OPINION & ORDER
On Junе 5, 2014, Petitioner Patrick Baker was taken into custody by U.S. Immigration and Customs Enforcement (“ICE”), an agency within the U.S. Department of Homeland Security (“DHS”). Petitioner is currently detained at the Hudson County Correctional Center in Kearny, New Jersey and is facing removal proceedings based on his prior criminal convictions. Petitioner was detained by ICE pursuant to the Immigration and Nationality Act (“INA”) § 236(c), 8 U.S.C. § 1226(c), the mandatory detention statute that requires the Attorney General to detain certain classes of criminal aliens “when the alien is released” from criminal custody. 8 U.S.C. § 1226(c)(1). Petitioner’s request for a bond hearing pending the removal proceedings was denied.
On December 2, 2014, Petitioner filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241. Petitioner presents two arguments against the application of the mandatory detention statute in this case. First, he argues that, undеr the plain language of the statute, Section 1226(c) only applies where an alien is taken into ICE custody immediately upon the alien’s release from non-ICE custody. Given the four-and-a-half-year gap between his release from criminal custody and when ICE detained him, Petitioner argues that he is not subject to mandatory detention because he was not taken into ICE custody under the meaning of the phrase “when ... released.” 8 U.S.C. 1226(c)(1). Second, Petitioner argues that his mandatory detention violates the Due Process Clause of the Fifth Amendment. Accordingly, Petitioner claims that he is entitled to an individualized bond hearing under INA § 236(a), 8 U.S.C. § 1226(a).
I. BACKGROUND
Petitioner is a citizen and native of Jamaica. (Pet. Br. (Dkt. No. 9) Ex. 1 (“Notice to Appear”).) On June 18, 1989, Petitioner entered the United States as a lawful permanent resident. (Id.) At the time of his detention, Petitioner and his girlfriend, Chavonda Wilkins — a United States citizen — were living in a homeless
In the twenty-five years that Petitioner has lived in the United States, he has been arrested six times. (Id. Ex. 3 (“Certificate of Disposition”).) Most recently, Petitioner was arrested on December 14, 2009 for failure to pay the subway fare in violation of New York Penal Law § 165.15. (Id. at 6) Petitioner pled guilty to the charge on December 15, 2009, agreed to perform three days of community service, and was released from custody. (Id.)
On June 5, 2014 — approximately four and a half years after he was released from custody — Petitioner was detained by ICE agents outside of the homeless shelter that he was living in with his family. (Id.; Wilkins Affidavit ¶ 8.) Petitioner was transferred to the Hudson County Correctional Center in Kearny, New Jersey. (Id. Ex. 4 (“ICE Detainee Locator System”).) On June 5, 2014, ICE initiated removal .proceedings against Petitioner by serving him with a Notice to Appear, charging that Petitioner is removable from the United States pursuant to INA §§ 237(a)(2)(A)©-(iii), for having been convicted of two or more crimes involving moral turpitude and for having been convicted of an aggravated felony. (Notice to Appear.) The Notice to Appear specified that Petitioner was subject to removal for (1) a 1994 conviction for attempted robbery in the second degree; (2) a 1995 conviction for sexual misconduct; and (3) a 2005 conviction for menacing in the second degree. (Id.) On August 6, 2014, the Immigration Judge (“IJ”) sustained the charge of removability for the two crimes involving moral turpitude, pursuant to INA § 237(a)(2)(A)(ii), but declined to find that Petitioner hаd been convicted of an aggravated felony. (See id. Ex. 5 (“IJ Order”); Resp. Br. (Dkt. No. 11) at 3.)
On December 2, 2014, Petitioner appeared before IJ Thomas Mulligan to (1) challenge ICE’s determination that he. was subject to mandatory detention under 8 U.S.C. § 1226(c); and (2) request that the IJ allow him to be released upon the posting of a bond. (IJ Order; see also Resp. Br. at 3.) On February 12, 2015, Judge Mulligan determined that Petitioner’s two convictions for crimes involving moral turpitude subjected him to mandatory detention, and he denied Petitioner’s request for a change in custody status. (See IJ Order.)
On December 2, 2014 — while he was temporarily detained in the Southern District of New York — Petitioner filed this habeas petition.
