ESTHER SALAS, District Judge.
Petitioner Ian Christopher Griffith Skinner ("Petitioner"), an immigration detainee currently detained at Bergen County Correctional Facility, 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 Bergen County Correctional Facility, where Petitioner is in custody. For the reasons stated below, the Court GRANTS Petitioner's request for habeas relief, and directs an Immigration Judge to conduct a bond hearing pursuant to 8 U.S.C. § 1226(a)(2), to determine if Petitioner is a flight risk or danger to the community.
Petitioner, a native and citizen of Trinidad and Tobago, was admitted to the United States as a lawful permanent resident on September 27, 1974. (D.E. No. 8-1, Resp'ts' Answer, Declaration of Melanie White ("White Decl.") ¶ 4). Starting in the 1990's, Petitioner has been convicted of several crimes in different states, including the following: a misdemeanor count for failure to appear; attempted criminal sale of a controlled substance in the third degree; criminal sale of a controlled substance in the third degree; and two convictions for assault in the third degree. ( Id. ¶¶ 5-9). On May 9, 2012, following his last arrest, Immigration and Customs Enforcement ("ICE") initiated removal proceedings by detaining Petitioner and serving him with a Notice to Appear ("NTA"). ( Id. ¶ 10; D.E. No. 1 ("Pet.") ¶ 23-24). The NTA alleged that Petitioner is deportable under sections 237(a)(2)(A)(iii) (conviction for "aggravated felony") and (a)(2)(B)(i) (conviction relating to a controlled substance) of the Immigration and Nationality Act ("INA"), codified at 8 U.S.C. §§ 1227(a)(2)(A)(iii) and (a)(2)(B)(i), respectively. (Ex. C to Pet.).
Petitioner's first master calendar hearing was scheduled for May 22, 2012 in Immigration Court in New York, New York. (Pet. ¶ 25). Petitioner alleges that counsel for the Department of Homeland Security did not have the conviction record for Petitioner's 1995 conviction and the case was adjourned until July 13, 2012. ( Id. ). Respondent alleges that the Immigration Court adjourned the matter in order to allow Petitioner to obtain legal representation. (White Decl. ¶ 12). On June 21, 2012, ICE amended the NTA to include a 2012 conviction for criminal sale of a controlled substance as an additional basis for removal. (Pet. ¶ 26; White Decl. ¶ 13). At the July 13, 2012 hearing, Petitioner's case was adjourned until September 12, 2012 to allow Petitioner to obtain legal representation. (White Decl. ¶ 14).
At the September 12, 2012 hearing, Petitioner's newly retained attorney requested that the hearing be adjourned and the Immigration Court rescheduled the matter to November 21, 2012. ( Id. at ¶ 15). On September 21, 2012, ICE amended the NTA to charge him with an additional ground of removability under INA section 237(a)(2)(A)(ii) based upon Petitioner's two prior convictions for assault. (Pet. ¶ 28; White Decl. ¶ 16). At the November 21, 2012 hearing, the Immigration Court found that Petitioner was deportable under the controlled substance ground of deportability. (Pet. ¶ 31; White Decl. ¶ 17). But the Court reserved on the question of whether Petitioner had been convicted of an aggravated felony and set a new hearing date for January 23, 2013 so that the Court could consider further briefing. (Pet. ¶ 31).
At the January 23, 2013 hearing, the Immigration Court ruled that Petitioner had not been convicted of an aggravated felony and, therefore, he could proceed on his application for cancellation of removal. ( Id. ¶ 32). The Court set a subsequent hearing date for April 3, 2013. ( Id.; White Decl. ¶ 18).
In the interim, the Court of Appeals for the Second Circuit issued a decision that directly impacted Petitioner's argument in support of cancellation of removal and, as a result, the Immigration Court pretermitted Petitioner's application at the April 3, 2013 hearing. (Pet. ¶ 34; White Decl. ¶ 19). The Court set a subsequent hearing date for June 4, 2013 to allow Petitioner to file additional documents in support of his remaining applications for relief. ( Id. ). At the June 4, 2013 hearing, the Immigration Court set an individual hearing for September 9, 2013 for Petitioner's applications for withholding of removal and relief under the Convention Against Torture. (Pet. ¶ 37).
On September 9, 2013, the Immigration Court ruled on outstanding legal issues and heard testimony from two different expert witnesses, but was unable to hear testimony from Petitioner's third expert witness due to time constraints. (D.E. No. 12, Pet'r's 9/12/13 Ltr. at 1). The Court consequently continued the hearing to December 2, 2013. ( Id. ). At the December 2, 2013 hearing, the Court heard the remaining testimony and closed the record. (D.E. No. 16, Pet'r's 12/4/13 Ltr. at 1). The Court informed the parties that it would be issuing a decision in the future, but did not give the parties a specific date. ( Id. ).
On July 12, 2013, Petitioner filed the instant habeas petition. In his petition, Petitioner alleges the following grounds for relief: (1) that his prolonged and indefinite detention violates the due process clause of the Fifth Amendment; (2) that his continued mandatory detention violates the due process clause of the Fifth Amendment because Petitioner is pursuing bona fide legal challenges to his removal; and (3) regardless of eligibility for bond, that Petitioner remains eligible for release on parole. (Pet., Counts I-III). In opposition, Respondent argues that: Petitioner is properly detained under 8 U.S.C. § 1226(c); Petitioner's detention does not violate due process; Petitioner's argument regarding a "substantial challenge to removal" must be rejected because this Court is not empowered to review immigration decisions; and that Petitioner is not entitled to parole under 8 C.F.R. § 212.5(b)(1) and (5). (D.E. No. 8, Resp'ts' Answer at 1, 12, 14, 22, 25).
A. Legal Standard
Habeas relief "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 section 2241(c)(3) if two requirements are satisfied: (1) the petitioner is "in custody, " and (2) the custody is alleged to be "in violation of the Constitution or laws or treaties of the United States." Id .; Maleng v. Cook, 490 U.S. 488, 490 (1989). This Court has subject matter jurisdiction over the instant petition under section 2241 because Petitioner was detained within its jurisdiction, by a custodian within its jurisdiction, at the time he filed his Petition, see Spencer v. Kemna, 523 U.S. 1, 7 (1998) and Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 494-95, 500 (1973), and because Petitioner asserts that his mandatory detention is not statutorily authorized by 8 U.S.C. § 1226.
8 U.S.C. § 1226 governs the pre-removal-order detention of an alien. Section 1226(a) authorizes the Attorney General to arrest, and detain or release, an alien pending a decision on whether the alien is to be removed ...