MICHAEL T. PURCELL, Lake Oswego, Oregon, Attorney for Petitioner.
S. AMANDA MARSHALL, United States Attorney, JAMES E. COX, JR., Assistant United States Attorney, Portland, Oregon, Attorneys for Respondents.
OPINION AND ORDER
ANNA J. BROWN, District Judge.
Petitioner, currently in the custody of U.S. Immigration and 0ustoms Enforcement (ICE), brings this habeas corpus proceeding pursuant to 28 U.S.C. § 2241. Petitioner argues he is in ICE custody in violation of 8 U.S.C. § 1226(c) because he is currently detained without the opportunity for release on bond. For the reasons set forth below, the petition is DENIED, and this proceeding DISMISSED, with prejudice.
Petitioner is a 38-year old citizen of Mexico who came to the United States without inspection in 1989. On September 11, 2007, Petitioner pled guilty to felony Possession of Cocaine in Oregon state court. Admin. Rec. (#10-3) at 70-79. Petitioner was sentenced to 18 months of probation. Admin. Rec. (#10-3) at 77.
Petitioner first came to the attention of ICE on March 14, 2009 after immigration officials discovered him lodged in the Marion County Jail in Salem, Oregon on misdemeanor charges of Driving Under the Influence of Intoxicants. Admin. Rec. (#10-4) at 8. Immigration officials placed a detainer on Petitioner, who was subsequently released to ICE custody on March 17, 2009. Id . On March 31, an immigration judge (IJ) granted Petitioner release from custody, and set bond at $5, 000. Admin. Rec. (#10-2) at 50. Petitioner's family posted bond the following day and Petitioner was released from custody pending further immigration proceedings. Admin. Rec. (#10-4) at 64-73.
ICE issued Petitioner a Notice to Appear for August 26, 2009. Admin. Rec. (#10-2) at 30-31. On August 20, 2009, however, six days before the date on Petitioner's Notice to Appear, an IJ signed an order stating Petitioner failed to appear at his hearing and ordered Petitioner removed to Mexico. Admin. Rec. (#10-2) at 87. Accordingly, on September 1, 2009, ICE issued a Warrant of Removal/Deportation for Petitioner. Admin. Rec. (#10-2) at 89. On September 11, 2009, Petitioner voluntarily departed the United States by walking across the border at Tijuana, Mexico. Admin. Rec. (#10-4) at 34.
Petitioner subsequently returned to the United States. ICE officials discovered Petitioner on May 30, 2013, when he was arrested on misdemeanor charges of Giving False Information to a Police Officer and Using Another's License. Admin. Rec. (#10-3) at 2. Petitioner pled guilty to those charges on August 27, 2013, but apparently did not go into ICE custody at that time. Admin. Rec. (#10-3) at 80-87. On September 20, 2013, Petitioner was charged with misdemeanor Driving While Suspended, Admin. Rec. (#10-3) at 3. Petitioner was delivered into ICE custody on September 30, 2013. Admin. Rec. (#10-3) at 2.
Although Petitioner was initially denied an opportunity for a bond hearing because he was the subject of an outstanding order of removal from his prior immigration proceedings, on October 29, 2013, the IJ reopened Petitioner's prior removal proceedings. ICE now maintains Petitioner is not entitled to an opportunity for release on bond because Petitioner's 2007 conviction for Possession. of Cocaine subjects him to mandatory detention under 8 U.S.C. § 1226(c)(1). Petitioner filed the instant petition seeking an order instructing ICE to hold a bond hearing or release him, arguing that ICE cannot rely on 8 U.S.C. § 1226(c)(1) as grounds for mandatory detention.
As relevant to this case, the Immigration and Nationality Act (INA) provides that ICE "shall take into custody any alien who" is deportable by reason of having committed a qualifying offense "when the alien is released." 8 U.S.C. § 1226(c)(1) (emphasis added). The parties agree that Petitioner's 2007 cocaine conviction is a qualifying offense. Thus, the only question is whether an alien who is not taken into custody at the time of his release from state custody may nonetheless be subject to mandatory detention under Section 1226(c)(1).
The Board of Immigration Appeals (BIA) interpreted Section 1226(c) to provide that an alien who has committed a qualifying crime is subject to mandatory detention regardless of whether ICE tcok the alien into custody "immediately upon his release from state custody." In re Rolas, 23 I. & N. Dec. 117, 127 (BIA 2001). Thus, the BIA interpreted Section 1226(c)(1), including the "when... released" language, to not limit the timeframe during which ICE nay take an alien into custody and detain the alien pursuant to Section 1226(c) (1).
"The BIA's construction of ambiguous statutory terms in the INA through case-by-case adjudication is entitled to deference under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc." Henriquez-Rivas v. Holder , 707 F.3d 1081, 1087 (9th Cir. 2013) (citing Chevron, 467 U.S. 837, 344 (1984)). The Chevron analysis requires the Court to examine the agency's interpretation of the statute in two sequential steps. First, the Court considers whether the statute is ambiguous as to the precise question at issue. ...