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Our Immigration Law Blog

By The Grotas Firm, PC

Judge Sullivan Grants a Petition for Writ of Habeas Corpus and Builds on Judge Engelmayer’s decision in Strayker v. Jones

Luis Escrogin Lugo v. Aviles

Luis Hugo Escrogin was arrested by Immigration and Customs Enforcement (ICE) and
the Immigration Judge held that he could not release him from jail. Mr. Escrogin has been a green card holder since 1997, and has resided in the Bronx, NY.  Despite his numerous health ailments, ICE refused to release Mr. Escrogin.
Paul Grotas filed a writ of habeas corpus based upon the “released argument,” which states that an immigrant is not subject to mandatory detention if they have never been sentenced to a period of incarceration.  The question then remains, if an immigrant is convicted of a crime for which he is sentenced to probation, has he been “released”?  Paul Grotas argued that the mandatory detention statute requires a release according to the plain language of the statute, and therefore a sentence of probation is insufficient.  On the other hand, ICE argues that the mandatory detention does not require a release.

The issues before the Court involved the interpretation of section 236( c) of the INA, which reads in its entirety:
Section 1226(c)(1) provides:
(c) Detention of criminal aliens.
(1)  The Attorney General shall take into custody any alien who
(A) is inadmissible by reason of having 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)(I) of this title on the basis of an offense for which the alien has been sentence 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.

Judge Sullivan’s decision had a unique and interesting analysis of the mandatory detention statute.  Here, there is no dispute that DHS may not detain an alien pursuant to section 236(c) unless two prerequisites have been met: ( 1) conviction for an offense that renders the alien deportable, and (2) a qualifying “release.” (See Doc. No. 12 at 11:24-12:3, 13:21-24, 16:15-20, 19:18-25.) The parties disagree, however, as to whether these requirements must occur in this sequence.

In sum, the Court finds that the statute unambiguously requires (1) a qualifying conviction and (2) release from physical restraint, in that sequence, before DHS may subject a deportable alien to mandatory detention. Here, Petitioner was never “released” from a form of physical restraint following either the 2008 Conviction or the 2011 Conviction. Despite the fact that Petitioner’s 2009 arrest occurred while he was serving probation for the 2008 Conviction and ultimately lead to the 2011 Conviction, the 2009 arrest does not constitute a qualifying “release” since it was not “tied to the offense(s) on which deportability is premised.” Gomez, 2011 WL 2224768, at *2 (“[U]nder the [Board’s] current interpretation [in Matter of Garcia-Arreola, 25 I. & N. Dec. 267, 267 (BIA 201 0)], ICE has mandatory-detention authority with respect to an alien who has been released from custody relating to an offense enumerated in INA§ 236(c)(l) … “).

No previous court has stated that the mandatory detention statute requires the occurrence of a sequence of events. It is an interesting analysis which can assist future attorneys in the preparation of a writ in order to secure an immigrants release. Also, it builds on Judge Engelmayer’s decision in Strayker v. Jones

This decision can help attorneys who are seeking to free immigrants who have been labeled as subject to mandatory detention.  Also, it can help immigrants who are subject to mandatory detention, despite never being sentenced to a period of incarceration.

See more.

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