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US dist ct: Mandatory detention applies only if detained upon release from crim custody

The U.S. District Court for the Eastern District of Virginia recently kept up its practice of holding that the INA’s mandatory detention provision, INA § 236(c), applies only to individuals who ICE detains upon release from criminal custody. Hosh v. Lucero, No. 1:11-cv-464, 2011 WL 1871222 (E.D. Va. May 16, 2011) (Trenga, J.).

The individual involved here, Hosh, is an LPR charged as removable for having been convicted of an aggravated felony and thus subject to mandatory detention pursuant to INA § 236(c)(1)(B). ICE did not arrest Hosh until sometime after he had successfully completed his sentence.

The government argued that Hosh was subject to mandatory detention despite the gap between the completion of his sentence and his arrest by ICE agents. Because he was subject to mandatory detention, DHS further argued, he could be released only pursuant to INA § 236(c)(2) which allows for release of someone subject to mandatory detention if

“release…is necessary to provide protection to a witness, a potential witness, a person cooperating with an investigation into major criminal activity, or an immediate family member or close associate of a witness, potential witness, or person cooperating with such an investigation, and the alien satisfies the Attorney General that the alien will not pose a danger…and is likely to appear for any scheduled proceeding.”

There is no question that § 236(c)(2) did not apply to Hosh.

The court had no difficulty disagreeing with DHS. “In at least three other cases in this District,” Judge Trenga explained, “the Court has ruled that the mandatory detention provisions of Section 1226(c) [INA § 236(c)] do not apply in those circumstances. Rather, where the United States has not taken an alien into custody for deportation based on a designated offense when he is released from custody pertaining to that offense, as Section 1226(c) directs, an arrested alien’s right to an individualized bond hearing is governed by Section 1226(a), not Section 1226(c)(2).” Hosh, 2011 WL 1871222, at *1. Accordingly, Hosh is entitled to a bond hearing pursuant to INA § 236(a). Hosh, 2011 WL 1871222, at *3.

The court added that requiring the government to grant Hosh an individualized bond hearing does not “threaten[] the public safety since immigration officials have wide latitude and discretion in determining within the context of a hearing held pursuant to Section 1226(a) whether and under what conditions release should occur.” Hosh, 2011 WL 1871222, at *3.

Comments

  1. I am happy that the U.S. District Court for the Eastern District of Virginia, a court not known to be alien friendly, has adopted again the reasoning that I successfully argued in the first case, Waffi v. Loiselle, that the BIA has misconstrued the language of section 236(c) of the INA to hold, e.g., Matter of Rosas, that the “when released” language of the section means mandatory detention applies even if ICE detains the alien months or years after the alien was released from serving time for the offense. I have heard that this argument has also prevailed in habeas actions in the Middle District of Pennsylvania that were filed after the Waffi decision based on my pleadings. I encourage other attorneys to use this statutory argument as well as the constitutional ones in habeas actions for clients that ICE detains long after they served their time.

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  5. 4th circuit has overturned HOSH, remanded back to the District court to revoke the bond since Rojas controls, according the 4th circuit court of appeals. Deference was afforded to the BIA interpurtation of 1226(c)

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  6. AILA recently submitted an amicus brief to the Fourth Circuit supporting en banc rehearing. Here’s part of the brief’s Introduction:

    In Hosh v. Lucero, a panel of this court created a statutory ambiguity where none exists in determining whether deference under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) was owed to the Board of Immigration Appeals’ (“BIA” or “Board”) interpretation of 8 U.S.C. § 1226(c) in Matter of Rojas, 23 I.&N. Dec. 117 (BIA 2001). In analyzing whether the “when the alien is released” language of 8 U.S.C. § 1226(c) requires mandatory detention of certain removable individuals (1) at the time of their release or (2) at any time after, the panel in Hosh spent a single paragraph analyzing a single word in the statute – the word “when” – to determine that the statute was ambiguous and the Board’s interpretation was entitled to deference. This cursory analysis under “Chevron step one” ignored the plain meaning of the statutory language as well as the remainder of the section of 8 U.S.C. § 1226(c) and the overall statutory scheme. As this case is fully resolved at Chevron step one, there is no need to determine whether the Board’s decision in Rojas was a reasonable interpretation of the statute.

    The issue of the limits of mandatory detention is of exceptional importance. The panel’s decision deferring to the BIA’s interpretation subjects thousands of noncitizens to lengthy detention without any review of their individual circumstances. The right to challenge detention and receive an individualized hearing before a neutral decisionmaker is among the most cherished of constitutionally protected interests, namely, liberty.

    No word when the Fourth Circuit is expected to decide whether to grant rehearing.

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  7. IT SHOULD BE NOTED THE 4TH CIRCUIT DENIED ENBANC REVIEW 10 DAYS AFTER THE EXPIRATION OF THE PETITION PERIOD. EVEN THOUGH AMICA WAS SUBMITTED ON THE 17TH OF JULY, REVIEW WAS DENIED THE 25TH OF JULY.

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