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.