Raymond Lahoud writes: "We had a very good
victory today in the MDPA with respect to mandatory detention. This is
a case that I have been working on for years and was before the BIA for
oral arguments last year. The District Court granted our habeas
petition in a strongly worded opinion."
"[T]he Court will grant Bautista’s Habeas Petition insofar as he requests a bail hearing. While courts have declined to establish concrete rules for appropriate detention periods, there exists a point–somewhere around the seven-month mark–where pre-removal detention becomes universally questionable. Bautista’s detention, today nearing twenty-six months, has exceeded by an order of magnitude even the tentative guidelines set by the Supreme Court in Denmore. While Bautista’s mandatory detention is predicated on a different statutory provision than the mandatory provision cited in the above cases falling within this Circuit, the Court rejects the Respondents’ notion that Bautista is owed no due process. And, like § 1226(c), there is no indication in this context that “Congress intended to authorize prolonged, unreasonable, detention without a bond hearing.” Diop, 656 F.3d at 235. In fact, that parole may be granted to such aliens in mandatory detention “whose continued detention is not in the public interest,” 8 C.F.R. § 212.5(b)(5), strongly suggests a lack of congressional intent to authorize unreasonable detention. As a further matter, the Court is skeptical that Bautista’s continued detention serves the public interest. According to Respondent’s own statement, approximately five years had elapsed between Bautista’s 6 latest conviction and his order to appear for a deferred inspection. (Pet’r’s Ex. D). And, since initially being intercepted at the airport, Bautista was allowed to remain free and at large until being finally directed to report. (Id.) This undermines Respondents’ conclusory assertion that Bautista “poses a threat to society.” (Reid Decl. at ¶ 4, Resp’ts’ Ex. 6.) Conversely, Bautista represents that his detention has forced the sale of the family home, caused his lucrative business to go into bankruptcy, and has required that his family–including three young children–seek government assistance to make ends meet. (Pet’r’s Br. at 15, Doc. 1.) Due process has been long overdue to Bautista, and the considerations listed above are among those properly considered at the bond hearing which he is entitled to. CONCLUSION Bautista has been detained for almost twenty-six months without an individualized bond hearing. As this is in violation of the due process protections set out in Diop v. ICE/Homeland Security, 656 F.3d 221, 235 (3d Cir. 2011), the Court will grant Bautista’s habeas petition and order a bond hearing.
6 Because of the delay between Bautista’s completion of probation and his detention, if ICE had chosen to detain Bautista for his prior crimes while he was within the United States, he would have been detained under 8 U.S.C. § 1226(a), which does not require mandatory detention. It is an unfortunate consequence that because Bautista openly and voluntarily presented himself to the customs agent that he is now in mandatory detention. Yet, Bautista’s honest reporting is a factor to be considered at his bond hearing." - Bautista v. Sobol, May 24, 2012.