Hosh v. Lucero
2012 U.S. App. LEXIS 10721
| 4th Cir. | 2012Background
- Hosh Mohamed Hosh is a Somali citizen, derivative asylee, and has been a lawful permanent resident since 2007.
- He was convicted in Virginia state court in 2008 of unlawful wounding and grand larceny, with suspended sentences and probation.
- ICE arrested Hosh in March 2011, charging him with removability for an aggravated felony after entry, and detained him at a Virginia jail.
- The IJ found Hosh subject to mandatory detention under § 1226(c) and denied a bond hearing.
- Hosh petitioned for habeas relief asserting he was not subject to mandatory detention because he was not taken into federal custody immediately upon release from state custody.
- The district court remanded to hold a bond hearing, but the district court’s approach conflicted with the district’s prior cases and the BIA interpretation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 1226(c) applies when not detained immediately | Hosh argues he is exempt if not taken into federal custody immediately. | Lucero argues the statute's text supports mandatory detention regardless of immediate custody. | § 1226(c) applies; Hosh is subject to mandatory detention. |
| Whether the BIA’s Rojas interpretation is permissible Chevron deference | Hosh contends the statute is plain and should be construed in his favor. | Government argues the BIA’s interpretation in Rojas is a permissible construction under Chevron. | BIA interpretation is permissible and entitled to deference. |
| Whether the failure to detain immediately negates detention authority under § 1226(c) | Hosh reasons that noncompliance with immediacy should yield a bond hearing. | Government can still detain post-immediacy under the statute; no windfall to detainees. | Noncompliance does not defeat the Government’s authority to detain post-immediacy. |
Key Cases Cited
- Demore v. Kim, 538 U.S. 510 (U.S. Supreme Court 2003) (upheld § 1226(c) against a backdrop of detention and removal challenges)
- Barnhart v. Peabody Coal Co., 537 U.S. 149 (U.S. Supreme Court 2003) (statutory timing provisions require more than a mandatory ‘shall’ without penalties for noncompliance)
- United States v. Montalvo-Murillo, 495 U.S. 711 (U.S. Supreme Court 1990) (no precondition to detention hearing for timing error; government may detain post-hearing despite delay)
- United States v. James Daniel Good Real Prop., 510 U.S. 43 (U.S. Supreme Court 1993) (public policy against prejudicing the public when timing requirements are imperfectly followed)
- United States v. St. Cyr, 533 U.S. 289 (U.S. Supreme Court 2001) (immigration rule of lenity not required to defer to agency interpretations under Chevron in this context)
- Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (U.S. Supreme Court 1984) (establishes framework for deferential review of agency interpretations when statute is ambiguous)
- Landgraf v. USI Film Prods., 511 U.S. 244 (U.S. Supreme Court 1994) (prescribes approach to retroactivity and statutory construction in ambiguity)