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Our Immigration Law Blog

By The Grotas Firm, PC

Habeas Corpus Victory in the Southern District of New York on all three arguments presented.

Figueroa v. Aviles. 

The Department of Homeland Security detained Carlos Figueroa who has lived in the United States for many years.   DHS refused to release  him and held that he was subject to mandatory detention.  It sounds inconceivable that Mr. Figueroa is a flight risk to the extent that no bail can secure his release because he has two children who live in New York who has serious health issues. Additionally, he has numerous health issues to contend with.
Paul Grotas filed a petition for writ of habeas corpus in the Southern District of New York which was victorious on all three arguments. He filed a habeas corpus on based upon the “release argument”,  the “when released argument” and the “due process argument”.

The “When Released” Argument.

The “when released” argument  concerns whether ICE must take an immigrant into custody when he is released from criminal custody.  ICE says that there is no time limitation on when an immigrant must be taken into custody.  Judge Torres cited to Judge Schiendlin’s decision in Martinez-Done v. McConnell in holding that:

ICE apprehended Figueroa over five years after he was arrested in connection
with the relevant narcotics offense and four years after he pleaded guilty to the charge.
Because he was not timely detained he is not subject to mandatory detention under             1226(C).

Judge Torres’ decision is grounded in a First Circuit Court of Appeals Decision called Saysana. “The mandatory detention provision does not reflect a general policy in favor of detention; instead, it outlines specific, serious circumstances under which the ordinary procedures for release on bond at the discretion of the immigration judge should not apply. Saysana v. Gillen, 590 F. 3d 7, 16 (1st Cir. 2009)

The “Released” Argument.

Also, Judge Torres granted the Writ of Habeas Corpus on the “released ground”.  The released argument concerns whether an immigrant is subject to mandatory detention if they have never been released from jail. If an immigrant is convicted of a crime and then is sentenced to probation, has he been released?

Judge Torres’ decision cites to a decision by Judge Englemayer’s decision in Strayker v. Jones, 986 F. 2d 345 (S.D.N.Y. 2013).
In Straker v. Jones, 986 F. Supp. 2d 345 (S.D.N.Y. 2013), the Honorable Paul A. Engelmayer rejected Respondents’ argument. After engaging in a painstaking statutory construction of the mandatory detention statute, the Court held that an alien is “released”           within the meaning of the statute only when he or she is released from “physical restraint,” such as imprisonment, pursuant to a conviction for an enumerated offense. !d. at 356-63; accordMartinez-Done v. McConnell, No. 14 Civ. 3071, 2014 WL 5032438, at *5 (S.D.N.Y. Oct. 8, 2014). The Court concluded that the petitioner’s “post-arrest releases, prior to each ofhis crackrelated convictions, did not constitute a ‘release’ within the meaning of§ 1226(c)(l).” Straker,
986 F. Supp. at 360. Thus, because the petitioner had never been imprisoned or otherwise subjected to physical restraint after a conviction,§ 1226(c) did not apply to him. !d. at 362-63.

The “Prolonged Detention” Argument

Finally, Judge Torres, held that the length of Mr. Figueroa’s detention was unconstitutional.  Judge Torres cited to several recent decisions which held that the detention of immigrants without bond is unconstitutional.

This case is helpful for any immigrant who can not get an immigration bond. Finally, I am working on a book on petitions for writ of habeas corpus and freeing immigrants from jail. Sign up below for more information about it.

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