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 Magistrate Judge jurisdiction over this action pursuant to 28 U.S.C. § 636(c). In his application for habeas relief 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 from this court:
(1) declaring that his detention is governed by 8 U.S.C. § 1226(a) and not § 1226(c); and (2) requiring that the immigration judge hold a bond determination hearing in his case pursuant to 8 U.S.C. § 1226(a)(2). Upon careful consideration of the record and the applicable law, the undersigned will grant petitioner's application for habeas corpus relief.
Petitioner is a thirty-four year old native and citizen of the Philippines. (Doc. No. 1 at 4.) He has been a lawful permanent resident of the United States since 1995. (Id.; Doc. No. 10 at 2.) On December 9, 2004, petitioner was convicted of possession of a controlled substance for sale, in violation of California Health & Safety Code § 11378. (Doc. No. 10 at 2.) He was sentenced to eight months in state prison in connection with that conviction. (Doc. No. 10 at 2.)
On September 27, 2012, more than seven years after his release from prison on the possession of a controlled substance for sale conviction, 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 an aggravated felony and a controlled substances offense, based on that 2004 criminal conviction.*fn1 (Id. at 3.) Petitioner was arrested on that same date and has remained in ICE custody until the present time. (Id.) It is not clear from the record before the court why immigration agents did not arrest petitioner earlier. However, there is no evidence before this court suggesting that petitioner was hiding or that immigration officials did not know of his whereabouts during that lengthy delay.
Upon being taken into immigration custody petitioner sought a bond hearing before an immigration judge. (Id.) The immigration judge denied that request, reasoning that he was bound by the decision of the Board of Immigration Appeals in Matter of Rojas, 23 I&N Dec. 117 (BIA 2001), and could not grant a bond determination hearing unless ordered to do so by the U.S. District Court. (Doc. No. 1 at 5.)
Petitioner filed the pending habeas petition pursuant to 28 U.S.C. § 2241 in this court on November 15, 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 his 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 resides in this district, specifically in the Yuba County Jail.
Named as defendants in this action are Yuba County Sheriff Steven Durfor; Janet Napolitano, Secretary of the United States Department of Homeland Security; John Morton, Director of Immigration and Customs Enforcement; Timothy S. Aitken, Director of the San Francisco ICE-Enforcement and Removal Operations (ERO) field office, Jason McClay, Assistant Director of the San Francisco ICE-ERO field office; and Eric Holder, Attorney General of the United States. 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." Petitioner informs the court that defendant Yuba County Sheriff Steven Durfor is petitioner's immediate custodian. (Doc. No. 1 at 3.) Accordingly, the court concludes it has personal jurisdiction over the petitioner in this matter and will proceed to address his claims on their merits.*fn2
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 2.) He claims that he is not subject to mandatory detention under § 1226(c) because immigration authorities failed to detain him immediately after his release from prison on his qualifying felony conviction, or even shortly after his release, as required by the plain language of the statute. (Id. at 2, 6-7.) Instead, immigration authorities waiting until more than seven years before taking him into custody and detaining him. Petitioner argues that "[a] plain reading of the statute is that, for mandatory detention to apply, DHS must take an alien into custody immediately upon release from nonDHS custody." (Id. at 6.) 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. (Id..) Petitioner also claims that his detention pending his removal proceedings without any individualized bond hearing to determine whether he poses a danger or a flight risk violates his Fifth Amendment right to due process. (Id.)
Respondents counter that the mandatory detention requirements of 8 U.S.C. § 1226(c) attach not only when an alien is taken into immigration custody immediately after his/her release from prison on the underlying felony conviction, but also when there has "been a delay in effecting that custody." (Doc. No. 10 at 2.) In general, respondents argue that: (1) the statutory history with respect to 18 U.S.C. §1226(c) illustrates that the DHS may detain individuals without an opportunity to obtain bond even if significant time has passed since their release from prison; (2) the relevant language contained in § 1226(c) is ambiguous in this regard and the Board's interpretation of that language is a reasonable one; and (3) requiring that respondent provide a bond hearing to petitioner would impose an improper sanction on DHS for negligently failing to apprehend petitioner any sooner. (Id. at 3-20.) ...