II. DISCUSSION
“To obtain habeas relief pursuant to 28 U.S.C. § 2241, a petitioner must demon
A. MANDATORY DETENTION UNDER INA SECTION 236(c)
Section 236 of the INA, codified at 8 U.S.C. § 1226, governs the apprehension and detention of aliens. “When an alien is arrested and detained pending a decision on removal, DHS generally has the discretion to release him on bond.” Young v. Aviles,
The Attorney General shall take into custody any alien who—
(A) is inadmissible by reason of haying committed any offense covered in section 1182(a)(2) of this title,
(B) is deportable by reason of having committed any offense covered in section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title,
(C) is deportable under section 1227(a)(2)(A)® of this title on the basis of an offense for which the alien has been sentence[d] to a term of imprisonment of at least 1 year, or
(D) is inadmissible under section 1182(a)(3)(B) of this title or deportable under section 1227(a)(4)(B) of this title,
when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense.
8 U.S.C. § 1226(c)(1) (emphasis added).
Here, Petitioner does not dispute that he qualifies for removal under the crimes enumerated in § 1227(a)(2) (A) (ii). Instead, Petitioner argues that the language in Section 1226(c)(1) requiring that DHS take certain aliens into custody “when ... released” means that an alien must be taken into ICE custody immediately after the alien is released from criminal custody. (See Pet. Br. at 4.) Because Petitioner was not detained until June 2, 2014 — nearly five years after his last arrest and nine years after the underlying conviction for which Petitioner is facing removal proceedings — he argues that he is not subject to mandatory detention.' (See id) By contrast, the Government argues that Section 1226(c) applies even though Petitioner was not immediately detained upon his release from criminal custody. (See Resp. Br. at 9-13.)
As an initial matter, courts in this district are split on whether aliens, such as Petitioner, who are not detained immediately upon their release from criminal custody are subject to mandatory detention under Section 1226(c). Indeed, judges in this district who have tackled the meaning of the phrase “when released” have divided into two schools of interpretation: the “duty-triggering” construction and the “time-limiting” construction. Straker v. Jones,
Although the Third and Fourth Circuits have adopted the “duty-triggering” construction, the Second Circuit and the Supreme Court have not yet addressed this issue. See Hosh v. Lucero,
1. Statutory Interpretation
“Statutory analysis begins with the text and its plain meaning, if it has one.” Gottlieb v. Carnival Corp.,
“If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc.,
2. The Plain Language of the Statute is Ambiguous
Petitioner argues that under the plain language of the statute, the phrase “when ... released” requires that “detention occur immediately after release from non-DHS custody.” (Pet. Br. at 10-11; see also id. at 9-11 (citing cases).) In his reply brief, Petitioner further argues that, had Congress intended for mandatory detention to apply to aliens at any time after they were released, (1) Congress would have used the word “after” instead of “when”; and (2) the phrase “when ... released” would be superfluous. (See Pеt. Reply at 3-4.) In the alternative, Petitioner argues that, even if the term is ambiguous, the Government’s interpretation is unreasonable.
As illustrated by the diverging opinions in this district concerning the meaning of the word “when,” this Court cannot conclude that the phrase “when ... released” is unambiguous. For example, “[a]s several courts have explained, ‘[t]he term “when” includes the characteristic of “immediacy,” referring in its primary conjunctive sense, to action or activity occurring “at the time that” or “as soon as” other action has ceased or begun.’ ” Lora v. Shanahan,
This Court is unpersuaded by Petitioner’s arguments to the contrary. In Lora v. Shanahan, cited by Petitioner, the court
Petitioner next argues that the Government’s interpretation of “when ... released” would violate the rule against surplusage. In so doing, Petitioner relies on the distinction between 8 U.S.C. § 1226(c) and 8 U.S.C. § 1226a(a) — which relаtes to the detention of suspected terrorist aliens and, notably, does not include the phrase “when ... released.” Section 1226a(a) provides, in relevant part, that “[t]he Attorney General shall take into custody any alien who is certified under paragraph (3).” 8 U.S.C. § 1226a(a)(l). It is true that “ ‘[wjhere Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.’ ” Nken v. Holder,
Petitioner ignores the possibility that the phrase may also serve as a condition precеdent: an alien qualifying for removal pursuant to Section 1226(c) must first be released from criminal custody before ICE has authority to detain him. No similar requirement exists for alien terrorists. See Straker,
Finally, Petitioner contends that, even if the term is ambiguous, the Government’s interpretation is unreasonable because Pe
3. Agency’s Interpretation
In Rojas, the non-citizen respondent argued that he was not subject to mandatory detention under Section 1226(c) because immigration authorities did not take him into custody until two days after his release. Like Petitioner here, respondent argued that he was not detained “ ‘when ... releaséd’ from incarceration, but rather was free in the community before being detained by [immigration].” Rojas, 23 I. & N. Dec. at 118.
