In what is surely a landmark decision, the District Court of New Jersey granted habeas corpus and found that mandatory detention under the Immigration and Naturalization Act § 236(c) does not apply when the noncitizen was taken into custody over 12 years after the statutory offense. This is a very important decision because it effectively sets a limit on the time frame an individual can be tried and detained for past criminal convictions.
The petitioner in this case is from the Dominican Republican and immigrated to the U.S. in 1992 as a lawful permanent resident, living in Westchester County, New York over the last twenty years. In 2011 he married a U.S. citizen and had a son in 2007. In the year 2000 he had pled guilty to criminal possession of a controlled substance in the 7th degree in violation of New York Penal Law and was sentenced to three days of imprisonment for that misdemeanor. In 2010 he was once again found breaking the law and this time pled guilty to a DWI offense and was sentenced to three years of probation, which in 2011 he violated by operating a motor vehicle without a license and was sentenced to six months of imprisonment. On March 5, 2012, he was transferred from state custody to custody under the Immigration and Customs Enforcement (ICE) and because of the controlled substance conviction he had had 12 years prior, he was considered deportable under law.
The petitioner had argued that he should not be subjected to mandatory detention because the Department of Homeland Security (DHS) did not do it immediately after he was released from his criminal offense conviction, and so now, 12 years later, it was not applicable since under the law DHS is required to immediately detain an alien upon release from criminal incarceration. While the government argued the position that the language in the law was worded loosely, among other things, the judge ultimately granted a ruling in favor of the petitioner and referring the case to an immigration judge. This case will surely be followed by many more and will definitely set precedent in this matter.
