PERHAM MAKABI, ESQ., Kew Gardens, New York, Counsel for Petitioner.
KRISTIN LYNN VASSALLO, AUSA, OFFICE OF THE U.S. ATTORNEY, Newark, New Jersey, Counsel for Respondents.
MICHAEL A. SHIPP, District Judge.
Petitioner Luis Dilone ("Petitioner"), an immigration detainee presently confined at the Monmouth County Correctional Facility in Freehold, New Jersey, has submitted a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241,  challenging his mandatory detention during his immigration removal proceedings. The sole proper respondent is the Warden or Administrator at the Monmouth County Correctional Facility, where Petitioner is in custody. Because it appears from a review of the parties' submissions that Petitioner is not entitled to the relief he seeks at this time, the Court will deny the petition without prejudice.
Petitioner Luis Dilone is a native and citizen of the Dominican Republic, who was admitted to the United States, on June 8, 1992, as a lawful permanent resident alien. (Docket No. 1, Petition, ¶ 8.) On May 25, 2012, the U.S. Department of Homeland Security ("DHS"), Immigration and Customs Enforcement ("ICE") served Petitioner with a Notice to Appear for Removal Proceedings. ( Id., ¶ 9.) The Notice charged that Petitioner was subject to removal from the United States, pursuant to the Immigration and Nationality Act ("INA") § 237(a)(2)(B)(i), based on Petitioner's August 22, 2003 judgment of conviction entered in the United States District Court for the Southern District of New York for the criminal offense of Conspiracy to Distribute and Possess with the Intent to Distribute Heroin, in violation of 21 U.S.C. § 846. (Dkt. # 1-3, Pet., Ex. 1.) Petitioner had been sentenced to twenty months imprisonment on his August 2003 criminal conviction. (Dkt. ## 7-2, 7-3, Declaration of Amy Patrick, ¶ [5, Ex. A.)
Pursuant to the Notice to Appear for Removal Proceedings, Petitioner was taken into custody and detained by the ICE on May 25, 2012. (Dkt. # 7-2, ¶ 6.) Petitioner was placed in removal proceedings on May 30, 2012. On July 26, 2012, Petitioner requested supervised release on bond through retained counsel. This request was denied by Acting Field Officer Director Raymond Simonse because Petitioner was subject to mandatory detention under 8 U.S.C. § 1226(c). ( Id., ¶¶ 7, 8, 11, Ex. G.) On October 24, 2012, Petitioner appeared before the Immigration Judge for a master calendar hearing and admitted the allegations in the Notice to Appear, conceding the charges of removability. However, petitioner filed an application for relief from removal, and the Immigration Judge adjourned the hearing to allow Petitioner time to file supporting documents. ( Id., ¶ 12, Ex. H.) On December 20, 2012, Petitioner appeared for a master calendar hearing with his attorney, and the Immigration Judge adjourned the case and scheduled a merits hearing for March 21, 2013. ( Id., ¶ 13, Ex. I.)
On December 28, 2012, Petitioner filed this application for habeas relief under 28 U.S.C. § 2241, challenging his detention pending removal proceedings. (Dkt. # 1.) Petitioner contends that he is not subject to mandatory detention without a bond hearing under 8 U.S.C. § 1226(c), because he was not taken into ICE custody "when released" from custody for a removable offense. As noted, Petitioner alleges that he was taken into ICE custody on May 25, 2012, eight years after he was released from criminal custody on the removable offense. (Id. ¶¶ 9, 12, 13.)
On February 22, 2013, the Government filed an answer to the habeas petition. (Dkt. # 7.)
On March 25, 2013, counsel for Petitioner wrote to this Court informing that Petitioner's merits hearing regarding his removal proceedings and application for relief from removal was rescheduled for May 28, 2013. (Dkt. # 9.)
On April 23, 2013, the Government wrote to the Court regarding the then-newly issued decision by the United States Court of Appeals for the Third Circuit, on April 22, 2013, rejecting Petitioner's argument that mandatory detention under 8 U.S.C. § 1226(c) did not apply when there is a gap between release from criminal custody and arrest by immigration authorities. Sylvain v. Attorney General of U.S., 714 F.3d 150 (3d Cir. 2013). (Dkt. # 11.)
II. RELEVANT STATUTES
Federal law sets forth the authority of the Attorney General to detain aliens in removal proceedings. Title 8 U.S.C. § 1226(a) provides the Attorney General with the authority to arrest, detain, and release an alien during the pre-removal-order period when the decision as to whether the ...