In determining whether respondent was subject to mandatory detention, the BIA explained that “[t]he mandatory detention aspects of the statute ... derive from the language of [Section 1226(c)(2) ]” which “specifies that the Attorney General may release ‘an alien described in paragraph (1)’ only if certain strict conditions are met.” Id. at 119. Thus, the issue presented was “whether the respondent [was] ‘an alien described in paragraph (1)’ of [Section 1226(c) ], even though he was not immediately taken into custody by [immigration] when he was released from his criminal custody.” Id. To resolve that issue, the BIA explained that it “must determine whether an ‘alien described in paragraph (1)’ is a statutory reference to any alien who falls simply within the discrete language of [Section 1226(c)(l)(A)-(D) ], or whether it additionally refers to an alien who is taken into [immigration] custody ‘when the alien is released.’ ” Id. In other words, the BIA was required to “determine whether or not the phrase “when the alien is released’ is a necessary part of the description of the alien in paragraph (1).” Id.
In addressing this question, the BIA found that the language of ‘an alien described in paragraph (1),’ “when read in isolation, [is] susceptible to different readings.” Id. at 120. Specifically, the BIA found that the literal language “does not' unambiguously [indicate] whether it encompasses the ‘when the alien is released’ clause in [Section 1226(c)(1) ] or merely references the four categories of aliens described in subparagraphs (A) through (D).” Id. Nonetheless, the BIA determined that
[t]he statutory reference to “an alien described in paragraph (1)” seems to us most appropriately to, be a reference to an alien described by one of four sub-paragraphs, (A) through (D). The “description” of the alien does not naturally appear to include any or all of the concluding clauses of paragraph (1), namely the сlauses directing that a described alien be taken into custody “when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense.”
Id. at 121. To that end, the BIA concluded that “the duty to detain is not affected by the character of an alien’s release from criminal incarceration ...” Id. In relevant part, the BIA held “that the respon
This Court cannot conclude that the BIA’s interpretation is “arbitrary, capricious, or manifestly contrary to the statute.” Chevron,
4. Legislative Purpose of Section 1226(c)
In Demore v. Kim,
Congress adopted this provision against a backdrop of wholesale failure by the INS to deal with increasing rates of criminal activity by aliens. Criminal aliens were the fastest growing segment of the federal prison population, already constituting roughly 25% of all federal prisoners, and they formed a rapidly rising share of state prison populations as well. Congress’ investigations showed, however, that the INS could not even identify most deportable aliens, much less locate them and remove them from the country. One study showed that, at the then-current rate of deportation, it would take 23 years to remove every criminal alien already subject to deportation. Making matters worse, criminal aliens who were deported swiftly reentered the country illegally in great numbers....
Congress also had before it evidence that one of the major causes of the INS’ failure to remove deportable criminal aliens was the agency’s failure to detain those aliens during their deportation proceedings. The Attorney General at the time had broad discretion to conduct individualized bond hearings and to release criminal aliens from custody during their removal proceedings when those aliens were determined not to present an excessive flight risk or threat to society. Despite this discretion to conduct bond hearings, however, in practice the INS faced severe limitations on funding and detention space, which considerations affected its release determinations.
Once released, more than 20% of deport-ablе criminal aliens failed to appear for their removal hearings.... Congress [therefore] enacted 8 U.S.C. § 1226, requiring the Attorney General to detain a subset of deportable criminal aliens pending a determination of their removability.
Demore,
Petitioner nevertheless argues that in enacting Section 1226(c), Congress intended to target a specific group of aliens “who were recently released from criminal custody and were presumptively considered risks of flight and recidivism.” (Pet. Reply at 4.) In this way, Petitioner claims that “[t]he purpose of the statute is not being served when somеone who has been peaceably living in the community for many years is suddenly detained.” (Id. at 4-5.)
