District Court rejects Rojas

Khodr v. Adduci, 2010 WL 931860, No. 10-cv-10505 (E.D. Mich. Mar. 11, 2010).

First, the court examined the immediate custodian rule in habeas petitions.  The alien named the ICE Field Office Director but not the warden of the county jail.  After reviewing Roman v. Ashcroft, 340 F.3d 314 (6th Cir. 2003) and Rumsfeld v. Padilla, 542 U.S. 426 (2004), the court held that the ICE Field Office Director is the proper respondent.  Even if she was not, venue was proper because the alien was detained in the Eastern District, the U.S. Attorney's Office would have represented the Respondent, and the error would be harmless.

Turning to the merits.  More than four years after being released from criminal custody following a federal conspiracy to possess with intent to delivery heroin conviction, ICE detained the alien and alleged that he was subject to mandatory detention. The IJ agreed, citing Matter of Rojas, 23 I&N Dec. 117 (BIA 2001).  The alien did not appeal to the BIA, as it would have been futile, and instead filed a habeas petition.

The court granted the habeas petition, finding that 236(c) imposes an "immediacy" requirement.  This means that ICE has a "reasonable period" to take criminal aliens into custody after their release from criminal confinement.  If the statutory language "when released" is to have any effect, it must mean that ICE must detain the alien within a reasonable time following release from criminal custody for mandatory detention to apply.  The alien was granted a bond hearing in Immigration Court.