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Our Immigration Law Blog

By The Grotas Firm, PC

The Department of Homeland Security can not Incarcerate an Immigrant for More Than One Year without a Bond Hearing

Minto v. Decker

Dwayne Minto was in immigration jail for over one year because of two old marijuana convictions and a simple assault conviction for which he was not sentenced to any jail time.  The Department of Homeland Security refused to release him and held that he was subject to mandatory detention.  Why would the Department of Homeland Security put Mr. Minto in jail for more than one year  because of criminal offenses where he never served a day in prison?

Paul Grotas filed a petition for writ of habeas corpus in the Southern District of New York which was victorious. This case is interesting because both the Magistrate Judge and the Judge granted the petition for different reasons.  Magistrate Judge Kevin Nathaniel Fox rejected the when released and released argument, but granted the habeas on theory that it is unconstitutional to detain someone for almost one year. Specifically, the judge held that Minto:

(a) has significant ties to family and community, including providing support for his

family; (b) has been detained without a bond hearing for almost 12 months; (c) is continuing to

be detained without a bond hearing and without any reasonably foreseeable resolution of his

removal proceedings; and (d) was released from state custody and nine years elapsed before he

was detained under § 1226(c), the Court finds that continuing his detention without a bond

hearing is unjustified and unreasonable.

After the magistrate judge issued his decision the case was referred to Judge Lorna Schofield. She held that the length of Minto’s detention also violated the constitution. In this regard, Judge Schofield adopted the magistrate decision. Also, Judge Schofield held:

‘the “when . . . released” language in section 236(c) on its face provides that a non-citizen who has committed an enumerated offense shall be detained at or around the time the non-citizen is released from physical custody. As this language is unambiguous, there is no need to consider the BIA’s interpretation of the statute.’ Judge Schofield granted the case on a different ground then the magistrate judge.

This case is helpful for any immigrant who has been detained for more than six months in jail during his removal proceedings. It also helps anyone who was picked up by immigration after he was released from criminal conviction. If your family member is in this situation you should contact my office immediately to provide. If you are an attorney and you find a client in a similar situation then you should contact my office right away.

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.

Judge Schofield’s Decision is attached below

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