Petitioner also contends that “[t]he enactment of the TPCR would not have been necessary if § 1226(c) allowed the government to subject someone to mandatory detention at any time after release.” (Pet. Reply at 5.) Instead, “Congress could have foregone enacting the TPCR entirely and allowed the government to implement § 1226(c) on a rolling basis as resources allowed.” (Id. (citation omitted).) Although this argument is appealing, this Court ultimately finds it unpersuasive.
In enacting Section 1226(c), Congress intended to eliminate discretion from the Attorney General to conduct bond hearings for certain criminal aliens and to take an aggressive approach in detaining that particular group. See Hosh,
Moreover, there were practical reasons for delaying the enactment of Section 1226(c). If 1226(c) had been enacted immediately, the agency may have found itself overwhelmed and unable to comply with the mandatory statute. In fact, between the time that Petitioner was released from criminal custody and detained by ICE, the agency was not in compliance with the statute. In providing a two-year delay, Congress allowed the agency to prepare for the mandatory rule by, for example, finding more detention space or hiring more personnel.
Finally, Petitioner’s statutory interpretation would bestow a windfall to those aliens who, by luck, were not immediately detained upon their release from criminal custody. Petitioner argues that “the Government [would] still ha[ve] the authority under § 1226(a) to take criminal aliens into custody, and to assert at a bond hearing that the alien is a danger to the community or a flight risk.” (Pet. Reply at 7.) In other words, authorizing a bond hearing would not necessarily require that Petitioner be released and would offer no windfall. Contrary to Petitioner’s аssertion, however, the windfall is an alien’s eligibility “for a hearing- — -which could lead to his release — merely because an official missed the deadline.” Sylvain,
B. DUE PROCESS CLAUSE
Under the Fifth Amendment of the Constitution, “[n]o person shall ... be deprived of ... liberty ... without due process of law____” U.S. Const, amend. V. “It is well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings.” Reno v. Flores,
“In Demore v. Kim, the Supreme Court rejected a facial challenge to the constitutionality of § 1226(c) and held that mandatory detention during the ‘brief period necessary for ... removal proceedings,’ is constitutional as ‘part of the means necessary to give effect’ to removal provisions in
Here, Petitioner argues that his mandatory detention violates the Due Process Clause because (1) there was an approximate five-year time gap between his release from criminal custody and his ICE detention; and (2) he has been held in ICE detention since June 5, 2014 — or approximately eleven months.
1. Delay between Criminal Release and ICE Detention
Petitioner argues that Section 1226(c) is unconstitutional as applied to him because in Demore, the Supreme Court “did not address whether it violates due process where there has been a significant delay in pursuing or completing deportation proceedings.” (Pеt. Reply at 7-8) In fact, Petitioner argues that the Court left open the possibility to challenge mandatory detention based on a delay. See Demore,
Petitioner also relies on Zadvydas to argue that “mandatory detention at this time, after his life сircumstances have changed, no longer bears a reasonable relationship to the asserted purpose of the statute.” (Pet, Reply at 8.) In Zadvydas, the Court held that, pursuant to 8 U.S.C. § 1231 — which governs an alien’s detention following an order of removal — continued detention of an alien after the 90-day removal period expires is permissible only for a period that is “reasonably necessary to secure removal.” Zadvydas, 533 U.S: at 699,
As a threshold matter, Petitioner’s interpretation of Zadvydas is misguided. (See
In arguing that he is entitled to a bond hearing, Petitioner contends that he “is no longer a danger to the community” and “has no incentive to flee.” (Pet. Reply at 8.) Yet this is exactly the type of discretionary decision-making that Congress sought to eliminate in enacting Section 1226(c), which the Supreme Court found constitutional in Demore. See Demore,
2. Mandatory Detention of Eleven Months
In Demore, the Supreme Court held that “detention necessarily serves the purpose of preventing deportable criminal aliens from fleeing prior to or during their removal proceedings ...” Demore,
Though the Second Circuit has yet to address this issue, many courts in this district have since agreed that a prolonged detention without an individualized bond hearing may violate the due process clause. In so doing, many courts have looked to Justice Kennedy’s concurrence in Demore, which clarified that, “since the Due Process Clause prohibits arbitrary deprivations of liberty, a lawful permanent resident alien such as respondent could be entitled to an individualized determination as to his risk of flight and dangerousness if the continued detention became unreasonable or unjustified.” Id. at 532,
