Ghanim v. Aviles.
The Department of Homeland Security detained Mohammed Ghanim who lived in the United States since he was three months old. DHS refused to release him and held that he was subject to mandatory detention. It sounds unbelievable that Mr. Ghanim is a flight risk to the extent that no bail can secure his release because he has live in the United States for more than two decades.
Paul Grotas filed a petition for writ of habeas corpus in the Southern District of New York which was victorious. Judge Broderick’s decision includes an excellent explanation of the relevant immigration laws that concern detention.
Thus, under both § 1226(a) and § 1226(c), the Attorney General has the authority to detain a criminal alien pending the completion of removal proceedings. Under § 1226(c), however, the Attorney General lacks discretion to release the alien pending the completion of removal proceedings pursuant to the procedures for setting bond contained in Department of Justice regulations. Put differently, the assertion that § 1226(c) gives ICE the “authority” to impose “mandatory” no-bond detention is contradiction in terms. No-bond detention pursuant to § 1226(c) is described as “mandatory” precisely because ICE has no choice but to impose it.
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 Broderick rejected ICE’s interpretation holding that:
This would permit the Government to intentionally permit criminal aliens to be released from criminal custody and at its leisure at some point in the future take them into custody. This construction is contrary to the purpose and plain meaning of the statute, which eliminates the Attorney General’s discretion to set bond only for those aliens taken into immigration detention at a time reasonably coincident with their release from criminal custody. Whatever the outer limits of such a reasonable period, the six months and nine years
between Ghanim’s release from criminal custody and his detention
This case is helpful for any immigrant who has been detained by ICE more than six months after he was released from criminal custody. If your family member is in this situation you should contact my office immediately. 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.