeland Security ("DHS"), nine years after he was sentenced in 2001 to one day of incarceration (and five years of probation) for a crime specified in § 1226(c). Respondent filed an Answer arguing that the Petition should be stayed pending a ruling by the Third Circuit or dismissed because Garcia Aguasvivas must be detained without a bond hearing pursuant to § 1226(c). After reviewing the submissions of the parties and for the reasons set forth below, this Court holds that Garcia Aguasvivas' detention is governed by 8 U.S.C. § 1226(a), which requires the Immigration Judge to conduct a bond hearing to determine whether detention is necessary to avoid a danger to the community or risk of flight. This Court will grant a Writ of Habeas Corpus directing the Immigration Judge to conduct a bond hearing pursuant to 8 U.S.C. § 1226(a) to determine if Garcia Aguasvivas presently poses a flight risk or danger to the community.
Carlos Manuel Garcia Aguasvivas, a native and citizen of the Dominican Republic, challenges his detention without a bond hearing in the custody of DHS at Monmouth County Correctional Institution. On January 28, 1995, when Garcia Aguasvivas was 16, the United States admitted him as a lawful permanent resident. On July 5, 2000, the State of New York sentenced him to conditional discharge after he pled guilty to criminal possession of cocaine in the seventh degree. (ECF No. 6-2 at 5.) On October 9, 2001, New York entered a judgment sentencing him to imprisonment of one day, license suspension of six months, probation of five years, and a $210 surcharge, after he pled guilty to attempted criminal sale of a controlled substance in the third degree. (ECF No. 6-3 at 2, 4.) On August 12, 2010, DHS arrested him at his home in Brooklyn, and served him with a notice to appear for removal. The notice to appear charges that he is subject to removal from the United States under § 237(a)(2)(A)(iii) (conviction of an aggravated felony) and § 237(a)(2)(B)(i) (conviction of law relating to a controlled substance). DHS has detained Garcia Aguasvivas without a bond hearing pursuant to § 1226(c) since August 12, 2010.
On February 27, 2013, the Clerk accepted Garcia Aguasvivas' pro se habeas petition for filing. He argues that his detention without an opportunity to be heard as to whether he poses a danger or a flight risk violates 8 U.S.C. § 1226 because he is not an alien who was taken into DHS custody "when the alien was released" from criminal incarceration for an offense enumerated in § 1226(c), and he has a substantial challenge to removal. DHS filed an Answer, together with the declaration of counsel and several exhibits. (ECF No. 6.) DHS argues that this Court should: (1) stay the matter until the Third Circuit decides Sylvain v. Attorney General, C.A. 11-3357 (3d Cir. docketed Aug. 31, 2011); or (2) defer to the Board of Immigration Appeal's interpretation of § 1226(c) in Matter of Rojas, 23 I.&.N.Dec. 117 (BIA 2001); or (3) if § 1226(c) requires immediacy, then find that the statute does not deprive DHS of the authority to detain aliens without a bond hearing, even where the alien was taken into DHS custody nine years after he allegedly served a one-day sentence for an offense listed in § 1226(c).
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 without a bond hearing is not statutorily authorized by 8 U.S.C. § 1226. See Zadvydas v. Davis, 533 U.S. 678, 699 (2001); Diop v. ICE/Homeland Security, 656 F.3d 221, 226 (3d Cir. 2011).
B. Requirement for "Release After" October 8, 1998
Section 1226(c) was enacted as § 303(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"). See IIRIRA, Pub.L. No. 104-208, § 303(a), 110 Stat. 3009 (1996), codified at 8 U.S.C. § 1226(c). Section 303(a) of IIRIRA provides:
(a) IN GENERAL.-Section 236 (8 U.S.C. 1226) is amended to read as follows:
"APPREHENSION AND DETENTION OF ALIENS
"SEC. 236. (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) 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 with security approved by, and containing conditions prescribed by, ...