However, most courts have not set out a precise length of detentiоn that necessarily presents constitutional problems but have rather considered the “totality of the circumstances” of each case to determine whether a particular detention is “unreasonable or unjustified.” Id. at 412. Here, Petitioner contends that his prolonged detention of over eleven months violates the Due Process Clause. Indeed, this period is longer than the amount of time that was found constitutional in Demore (six months) and nearly double the amount of time contemplated by the Supreme Court to occur in “the minority of cases” (five months). Demore,
As already indicated, however, the length of detention is not dispositive. Indeed, courts have found shorter periods of detention unreasonable. See, e.g., Araujo-Cortes,
Reasonableness, by its very nature, is a fact-dependent inquiry requiring an assessment of all of the circumstances of any given case. That being said, we note that the reasonableness of any given detention pursuant to § 1226(c) is a function of whether it is necessary to fulfill the purpose of the statute, and, given that Congress and the Supreme Court believed those purposes would be fulfilled in the vast majority of cases within a month and a half, and five months at a maximum, the constitutional case for continued detention without inquiry into its necessity becomes more and more ^suspect as detention continues past those thresholds.
In Johnson v. Orsino, Judge Castel summarized the “proper context” for assessing thе reasonableness of detention, stating that courts generally consider “factors such as which party bears responsibility for the prolonged detention, whether the continued duration of the detention is finite or near conclusion, and the interests served by continued detention.” Johnson,
Under these factors, Petitioner’s eleven-month detention does not appear unreasonable. First, there is no evidence in the record that the Government has unreasonably prolonged Petitioner’s removal proceedings. See Adler,
Second, “there is no indication that [Petitioner’s] continued detention ... will last indefinitely or for a lengthy period of additional time.” Id. at 410; see also Young,
Finally, the Government’s interests in avoiding flight justify Petitioner’s detention. Other than vague references to the complications of his removal proceedings, Petitioner has offered nothing to suggest that he is not in fact removable based on his past crimes of moral turpitude. Though the length of time since committing these acts may indeed render the danger to the community justification for detention less compelling, the likelihood of removal might incentivize flight — especially when Petitioner and his family have no stable housing in the area. (See Wilkins Aff. ¶¶ 7, 13.) “Therefore, ‘[t]he primary justification for detention under [section 1226(c) ] — curbing the risk that a deportable alien will flee — ... remains relevant to [Petitioner’s] case, and it cannot be said that his detention is unjustified.’ ” Johnson,
Based on the totality of the circumstances, the Court concludes that Petitioner’s continued detention does not violate the Due Process Clause. The Court acknowledges, however, that this analysis could change if Petitioner’s continued detention extends for reasons beyond his control for a significant additional period of time. Accordingly, Petitioner may seek leave to re-file his petition only with respect to his due process claim upon a demonstration of changed circumstances reflecting unreasonable detention. Petitioner may not, however, seek leave to reargue any of his claims regarding the applicability of Section 1226(c) or his сlaim that the gap between release from criminal custody and ICE detention violates due process.
CONCLUSION
For the reasons stated above and to the extent provided above, Petitioner’s petition for a writ of habeas corpus [dkt. no. 2] is DENIED. Any request for leave to refile the petition on due process grounds shall be made by letter to the Court explaining the relevant changed circumstances.
SO ORDERED.
Notes
. On February 12, 2015, the Immigration Court also held a hearing on the merits of Petitioner’s application for relief. (Kling Aff. (Dkt. No. 12) ¶ 2.) The Immigration Judge (“IJ”), however, has not yet made a decision on the merits of Petitioner's application and is awaiting further documentation from criminal court in order to issue a ruling. (Id. ¶¶ 3-4.) Petitioner was scheduled to appear before the Immigration Court on April 21, 2015. (Id. ¶ 5.)
. The Government does not object to this . Court's jurisdiction over the habeas petitiоn. (See Resp. Br. at 3 n. 4.)
. “Congress enacted this provision pursuant to section 303(b) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA”)....” Louisaire v. Muller,
. Indeed, as one court in this district noted, "[anticipating that the INS may not have