Petitioner is a federal detainee proceeding through counsel with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. The parties in this action have consented to proceed before a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). Petitioner claims that he is being improperly detained under the mandatory detention provisions of the Immigration and Nationality Act (INA), in violation of 8 U.S.C. § 1226(c) and his Fifth Amendment right to due process. Petitioner seeks an order: (1) declaring that his detention is governed by 8 U.S.C. § 1226(a) and not § 1226(c); (2) ordering the immigration judge to hold a bond determination hearing under 8 U.S.C. § 1226(a)(2); and (3) preventing the respondents from transferring him to another prison during the pendency of this action. Upon careful consideration of the record and the applicable law, the undersigned will grant petitioner's application for habeas corpus relief.
Petitioner, a thirty-one year old native of Guatemala, has resided in the United States since 1981. (Doc. No. 1 at 5.) He has been a lawful permanent resident of the United States since 1992. (Doc. 9-1 at 2.) Petitioner is currently married to a United States citizen. (Doc. No. 1 at 7.)
Petitioner's father, who was not a United States citizen, left this country in approximately 1990, when petitioner was eight years old. (Id. at 6.) Petitioner's mother became a naturalized United States citizen on May 20, 1997, when petitioner was fifteen years old. (Id. at 5.) On August 9, 2012, in the San Francisco County Superior Court, petitioner's mother filed for dissolution of her marriage to petitioner's father. (Id. at 6.) If the petition for dissolution of marriage is granted and the Superior Court finds that petitioner's parents were legally separated when his custodial parent naturalized, petitioner would automatically acquire United States citizenship. (Id.) (citing Minasyan v. Gonzales, 401 F.3d 1069 (9th Cir. 2005)).
On October 2, 2008, petitioner was convicted in the San Francisco County Superior Court of grand theft in violation of California Penal Code § 487(c), and was sentenced to sixteen months in state prison. (Doc. No. 1 at 6.) He completed service of his sentence and was released on March 3, 2009. (Id.) Because of this conviction, on July 24, 2012, more than three years after his release from state prison, Immigration and Customs Enforcement (ICE) officers of the Department of Homeland Security (DHS) served petitioner with a Notice to Appear, charging him with removability under the INA for having been convicted of two crimes of moral turpitude and for having been convicted of an aggravated felony theft offense.*fn1 (Doc. No. 9 at 2; Doc. No. 9-1 at 2; Doc. No. 9-2 at 2.) Petitioner was arrested on that same date and has remained in ICE custody until the present time. (Doc. No. 1 at 2.)*fn2
Petitioner sought a bond hearing before an immigration judge. (Doc. No. 9-1.) He argued that a bond should be set in his immigration case because he would obtain United States citizenship when his mother's divorce became final, making it substantially unlikely that the government would ultimately prevail on the removal charges against him. (Id. at 2-3.) The immigration judge denied that request, reasoning that petitioner was a lawful permanent resident of the United States until such time as he was found to be a citizen, and that his 2008 grand theft conviction subjected him to mandatory custody under the INA. (Id. at 3.) However, the immigration judge also indicated that she would revisit the matter if the divorce proceedings between petitioner's mother and father became final. (Doc. No. 1-2 at 1.)
Petitioner appealed the immigration judge's decision to the Board of Immigration Appeals (Board). (Doc. No. 9-2.) On October 26, 2012, the Board dismissed petitioner's appeal, reasoning that the mere possibility petitioner would become a United States citizen "is too speculative in nature to warrant a holding that it is 'substantially unlikely' that the DHS will prevail on the charges of removability." (Id.) Relying on its decision in Matter of Rojas, 23 I&N Dec. 117 (BIA 2001), the Board concluded that petitioner was subject to the mandatory detention provisions of 8 U.S.C. § 1226(c) by virtue of his conviction for grand theft, even though there was a three-year gap in time between his release from state custody with respect to his removable criminal offense and his immigration arrest. (Id. at 2-3.)
Petitioner filed his habeas petition pursuant to 28 U.S.C. § 2241 in this court on September 14, 2012.
II. Jurisdiction, Venue, and Standards of Review
Pursuant to 28 U.S.C. § 2241, relief by way of a writ of habeas corpus extends "to a Department of Homeland Security detainee who is 'in custody in violation of the Constitution or laws or treaties of the United States.' 28 U.S.C. § 2241(c)(3)." Rianto v. Holder, No. CIV 11-00137 PHX FJM (MEA), 2011 WL 3489623, at *2 (D. Ariz. May 25, 2011). See also Maleng v. Cook, 490 U.S. 488, 490 (1989). This court has subject matter jurisdiction over the instant petition pursuant to § 2241 because petitioner is in custody under the authority of the United States and he claims that his mandatory detention without an individualized bond hearing is not statutorily authorized and that he is being detained in violation of federal right to due process. Venue is proper in the Eastern District of California under 28 U.S.C. § 1391(e) because respondents are officers or employees of the United States or an agency thereof acting in their official capacity or under color of legal authority, and petitioner is being detained in this district, specifically at the Yuba County jail.
Named as defendants in this action are Janet Napolitano, Secretary of the United States Department of Homeland Security; Eric Holder, Attorney General of the United States; John Morton, Director of Immigration and Customs Enforcement; Craig Meyer, Field Office Director of Immigration and Customs Enforcement; and Yuba County Sheriff Steven Durfor. In Rumsfeld v. Padilla, 542 U.S. 426, 428 (2004), the United States Supreme Court held that "[w]henever a § 2241 habeas petitioner seeks to challenge his present physical custody within the United States, he should name his warden as respondent and file the petition in the district of confinement."*fn3 Accordingly, the court will proceed to address the merits of petitioner's claims.
Petitioner challenges the lawfulness of his detention under the mandatory detention statute of the INA, 8 U.S.C. § 1226(c). (Doc. No. 1 at 8.) Petitioner raises two grounds for relief. First, petitioner claims that he is not subject to mandatory detention under § 1226(c) because immigration authorities failed to detain him immediately, or even shortly, after his release from state prison on his qualifying felony offense, as required by the plain language of the statute, instead waiting until more than three years before doing so. (Id.; Doc. No. 2 at 4-11.) Petitioner argues that the DHS "has stretched its power through an improper reading of the statute to allow it to detain people without bond even if years have passed since their last contact with law enforcement." (Doc. No. 2 at 2.) Petitioner contends that his detention is governed instead by 8 U.S.C. § 1226(a), pursuant to which he is entitled to a bond determination hearing before an immigration judge prior to being retained in immigration custody. (Doc. No. 1 at 8-10; Doc. No. 2 at 10.)
In his second ground for relief, petitioner claims that his detention pending his removal proceedings without any individualized bond hearing to determine whether he poses a danger or is a flight risk violates his Fifth Amendment right ...